United States Army Corps of Engineers v. Hawkes Co., Inc.

PETITIONER: United States Army Corps of Engineers
RESPONDENT: Hawkes Co., Inc., et al.
LOCATION: The United States District Court for the District of Minnesota

DOCKET NO.: 15-290
DECIDED BY: Roberts Court (2016- )
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 578 US (2016)
GRANTED: Dec 11, 2015
ARGUED: Mar 30, 2016
DECIDED: May 31, 2016

M. Reed Hopper - for the respondents
Malcolm L. Stewart - Deputy Solicitor General, for the petitioner

Facts of the case

Hawkes Co., Inc. (Hawkes) was interested in purchasing a piece of land in northern Minnesota to mine high-quality peat. Hawkes applied to the Army Corps of Engineers (Corps) and the Minnesota Department of Natural Resources for a permit to begin extracting peat from the land once they purchased the property in October 2010. The Corps informed Hawkes that the permit process would be very costly and would take a long time and so urged Hawkes not to purchase the property. The Corps then submitted an Approved Jurisdictional Determination to derail Hawkes’ plan to purchase and mine the property by arguing that the land was a wetland connecting to “waters of the United States,” which are protected under the Clean Water Act. Hawkes challenged the jurisdictional determination and filed an action for immediate judicial review. The trial court dismissed the action and held that the jurisdictional determination was not a “final agency action” under the Administrative Procedure Act, and therefore it was not subject to judicial review. The U.S. Court of Appeals for the Eighth Circuit held that the jurisdictional determination was a final agency action and remanded the action for judicial review.


Is the Army Corps of Engineers’ determination that the property constitutes “water of the United States” a final agency action subject to judicial review under the Administrative Procedure Act?

Media for United States Army Corps of Engineers v. Hawkes Co., Inc.

Audio Transcription for Oral Argument - March 30, 2016 in United States Army Corps of Engineers v. Hawkes Co., Inc.

Audio Transcription for Opinion Announcement - May 31, 2016 in United States Army Corps of Engineers v. Hawkes Co., Inc.

John G. Roberts, Jr.:

I have the opinion of the Court this morning in case 15-290, United States Army Corps of Engineers versus Hawkes.

The Clean Water Act prohibits the discharge of pollutants into navigable waters without a permit from the Army Corps of Engineers.

It can be hard sometimes, however, to figure out what counts as navigable waters.

The term is defined to include not only navigable rivers and lakes but also small bodies of water that might appear isolated to the naked eye but that one way or another drain into and thereby affect navigable waterways.

The term can also include saturated land features such as wetlands and bogs.

Although it can be hard to figure out whether property contains covered waters, a landowner had better get it right before discharging pollutants without a permit because the Clean Water Act carries with it substantial criminal and civil penalties.

But obtaining a permit isn't simple either.

That process can be expensive and take a long time.

Now, one way out of this dilemma for a landowner is to obtain from the Corps of Engineers what is known as an approved jurisdictional determination or a JD.

Without the expense or delay of seeking a permit, a JD let's the landowner know whether the Corps thinks his land is covered by the act.

Now, this case involves a company in Minnesota that mines peat.

Peat is an organic material that forms in wetlands and bogs.

It is used for soil improvement.

You might have used it in gardening.

Peat can also be dried and compressed and used as fuel.

In addition, it has important uses such as the flavor whiskey and to construct stable and smooth golf greens.

The company involved in this case concluded that the peat on its property was of sufficiently high quality to be used for golf greens and it sought a JD from the Corps that would allow it to commence mining.

The Corps issued a JD but the JD had bad news for the landowner.

The Corps had concluded that the land did contain covered waters.

The company disagreed and went to court to get the JD reversed.

It sought review under the Administrative Procedure Act, an important statute that governs procedures and government agencies and sets rules about reviewing agency action.

One of those rules is that you can obtain judicial review only of final agency action.

For an agency decision to qualify it must represent the agency's final word on the question and the decision must have legal consequences.

In addition, you cannot get review in court under the Administrative Procedure Act if you have an adequate alternative way of getting review.

The court argues that the company's lawsuit should be thrown out on the ground that it did not meet these requirements.

We disagree with the Corps and conclude that the suit may go forward.

The JD is certainly the agency's final word on whether covered waters are present on the property.

The Corps even says that the JD is binding on it for five years.

Because of that, the JD also has legal consequences.

If the JD says that there are no covered waters on the property that is a safe legal harbor good for five years and if the Corps says there are such waters; that's the denial of a safe harbor which also counts as a legal consequence.