The United States Supreme Court has agreed to review an appeal from a decision by the Eighth Circuit Court of Appeals that found that the Corps of Engineers' Approved Jurisdictional Determinations ("JD") are final agency actions and are immediately appealable under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. ("APA"). The case is United States Army Corps of Engineers v. Hawkes Co., Inc., No. 13-3067 (filed Sept. 8, 2014).
If the Supreme Court upholds the Eighth Circuit's decision, landowners and project proponents could appeal the Corps' "Approved" JDs, which determine the existence and boundaries of Waters of the United States, without first going through the permit process to obtain a Section 404 Clean Water Act permit to place dredged or fill materials in Waters of the US. That would apply to the Corps' "Approved" JDs, but not to "Preliminary" JDs, which merely indicate the outer boundaries of what may be jurisdictional Waters of the US based on applicant input without the Corps' express verification.
In the case before the Court, a peat mining company in northwestern Minnesota applied for a Corps permit in 2010. Two years later, the Corps issued an Approved JD determining the proposed peat-mining site contained 150 acres of jurisdictional wetlands. Hawkes challenged the determination, but a Minnesota district court dismissed the suit, finding the JD was not an appealable final action under the APA because it did not affect legal rights or obligations. About the same time, the Fifth Circuit similarly held that an Approved JD is not a final agency action subject to immediate judicial appeal under the APA. See Belle Co. v. United States Army Corps of Engineers, 761 F.3d 383 (5th Cir. 2014), cert. denied sub nom Kent Recycling Services, LLC v. United States Army Corps of Engineers, 135 S.Ct. 1548 (2015), petition for reh'g pending, No. 14-493 (filed Apr. 16, 2015). However, in response to Hawkes' appeal, the Eighth Circuit reversed the lower court's ruling, and found the lower court and the Fifth Circuit both misapplied the law.
The Eighth Circuit found that a Corps' Approved JD is immediately appealable under the APA since it meets the two-pronged test for final agency action in Bennett v. Spear, 520 U.S. 154, 178 (1997) because:
(1) a JD is the consummation of the agency's decision-making process on the threshold issue of the agency's statutory authority; and
(2) a JD determines rights or obligations and imposes legal consequences.
The court found that the JD required respondents to either incur substantial compliance costs in the permitting process (which the court described as prohibitively expensive and futile), or forego what they assert is lawful use of their property, or risk substantial enforcement penalties. The court held there is no other adequate judicial remedy if immediate judicial review is not available.
A petition for Supreme Court review of the Fifth Circuit's decision in Kent Recycling is also pending. The Court initially denied the Kent Recycling petition, but is reconsidering it following the petitioner's request for rehearing following the Eighth Circuit's Hawke decision that created a split between the circuit courts.
The Supreme Court's decision will affect whether developers must wait in limbo after receiving a jurisdictional determination, and must submit to a long and expensive permit process before a challenge may be heard. We will watch these cases and provide updates as they proceed.