Hawkes Co., Inc. v. U.S. Army Corps of Eng’rs

Hawkes wishes to mine peat from wetland property owned by affiliated companies in northwestern Minnesota. The U.S. Army Corps of Engineers issued an Approved Jurisdictional Determination (JD) that the property constitutes “waters of the United States” within the meaning of the Clean Water Act, requiring a permit to discharge dredged or fill materials into the “navigable waters,” 33 U.S.C. 1344(a), 1362(7). The district court dismissed a challenge, holding that an approved JD, though the consummation of the Corps’ jurisdictional decision-making process, was not a “final agency action” within the meaning of the Administrative Procedure Act, 5 U.S.C. 704. While the appeal was pending, a panel of the Fifth Circuit reached the same conclusion. The Eighth Circuit reversed, finding that both courts misapplied the Supreme Court’s 2012 decision, Sackett v. EPA. A “properly pragmatic analysis of ripeness and final agency action principles compels the conclusion that an Approved JD is subject to immediate judicial review. The Corps’s assertion that the Revised JD is merely advisory and has no more effect than an environmental consultant’s opinion ignores reality.” View "Hawkes Co., Inc. v. U.S. Army Corps of Eng'rs" on Justia Law