Corps Decisions Are Reviewable, Justices Say

     (CN) — The U.S. Supreme Court resolved a circuit split Tuesday, ruling that courts have the right to review Army Corps of Engineers’ decisions on whether the agency has authority over bodies of water.
     The U.S. Army Corps of Engineers appealed an Eighth Circuit ruling that determinations about whether a body of water is subject to its authority under the Clean Water Act are final agency actions that can be reviewed by the courts under the Administrative Procedure Act, or APA.
     The case revolves around 520 acres in Minnesota that the Hawkes Company would like to mine for peat, which is formed in wetlands. The company has a similar, existing peat mining operation nearby, and it entered into an agreement to pay royalties to the property owners for the use of their land.
     In February 2012, the Corps provided Hawkes with an approved jurisdictional determination which concluded that the property contains waters of the United States. Hawkes and the property owners filed an administrative appeal, arguing the agency had failed to do sufficient analysis to support a finding a regulatory jurisdiction.
     On reconsideration, the Corps issued a revised jurisdictional determination that explained the property contained 150 acres of wetlands that flowed directly or indirectly into navigable waters and therefore, the acreage fell under watch.
     Hawkes and the property owners sued, but a district court dismissed the case, holding that the Corp’s jurisdictional determination was not a final agency action, and therefore was not challengeable in court.
     Hawkes appealed, and the Eighth Circuit reversed, holding that a jurisdictional determination is a reviewable final agency action under the APA.
     In reaching this conclusion, the three-judge panel acknowledged their ruling conflicted with an earlier determination by the Fifth Circuit (Bell Co. v. United States Army Corps of Engineers), but said it believed the early appellate ruling was wrong, being based on an erroneous interpretation of Supreme Court precedent.
     The ruling also conflicted with a Ninth Circuit ruling, Fairbanks North Star Borough v. U.S. Army Corps of Engineers.
     In addition to the Corps, Hawkes and the property owners also asked the Justices to take on the case, in large part to resolve that three-way split among the circuits.
     The Supreme Court agreed in December to take up the case. The high court heard arguments in the case in March.
     On Tuesday, the justices upheld the Eighth Circuit decision, finding that a jurisdictional determination is a final agency action that is reviewable under the APA.
     Chief Justice John Roberts rejected the Corps’ argument that Hawkes had two alternatives to APA review in court: proceed without a permit and argue later that a permit was not required, or complete the permit process and then seek judicial review.
     “Neither alternative is adequate,” Roberts wrote. “Parties need not await enforcement proceedings before challenging final agency action where such proceedings carry the risk of ‘serious criminal and civil penalties.’ And the permitting process is not only costly and lengthy, but also irrelevant to the finality of the approved JD and its suitability for judicial review. Furthermore, because the Clean Water Act makes no reference to standalone jurisdictional determinations, there is little basis for inferring anything from it concerning their reviewability.”
     Roberts was joined in his majority opinion by Justices Anthony Kennedy, Clarence Thomas, Stephen Breyer, Samuel Alito, Sonia Sotomayor and Elena Kagan.
     Justice Ruth Bader Ginsburg wrote an opinion concurring in part and concurring in the judgment.
     She disagreed with the high court’s reliance on a memorandum of agreement between the Corps and the Environmental Protection Agency, and its understanding that the memo establishes that Corps jurisdictional determinations are binding on the federal government in litigation for five years.
     “The court received scant briefing about this memorandum, and the United States does not share the court’s reading of it,” Ginsburg wrote.

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