High Court Studies U.S. Wetland Decisions

     (CN) – The obstacles a private firm has faced in challenging federal authority over Minnesota wetlands triggered sympathy Wednesday from the U.S. Supreme Court.
     Today’s hearing in Washington came over five years after Hawkes Co. first approached the U.S. Army Corps of Engineers about obtaining a permit to mine peat on 530 acres of land in Minnesota.
     Hawkes wants a federal judge to review the Corps’ finding that the property contains 150 acres of wetlands covered by the Clean Water Act, but the Corps disputes the possibility of such an appeal.
     Noting that it made the determination here informally, at Hawkes’ request, the Corps’ says landowners are entitled only to an administrative relief if they go through the entire permitting process.
     The Eighth Circuit sided with Hawkes last year, however, creating a circuit split that the Supreme Court now will resolve.
     Arguing for the Corps this morning, Deputy U.S. Solicitor General Malcolm Stewart, told the justices that a jurisdictional determination like the one at issue here cannot be considered a final agency action “because it does not order any person to do or refrain from doing anything and does not alter anyone’s legal rights and obligations.”
     Any landowners that disagree with the jurisdictional determination they receives are free to make their case in a later enforcement action, Stewart said.
     The argument held little sway with the court, however, given that Corps determinations are generally final in practice, and serve as strong evidence against landowners in court.
     A landowner would be taking a “great practical risk,” Chief Justice John Roberts said, according to a transcript of the hearing.
     Justice Stephen Breyer agreed: “The person who is subject to [the Corps’ decision] has to take certain steps because of the law. One, spend $150,000 to try to get an exception and fail, or two, do nothing, violate it, and possibly go to prison. Those sound like important legal consequences.”
     Justice Elena Kagan expressed concern that, if the court found the Corps’ decision reviewable, other federal agencies that routinely issue advisory opinions would be less willing to give such advice for fear of litigation.
     Hawkes’ position suggests “that agencies should draw back,” Kagan said, “should not give a fully informed view, should not do the fact-finding that the Corps does here, should just make their processes less formal, and [in so doing] also less accurate and less helpful.”
     A repeated theme of the hearing was the well-known difficulty of interpreting the Clean Water Act. Without the Corps’ jurisdictional decision, the justices noted, a landowner would be left further in the dark about whether they might be subject to an enforcement action.
     Kagan noted that the whole reason why the jurisdictional-decision process exists “is that it’s supposed to help people in dealing with this predicament, because it’s supposed to provide them with information that they otherwise wouldn’t have.”
     Alito seemed skeptical, however, that that the Corps provides jurisdictional decisions “out of the goodness of its heart.”
     He noted that an alternative understanding of the process might indicate that it “expands [the Corps’] enforcement power, because landowners who have a question abut the status of their land have strong incentive to ask for a jurisdictional determination.”
     Roberts agreed. He said the Corps’ jurisdictional decisions are of “great benefit to the agency, because by issuing the determinations they are able to exercise extraordinary leverage without going through the formal enforcement process.”
     Roberts doubted that the agency would cease issuing decisions, even if the court determined that the informal rulings should be judicially reviewable.
     Pacific Legal Foundation attorney M. Reed Hopper argued for the Hawkes.

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