The 8th Cir Court of Appeals gave Pacif­ic Legal Foun­da­tion a resound­ing vic­to­ry today in Hawkes v Corps.  A unan­i­mous three-judge pan­el held a Corps of Engi­neers’ Juris­dic­tion­al Deter­mi­na­tion (i.e.  wet­lands delin­eation) is imme­di­ate­ly review­able in court and sub­ject to challenge.

For decades, the courts have used a legal fic­tion to deny cit­i­zens the right to chal­lenge cer­tain deter­mi­na­tions by the Corps and EPA under the Clean Water Act, like the oner­ous com­pli­ance order in Sack­ett. In that case, the EPA tried to com­pel the Sack­etts to “restore” alleged wet­lands on their half acre home lot (at a cost in excess of the lot’s val­ue) or face penal­ties of $75,000 a day. The EPA com­pli­ance order was based on unproven alle­ga­tions that the Sack­etts’ prop­er­ty con­tained “nav­i­ga­ble waters” sub­ject to fed­er­al juris­dic­tion. When the Sack­etts tried to chal­lenge the juris­dic­tion of the gov­ern­ment in court, the Ninth Cir­cuit Court of Appeals refused to allow it, rely­ing on the fic­tion that the com­pli­ance order did not impose any legal oblig­a­tions on the Sack­etts but was just advi­so­ry. For­tu­nate­ly, all nine Jus­tices on the U.S. Supreme Court saw through the fic­tion and held the Sack­etts could seek judi­cial review of the agency’s claim of juris­dic­tion. How­ev­er, the High Court’s unan­i­mous deci­sion in Sack­ett has yet to be applied to Juris­dic­tion­al Deter­mi­na­tions issued by the Corps…until now!

In Hawkes v. Corps, Min­neso­ta busi­ness own­ers sought per­mis­sion to har­vest a swamp for peat moss used in land­scap­ing. The own­ers admit the swamp is a wet­land by def­i­n­i­tion. How­ev­er, under the Supreme Court deci­sion in Rapanos, only wet­lands that are adja­cent to a per­ma­nent water­body, or which have a “sig­nif­i­cant nexus” with tra­di­tion­al nav­i­ga­ble waters, are sub­ject to fed­er­al juris­dic­tion under the Clean Water Act. When the Corps issued a Juris­dic­tion­al Deter­mi­na­tion assert­ing the swamp was cov­ered by the Act, with­out demon­strat­ing the req­ui­site con­nec­tion to tra­di­tion­al nav­i­ga­ble waters, Hawkes sought to chal­lenge the deter­mi­na­tion in court argu­ing the Sack­ett deci­sion requires judi­cial review of Juris­dic­tion­al Deter­mi­na­tions which are issued in the hun­dreds each year by the Corps nation­wide. In a deci­sion that can only be called disin­gen­u­ous, the tri­al court ruled for the gov­ern­ment hold­ing Hawkes had three options: (1) aban­don the project and, per­haps, the busi­ness; (2) seek an arguably unnec­es­sary fed­er­al per­mit at a dev­as­tat­ing cost of over $270,000; or (3) go for­ward with­out a per­mit risk­ing civ­il fines of up to $75,000 per day and/or crim­i­nal sanc­tions includ­ing impris­on­ment.  PLF appealed the case to the 8th Circuit.

In a strong rebuke of the Corps, today, the Court of Appeals reversed the tri­al court and held, rely­ing on Sack­ett, that Juris­dic­tion­al Deter­mi­na­tions are final agency actions sub­ject to imme­di­ate chal­lenge in court.  Here are some note­wor­thy excerpts:

The pro­hib­i­tive costs, risk, and delay of these alter­na­tives to imme­di­ate judi­cial review evi­dence a trans­par­ent­ly obvi­ous lit­i­ga­tion strat­e­gy: by leav­ing appel­lants with no imme­di­ate judi­cial review and no ade­quate alter­na­tive rem­e­dy, the Corps will achieve the result its local offi­cers desire, aban­don­ment of the peat min­ing project, with­out hav­ing to test whether its expan­sive asser­tion of juris­dic­tion — reject­ed by one of their own com­mand­ing offi­cers on admin­is­tra­tive appeal — is con­sis­tent with the Supreme Court’s lim­it­ing deci­sion in Rapanos. For decades, the Corps has “delib­er­ate­ly left vague” the “def­i­n­i­tions used to make juris­dic­tion­al deter­mi­na­tions,” leav­ing its Dis­trict offices free to treat as waters of the Unit­ed States “adja­cent wet­lands” that “are con­nect­ed to the nav­i­ga­ble water by flood­ing, on aver­age, once every 100 years,” or are sim­ply “with­in 200 feet of a trib­u­tary.” Rapanos, 547 U.S. at 727–28, quot­ing a GAO report. The Court’s deci­sion in Sack­ett reflect­ed con­cern that fail­ing to per­mit imme­di­ate judi­cial review of asser­tions of CWA juris­dic­tion would leave reg­u­lat­ed par­ties unable, as a prac­ti­cal mat­ter, to chal­lenge those asser­tions. The Court con­clud­ed that was con­trary to the APA’s pre­sump­tion of judi­cial review. “[T]here is no rea­son to think that the Clean Water Act was unique­ly designed to enable the strong-arm­ing of reg­u­lat­ed par­ties into ‘vol­un­tary com­pli­ance’ with­out the oppor­tu­ni­ty for judi­cial review — even judi­cial review of the ques­tion whether the reg­u­lat­ed par­ty is with­in the EPA’s juris­dic­tion.” 132 S. Ct. at 1374.

In our view, 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. “[I]n real­i­ty it has a pow­er­ful coer­cive effect.” Ben­nett, 520 U.S. at 169. Absent imme­di­ate judi­cial review, the imprac­ti­cal­i­ty of oth­er­wise obtain­ing review, com­bined with “the uncer­tain reach of the Clean Water Act and the dra­con­ian penal­ties imposed for the sort of vio­la­tions alleged in this case … leaves most prop­er­ty own­ers with lit­tle prac­ti­cal alter­na­tive but to dance to the EPA’s [or to the Corps’] tune.” “In a nation that val­ues due process, not to men­tion pri­vate prop­er­ty, such treat­ment is unthink­able.” Sack­ett, 132 S. Ct. at 1375 (Ali­to, J., con­cur­ring). We con­clude that an Approved JD is a final agency action and the issue is ripe for judi­cial review under the APA.

One of the judges added this insight­ful observation:

In my view, the Court in Sack­ett was con­cerned with just how dif­fi­cult and con­fus­ing it can be for a landown­er to pre­dict whether or not his or her land falls with­in CWA jurisdiction—a thresh­old deter­mi­na­tion that puts the admin­is­tra­tive process in motion. This is a unique aspect of the CWA; most laws do not require the hir­ing of expert con­sul­tants to deter­mine if they even apply to you or your prop­er­ty. This juris­dic­tion­al deter­mi­na­tion was pre­cise­ly what the Court deemed review­able in Sack­ett. See Sack­ett, 132 S. Ct. at 1374–75 (Gins­burg, J., con­cur­ring). Accord­ing­ly, I con­cur in the judg­ment of the court.

For the first time since the incep­tion of the Clean Water Act (1972), overzeal­ous gov­ern­ment bureau­crats can be held imme­di­ate­ly account­able in court for their erro­neous asser­tions of fed­er­al con­trol over pri­vate wet­lands and oth­er waters.  This lev­els the play­ing field for landown­ers who have been at the mer­cy of over­reach­ing gov­ern­ment for far too long.