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United States Army Corps of Engineers v. Hawkes Co.

ELR Citation: 46 ELR 20102
Nos. 15-290, (U.S., 05/31/2016)

The U.S. Supreme Court held that a U.S. Army Corps of Engineers jurisdictional determination (JD) is a final agency action subject to judicial review under the APA. The case arose in connection with the permitting process for a peat mine. The mine obtained an approved JD from the Corps stating that the property contained “waters of the United States.” After exhausting its administrative remedies, the mine challenged the decision in federal court. The district court held it lacked jurisdiction because the JD was not a final agency action for which there is no other remedy in court. The Eighth Circuit reversed, and the Supreme Court affirmed the appellate court. An approved JD is a final agency action as it clearly marks the consummation of the Corps’ decisionmaking on the question of whether a particular property does or does not contain “waters of the United States.” An approved JD also gives rise to direct and appreciable legal consequences, and it is reviewable under the APA because there are no adequate alternatives to APA review in court. The Corps argued that the company had two alternatives: it could proceed without a permit and argue in a subsequent enforcement action that a permit was not required; or it could complete the permit process and then seek judicial review, which the Corps suggests is what Congress envisioned. But the Court held that neither alternative is adequate. 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. Moreover, because the CWA makes no reference to standalone JDs, there is little basis for inferring anything from it concerning their reviewability. Roberts, C.J., delivered the opinion of the Court, in which Kennedy, Thomas, Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Kennedy, J., filed a concurring opinion, in which Thomas and Alito, JJ., joined. Kagan, J., filed a concurring opinion. Ginsburg, J., filed an opinion concurring in part and concurring in the judgment.