In this case involving the Clean Water Act, 33 U.S.C. §§ 1251–1387, the U.S. Supreme Court was asked to determine (1) whether the Army Corps of Engineers (the Corps) grant of an approved jurisdictional determination (JD) is a final agency action and (2) whether, in the absence of judicial review, Hawkes Co. (Hawkes) had alternative remedies. The Court held that the grant of an approved JD is a final agency action. Furthermore, it held that Hawke was without alternative remedies besides judicial review.
Hawkes mines peat, which is used for soil improvement and fuel, in Minnesota. The company owns 530 acres of land that it wished to use for additional mining operations. Peat can have significant environmental impacts, which is why the mining of it is regulated by state and federal environmental protection agencies. In February 2012, the Corps issued Hawkes an approved JD, which stated that the property contained “water of the United States” because of wetlands that had a nexus to a nearby river. This determination meant that Hawkes would be subject to enforcement actions by the Corps, as well as the EPA, if it attempted to dispose of pollutants in its waters. Approved JDs are effectual for five years.
Hawkes sought judicial review of the approved JD under the Administrative Procedure Act, which permits judicial review of “final agency action[s] for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. The district court dismissed the case, holding that the approved JD was not a final agency action. On appeal, the U.S. Court of Appeals for the Eighth Circuit reversed, and the Supreme Court subsequently granted certiorari.
At the Supreme Court level, the Corps argued that the approved JD was not a final agency action, and, even if it were, Hawks had adequate alternative remedies. The Court disagreed with both contentions. First, the Court held that an approved JD is a final agency action subject to judicial review. An agency action is final if it (1) marks the “consummation” of an agency’s decision making process and (2) legal consequences flow from it. Here, an approved JD is only issued after extensive fact finding and is typically not reconsidered once the permitting moves forward. While the Corps may revise an approved JD within a five-year period, the Court noted that this is a common characteristic of agency action and does “not make an otherwise definitive decision nonfinal.”
Second, the Court held that the “definitive nature” of an approved JD gives rise to “direct and appreciable” legal consequences. The grant of an approved JD is binding on the Corps and the EPA, narrowing the number of potential plaintiffs and limits their enforcement abilities. Similarly, the denial of an approved JD has legal consequences for landowners, depriving them of “safe harbor” from enforcement.
Additionally, the Court rejected the Corps’ claim that Hawkes had adequate alternative remedies. The Corps argued that Hawkes could either discharge pollutants without a permit, and therefore risk enforcement, or apply for a permit and seek judicial review if dissatisfied with the result. According to the Court, neither alternative was adequate. Parties do not need to wait for enforcement proceedings in order to vindicate rights where enforcement poses serious risk of criminal or civil liability. Therefore, judicial review of Hawkes’ case was appropriate.
Bob Turchick, Law Clerk