Clean Water Act victory for landowners!

April 10, 2015 | By REED HOPPER

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.