July 7, 2015

Eighth Circuit denies Corps petition in wetland case

By M. Reed Hopper Senior Attorney

As we noted here, PLF is involved in two cases to establish whether Army Corps of Engineer’s’ Jurisdictional Determinations (i.e., wetland delineations) are subject to immediate judicial review in court.  In Kent Recycling v. Corps (previously Belle v Corps), the Fifth Circuit Court of Appeals held that JDs are NOT subject to immediate judicial challenge. We believe that interpretation of the law is incorrect, so we filed a petition for review with the Supreme Court.  That petition was denied.  But, shortly thereafter, the Eighth Circuit held in our Hawkes case that JDs ARE immediately reviewable in court to challenge agency jurisdiction under the Clean Water Act.  Based on this split among the courts of appeal, we filed a petition for rehearing in the Kent case.  The Corps opposed that petition claiming it had filed for a rehearing of Hawkes in the Eighth Circuit and that decision might change in favor of the government.  But today, the Eighth Circuit denied the Corps’ petition for rehearing which allows the Hawkes decision to stand.

Because the Corps does not want the Supreme Court to address this issue, it is likely the Corps will not petition the court to resolve the conflict between the Fifth and Eighth Circuits.  This gives the Supreme Court a greater impetus to grant review in Kent and determine conclusively whether Jurisdictional Determinations may be immediately challenged in court like the compliance order issued in our Sackett case.

In addition to the need to resolve the conflict between these circuits, the ability of landowners to challenge Jurisdictional Determinations immediately in court is more important than ever because the Corps and EPA have greatly expanded the definition of waters subject to federal jurisdiction with a new rule that we and others are preparing to challenge in court throughout the country.

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