July 28, 2016

Does Hawkes turn on an agreement between the Corps and EPA?

By M. Reed Hopper Senior Attorney

Some have asserted that the U.S. Supreme Court decision in Hawkes stands or falls on a Memorandum of Agreement (MOA) between the Corps and EPA that says Jurisdictional Determinations are binding on the federal government in any subsequent Clean Water Act litigation.  They assert the case could be undermined if the Corps and EPA were to rescind or amend the MOA so that it does not make a Jurisdictional Determination binding on the agencies. It is easy to see how one might come to that conclusion because the MOA is the subject of much discussion in the decision.  But a closer reading of the decision leads to the opposite conclusion.

In her concurring opinion, Justice Kagan stated the MOA “is central to the disposition of the case.”  But that is not to say the case would have been decided differently, even by Justice Kagan, had there been no MOA.  She also qualified her statement with the proviso that she joined the Court’s opinion in full “but for me” the MOA was dispositive. In other words, she was expressing her personal view, not the Court’s view.

Justice Ginsburg also joined the main opinion, except for the Court’s reliance on the MOA.  She expressly rejected the MOA as a basis for the decision, instead relying on Abbott Labs and Frozen Foods as we did in the case. Justice Kennedy (along with Justice Alito and Justice Thomas) joined the main opinion but wrote separately to note that even if the MOA were rescinded, a Jurisdictional Determination would still be final and binding on the agencies “because in many instances it will have a significant bearing on whether the Clean Water Act comports with due process.”

There is no question the Court “relied’ on the MOA. The MOA was a veritable “smoking gun,” too obvious to overlook.  The MOA provided unequivocal evidence that the Corps and EPA themselves considered Jurisdictional Determinations legally binding on the government and therefore subject to judicial review in a court of law.  But the Court did not rely on the MOA exclusively. As an alternative grounds for its ruling in favor of Hawkes, the Court relied on previous case law:

It follows that [Jurisdictional Determinations] have legal consequences  ….

This conclusion tracks the “pragmatic” approach we have long taken to finality. Abbott Laboratories v. Gard­ner, 387 U. S. 136, 149 (1967). For example, in Frozen Food Express v. United States, 351 U. S. 40 (1956), we considered the finality of an order specifying which com­modities the Interstate Commerce Commission believed were exempt by statute from regulation, and which it believed were not. Although the order “had no authority except to give notice of how the Commission interpreted” the relevant statute, and “would have effect only if and when a particular action was brought against a particular carrier,” Abbott, 387 U. S., at 150, we held that the order was nonetheless immediately reviewable, Frozen Food, 351 U. S., at 44–45. The order, we explained, “warns every carrier, who does not have authority from the Com­mission to transport those commodities, that it does so at the risk of incurring criminal penalties.” Id., at 44. So too here, while no administrative or criminal proceeding can be brought for failure to conform to the approved JD itself, that final agency determination not only deprives re­spondents of a five-year safe harbor from liability under the Act, but warns that if they discharge pollutants onto their property without obtaining a permit from the Corps, they do so at the risk of significant criminal and civil penalties.

This is the Court’s holding in the case.  It does not depend on the existence of the MOA and serves as a complete refutation that Hawkes can be nullified by the simple expedient of rescinding or amending the MOA.  The Court’s unanimous decision protecting property rights cannot be so easily undone. Hawkes provides a reliable precedent on which landowners can rely to challenge wrongful claims of jurisdiction by the federal government.

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