Hawkes wins wetland case on remand from the U.S. Supreme Court

January 25, 2017 | By REED HOPPER

Last May, PLF won a unanimous decision from  the Supreme Court of the United States in the case of Army Corps of Engineers v. Hawkes. That case was hailed as a victory for millions of landowners nationwide who were finally empowered withe the right to challenge Corps wetland Jurisdictional Determinations (JDs) in a court of law for the first time in the history of the Clean Water Act. That decision bore fruit yesterday when the Hawkes Company won its challenge to a JD asserting federal jurisdiction over 150 acres of its property in violation of the Act.

Hawkes Company is a family-owned business in Minnesota that sought to harvest peat moss, for landscaping, in nearby bogs. The Corps claimed jurisdiction over the property as regulated wetlands, even though a Corps reviewing officer found the Jurisdictional Determination invalid. This put Hawkes in an untenable position: Hawkes could (1) abandon all use of the land at great loss; (2) seek an unnecessary federal permit for a few hundred thousand dollars; or (3), proceed to use the land without federal approval subjecting Hawkes to fines of $37,500 a day and criminal prosecution. When Hawkes challenged the JD in court, the case was dismissed as unripe for review. But the Supreme Court disagreed. According to the Court, a Jurisdictional Determination is a binding legal decision subject to immediate judicial challenge.

In yesterday’s decision, the Federal District Court of Minnesota ruled the Corps had gone too far and failed to provide site-specific evidence that the Hawkes property would have a significant effect on a downstream navigable water (90 miles away) as required by law. Therefore the property was not subject to federal regulation under the Clean Water Act, although it would be subject to state regulation.

This was a well-earned and hard-fought victory for Hawkes spanning ten years of negotiation and litigation with heavy-handed federal regulators who abandoned the rule of law to advance their own values. We congratulate Hawkes’ local counsel, Nancy Burke and Greg Merz, for their successful representation of Hawkes Company in this important case. Like PLF’s Supreme Court case, this victory in the trial court is more than a win, it’s a vindication!

“The whole point of judicial review of agency actions is to ensure that an independent judge–not beholden to an executive agency–takes a fresh, honest, and careful look at administrative decisions. That is why the Corps and EPA have been fighting judicial review so hard. And that is why it has been so important for PLF to champion judicial review in Sackett and now, Hawkes.”  James Burling, PLF Director of Litigation.