Today Pacific Legal Foundation filed its reply to the Army Corps of Engineers’ response to the Supreme Court‘s order to respond to our petition for rehearing in the Kent Recycling v. US Army Corps of Engineers case. You can read that reply at this link.
Although the Supreme Court rarely grants a petition for rehearing, it does happen. Here, we had good reason to pursue rehearing: the win the Eighth Circuit Court of Appeals handed us in the Hawkes Inc., Co. v. U.S. Army Corps of Engineers case back in early April. That court held that a Corps of Engineers’ Jurisdictional Determination (i.e. wetlands delineation) is immediately reviewable in court and subject to challenge. In Kent Recycling, the Fifth Circuit addressed this same issue and came out the opposite way. That court held that JDs are not immediately reviewable in court. Now, the Supreme Court has a circuit split on an issue that means hundreds of thousands of dollars to landowners across the nation. With that in mind, we filed our petition.
In her concurring opinion in the Hawkes decision, Judge Kelly succinctly explained (in part) why JDs should be immediately reviewable in court:
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 [that a JD is immediately reviewable in federal court].
We agree with Judge Kelly. we expect the Supreme Court will, too.