Cruden Expects High Court Hearing on Wetlands Determination

By Amena H. Saiyid

Nov. 5 — The U.S. Supreme Court is likely to accept a case challenging whether a Clean Water Act jurisdictional determination over a tract of wetlands constitutes a final agency action subject to judicial review, the nation's top environmental lawyer said.

“My expectation is that next month the Supreme Court will agree to review this case,” John Cruden, assistant attorney general for the Justice Department's Environment and Natural Resources Division, said Nov. 4 at the opening day of the 2015 National Clean Water Law Seminar.

The Justice Department has urged the court to accept the case for review as has Hawkes Co., the Minnesota-based peat farming company that is challenging the non-binding jurisdictional determination issued by the Army Corps of Engineers.

At issue is a tract of wetlands in Minnesota owned by Hawkes that the corps in February 2012 deemed jurisdictional under the Clean Water Act.

Hawkes challenged the determination and, after receiving an unfavorable opinion from the U.S. District Court for the District of Minnesota, was able to get the U.S. Court of Appeals for the Eighth Circuit in April to agree that the corps' determination was a final agency action (Hawkes Co. v. U.S. Army Corps of Eng'rs, 782 F.3d 994, 80 ERC 1265, 2015 BL 101976 (8th Cir. 2015).

The Eighth Circuit's ruling set up a conflict in two other appellate courts as, in 2014, the courts of appeal for the Fifth and Ninth Circuits ruled that jurisdictional determinations weren't final agency actions that were subject to judicial reviews.

Cruden said the Supreme Court accepts less than 1 percent of all petitions it receives to review cases. In the instance of the Hawkes Co. case, he said he expects the court will agree to review the narrow question of whether the corps' jurisdictional determinations should be subject to judicial reviews because they reflect consummation of an agency's decision-making process.

Although the Clean Water Act doesn't require jurisdictional determinations, the approval of one indicates that the corps will require the landowner to obtain a Section 404 permit if wetlands or waters are dredged-and-filled.

Cruden termed the Hawkes Co. case as the “son or daughter” of Sackett v. EPA, (132 S. Ct. 1367, 73 ERC 2121, 2012 BL 67234 (2012)). In that case, the U.S. Supreme Court held that an administrative compliance order issued by the EPA prior to taking civil enforcement action was indeed subject to judicial reviews.

He said the Justice Department has maintained that the corps' jurisdictional determination is a not a final agency action because “nothing bad happens” as a result of this finding. In contrast, the Pacific Legal Foundation, which is representing the peat farming company, has argued that the corps jurisdictional determination is “binding” on the landlord, and therefore should be subject to judicial reviews.

The National Association of Clean Water Agencies is holding the law seminar from Nov. 4-6 in Henderson, Nev.

To contact the reporter on this story: Amena H. Saiyid in Henderson, Nev. at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com