The US Supreme Court [official website] ruled [opinion, PDF] Tuesday in United States Army Corps of Engineers v. Hawkes Co., Inc. [SCOTUSblog materials] that the Corps’ determination that a property contains waters protected by the Clean Water Act (CWA) [text] constitutes a “final agency action” reviewable under the Administrative Procedure Act [text, PDF]. Respondents are engaged in peat mining in Minnesota and applied to the Corps for a permit to mine on a particular tract of land. The Corps submitted an approved jurisdictional determination (JD) finding that the land was a wetland connected to “waters of the United States” and was therefore protected under the CWA. The district court found that this was not a “final agency action” subject to judicial review, but the US Court of Appeals for the Eighth Circuit [official website] reversed. The Supreme Court affirmed that decision in an opinion by Chief Justice John Roberts: “The Corps contends that the revised JD is not ‘final agency action’ and that, even if it were, there are adequate alternatives for challenging it in court. We disagree at both turns.” Justice Anthony Kennedy filed a concurring opinion joined by Justices Clarence Thomas and Samuel Alito. Justice Elena Kagan filed a separate concurrence, and Justice Ruth Bader Ginsburg filed an opinion concurring in part and concurring in the judgment.
The court heard oral augments [JURIST report] in the case in March. Certiorari was granted [JURIST report] in December. JURIST Guest Columnists Brian Hodges and Damien Schiff of the Pacific Legal Foundation discussed the case [JURIST op-ed] and argued that the court should find the JD to be reviewable.