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Hawkes Co., Inc. v. United States Army Corps of Eng'rs

United States Court of Appeals, Eighth Circuit

April 10, 2015

Hawkes Co., Inc., et al., Plaintiffs - Appellants
v.
United States Army Corps of Engineers, Defendant - Appellee; American Farm Bureau Federation; National Association of Home Builders; National Mining Association; American Petroleum Institute; Utility Water Act Group; Foundation for Environmental and Economic Progress, Amici on Behalf of Appellants

Submitted December 11, 2014

Petition for certiorari filed at, 09/08/2015

Page 995

Appeal from United States District Court for the District of Minnesota - Minneapolis.

For Hawkes Co., Inc., Pierce Investment Company, LPF Properties, LLC, Plaintiffs - Appellants: Nancy A. Burke, Gregory R. Merz, Gray & Plant, Minneapolis, MN; Reed Hopper, Damien Michael Schiff, Pacific Legal Foundation, Sacramento, CA.

For United States Army Corps of Engineers, Defendant - Appellee: Daniel R. Dertke, U.S. Department of Justice, Environment & Natural Resources Division, Environmental Defense Section, Washington, DC; Molly McKegney Hunt, U.S. Army Corps of Engineers, Saint Paul, MN; Robert Lundman, U.S. Department of Justice, Environment & Natural Resources Division, Appellate Section, Washington, DC; Friedrich Anson Paul Siekert, Assistant U.S. Attorney, U.S. Attorney's Office, District of Minnesota, Minneapolis, MN.

For American Farm Bureau Federation, Amicus on Behalf of Appellant(s): Karma B. Brown, Deidre Glasser Duncan, Hunton & Williams, Washington, DC; Danielle Quist, Ellen Steen, American Farm Bureau Federation, Washington, DC.

For National Association of Home Builders, Amicus on Behalf of Appellant(s): Karma B. Brown, Deidre Glasser Duncan, Hunton & Williams, Washington, DC; Thomas J. Ward, National Association of Home Builders, Washington, DC.

For National Mining Association, Amicus on Behalf of Appellant(s): Amanda E. Aspatore, Katie Sweeney, National Mining Association, Washington, DC; Karma B. Brown, Deidre Glasser Duncan, Hunton & Williams, Washington, DC.

For American Petroleum Institute, Amicus on Behalf of Appellant(s): Karma B. Brown, Deidre Glasser Duncan, Hunton & Williams, Washington, DC; Peter Tolsdorf, American Petroleum Institute, Washington, DC.

For Utility Water Act Group, Amicus on Behalf of Appellant(s): Karma B. Brown, Kristy A.N. Bulleit, Deidre Glasser Duncan, Andrew J. Turner, Hunton & Williams, Washington, DC.

For Foundation for Environmental and Economic Progress, Amicus on Behalf of Appellant(s): Karma B. Brown, Deidre Glasser Duncan, Hunton & Williams, Washington, DC.

Before LOKEN, BRIGHT, and KELLY, Circuit Judges.

OPINION

Page 996

LOKEN, Circuit Judge.

Hawkes Co., Inc. (Hawkes), wishes to mine peat from wetland property owned by two affiliated companies in northwestern Minnesota. The United States Army Corps of Engineers derailed that plan when it issued an Approved Jurisdictional Determination (" JD" ) that the property constitutes " waters of the United States" within the meaning of the Federal Water Pollution Control Act (the " Clean Water Act" or " CWA" ), and therefore appellants must have a permit to discharge dredged or fill materials into these " navigable waters." See 33 U.S.C. § § 1344(a), 1362(7). Appellants brought this action seeking judicial review of the JD and now appeal the district court's grant of the government's motion to dismiss their Amended Complaint. The district court concluded that an approved JD, though the consummation of the Corps' jurisdictional decisionmaking process, was not a " final agency action" within the meaning of the Administrative Procedure Act, 5 U.S.C. § 704. While the appeal was pending, a panel of the Fifth Circuit reached the same conclusion. Belle Co., LLC v. U.S. Army Corps of Eng'rs, 761 F.3d 383 (5th Cir. 2014), cert. denied, 135 S.Ct. 1548, 191 L.Ed.2d 636, 83 U.S.L.W. 3742 (U.S. 2015) (No. 14-493).

We conclude that both courts misapplied the Supreme Court's decision in Sackett v. EPA, 132 S.Ct. 1367, 182 L.Ed.2d 367 (2012). Therefore, we reverse.

I.

The CWA requires a permit from the Corps to discharge dredged or fill materials into " navigable waters," and a permit from the Environmental Protection Agency (or an authorized state agency) to discharge any " pollutant" into navigable waters. See 33 U.S.C. § § 1311(a), 1342, 1344. The statute defines " navigable waters" to mean " the waters of the United States," § 1362(7). This broad definition prompted the Corps and the EPA to make " sweeping assertions of jurisdiction" over every stream, ditch, and drain that can be considered a tributary of, and every wetland that is adjacent to, traditional navigable ...


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