Wednesday, June 8, 2016 Hawkes Co. Update: A Win for Landowners

About two months ago we reported on a case being argued in front of the Supreme Court of the United States. The case was US Army Corps of Engineers v. Hawkes Co., and it dealt with landowners’ rights to judicial review when they are told by the Corps that their land contains waters subject to regulation under the Clean Water Act. For more background on the case you can read our April 6 blog post here.

Last Tuesday the Supreme Court issued a unanimous but narrow decision in favor of the landowners in Hawkes. For a detailed analysis of the decision, we recommend reading Miriam Seifter’s breakdown over at SCOTUSblog. The key takeaways are as follows:

  1. The Court agreed with the landowners that the Corps’ decision in these matters constituted a final agency action, which means they can take the government to court if they disagree with the Corps’ determination.
  2. In a broader sense, the Hawkes decision supports the idea that individuals and businesses who find themselves at odds with a regulatory agency should have the right to a timely appeal. According to Timothy Bishop, an attorney at Mayer Brown who has extensive experience in environmental law and has represented American Farm Bureau in several cases, Hawkes “indicates that the Court is receptive to arguments that delaying judicial review will impose hardship on regulated parties, which could be helpful to businesses regulated by other federal agencies.”
  3. Several Justices expressed concerns about the scope of the EPA’s WOTUS Rule, which Farm Bureau strongly opposes. In his concurring opinion which was joined by Justices Alito and Thomas, Justice Kennedy wrote the following:

“[B]ased on the Government’s representations in this case, the reach and systemic consequences of the Clean Water Act remain a cause for concern. As Justice Alito has noted in an earlier case, the Act’s reach is “notoriously unclear” and the consequences to landowners even for inadvertent violations can be crushing.”

[ . . . ]

“The Act . . . continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

Considering there are several pending challenges to the EPA’s expansion of the Clean Water Act under the WOTUS rule, Justice Kennedy’s opinion may offer a clue about the thinking of at least a few justices when it comes to the WOTUS rule.

Ultimately, the Court didn’t go too far out on a limb with this decision and left some issues to be resolved another day. In fact, the Court’s decisions has led some legal commentators, including Seifter, to wonder if the Hawkes victory could be short-lived because the Court’s legal analysis relied heavily on the effect of a memorandum of understanding between the Corps and the EPA, a document that could be revised in light of the Court’s ruling. So we’ll continue to monitor the situation and let you know if there are any further developments, but for now consider this a victory for landowners.