Army Corps of Engineers v. Hawkes Co. (15-290)

argument 15-290

Army Corps of Engineers v. Hawkes Co.

Supreme Court of the United States 1h 1m 5 speakers 8 chapters transcribed 6 days ago official recording ↗

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What is a jurisdictional determination and why does the Court say it isn’t a final agency action?

John G. Roberts 0:00

We'll hear argument next this morning in Case 15-290, the United States Army

Donald B. Verrilli Jr. 0:05

Corps of Engineers v. Hawks Company. Mr. Stewart. MR. Mr. Chief Justice, and may it please the Court, a jurisdictional determination issued by the Army Corps of Engineers does not file agency action because it does not order any person to do or refrain from doing anything and does not alter anyone's legal rights and obligations. The jurisdictional determination, or J.D., expresses the Corps' opinion about whether a particular tract contains waters protected by the Clean Water Act. That stated opinion may affect the recipient's assessment of the options available to it, but it does not affect the actual legal status of those options. This Court's precedents make clear that the practical effects on which respondents rely are not a sufficient ground for treating an agency communication as final agency action.

Donald B. Verrilli Jr. 0:51

Now, the respondents primarily emphasize the practical impact that the Corps' jurisdictional determination would have upon themselves, the recipients and the intended audience. And they say the jurisdictional determination indicating that the Corps believes there are waters of the United States on the property will force them to choose among three unattractive options. One would be seeking a permit, which could be an expensive process and wouldn't be, by any means, certain to succeed. The second would be discharging pollutants, discharging fill onto the property and taking their chances in a future enforcement action. And the third would be playing it safe, foregoing development entirely. And the problem with Respondent's argument is that that choice would have existed before the jurisdictional determination was issued.

Donald B. Verrilli Jr. 1:42

It would have existed if the Corps had never adopted its practice of issuing jurisdictional determinations upon It's simply a choice that is posed by the Clean Water Act. If there were a

Samuel A. Alito 1:53

provision of law saying that a jurisdictional determination by the Corps or by the EPA is binding on the federal government in future litigation, would that be reviewable?

Donald B. Verrilli Jr. 2:08

I think if the statute said that, we would have a very different case. Because in that case, we would have something much closer to Bennett versus Speer. In Bennett versus Speer, the court was dealing with a biological opinion issued by one federal agency, the Fish and Wildlife Service. to another federal agency, the Bureau of Reclamation, and it included an incidental take statement. And the terms and conditions of the incidental take statement affected the legal options that were available to the Bureau of Reclamation. MR. Well, it would be a different

Samuel A. Alito 2:39

case, but are you able to say whether that would be reviewable under the APA?

Donald B. Verrilli Jr. 2:43

MR. Yes. CORE's jurisdictional determination were legally binding upon the EPA. If it foreclosed the possibility of an enforcement — of an EPA enforcement action that was inconsistent with the terms of the jurisdictional determination, yes, we think that the JD would be judicially reviewable. But I think it's important to — to point out how far removed that is from the actual statute before us. That is

Samuel A. Alito 3:09

— MR. Well, let me just ask about how far removed it is. There is no such statute. That certainly is true. But there is a memorandum of understanding between the Army and the EPA, and it says, quote, case-specific determinations, and I think that includes jurisdictional determinations, made pursuant to the terms of this memorandum of understanding will be binding on the government and represent the government's position in any subsequent federal action or litigation regarding the case. So would your argument be that because this is in a memorandum of understanding as opposed to a statute or a regulation, the situation is different and that is insufficient to make the jurisdictional determination reviewable.

Donald B. Verrilli Jr. 3:58

That would be one argument, but the other argument, and I think we've made this point in the reply brief, that particular memorandum of understanding was dealing with what are referred to as special case determinations.