Agency Not Given Third Opportunity to Make Determination by Federal Court



Photo by paciana via wikicommons.


This post is not legal advice. 


2017 has started off with a few court decisions involving agricultural law, and I’ve discussed a few of those decisions. In 2016, the U.S. Supreme Court ruled unanimously (8-0) that a determination by the Army Corps of Engineers that a property contained “a waters of the United States” was reviewable under the Administrative Procedures Act (Hawkes Co., 2016). The Supreme Court affirmed the decision of the Eighth Circuit and sent the case back to the federal district court in Minnesota. Recently, the federal district court granted motions by the Hawkes Co. barring the Army Corps of Engineers from exercising Clean Water Act jurisdiction over the property.

My former colleague, Ashley Ellixson, provided a good overview of the facts in the Hawkes Co. case in an earlier post on another blog. As the Hawkes’ looked at expanding their peat operation, the Corps of Engineers considered the property to be a wetland that would fall under the Clean Water Act. A wetland needs to have a significant nexus to a waters of the United States to fall under the Clean Water Act. The Corps had made an initial jurisdictional determination and issued a revised jurisdictional determination that the Hawkes’ wetland had a significant nexus with a waters of the United States.

With the initial determination, the Corps determined the wetland was 93 river miles or 42 aerial miles from the nearest waters of the United States, the Red River. The water flowed through a man-made ditch, then to an unnamed seasonal tributary of the Middle River, then to the Middle River, and finally hitting the Red River. The Corps never witnessed water from the wetlands flow to the unnamed seasonal tributary but assumed water would. The initial determination also speculated on how groundwater may contribute to the water quality of the unnamed tributary but stated additional testing was needed. Finally, the initial determination discussed in generality what wetlands do. The Hawkes appealed this decision with the Corps, and the Corps agreed the initial determination was lacking in showing the wetland had a significant nexus with the Red River.



Photo by Dehaan via wikicommons

With the revised determination, the Corps did nothing to develop additional evidence to determine that wetland had a significant nexus with the Red River. The Corps again found that the wetland had a significant nexus, which would have required the Hawkes to apply for a permit before mining for peat. The Hawkes then appealed in the federal court system, which leads to a Supreme Court decision in 2016 that sent the case back to the federal district court to determine if the revised determination was sufficient.


The Corps argued the revised determination was adequate and significant new information. The district court disagreed with the Corps. The Corps had not shown evidence to establish a connection between the wetland and the Red River. Water flow from the wetland to the Red River was based on hypothetical calculations and no evidence to show actual flows. The evidence is showing a chemical and biological connection between the two, was also still generalized and not enough establish a significant nexus. To the court, the revised determination was based on the same information as the initial determination and failed to establish a significant nexus. The court concluded the revised determination was arbitrary and capricious (has no rational connection to the facts and the choice made by the agency).

In looking at a potential remedy for this decision, the Corps argued for the court to allow the agency a third opportunity to revise the determination. The court did not like this option and stated “[a]llowing the Corps a third bite at the apple would force Plaintiffs back through a “never ending loop.”” (Hawkes Co., Inc., 2017). The court did not want to give the agency a third opportunity to establish Clean Water Act jurisdiction and force Hawkes to wait longer to utilize the property. The court enjoined the Corps from exercising jurisdiction over the Hawkes property.

Why care about this decision? The Supreme Court’s decision in Hawkes established that a landowner could appeal a decision of the Corps establishing Clean Water Act jurisdiction over a wetland. We see the outcome today is that the Corps was denied a third opportunity to establish Clean Water Act jurisdiction. It is still unclear if the Trump administration will appeal this decision to the Eighth Circuit Court of Appeals.


Hawkes Co., Inc. v. U.S. Army Corps of Eng’r, No. 13-107-ADM/TNL, 2017 Westlaw 359170 (D. Minn. Jan. 24, 2017).

U.S. Army Corps of Eng’r v. Hawkes Co., Inc., 136 S. Ct. 1807 (2016)

2 thoughts on “Agency Not Given Third Opportunity to Make Determination by Federal Court

  1. Paul, perhaps you can shine some light on this issue involving “Waters of the U.S.”

    The Donald said “Regulations and permits started treating our wonderful small farmers and small businesses as if they were a major industrial polluter. They treated them horribly.”

    But the EPA’s fact sheet for Agriculture states: The Act requires a permit if a protected water is going to be polluted or destroyed, however, agricultural activities like planting, harvesting, and moving livestock across a stream have long been excluded from permitting, and that won’t change under the rule. In other words, farmers and ranchers won’t need a permit for normal agricultural activities that happen in and around those waters.”
    Who is correct?

    • So your question isn’t as easy as who is correct oddly. When are are looking at a body of water, yes harvesting, planting, livestock activities, etc they probably won’t need a permit under the current rule. Now lets say, I decide to start farming an area that has never been farmed before and it turns out its a wetland (but I’ve never seen it with water but it has soils that show its probably a wetland at times). The concern is under the current rule, additional wetlands will be brought in under the Clean Water Act and require permitting. Currently the Clean Water Act only allows you to continue farming wetlands that were farmed when the Act was passed. The wetland in the Hawkes case looking at the facts as the court saw them, is pretty remote and the Corps never showed it was connected to a body of water covered by the Act.

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