Hawkes Co., Inc. v. United States Army Corps of Engineers

Hawkes Company, Inc. (Hawkes) (plaintiff) owned wetlands on which it wished to conduct peat mining. The Federal Water Pollution Control Act (Act), 33 U.S.C. §§ 1344(a) and 1362(7), provided that operators were required to have a permit to discharge mining materials in “waters of the United States.” The permitting process was lengthy and expensive, but violations of this provision would result in substantial penalties. Hawkes was unsure whether its wetlands constituted waters of the United States under the Act, but it nonetheless filed a permit application with the United States Army Corps of Engineers (Corps) (defendant), seeking permission to conduct the mining. While Hawkes’s application was pending, the Corps issued an Approved Jurisdictional Determination (JD) that Hawkes’s wetlands were waters of the United States. The Corps indicated to Hawkes that its permit application would likely be denied. Hawkes appealed the JD to the Corps’ Deputy Commanding General for Civil and Emergency Operations (DCG). The DCG found that the record did not support the JD and remanded the issue to the Corps for reconsideration. On remand, the Corps issued a revised JD, again finding that the wetlands constituted navigable United States waters under the Act. The JD stated that it was a “final Corps permit decision.” Hawkes filed suit against the Corps, challenging the JD. The Corps argued that the JD was not a final agency action and thus was not ripe for judicial review. Specifically, the Corps argued that Hawkes had two other remedies in court: (1) complete the permitting process or (2) commence mining and challenge the determination of the Corps when the Corps imposed penalties under the Act. The district court agreed and dismissed Hawkes’s complaint. Hawkes appealed.