As described on this site last year, the Supreme Court first affirmed the right to challenge wetlands jurisdictional determinations by the Army Corps of Engineers. On remand, plaintiff Hawkes Company, a peat mining company in Minnesota, defeated the Corps’ wetland determination. In granting summary judgment to Hawkes, the district court applied the “significant nexus” test of Justice Kennedy in Rapanos v. United States, holding that the Corps failed to address deficiencies in its determination report that had been identified by the agency itself in an internal administrative appeal.
The court declined to give the Corps another shot at the determination, noting that in 2007, Hawkes told the Corps that unless it could expand its mine, it would run out of peat within 10 years. Losing patience, the court declared: “Plaintiffs should not have to continue to wait to mine their land while the Corps engages in a third effort to establish regulatory jurisdiction over the Wetlands.” The potential environmental harm from mining would have to be addressed in the state permitting process.
The wetlands in question were 90 river miles and 40 aerial miles from the nearest navigable river, with the connection of the wetland to the river through a series of ditches and streams. An administrative appeal of the initial Corps determination remanded the determination, requiring documentation of a significant nexus, particularly on the volume, duration and frequency of water flow, and the significance of any biological contribution to the navigable water. On remand from the administrative appeal, the Corps simply revised the wording of the determination and addressed the flow questions with modeled estimates rather than actual observations.
Given the length of the litigation process, and the perfunctory response of the Corps to its own administrative appeal decision, the district court’s determination gives ample support to the concerns of the U.S. Supreme Court about the need for judicial review of wetland determinations.