We have previously blogged about the Supreme Court’s unanimous decision in Army Corps of Engineers v. Hawkes which found that approved jurisdictional determinations (JDs) issued by the Army Corps may be challenged in federal district court under the Administrative Procedure Act.
Following remand from the Supreme Court, the Minnesota federal district court has now ruled on the underling case. In a January 24th order, the district court found that the Corps’ JD was incorrect in determining that the Hawkes’ proposed peat mine contained jurisdictional wetlands. To the contrary, the court found that the relevant factors considered by the Corps did not establish that the wetlands at issue had a “significant nexus” to navigable waters. As a result, the court overturned the Corps’ JD.
Several aspects of the case are noteworthy:
Deference. The Court acknowledged that deference was to be afforded to the Corps but concluded that, on the record, the Corps’ analysis was arbitrary and capricious. This finding was largely based on the fact that the Corps’ own Appellate Review Officer had determined that the administrative record underlying the JD lacked sufficient data to establish a “significant nexus.”
Remedy. The court found that the Corps should be enjoined from asserting jurisdiction over the wetlands. In doing so, the court overruled the Corps’ position that the proper remedy would be remand to the Corps for further review. The court concluded that “remand is not appropriate because the Corps should not be entitled to yet another bite at the proverbial apple in attempting to provide evidence to support its assertion of CWA jurisdiction.”
A copy of the court’s decision may be found here. With the new administration, it will be interesting to see if the Corps will appeal the decision. We will update the blog as further developments occur.