USACE v. Hawkes… And Happy Summer!

Happy Summer!

US Supreme Court Rules for Property Owners in Unanimous Decision

It’s a good day to post because the US Supreme Court handed down its widely anticipated decision in USACE v. Hawkes. 

This is part of constellation of cases involving the EPA’s understanding of how it will interpret and implement regulations concerning “the waters of the US”. In this particular case, the issue of “jurisdictional determination” concerning whether or not an owner has “waters of the US” present on their property. While this is an issue that is complex in part because it’s sometimes difficult to know whether or not such waters are present, in the facts of the case the US Army Corps of Engineers had defined “waters of the US” to include “all wetlands that that “use, degradation or destruction of which could affect interstate or foreign commerce” (33 CFR Section 328.8(a)(3)). The Corps would make a “jurisdictional determination” (binding for five years) to specify whether the waters on a property were “waters of the US”. There are two types of jurisdictional determinations (JDs): one is “preliminary”, and the other is “approved”. The “preliminary” JD lets the property owner know that there may be “waters of the US” on their property. However, the “approved” JD states that such waters do in fact exist, and impacts permitting process for land use.

The question posed in Hawkes is whether the “approved jurisdictional determination” is a “final decision”. The Government argued that the “approved” JD was not “final” because it could be revised. However, the Court found that it was final because it had legal effects; and that as such, it could be appealed as a “final agency action”. This potentially will save property owners a great deal of time in a permitting process and provide with an opportunity to receive scrutiny on a decision that could have very important long term consequences for their use of the land.

The Court ruled unanimously in their decision, though the concurrences suggest that there were some differences of opinion in the specifics the case. Chief Justice Roberts, writing for the Court, explains that in the Court’s view the revised (“approved”) JD is a final agency action, which makes the reviewable by courts. He explains that there are two conditions that the Court considers when they determine whether an agency action is “final” under the Administrative Procedure Act. First, the action must “mark the consummation of the agency’s decisionmaking process — it must not be of a merely tentative or interlocutory nature. And second, the action must be one of which rights or obligations have been determined, or from which legal consequences will flow” (Hawkes Slip Opinion, p. 5). The Court determined that both conditions were met. You can read the full Slip Opinion here: USACE v. Hawkes Slip Opinion.

There were concurrences in the case, but I found the concurrence filed by Kennedy, Alito and Thomas particularly important, though not so much because of any doctrinal discussion in the decision. It reiterates what the Court says in the majority opinion and I found it especially interesting since Kennedy is its author, and usually considered a moderate conservative on the Court. He was the author of the same sex marriage decision from last summer, and has been the swing vote in cases involving many other highly contested issues. Here, he finishes his concurrence with this paragraph, which I found particularly insightful concerning matters on the minds of the eight justices serving on the current Court:

“The Act, especially without the JD procedure were the Government permitted to foreclose it, continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.” (Hawkes Slip Opinion Concurrence, p. 2).

Indeed. But I don’t think it’s the Act itself that’s the problem — it’s the way it’s being interpreted and implemented, particularly currently, that has been especially disconcerting. So, I’ll keep an eye out for the rest of the waters of the US cases, and will try to blog updates when I have them. Let me direct readers, as I have in the past, to Leland Beck’s excellent blog, which tracks these issues in useful and lucid ways as well.

Editor’s note, 6/1/2016: I had to do a bit of editing here in light of a second review of the decision, and will be looking more closely at the various concurrences in the case. Stay tuned for a post with more analysis!

In Other DPP News…  

In the meantime, watch for a few changes here. With the help of one of my students at Southeast Missouri State, Wesley Cox, we have a page under construction that will provide links to various resources for rural communities that are undergoing the stressful process of recovery, or are working through emergency management plans to help themselves be more resilient should a disaster strike. That page should be up and running in the next few weeks. I’ll post when it’s ready. In the meantime, if any readers have resources they’d like me to add or check out, please email me at

I’ll also be traveling to New Orleans this coming week to attend the Law and Society Association Annual Meeting. This is always a fun meeting, and I’m looking forward to seeing some of my former students and lots of wonderful colleagues from all over the world. I’m also taking my camera and my notebook. After all, whenever I drive along the Mississippi, there are things to see, photograph and write about!



Reading Around the Internet, January 11, 2016

Good morning — we have a beautiful, cold morning here in Cape Girardeau. It’s a welcome change to the rainy weather we had all weekend.

A few noteworthy items popped up late last week and over the weekend around the Internet that I know various readers may find interesting:

Toxic Torts

There’s an interesting discussion about a toxic tort case in The New York Times Magazine, titled “The Lawyer Who Became DuPont’s Worst Nightmare.” Lawyer Rob Bilott has been working to expose a very long history of chemical pollution. Nathaniel Rich describes the history behind the case as well as some of the legal maneuverings. For those interested in groundwater issues as well as toxic tort litigation, it’s both a fascinating and frustrating read: fascinating, because of the manner in which the case came to Bilott and his commitment to it; frustrating, because there remain so many unresolved issues after years of litigating.

The Mississippi River Flood

As the flood that caused so much damage here in Missouri and in Illinois moves southward, the Army Corps of Engineers continues to activate flood works in various areas. Yesterday, they opened the gates on the Bonnet Carré spillway in Louisiana. This spillway is activated in order to allow waters from the Mississippi River to flow into Lake Pontchartrain. The goal is to keep the river below the 17 feet (the levees in New Orleans protect the city up to 20 feet). If the Morganza spillway needs to be opened, the earliest that will occur is October 13th. They expect the river to crest tomorrow. WeatherUnderground has some great coverage. If you click through, be sure to also check out their discussion of the subtropical storm that appears to be forming in the Atlantic.

Also, NASA has released images of the New Year’s Flood. For those of you particularly interested in flooding along the river the images are very interesting. If you scroll down, you’ll see that they have also provided links to various other sites that may be of interest, including the National Weather Service’s review of the event.

Huge Bushfire Creates Weather System in Western Australia

Finally, this story caught my eye. There’s a huge blaze in Yarloop, Western Australia that has (it appears), created its own weather system. Courtney Bembridge at ABC News ( reports on it, describing the ways in which this weather system is making it more difficult to fight the fire. Because the heat of the fire is rising to meet moisture in the atmosphere, lightning storms have formed. The story explains the process, with graphics and is well worth taking the time to read.