Each December 31, my good friends from the neighborhood and I gather to ring in the New Year. To help this not-so-hard-partying group actually stay up late enough to see the Times Square ball drop, about 15 years ago we created a prediction game that has become the highlight of the evening.
We ask each other a series of crystal ball questions in the realms of politics, entertainment, sports and local affairs. Our answers are carefully sealed for the duration of the coming year, and then opened the next New Year’s Eve to find out who among us most clearly saw the future. This past year, one of our friends accurately predicted both the gender and name of Prince William and Duchess Kate’s new baby. (They also predicted that the Nationals would get to the World Series, so accuracy is fleeting.)
As a rule, we avoid any topics where the families have “inside” information, so no environmental law or infrastructure questions. But if I were to have snuck in one such prediction for 2016, it would have been this: the Supreme Court will affirm the Eighth Circuit’s ruling in Hawkes Co., Inc. v. U.S. Army Corps of Engineers. No equivocation or uncertainty here – it is a lock.
EnviroStructure readers will recall our summary from April of last year. A family-owned peat mining business found itself at the mercy of the Corps’ Section 404 permitting process. When they challenged the agency’s jurisdictional determination (“JD”) in court, the Corps argued that the JD was not “final agency action.” The Hawkes would have to either see their permit application denied (a foregone conclusion that would take years) or continue their mining operations, risking fines and/or criminal enforcement.
The Eighth Circuit ruled that the Corps’ Hobson’s choice ignored the reality of a JD’s regulatory significance and that the Hawkes’ case should proceed. Because this ruling created what the Solicitor General poetically labeled a “square but shallow split” with an opposing ruling from the Fifth Circuit, the government petitioned for certiorari. On December 11, 2015, the Supreme Court granted the petition.
Save your $10 on the currently enormous Powerball jackpot and place a wager on the Court ruling against the government. The Army Corps’ long-standing position is doomed for several reasons.
“Bad facts make bad law.” The Hawkes are extremely sympathetic victims of an overly bureaucratic view of the law that has stood for too long. At one point long before the government would argue it took “final agency action,” a Corps official told a company employee that he should start looking for a new job. If that’s not finality, I don’t know what is. In the Waters of the United States litigation will have an impact. Yes, the Hawkes plight doesn’t necessarily have anything to do with the proposed wetlands rule, now being challenged in 627 federal courts. (Not that many, but it feels like it.) However, the foundational arguments of those challenges – that the government’s rule is complicated, vague and applied unevenly – will resonate here. Something’s very wrong when it takes years and lots of money just to find out what everyone knows based on the JD, that you’re not getting a 404 permit. The Supreme Court has already played its hand in the unanimous Sackett ruling. It seems almost impossible to fathom an outcome that would be inconsistent with the Court’s previous opinion dealing with a Clean Water Act compliance order. A JD clearly “determines rights and obligations,” even more so in this case when the Corps informed the Hawkes that their best option was to sell their peat farm to a wetlands mitigation bank. As Justice Alito commented in a concurring opinion in Sackett, “In a nation that values due process, not to mention private property, such treatment is unthinkable.” Did I mention that the ruling was unanimous? Politics count. The ever-more politicized environment in which the Supreme Court operates will dictate a ruling in favor of the property owners. Individual rights and liberties in many different contexts will be the battleground of the 2016 national election. The Justices read the papers.
I won’t be so cocky as to predict another unanimous ruling, but the Hawkes will prevail and will get their day in court. Whether they will ever get to expand their peat mining operations, well, that might be the subject of even more litigation and yet another blog post.