Hawkes Co., Inc.; LPF Properties, LLC; and Pierce Investment Co. own property interests in 530 acres in Marshall County, Minnesota, which they plan to use for peat mining, a wetland-dependent activity. In December of 2010, Hawkes applied for a 404 permit. In March of 2011, the Corps advised Hawkes in writing that it had made a preliminary determination that the land contains wetlands; thus, at a minimum, an environmental assessment would be required. Later, the Corps told Hawkes that the permit would take years and be very costly; thus, Hawkes should sell the land to a “wetlands bank.” In August of 2011, the Corps sent Hawkes another letter, listing additional time-consuming requirements for obtaining a permit.
Hawkes challenged the Corps’ preliminary determination. After an administrative appeal, the Corps issued a “final Corps permit decision” that the land contains wetlands that have a “significant nexus” to a downstream traditional navigable waterway. Hawkes filed suit in the U.S. District Court for the District of Minnesota, which held that the Corps’ ruling was not final agency action under the Administrative Procedure Act. Hawkes appealed to the U.S. Court of Appeals for the Eighth Circuit, which reversed in light of the penalties the Corps may impose under the CWA for discharges into navigable waters without a required permit, or in violation of any issued permit, based on the Corps’ determination.
On December 11, 2015, the Supreme Court granted the Corps’ petition for writ of certiorari. On March 2, 2016, MSLF filed a friend of the court brief in support of Hawkes urging the Court to hold that the Corps made a final “jurisdictional determination” that Hawkes’ land was a “wetland” subject to the CWA and thus is subject to challenge by Hawkes. On March 30, 2016, oral argument was held.