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Agency Not Given Third Opportunity to Make Determination by Federal Court

Updated: Jun 30, 2020

Road that goes past fields of wheat and hay bales (Image by Edwin Remsberg).

This post is not legal advice. See here for the site’s reposting policy.

2017 has started off with a few court decisions involving agricultural law, and I’ve discussed a few of those decisions. In 2016, the U.S. Supreme Court ruled unanimously (8-0) that an Army Corps of Engineers’ determination that a property contained “a waters of the United States” was reviewable under the Administrative Procedures Act (Hawkes Co., 2016). The Supreme Court affirmed the decision of the Eighth Circuit and sent the case back to the federal district court in Minnesota. Recently, the federal district court granted motions by the Hawkes Co. barring the Army Corps of Engineers from exercising Clean Water Act (CWA) jurisdiction over the property.

My former colleague, Ashley Ellixson, provided a good overview of the facts in the Hawkes Co. case in an earlier blog post ( As the Hawkes looked at expanding their peat operation, the Corps of Engineers considered the property a wetland falling under the CWA. A wetland needs to have a significant nexus to U.S. waters to fall under the CWA. The Corps had made an initial jurisdictional determination and issued a revised jurisdictional determination that the Hawkes’ wetland had a significant nexus with a water of the United States.

With the initial determination, the Corps determined the wetland was 93 river miles or 42 aerial miles from the nearest U.S. waters, the Red River. The water flowed through a man-made ditch, on to an unnamed seasonal tributary of the Middle River, then to the Middle River, and finally hitting the Red River. The Corps never witnessed water from the wetlands flow to the unnamed seasonal tributary but assumed water would. The initial determination also speculated how groundwater may contribute to the water quality of the unnamed tributary but stated additional testing was needed. Finally, the initial determination discussed in general what wetlands do. The Hawkes appealed this decision with the Corps, and the Corps agreed the initial determination lacked in showing the wetland had a significant nexus with the Red River.

Hills with fields and trees (Image by Edwin Remsberg).

With the revised determination, the Corps did nothing to develop additional evidence to determine that wetland had a significant nexus with the Red River. The Corps again found that the wetland had a significant nexus, which would have required the Hawkes to apply for a permit before mining for peat. The Hawkes then appealed in the federal court system, which led to a Supreme Court decision in 2016 sending the case back to the federal district court to determine if the revised determination was sufficient.

The Corps argued the revised determination was adequate and provided significantly new information. The district court disagreed with the Corps. The Corps had not shown evidence to establish a connection between the wetland and the Red River. Water flow from the wetland to the Red River was based on hypothetical calculations but no evidence. While the evidence which was presented showed a chemical and biological connection between the two, this evidence was still generalized and not enough establish a significant nexus. To the court, the revised determination was based on the same information as the initial determination and still failed to establish a significant nexus. The court concluded the revised determination was arbitrary and capricious, with no rational connection to the agency’s facts and choice.

In looking at a potential remedy for this decision, the Corps argued for the court to allow the agency a third opportunity to revise the determination. The court did not like this option, stating “[a]llowing the Corps a third bite at the apple would force Plaintiffs back through a “never ending loop.” ” (Hawkes Co., Inc., 2017). The court did not want to give the agency a third opportunity to establish CWA jurisdiction and force the Hawkes to wait longer to utilize the property. The court enjoined the Corps from exercising jurisdiction over the Hawkes property.

Why care about this decision? The Supreme Court’s decision in this case established that a landowner could appeal a decision of the Corps establishing CWA jurisdiction over a wetland. We see the outcome today is the Corps was denied a third opportunity to establish CWA jurisdiction. It is still unclear if the Trump administration will appeal this decision to the Eighth Circuit Court of Appeals.


Hawkes Co., Inc. v. U.S. Army Corps of Eng’r, No. 13-107-ADM/TNL, 2017 Westlaw 359170 (D. Minn. Jan. 24, 2017).

U.S. Army Corps of Eng’r v. Hawkes Co., Inc., 136 S. Ct. 1807 (2016)

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