Hawkes wins wetland case on remand from the U.S. Supreme Court

Hawkes Company is a family-owned business in Minnesota that sought to harvest peat moss, for landscaping, in nearby bogs. The Corps claimed jurisdiction over the property as regulated wetlands, even though a Corps reviewing officer found the Jurisdictional Determination invalid. This put Hawkes in an untenable position: Hawkes could (1) abandon all use of the land at great loss; (2) seek an unnecessary federal permit for a few hundred thousand dollars; or (3), proceed to use the land without federal approval subjecting Hawkes to fines of $37,500 a day and criminal prosecution. When Hawkes challenged the JD in court, the case was dismissed as unripe for review. But the Supreme Court disagreed. According to the Court, a Jurisdictional Determination is a binding legal decision subject to immediate judicial challenge. In yesterday’s decision, the Federal District Court of Minnesota ruled the Corps had gone too far and failed to provide site-specific evidence that the Hawkes property would have a significant effect on a downstream navigable water (90 miles away) as required by law. Therefore the property was not subject to federal regulation under the Clean Water Act, although it would be subject to state regulation.