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THE U.S. SUPREME COURT CORRECTS A FEDERAL AGENCY'S ATTEMPT TO CLOSE THE COURTHOUSE DOOR ON AGGRI

Yesterday, the Supreme Court of the United States issued an important opinion in the case of United States Army Corps of Engineers v. Hawkes Co. Inc. et al. Chief Justice Roberts authored the opinion, and all of the justices either joined the opinion or concurred with the result.

The full opinion can be found here:

http://www.supremecourt.gov/opinions/15pdf/15-290_6k37.pdf

This case is important for two reasons: 1) What the Court decided in this case; and 2) The broader lessons that can be learned from this case.

What Did The Court Decide In This Case?

This case involved the federal Clean Water Act.

As it relates to the specific facts of the case, a unanimous Court held that preliminary determinations by the Army Corps of Engineers as to whether "Waters of the United States" were present for Clean Water Act purposes, were subject to review by the courts.

The Army Corps of Engineers argued that its preliminary determinations were not subject to judicial review. The Corps claimed since its preliminary determinations were not technically "final agency actions," people affected by the Corps' determinations were not entitled to seek assistance from the courts.

The Supreme Court rejected the Corps' argument and held that the preliminary determinations were "final" in effect, if not name. The Corps' preliminary determinations involve extensive fact finding, and there are significant legal consequences that flow from the preliminary determinations. The Supreme Court held that these aspects make preliminary determinations "final" in a legal sense.

The Corps argued that landowners and others who did not agree with the Corps' preliminary determinations could eventually appeal to the Courts, but they had to take a big risk or they had to wait. The Corps claimed that the landowners first had to either (1) proceed contrary to the Corps' preliminary determination and face an EPA enforcement action, which involved the risk of substantial penalties, or (2) wait for the Corps' decision on the permit application for the involved work. The Supreme Court found that would take an average of 313 days and $28,915 for "general" permits, and an average of 788 days and $271,596 for specialized "individual" permits.

The Court found that neither of these alternatives was adequate.

The Court held that the landowners could seek the review of the courts to determine if the Corps had made a correct preliminary determination.

It is unknown how the U.S. Army Corps of Engineers will respond to this decision. The Corps could proceed along and abide by the Supreme Court's decision. Or the Corps could do away with preliminary determinations, which are a Corps creation and not mandated by the Clean Water Act.

Congress may also amend the Clean Water Act to address this issue.

What Should We Learn From This Case?

Every court case has an immediate application to the involved parties. But we should always ask, "What should we learn from this case?"

1. The Impact On Clean Water Act Cases.

The most obvious application of this case is the effect on preliminary determinations made by the U.S. Army Corps of Engineers regarding whether a project or property involves "Waters of the United States" for Clean Water Act purposes.

If you are involved in, or anticipate being involved in, a Clean Water Act matter, obtain qualified legal assistance. Do so early, on the front end. Not the back end. You will save time, heartache and money in the long run.

2. The Importance Of Administrative Agencies.

This case reminds us of the presence and importance of administrative agencies are in our modern government.

The number of federal, state, and local agencies is too long to list.

Well known agencies at the federal level include the IRS, the EPA, the EEOC, the Immigration and Naturalization Service, the Department of Education, the Department of Agriculture, and others.

At the state level in Tennessee, we have the Department of Revenue, TDEC, TDOT, the Department of Labor and Workforce Development, DHS, and others.

At the local level, we have planning commissions, boards of zoning appeals, parking and traffic commissions, beer boards, and others.

Today, many laws, rules, and regulations that affect people are issued by the large number of federal, state, and local administrative agencies. The Code of Federal Regulations, the codification of the general and permanent rules and regulations published by the executive departments and agencies of the federal government of the United States, alone, now stands at almost 180,000 pages.

3. A Good Legal Strategy Is Essential.

Almost everyone will deal with a governmental administrative agency in the ordinary course of their lives. Many of those exchanges are helpful and uneventful.

But sometimes, people and businesses find themselves in a legal dispute with an administrative agency.

In this case, the landowners hired a law firm that developed a winning legal strategy. The landowners' decision to reject a "go it alone" approach enabled the landowners to make effective arguments in court and eventually win the case.

The decision of an administrative agency is not the last word. People have a right to ask the courts to review agency decisions. Whether appeals to the courts are successful usually depends on an effective legal presentation.

Parker, Lawrence, Cantrell & Smith

201 Fourth Avenue North, Suite 1700, Nashville, Tennessee 37219

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