Amicus Curiae Brief — U.S. Army Corp of Eng'rs v. Hawkes Co., 136 S. Ct. 615 (2015) (No. 15-290)

No. 15-290

Supreme Court of the Anited States

UNITED STATES ARMY CORPS OF ENGINEERS,

Petitioner,

HAWKES Co., INC., ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF OF THE COUNCIL OF STATE

GOVERNMENTS, THE NATIONAL

ASSOCIATION OF COUNTIES, THE NATIONAL

LEAGUE OF CITIES, THE U.S. CONFERENCE

OF MAYORS, THE INTERNATIONAL

CITY/COUNTY MANAGEMENT ASSOCIATION

AND THE INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

LISA E. SORONEN

STATE AND LOCAL LEGAL CENTER

444 North Capitol St NW

Suite 615

Washington, D.C. 20001

(202) 434-4845

JOSEPH W. JACQUOT

Counsel of Record

FOLEY & LARDNER LLP

One Independent Drive

Suite 1300

Jacksonville, FL 32202

(904) 359-2000

jjacquot@foley.com

LINDA E. BENFIELD

RICHARD G. STOLL

FOLEY & LARDNER LLP

777 East Wisconsin Ave.

Milwaukee, WI 53202

(414) 271-2400.

Ibenfield@foley.cont

rstoll@foley.com ~-

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WasnincTon, D. C. 20002

TABLE OF CONTENTS

Page

_ ( ¢ ee ii

STATEMENT OF INTEREST. ........................ccccccceeeees 1

SUMMARY OF ARGUMENT .......00.0........cccceceeeeeeeeeees 2

ee 4

I. THE ARMY CORPS’ JURISDICTIONAL

DETERMINATIONS ARE FINAL AGENCY

ACTIONS UNDER THE CLEAN WATER ACT

THAT HAVE A SIGNIFICANT IMPACT ON

STATE AND LOCAL GOVERNMENTS. ............ 4

II. JURISDICTIONAL DETERMINATIONS

SIGNIFICANTLY IMPACT AMICI’S RIGHTS

Ee icrencccnmennscsennsevsssennsensevesensett 8

A. Amici’s Role As Landowners Is

aire erremncenenntetnnanmnninl 9

B. Amici’s Role As Regulators Is

ET eT 10

C. Amici’s Role As Partners With Local

Businesses In Economic Development

ieee tran ceamemmenennnemeneneds 12

Eee 15

(i)

TABLE OF AUTHORITIES

Cases:

Bennett v. Spear,

ee Se ccinncictccnnhnemncsiticteninsiitis

Califano v. Sanders,

TT ciiincimirciieniiiiinsiciaianianiiiini

Fairbanks N. Star Borough v. U.S.

Army Corps of Eng’rs,

543 F.3d 586 (9th Cir. 2008), cert.

denied, 557 U.S. 919 (2009)....................

In re U.S. Envti. Prot. Agency and U.S.

Dep't of Def Final Rule; “Clean

Water Rule: Definitions of Waters of

the United States,” 80 Fed. Reg.

37,054 (Jun. 29, 2015), 803 F.3d 804

RL EEE aR ES

Rapanosv. United States,

Ee

Sackett v. Envtil. Prot. Agency,

I A

United Aerial Advert., Inc.,

2000 F.A.A. 575 (2000)..............cccccceeeeeees

Statutes and regulations:

Administrative Procedure Act, 5 U.S.C.

Page(s)

ee ceirenessmecseeenens 4, 6, 10, 15

DB Ee We crescccssnssemsemsemccecsesvscssenenenense

ili

Clean Water Act, Pub. L. No. 92-500,

§ 2, 86 Stat. 816 (33 U.S.C. 1251 et

SEES ce eee 2-3

I 5

TT Tanna ann aD 6

RISERS ESSE econ mer meee 5

ETE ae ee a 5

EI ene ee re 5

i ial 6

I el 5

2 C.F.R.

EER ES Ee ee Cee nen ER ll

33 C.F.R.:

TE ae ea CS 3,6

Pt. 320:

Section 320. 1(a)(6) ............cccccecccceececeeeeeeeeeeeeeee 5, 6

| LY Oe ee 7

Pt. 325

aati accent 6

Pt. 331

| LC eee 6

Miscellaneous:

80 Fed. Reg. (Jun. 29, 2015)

TTT irene eee cinicesieainiempmaenenanaeniie 7

SE are 6

Matthew D. Chase, Comments of the

Nat’ Ass'n of Counties Re:

Definition of “Waters of the United

States” Under the Clean Water Act

12 (Docket ID EPA-HQ-OW-2011

0880-15504) (Nov. 14, 2014), .....000..-. eee. 11, 12

iv

Michelle Jarobe, As Clevelarnd-Area

Ikea Plan Falters, Brooklyn Points

to Army Corps Snaris,

CLEVELAND.COM (Feb. 17, 2016),

available at

Attp-/www.cleveland.com/business/

ndex.sst/2016/02/as_cleveland-

area_ikea_plans_f html ..................0...0c0000s000000000+ 13

Office of Mgmt. & Budget, Aid to State

and Local Governments 265 (2015),

available at

https://www.whitehouse.gov/sites/def

ault/files/omb/budget/fy2016/assets/a

p_15_state_and_local.pdf............................ 9, 10-11

State to File Amicus Brief in Support of

Fairbanks North Star Borough,

ALASKA DEP’T OF LAW (March 23,

2009), available at

http://www.law.state.ak.us/press/releases/

2009/032309-AmicuNSB.htwml ....................cccceeeeeeeees 10

United States Dep’t of Health & Human

Servs., Grants Policy Statement, 1-7

SRS, Neen 11

United States Dep’t of Trans. Fed.

Transit Author., Master Agreement

| Se 11

U.S. Army Corps of Eng’rs Buffalo

District, Public Notice: IKEA

Property, Inc. Application No. 2014-

01023, at 1-2 (Jul. 13, 2015),

available at

http://www.irb.usace.army.mil/Porta

1s/45/docs/regulatory/publicnotices/2

015July/PN2014-010230H.pdf...................... 13, 14

STATEMENT OF INTEREST!

Amici curiae state and local government

associations respectfully submit this amici curiae

brief in support of respondents. Amici have a strong

interest in federal agency action. That is particularly

true when, as here, the agency actions concern

environmental policy and economic development.

They regularly submit amicus briefs to the Court in

cases, like this one, that potentially have significant

consequences for the Nation’s state and local

governments.

The Council of State Governments (CSG) is the

Nation's only organization serving all three branches

of state government. CSG is a region-based forum

that fosters the exchange of insights and ideas to help

state officials shape public policy. This offers

unparalleled regional, national, and international

opportunities to network, develop leaders,

collaborate, and create problem-solving partnerships.

The National Association of Counties (NACo) is

the only national organization that represents county

governments in the United States. Founded in 1935,

NACo provides essential services to the nation's 3,069

counties through advocacy, education, and research.

The National League of Cities (NLC) is the oldest

and largest organization representing municipal

governments throughout the United States. Its

mission is to strengthen and promote cities as centers

of opportunity, leadership, and governance. Working

1 The parties have consented to the filing of this amicus curiae

brief, and their letters of consent are on file with the Clerk (Rule

37.2). This brief was not written in whole or in part by the

parties’ counsel, and no one other than the Amici made a

monetary contribution to its preparation (Rule 37.6).

2

in partnership with 49 State municipal leagues, NLC

serves as a national advocate for the more than

19,000 cities, villages, and towns it represents.

The U. S. Conference of Mayors (USCM), founded

in 1932, is the official nonpartisan organization of all

United States cities with a population of more than

30,000 people, which includes over 1,200 cities at

present. Each city is represented in the USCM by its

chief elected official, the mayor.

The International City/County Management

Association (ICMA) is a nonprofit professional and

educational organization of over 9,000 appointed

chief executives and assistants serving cities,

counties, towns, and regional entities. ICMA's

mission is to create excellence in local governance by

advocating and developing the professional

management of local governments throughout the

world.

The International Municipal Lawyers Association

(IMLA) has been an advocate and resource for local

government attorneys since 1935. Owned solely by

its more than 2,500 members, IMLA serves as an

international clearinghouse for legal information and

cooperation on municipal legal matters.

SUMMARY OF ARGUMENT

The Eighth Circuit correctly held _ that

jurisdictional determinations issued by the United

States Army Corps of Engineers (Army Corps) are

final agency actions subject to judicial review under

this Court’s test announced in Bennett v. Spear, 520

U.S. 154, 177-78 (1997). The Army Corps’

jurisdictional determinations are made pursuant to

regulations promulgated under the Clean Water Act

(the “CWA”). See Pub. L. No. 92-500, § 2, 86 Stat.

3

816 (33 U.S.C. 1251 et seg.); 33 C.F.R. 320-334. The

Act provides important protections for the Nation’s

environment, and also recognizes and preserves the

primary role of state and local governments in

environmental protection and economic development.

Thus, Amici, who frequently must promote both

stewardship of the lands and economic development,

are often impacted by these _ jurisdictional

determinations.

Early judicial review of jurisdictional

determinations by the Army Corps is important for

the reasons stated by the Eighth Circuit and by

respondents. See Pet. App. 1la-16a; Resp. Br. 39-50.

Jurisdictional determinations under the Act have a

real world significant impact on the “rights and

obligations” of property owners and local regulators.

Amici are uniquely positioned to explain the real

world impact of regulatory action by the Army Corps

and why prompt judicial review is necessary.

As landowners, Amici face the same timing and

cost burdens suffered by respondents if a

jurisdictional determination is not subject to prompt

judicial review. As governmental entities, Amici also

have to consider the cost of obtaining a permit that

may not be necessary, in light of other demands on

their budgets to provide necessary governmental

services. As governmental entities, directed and

empowered to provide long-term planning for

communities, including economic development and

capital infrastructure projects, Amici also need the

certainty provided by prompt judicial review of

jurisdictional determinations.

4

ARGUMENT

I. THE ARMY CORPS’ JURISDICTIONAL

DETERMINATIONS ARE FINAL AGENCY

ACTIONS UNDER THE CLEAN WATER ACT

THAT HAVE A SIGNIFICANT IMPACT ON

STATE AND LOCAL GOVERNMENTS.

The Administrative Procedure Act (APA), 5

U.S.C. 701 et seg., provides for judicial review of any

“final agency action for which there is no other

adequate remedy in a court.” 5 U.S.C. 704. This

Court has recognized that it was Congress’s intent

“that judicial review should be widely available to

challenge the actions of federal administrative

officials,” Califano v. Sanders, 430 U.S. 99, 104

(1977), and that the APA “creates a presumption

favoring judicial review of administrative action.”

Sackett v. Envtl Prot. Agency, 132 S. Ct. 1367, 1373

(2012). Here, the Army Corps’ jurisdictional

determination meets the two-part test established by

this Court in Bennett v. Spear. “l(flirst, the action

must mark the consummation of the agency’s

decisionmaking process—it must not be of a merely

tentative or interlocutory nature. And second, the

action must be one by which rights or obligations

have been determined, or from which legal

consequences will flow.” 520 U.S. 154, 177-78 (1997)

(internal citations and quotation marks omitted).

The Eighth Circuit correctly held that the

jurisdictional determination by the Army Corps was a

final agency action that is subject to judicial review.

Pet. App. 16a-17a. Applying the test this Court set

forth in Bennett, the Eighth Circuit found that a

jurisdictional determination is the consummation of

the agency’s decisionmaking process and is an action

5

from which rights or obligations have been

determined, or from which legal consequences will

flow. Pet. App. 9a-13a. The Eighth Circuit also

correctly concluded that there is “no other adequate

[judicial remedy]” by which a person or entity could

contest such a determination. Pet. App. 13a-l6a

(quoting 5 U.S.C. 704).

Petitioner does not dispute that the decision is

“the consummation of the agency’s decisionmaking

process.” Pet. Br. 25 (quoting Bennett, 520 U.S. at

177-78). Thus, there are two issues presently before

the Court. First, the court must determine whether

the jurisdictional determination is “one by which

rights or obligations have been determined, or from

which legal consequences will flow.” Jd. (quoting

Bennett, 520 U.S. at 178). Second, the Court must

determine whether, absent judicial review,

individuals or entities such as the respondents have

another “adequate [judicial] remedy” by which they

can contest a jurisdictional determination. /d. at 45

(quoting 5 U.S.C. 704).

The Army Corps’ jurisdictional determination in

this case was made pursuant to the Act's

implementing regulations. See 33 C.F.R. 320.1(a)(6),

325.9, 331.2. The Act was enacted in its modern form

in 1972 with the goal to “restore and maintain the

chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. 1251(a). In order to

obtain this goal, the Act includes broad limitations on

the “discharges” of any “pollutant” into navigable

waters without a permit. See 33 U.S.C. 1311(a),

1342, 1344. The Act definition of “navigable waters”

is “the waters of the United States,” 33

U.S.C. 1362(7), a broad definition that has led to

much uncertainty as to the reach of federal

6

jurisdiction. Rapanos v. United States, 547 U.S. 715,

723-27 (2006); see also Clean Water Rule: Definition

of “Waters of the United States,” 80 Fed. Reg. 37,054,

37,060-61 (Jun. 29, 2015). Discharges of pollutants

include depositing fill, such as soil or other materials,

into jurisdictional wetlands, including for purposes of

filling those wetlands for development. Rapanos, 547

U.S. at 760-61 (Kennedy, J., concurring). This Court

has noted that the average applicant for an

individual permit “spends 788 days and $271,596 in

completing the process.” Jd. at 721.

Amici strongly support the Act’s goals of

preserving and protecting our nation’s wetland

resources. Amici also strongly endorse the Act’s

equally important policy “to recognize, preserve, and

protect the primary responsibilities and rights of

States to prevent, reduce, and eliminate pollution, to

plan the development and use (including restoration,

preservation, and enhancement) of land and water

resources.” 33 U.S.C. 1251(b).

Under the Act, the Army Corps is charged with

administering permits for dredged or fill materials.

See 33 U.S.C. 1344(d). The Army Corps has enacted

regulations for its administration of these permits.

See 33 C.F.R. 320-334. Under these regulations, the

Army Corps adopted a rule that allows district

engineers to issue “jurisdictional determinations” as

to whether federal jurisdiction applies to a particular

water or wetland. See 33 C.F.R. 320.1(a)(6), 325.9,

331.2. The agency’s regulations further provide that

a jurisdictional determination “shall constitute a

Corps final agency action.” 33 C.F.R. 320.1(a)(6).

The APA provides for judicial review of any “final

agency action for which there is no other adequate

remedy in a court.” 5 U.S.C. 704. The Act’s emphasis

7

on state involvement in environmental protection and

development, combined with the uncertainty created

by the reach of federal jurisdiction in this area, is of

considerable significance to Amici. The Army Corps’

determination that a property contains jurisdictional

wetlands significantly impacts the Amici as

landowners, as regulators under the Act, and as

partners with private entities, significantly affecting

their ability to fulfill their responsibilities to their

citizens.

Depending upon whether a property is

determined to contain jurisdictional waters under the

Act, development may not be possible at all, or might

be allowed only in a specific area and only with a

permit, and even then, a permit often contains a

requirement for significant investment in mitigation

measures. See, e.g., 33 C.F.R. 320.4; Resp. Br. 39-43.

As noted above, the Act’s permit process also takes

significant time, and can cost hundreds of thousands

of dollars.

The importance of these determinations is also

reflected in the recent “Waters of the United States”

rule promulgated by the United States

Environmental Protection Agency to clarify the

definition of “wetlands.” See Clean Water Rule:

Definition of “Waters of the United States,” 80 Fed.

Reg. 37,054 (Jun. 29, 2015). Although the legality of

this rule is not yet before this Court, the breadth of

the rule, and the significant consequences that attend

to a determination that a property contains a

“wetland,” highlight the importance of ensuring,

early in the process, that a jurisdictional

determination is correct.?

2 The Sixth Circuit Court of Appeals has issued a stay of the rule

Il. JURISDICTIONAL DETERMINATIONS

SIGNIFICANTLY IMPACT AMICTS RIGHTS

AND OBLIGATIONS.

The Eighth Circuit correctly noted the significant

impact an Army Corps’ jurisdictional determination

could have on respondents. Pet. App. 13a-17a.

Indeed, jurisdictional determinations have

substantial, practical effects, which lend credence to

the Eighth Circuit’s holding that these decisions

establish legal rights and obligations and produce

significant legal consequences. Pet. App. lla-13a

(quoting Bennett, 520 U.S. at 177-78). The practical

impact of a jurisdictional determination likewise

supports the Eighth Circuit’s finding that, absent

judicial review, parties such as respondents lack any

other adequate judicial remedy by which they can

contest such a determination. /d. at 13a-16a. The

experience of Amici supports the Eighth Circuit’s

reasoning on both of these points.

As landowners and as governmental planning

bodies, Amici need the certainty of prompt judicial

review of a jurisdictional determination issued by the

Army Corps in order to discharge their myriad

obligations to manage limited public funds, protect

wetlands, and plan for economic growth and

development. As representatives of state and local

governments, Amici serve a vital role in providing

numerous community services to their citizens.

These services may include planning, constructing,

and maintaining state and local highways and roads,

pending its review, which is effective nationwide. Jn re U.S.

Envtl. Prot. Agency and U.S. Dep't of Def Final Ruie; “Clean

Water Rule: Definitions of Waters of the United States,” 80 Fed.

Reg. 37,054 (Jun. 29, 2015), 803 F.3d 804 (6th Cir. 2015).

9

providing police and fire protection, establishing and

maintaining parks and recreational areas for the

enjoyment of their constituents, and planning and

providing infrastructure for a variety of land use

developments, that include’ industrial and

commercial parks, as well as low-income housing.

See Office of Mgmt. & Budget, Aid to State and Local

Governments 265 (2015), available at

https://www.whitehouse.gov/sites/default/files/omb/bu

dget/fy2016/assets/ap_15_state_and_local.pdf

[hereinafter “OMB 2015 Report”).

A. Amici’s Role As Landowners Is Impacted.

As landowners of substantial amounts of real

property, prompt judicial review of an Army Corps’

jurisdictional determination for Amici is of vital

importance. Otherwise, a local government may be

forced to spend limited public funds to obtain an

unnecessary permit, or may choose to abandon an

otherwise worthy project.

These types of choices are precisely what

confronted Fairbanks North Star Borough in Alaska

(the “Borough”), which is a member of the Amicus

NACo, after the Ninth Circuit Court of Appeals ruled

that the Army Corps’ jurisdictional determination

was not subject to judicial review. Fairbanks N. Star

Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586,

597 (9th Cir. 2008), cert. denied, 557 U.S. 919 (2009).

In that case, the Army Corps issued a final

jurisdictional determination that all of the 2.1 acres

of land the Borough intended to develop into

playgrounds, athletic fields, restrooms, concessions,

and related structures contained “waters of the

United States.” Id. at 589. The Borough

unsuccessfully sought judicial review of the

10

jurisdictional determinations. The Ninth Circuit's

holding that a jurisdictional determination is not a

final agency action reviewable under the APA was

identified by petitioner in the Petition in this case as

one of the decisions creating a “three-way circuit

split.” See Pet. 12. Alaska Acting Attorney General

Richard Svobodny explained why the state submitted

an amicus brief in support of the Borough’s petition

for a writ of certiorari: “Property owners seeking to

use their land cannot, in many instances, be sure of

the land's wetland status and need a way to quickly

and finally resolve that issue so that the time and

money required to go through the permitting process

are not unnecessarily wasted or do not become cause

for the project to be abandoned.” State to File Amicus

Brief in Support of Fairbanks North Star Borough,

ALASKA DEP’T OF LAW (March 23, 2009), available at

http://www.law.state.ak.us/press/releases/2009/03230

9-AmicuNSB.html. Following this Court’s denial of a

petition, the Borough abandoned the project.

B. Amici’s Role As Regulators Is Impacted.

The option of commencing a project and awaiting

an enforcement action is “plainly an inadequate

remedy.” Pet. App. 14a. The Eighth Circuit noted

the “substantial criminal monetary penalties and

even imprisonment” that could be incurred from this

strategy. Jd. For Amici, as landowners, if they

procee. with a project without obtaining a permit,

they could face an additional potential penalty—the

loss of federal grants, which are key sources of

funding.’ As a criterion for grant funding, a number

3 See OMB 2015 Report. The OMB noted that “[flederal grants

help State and local governments finance programs covering

most areas of domestic public spending including infrastructure,

11

of federal agencies’ grants require that applicants

comply with all applicable federal laws. For example,

the United States Department of Transportation,

United States Department of Health and Human

Services, and the Federal Aviation Administration

condition some sources of funding to state and/or

local governments on full compliance with the federal

statutes and regulations. See, e.g, United States

Dep’t of Trans. Fed. Transit Author. (“FTA”), Master

Agreement 2-3, 9-11 (2014); United States Dep't of

Health & Human Servs., Grants Policy Statement, |-

7 (2007); 2 C.F.R. 200.303(b) (any “non-Federal entity

must [clomply with Federal statutes, regulations,

and the terms and conditions of the Federal

awards.”); United Aerial Advert., Inc., 2000 F.A.A.

575 (2000) (Federal Aviation Administration

withheld federal funds from a county for violating

federal laws related to grant assurances and grant

conditions). Therefore, if they choose to proceed with

a project without a permit, a state and/or local

governmental entity may risk losing the very funds

they need to complete the work.

Indeed. the specter of losing federal funding has a

significant impact on the development of state and

local infrastructure projects. One Midwest county

received funding from the Federal Highway

Authority to replace two old bridge structures. See

Matthew D. Chase, Comments of the Nat’ Ass'n of

education, social services, and public safety.” /d. at 266. The

OMB concluded that in 2013, federal funds from both

mandatory (through direct appropriations) and discretionary

grants accounted for 29.8% of state budgets. /d. at 265. In

2014, OMB determined that the actual amount of federal grants

to state and local governments was $577 billion. See id. at Table

15-1.

12

Counties Re: Definition of “Waters of the United

States” Under the Clean Water Act 12 (Docket ID

EPA-HQ-OW-2011-0880-15504) (Nov. 14, 2014),

available at www.regulations.gov. The Army Corps

determined that the project would impact three

hundred feet of a roadside ditch that it considered to

be jurisdictional wetlands. Jd. Although the county

disagreed with the Army Corps’ determination, it

nonetheless obtained a permit to avoid additional

delay and the potential withdrawal of federal funding

for the project. Jd. The cost of the permitting process

forced the county to reduce the scale of the project,

and the final project was completed several months

late. Id.

C. Amici’s Role As Partners With Local

Businesses In Economic Development Is

Impacted.

Finally, Amici are required and empowered to

provide short and long-term planning for their

communities, which includes economic development

and capital infrastructure projects, housing,

recreation, and transportation planning. Their long

term growth plans are often implemented in

partnership with private parties who develop projects

within development zones, industrial parks, and

targeted development areas. Amici can plan the

strategy for growth, implement zoning restrictions to

drive specific projects, plan for infrastructure

improvements to support the growth, and issue

necessary permits. However, the Army Corps could

issue a positive jurisdictional determination that, if

upheld, would preclude or interfere with the Amici’s

short and long-term development plans. All of the

parties involved need the ability to seek prompt,

definitive judicial review of that decision.

13

Faced with the alternatives of an expensive

permit, a lengthy delay, or future enforcement action,

private parties may decide to abandon these projects,

depriving the communities of necessary investment

and growth, and depriving the governments of the

ability to responsibly manage their growth while

protecting the definitive wetlands.

Recently, the potential designation of a portion of

a property as a jurisdictional wetland forced a

national retailer to abandon a planned development.

Ikea, the Scandinavian furniture retailer, planned to

construct an approximately 336,000 square-foot retail

warehouse facility in the city of Brooklyn, Ohio. See

U.S. Army Corps of Engrs Buffalo District, Public

Notice: IKEA Property, Inc. Application No. 2014-

01023, at 1-2 (Jul. 13, 2015), available at

http://www.lrb.usace.army.mil/Portals/45/docs/regula

tory/publicnotices/2015July/PN2014-010230H.pdf.

The planned development was going to be “more than

a retail center” for this community. See Michelle

Jarobe, As Cleveland-Area Ikea Plan Falters,

Brooklyn Points to Army Corps’ Snaris,

CLEVELAND.COM (Feb. 17, 2016), available at

Attp-/www.cleveland.com/business/index.ss/2016/02/

as_cleveland-area_ikea_plans_fhtml (citations

omitted). Local citizens expected the development to

“bring[] with it the ability to attract other investors

who want to be around Ikea, itself. It’s sort of like

what McDonald’s was 40 years ago. McDonald’s went

into a corner, and you saw three other people go into

that corner.” Jd. (quoting Joe Roman, President and

Chief Executive Officer of the Greater Cleveland

Partnership). The Army Corps issued a preliminary

jurisdictional determination for the eastern portion of

the property, and conducted a site visit on the

14

western portion, concluding that there were

approximately twenty-three acres of jurisdictional

wetlands present between the two parcels. See U.S.

Army Corps, Public Notice: IKEA Property, Inc.

Application No. 2014-01023, supra, at 1-2. Ikea

subsequently chose to terminate its efforts and

agreements for the project, a decision which means a

significant loss of opportunity for this community,

including the loss of “300-some jobs.” Jd. (quoting

Andi Udris, Economic-Development Director in

Brooklyn, Ohio). Situations such as this demonstrate

the need for prompt judicial review of jurisdictional

determinations, or local governments and businesses

will be hindered in their ability to plan for and

construct new development.

Similarly, when a large corporation plans to bring

its corporate headquarters to a medium-sized city,

much of state and local governments’ work to prepare

for this new development must be started, if not

completed, well before the corporation opens its

doors. A few thousand employees will relocate to this

city. State and local governments must build roads,

schools, parks, and sewer systems to be ready for the

influx of workers. Expenses must be budgeted for and

revenue must be raised. If state and local

governments and investors have to wait to seek

judicial review of a jurisdictional determination more

is lost than just time as plans are postponed. Labor

and materials costs may have increased, contractors

may have moved onto other projects, federal funding

and grants may no longer be available, interest rates

may have increased, and budgeted tax dollars may

have been spent on other projects. More importantly,

the interested corporation may have moved on to

another city, state, or even country.

15

In raising these examples, Amici take no position

regarding the development of areas subject to federal

jurisdiction, including the appropriate scope of that

jurisdiction. Instead, these examples highlight that,

absent prompt judicial review, a jurisdictional

determination all too often becomes the final word on

the scope of federal authority, increasing project

costs, lengthening project timelines, and, in some

instances, stifling community and economic

development. Amici need the certainty provided by

prompt judicial review of jurisdictional

determinations to implement their planning

mandates, and to facilitate and support community

and economic development.

CONCLUSION

The Eighth Circuit Court of Appeals correctly

held that jurisdictional determinations are final

agency actions that are subject to judicial review

under the APA. This allows state and local

governments to manage limited budgets and

effectively implement short and long-term growth

and development planning strategies.

For the foregoing reasons, this Court should

affirm the Eighth Circuit's decision.

Respectfully submitted,

LISA E. SORONEN

STATE AND LOCAL LEGAL

CENTER

444 North Capitol St NW

Suite 515

Washington, D.C. 20001

(202) 434-4845

lsoronen@sso.org

MICHAEL D. LEFFEL

SARAH A. SLACK

FOLEY & LARDNER LLP

150 East Gilman Street

Madison, WI 53703

(608) 257-5035

mleffel@foley.com

sslack@foley.com

March 2, 2016.

16

JOSEPH W JACQUOT

Counsel of Record

FOLEY & LARDNER LLP

One Independent Drive

Suite 1300

Jacksonville, FL 32202

(904) 359-2000

jjacquot@foley.com

LINDA E. BENFIELD

RICHARD G. STOLL

FOLEY & LARDNER LLP

777 East Wisconsin Ave.

Milwaukee, WI 53202

(414) 271-2400

Ibenfield@foley.com

rstoll@foley.com