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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0613%3A15. Public record. Not legal advice.