United States Court of Appeals for the Eighth Circuit
The plaintiff in this case (Hawkes Co.) disagreed with a "jurisdictional determination" ("JD") made by the U.S. Army Corps of Engineers. Specifically, it did not believe the wetland on its property was a "Water of the United States." The District Court granted the Corps' motion to dismiss, holding that the JD was not a "final agency action" as required by the Administrative Procedure Act (APA). The plaintiff appealed to the Eighth Circuit.
NAHB, as part of a coalition, filed an amicus brief in support of Hawkes on Nov. 21, 2013. The case was argued and submitted for a decision on Dec. 11, 2014.
The Court of Appeals reversed the decision.
It recognized that review under the APA should be widely available to those who wish to challenge agency actions. Furthermore, the court held that the cost of obtaining a permit is "prohibitive" and that the government's strategy requires property owners to either go through an expensive permitting process with no guarantee of an approval, or to risk moving forward without a permit, only to face hundreds of thousands of dollar in penalties.
The government sought rehearing and has been denied. Thus, there exists a split in the circuit courts on this important issue.