Property

By: Peggy Kirk Hall, Monday, July 17th, 2017

Noxious weed law questions are common in the midst of the growing season and this year is no different.  Below is a sampling of frequently asked questions we've received about noxious weed law.  Learn more about the laws in our new law bulletin, Ohio's Noxious Weed Laws, available here.

My neighbor doesn’t keep his fence row clear of noxious weeds.  What can I do about it?
First, talk to the neighbor.  If your neighbor doesn’t respond favorably, the second step is to provide a written notice to the neighbor stating that he has ten days to clear the fence row of the noxious weeds.  Third, if the neighbor still doesn’t take action, provide a written notice of the situation to the township trustees, which will initiate a process that could result in the trustees determining that there is a valid need to clear the fence row and hiring some to do the work.  Your neighbor will be legally obligated to pay for the costs on his property tax bill.

I’ve been notified by my township trustees that I have noxious weeds on my property.  What should I do?
Be aware that you must respond within five days of the date the trustees notified you about the weeds or the trustees will have the authority to destroy.  Your options are to destroy or cut the weeds or to provide information to the township trustees showing that there is no need to take action.  For example, such information might include showing that noxious weeds don’t exist on the property or showing that plants were incorrectly identified as noxious weeds.

Do I have to destroy my crop if noxious weeds are on my land?
No, Ohio law states that you must only “cut or destroy the weeds” if you have been notified by the township trustees that noxious weeds are on your property.  

Noxious weeds are growing in the road right-of-way. Can I remove them myself and charge the township for my costs? 
You may remove the noxious weeds, but you will probably not receive reimbursement for your costs unless the township trustees violated their duty to cut the weeds even after you followed the proper legal process for demanding their action.  Ohio law requires the township trustees to cut road right-of-way weeds in early June and August, in early September if necessary, and at other times if public safety is at issue.  If they fail to do so, you should formally complain to the township trustees in writing or by speaking at a township meeting.  If the trustees still fail to take action, the next step is to file a “writ of mandamus” action that asks the court to order the clearing.  Seeking reimbursement for your work prior to following this legal process is not the proper method for enforcing the township’s duty, according to the Second District Court of Appeals in Mezger v. Horton, 2013 Ohio 2964. 

How do I know which weeds are “noxious”?
The director of the Ohio Department of Agriculture conducts rulemaking to designate a plant as a prohibited noxious weed.  The list of plants that the director has formally designated as noxious weeds is in the Ohio Administrative Code and is available at http://codes.ohio.gov/oac/901:5-37-01

By: Peggy Kirk Hall, Wednesday, June 21st, 2017

A bill in Ohio’s House of Representatives proposes amending Ohio’s hunting and fishing laws to expand exemptions from hunting, fishing and trapping licenses for grandchildren of landowners.

House Bill 272, sponsored by Rep. Householder (R—Glenford) and Rep. Kick (R—Loudonville) proposes a change to current law, which permits grandchildren to hunt, fish or trap on their grandparent’s land without a license only up to the age of 18.  The proposal revises the law to allow grandchildren “of any age” to be exempt from licensing requirements when hunting, fishing or trapping on their grandparent’s land.

The bill also extends hunting and fishing privileges to veterans. The proposed legislation would provide a partially disabled veteran the same free hunting and fishing license privilege currently afforded to a veteran with a total disability.

“Hunting and fishing are family activities,” said Rep. Householder upon introducing the bill. “They should be enjoyed without government intrusion.”

H.B. 272 is currently before the House Energy and Natural Resources Committee and is available for viewing here.

By: Peggy Kirk Hall, Thursday, April 27th, 2017

Written by Chris Hogan, Law Fellow, OSU Agricultural & Resource Law Program

Update:  The House passed H.B. 49 on May 2, 2017.

The Ohio legislature continues to consider revising the Current Agricultural Use Valuation (CAUV) law that affects taxation of agricultural land. However, the latest legislative discussions are not about Senate Bill 36, introduced by Senator Cliff Hite on February 7, 2017 (read more about that bill here).  Instead, current debate centers on a new proposal in House Bill 49, Ohio’s “budget bill.”   The House Finance Committee is currently considering that bill.

The budget bill proposal would require the equity yield rate used in the CAUV capitalization rate to equal the greater of either the 25 year average of the total rate of return on farm equity published by the USDA or the loan interest rate. The capitalization rate is used to calculate a valuation from an annual profit for an average Ohio farm, considering only agricultural factors.  The proposal would establish a holding period of 25 years for calculating equity build-up and land value appreciation in the formula.  Addressing concerns about taxation amounts on land in conservation programs, the bill also would place a ceiling on the taxable value of CAUV land used for conservation purposes by requiring the land to be valued as though it included the least productive soil.  

The proposed changes to the CAUV program would be phased in over two reassessment update cycles.  The bill would also reconcile the proposed changes with the current formula by specifying that during the first three-year cycle in each county (beginning with tax year 2017), the tax value of CAUV land would include one half of the difference between its value under the new versus the old formula.

Time may soon tell whether Ohio lawmakers will address the agricultural community’s concerns about property tax increases under the current CAUV formula and if so, whether it will prefer the House’s budget bill or the Senate’s proposal.  The budget bill is available here--see page 652 of that document for the suggested changes to CAUV.  The Senate’s bill, which has received four hearings before the Senate Ways and Means Committee but still remains in committee, is available here.

Posted In: Property, Tax
Tags: cauv, current agricultural use valuation
Comments: 0
By: Peggy Kirk Hall, Friday, April 14th, 2017

Written by: Chris Hogan, Law Fellow, OSU Agricultural & Resource Law Program

Farmers are gearing up for spring and preparing to plant crops and graze livestock. Part of spring-cleaning may involve clearing partition fence rows at the edge of fields and trimming back overhanging branches above the fence. Overgrown tree branches can affect crops and pose a hazard to agricultural equipment. Removing trees that obstruct the fence row, noxious weeds tangled in the fence, and other unwanted vegetation is a serious matter for Ohio farmers. Ohio law provides for ways to clear a partition fence shared between two neighboring properties. Ohio law also cautions against damaging trees when trimming overhanging branches.

Clearing the fence row

This section only applies to the removal of vegetation in the fence row. Clearing overhanging trees above the fence is a separate matter discussed further below.

A partition fence is a fence that follows the division line between adjoining properties of two owners. The term “fence row” refers to the strip of land that is on either side of the fence. In order to keep a fence in good condition, owners should occasionally clear the fence row of obstructions caused by vegetation. Clearing a fence row keeps noxious weeds, brush, briers, and other vegetation from spreading onto a neighbor’s property. Ohio law provides several methods for a landowner to clear the fence row legally.

The easiest way to clear the fence row is to ask a neighbor to clear his or her side of the partition fence. Ohio law creates a duty for owners on either side of a partition fence to clear brush, briers, thistles and other noxious weeds in a strip four feet wide along the line of the fence, after a landowner gives notice to a neighbor asking them to do so. It is best to be polite, patient, and clear when speaking with a neighbor about when you would each like to clear the fence row. A landowner and a neighboring owner should try to establish a timeline to clear each side of the fence row.

What if a landowner asks a neighbor to clear the fence row on their side of a partition fence and they refuse? Once a landowner asks a neighbor to clear a fence row, that neighbor has ten days to do so. If a neighbor does not clear it within ten days, the landowner can ask the local board of township trustees to arrange for the fence row to be cleared.

After a landowner notifies the trustees that a neighbor refused to clear the fence row within ten days, the township trustees must view the property to determine if there is just cause for the complaint. Next, if there is a cause for the complaint, the trustees will enter into a contract with a third party to clear the fence row and certify the associated costs to the county auditor. The county auditor will bill the neighboring landowner for the work to clear the fence row. The auditor will assess these costs against the neighboring landowner by adding these costs to his or her property tax bill.

Trimming back overhanging branches

Landowners have the right to trim vertically and remove overhanging obstructions from above their side of the fence. Ohio courts recognize this privilege to remove obstructions, but not without limitations. Ohio courts do not permit landowners to cause harm to the other side of the property line. A landowner should be careful not to damage the neighbor’s trees or trespass on to the neighbor’s property when trimming overhanging branches. Landowners may be liable to a neighbor if they recklessly damage a neighbor’s tree when removing overhanging branches.

Landowners should review their rights and responsibilities to maintain fences prior to clearing the fence row this spring. For more information on line fence law, visit the Ag Law Library here.

By: Peggy Kirk Hall, Thursday, March 30th, 2017

Written by: Chris Hogan, Law Fellow, OSU Agricultural & Resource Law Program

If you are an agritourism provider or are interested in learning more about agritourism, sign up for our AgritourismReady event on April 5th!  Details of the event are here.

Spring has sprung and many agritourism providers are busy gearing up for spring agritourism activities such as maple syrup production, school tours, and berry picking. Agritourism providers should take time this spring to review the key elements of Ohio’s new agritourism law and understand how the law affects the agritourism operation.  

Ohio’s new agritourism law applies to qualifying farms, including you-pick operations and farm markets, when an agritourism activity is conducted on that farm.  A qualifying farm under the law is either at least 10 acres in size or a farm under 10 acres that grosses an average income of $2500 from production (the same requirements for qualifying for Ohio’s CAUV property tax program).  Agritourism activities include agriculturally related educational, entertainment, historical, cultural, or recreational activities.  Below are two important benefits of Ohio’s agritourism law that agritourism providers should review this spring: liability protection and zoning protection.

Liability Protection

One of the main benefits of the law is liability protection for agritourism providers against claims by participants injured as a result of an inherent risk of an agritourism activity. The law defines inherent risks to be dangers and conditions that are an integral part of the activity, including surface and subsurface land conditions, actions of wild animals and domestic animals other than vicious or dangerous dogs, dangers of farm structures and equipment, illness from contacting animals, feed or waste, and the participant’s failure to follow instructions or use reasonable caution.

There are several limitations and requirements under the law that impact this liability protection. Most importantly, agritourism providers must post signs either at the entrance to the farm or at each agritourism activity in order to receive liability protection under the law.  The signs must meet the specifications of the law.  For more information about posting signs and the law’s liability protection, our previous post on agritourism is here.

Zoning

Ohio’s agritourism law also provides some zoning protections to agritourism providers. Under the law, township and county zoning authorities cannot prohibit agritourism activities on farms.  But, townships and counties can regulate some factors related to agritourism to protect public health and safety. These factors include the size of structures used primarily for agritourism, setbacks for structures, ingress and egress from the parcel, and the size of parking areas.  A township or county that wants to regulate these limited factors must have provisions addressing the factors in the local zoning code.  We explain the zoning provisions of the agritourism law in more detail in our law bulletin, here.

Preparing for the 2017 Season

As agritourism providers prepare for the 2017 season, providers should take a few actions to ensure the benefits of the agritourism law for their operations:

  • Post the required signs at the entrance to the agritourism operation or at each agritourism activity. Also, consider adding your own signs to give instructions, guide visitors safely around the property or warn visitors of potential hazards.
  • Even with the law’s liability protection, make sure the property is as safe and clean as possible.  Spring is a good time to walk the property to identify any dangerous conditions that might put a visitor at risk and fix those conditions before inviting guests on the property.
  • Farms under 10 acres in size should take time to brush up on good recordkeeping practices. Farms that are under 10 acres may be required to prove that they qualify as a farm under the agritourism law by showing $2500 in gross receipts.  Be sure to maintain all records of farm income.
  • If starting a new agritourism activity, check the local zoning code to see if the township or county has zoning requirements for the few agritourism factors it can regulate.  Be prepared for a visit by the local zoning inspector and be ready to show the inspector that the activity falls under the new agritourism law’s zoning protections because it is “agritourism” conducted on a “farm.”

A full description of the Ohio Agritourism Law is available via our law bulletin here

By: Peggy Kirk Hall, Tuesday, March 14th, 2017

The Senate Judiciary today heard sponsor testimony for a proposed change to Ohio’s criminal trespass laws.  The “purple paint law” proposed by Sen. Bill Coley (R-Liberty Twp.) allows landowners to use purple paint to alert potential trespassers of property boundary lines.  The purple paint would serve the same purpose as a “No Trespassing” sign by indicating that a person does not have permission to enter the property. 

“It is often difficult for landowners, particularly owners who have large pieces of real estate, to maintain and replace their “No Trespassing” signs on a regular basis,” states Rep. Coley.  “This legislation amends Ohio’s criminal trespass law to allow purple paint to be a warning sign for trespassers.”

Ohio’s criminal trespass law establishes misdemeanor penalties for persons who knowingly or recklessly enter or remain on land of another without authorization from the landowner.  The law allows several ways for a landowner to notify a potential intruder that access is prohibited:  by actual communication, by fencing designed to restrict access, or by signage or posting in a manner reasonably calculated to come to the attention of potential intruders.  The proposed bill would clarify that “posting in a manner reasonably calculated to come to the attention of potential intruders” would include placing identifying purple paint marks on trees or posts around the property.  The purple marks would have to be readily visible vertical lines at least eight inches long, with the bottom of the mark being at least three feet but no more than five feet from the base of the tree or post and no more than 25 yards from the next paint mark. 

Today’s committee hearing is the first for the bill.  If the legislation eventually passes through the House and Senate, Ohio would join a dozen other states around the country in allowing purple paint to mark property boundary lines for trespassing purposes. Similar laws exist in West Virginia, Kansas, Arizona, Montana, Arkansas, Idaho, Florida, Maine, North Carolina, Missouri, Illinois and Texas.

Follow the proposed purple paint law, SB 76, here.

Posted In: Property
Tags: purple paint law, trespassing law, SB 76
Comments: 0
By: Peggy Kirk Hall, Tuesday, March 07th, 2017

Written by:  Chris Hogan, Law Fellow, OSU Agricultural & Resource Law Program

Several major pipeline projects, which plan to crisscross the state, are in the final stages of preparation. As part of the planning process for a project, pipeline builders plot the path that the pipeline will travel across the state. That path inevitably crosses private landowners’ property. Some landowners may feel overwhelmed trying to understand the rights of private pipeline companies to cross private property in Ohio. The frequently asked questions discussed below should help answer some of the common questions about pipeline projects in Ohio.

Can a pipeline company come on to my property to conduct a survey?

Yes. Prior to building a pipeline, pipeline companies must select a route where the pipeline is to be constructed. A pipeline project usually crosses private property along a proposed route. When a pipeline must cross private property along the project’s route, the pipeline company will ask the landowner for an easement that allows for pipeline construction on the property. However, even before signing an easement, a survey of the property may be necessary to determine the feasibility of constructing a pipeline on the property. Therefore, a pipeline company may need to enter a landowner’s private property to conduct a survey.

In Ohio, the law allows private companies that are organized “for transporting natural or artificial gas, petroleum, coal or its derivatives . . . through tubing, pipes or conduits” to enter upon private land to examine or survey for pipelines. This means that a pipeline company organized for these specific purposes does have the right in Ohio to enter onto a landowner’s property to conduct a private survey for the purpose of pipeline construction.

A pipeline company is telling me that they might use Eminent Domain to acquire my property.  Is that legal?

Most likely, yes. A pipeline company may negotiate an easement with landowners which compensates landowners in exchange for the right to build a pipeline. However, landowners may not want to give a pipeline company the right to cross their property. In that scenario, pipeline companies have the option of crossing a landowner’s property by using eminent domain. Eminent domain is the taking of private property for public purposes with compensation. 

In Ohio, the same law that allows for companies that are organized “for transporting natural or artificial gas, petroleum, coal or its derivatives . . . through tubing, pipes or conduits” to enter upon private land for survey also allows those same companies to use eminent domain to take private land. The law states that a company organized for the above purpose “may appropriate so much of such land, or any right or interest [to the land], as is deemed necessary for the laying down or building of pipes . . .” This suggests that pipeline companies have the power of eminent domain in Ohio.

Some argue that the law only grants eminent domain rights for transporting gas, and does not extend the right of eminent domain for the transport of gas derivatives such as ethane. While there is not strong legal support for this argument, it is under litigation in Ohio courts.  

To use eminent domain, the pipeline company must prove that the landowner and the company were not able to reach an agreement about granting a pipeline easement and that the taking of the pipeline easement is “necessary.” A pipeline company must establish that the taking of property will serve a “public use.” Ohio courts have noted that the term public use is flexible. Accordingly, Ohio courts have held that private pipelines are a public use if those pipelines provide an economic benefit to Ohio. After establishing necessity and public use, the pipeline company must follow the procedures for eminent domain in Ohio Revised Code Chapter 163.

For an interstate pipeline that runs between Ohio and another state, federal law could allow a company to use eminent domain to obtain land from unwilling landowners. Federal law states that a company may acquire property rights for a gas pipeline if the company has obtained a Certificate of Public Convenience and Necessity from the Federal Energy Regulatory Commission and the company and landowner have not been able to agree on compensation for the pipeline easement. See 15 USC §717(F).

What about the pipeline cases that are in court right now, do those affect my rights?

Ohio landowners have probably heard about several high-profile pipeline projects that are planning to cut across the state. Some landowners have challenged the construction of these pipeline projects on their property.  These landowners are challenging the right of the pipeline companies to use eminent domain to acquire an easement on their property. Two pipeline projects in Ohio are of particular interest: Kinder Morgan’s Utopia Project and Rover Pipeline LLC.

A court in Wood County, Ohio decided in 2016 that Kinder Morgan’s Utopia Project, which plans to run across Ohio and into Canada, did not have eminent domain authority. The court concluded that the pipeline did not “serve the public of the State of Ohio or any public in the United States.” The court based its conclusion on the fact that Utopia did not provide a benefit to Ohio. However, Kinder Morgan quickly appealed that case to Ohio’s Sixth Circuit Court of Appeals. Therefore, this opinion is on hold while a higher court decides whether it agrees with the lower court’s interpretation of the eminent domain law.

A second high-profile pipeline case involves the right of Rover Pipeline LLC to use eminent domain for an interstate pipeline project. The Federal Energy Regulatory Commission issued this pipeline project a certificate of public convenience and necessity on February 2, 2017. As a result, Rover Pipeline LLC is moving forward with construction on landowners’ property, because a federal court found that the pipeline company has eminent domain authority.

So how do these court cases affect landowners? First, landowners should be aware that other pipeline projects in Ohio likely have eminent domain authority, if they meet the requirements for eminent domain described by Ohio law. Second, landowners should be aware that that the pipeline case that began in Wood County and is currently being appealed is still pending. It is important to note that this case is reviewing the Utopia Project’s right to use eminent domain in Ohio. Therefore, this does not mean that all pipeline companies in Ohio no longer have the right to use eminent domain to acquire private property in Ohio. Instead, this case will determine the fate of that particular pipeline project and whether or not that project has the right to use eminent domain to acquire an easement. In the meantime, pipeline companies continue to have the right to use eminent domain in Ohio.

More information on pipelines in Ohio and resources for landowners considering signing an easement is available here

By: Peggy Kirk Hall, Friday, January 06th, 2017

Many Ohioans choose to avoid the probate process by using a transfer on death designation. Since 2000, Ohio has permitted property owners to use transfer on death designations to transfer property upon the owner’s death. In 2009, Ohio law allowed property owners to make transfer on death designations with an affidavit instead of by designation on a deed. The new Ohio law forces the automatic termination of transfer on death affidavits for changes in marital status.

The new changes took effect on December 13, 2016 when the Governor signed Senate Bill 232 into law. Under Senate Bill 232, a transfer on death designation made either by a deed or by an affidavit to a spouse terminates upon a divorce, dissolution, or annulment.  The new law applies to new and pre-existing transfer on death designations.

Because the law applies to pre-existing transfer on death designations, it may be a good time for property owners to revisit their estate plans. Property owners should be aware of the effect of divorce, dissolution, or annulment on their transfer on death designations.

The Ohio Legislative Service Commission’s analysis of Senate Bill 232 is available here. More information on transfer on death designations is available from the Ohio State Bar Association here

Posted In: Estate Planning, Property
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By: Peggy Kirk Hall, Thursday, June 30th, 2016

Update:  For a full explanation of the rule, refer to our new Law Bulletin, The New FAA Rule for Using Drones on the Farm  

Part 1:  Drone Pilots Must Obtain FAA Certification

The Federal Aviation Administration (FAA) yesterday filed its final rule in the Federal Register for the Operation and Certification of Small Unmanned Aircraft Systems (sUAS).  The new rule allows for the non-recreational operation of sUAS less than 55 pounds in the national airspace.  Farmers and professionals planning to use UAS or “drones” for agricultural purposes must comply with the rule beginning on August 29, 2016.  An important first step toward compliance is to obtain the proper license to operate a sUAS, referred to as “remote pilot certification” by the FAA.

The Remote Pilot Certification Requirement

The Remote Pilot in Command (Remote PIC) is the person who is directly responsible for the operation of the sUAS.  The new rule requires the Remote PIC to obtain a remote pilot certificate with a small UAS rating.  To do so, an applicant must meet eligibility requirements, pass a knowledge test and complete the application process. 

1.      Eligibility requirements.   An applicant for a Remote PIC must be at least 16 years old, proficient in the English language, and in a physical and mental condition that would not interfere with safe operation of a sUAS.

2.      Knowledge test.    An applicant must pass the unmanned aircraft general (UAG) knowledge test before applying for the remote pilot certificate.  The knowledge test, which will be available beginning August 29, 2016, will contain 60 multiple choice questions on:

  • Federal regulations for sUAS.
  • Airspace classification and operating requirements.
  • Weather sources and effects of weather on sUAS.
  • Loading and performance of sUAS.
  • Emergency procedures.
  • Crew resource management.
  • Radio communication procedures.
  • Determining performance of sUAS.
  • Effects of drugs and alcohol.
  • Aeronautical decision-making.
  • Airport operations and maintenance.
  • Preflight inspection procedures.

The FAA provides a free online learning course for knowledge test preparation, available through www.faasafety.gov or here.   The FAA also presents a sample exam on its website, available here.   Applicants must take the knowledge test at an FAA-approved Knowledge Testing Center.  A list of Ohio’s 23 test centers is available at www.faa.gov/training_testing/testing/media/test_centers.pdf .   Passing the test requires a score over 70%; an applicant who fails the test may retake the test after 14 days.

Applicants already holding a pilot certificate, other than a student pilot, must follow a different process that includes completing a two-hour online course.  The course, which includes an exam, is available through www.faasafety.gov or here

3.      Application.  An applicant who passes the UAG knowledge test must complete the application for a remote pilot certificate, FAA Form 8710-13.   The form will be available as a paper application or online through the FAA’s Integrated Airmen Certificate Rating Application System at https://iacra.faa.gov.   The Transportation Security Administration (TSA) will then conduct a background security screening of the applicant to determine if the applicant represents a security threat.  If the screening is successful, an applicant will receive the remote pilot certificate.  An unsuccessful security screening will disqualify the applicant, who would have a right to appeal the security screening decision.  Note that an applicant who uses the online application can obtain a temporary certificate online upon successful completion of the security screening, while an applicant who submits a paper application must wait to receive the permanent remote pilot certificate through U.S. mail.  The FAA has announced that it hopes to issue a temporary remote pilot certificate within 10 business days after submission of an online application.

What Happens After Certification?

A certified Remote PIC may legally fly a sUAS and may also directly supervise persons who do not hold a remote pilot certificate, as long as the Remote PIC maintains the ability to take control of the sUAS.  This provision will allow Remote PICs to teach, demonstrate and train uncertified operators.  The Remote PIC has several responsibilities:

  • Register the sUAS with the FAA.
  • Conduct pre-flight inspections.
  • Abide by operational limitations in the new sUAS rule.
  • Maintain records on the sUAS and its flights.
  • Upon request, make the sUAS and records available to the FAA for inspection or testing.
  • Report any operation that results in injury, loss of consciousness or property damage of at least $500 to the FAA within 10 days of occurrence.

Recurrent knowledge test.  A person who receives the remote pilot certificate must take a recurrent knowledge test within 24 months to retain the certification. 

Part 2 of this Series

In our next post in this series on implications of the new rule for sUAS in agriculture, we’ll explain the operational limitations and requirements for sUAS.  To read the new rule or access up-to-date information on sUAS, go to www.faa.gov/uas.  

By: Peggy Kirk Hall, Tuesday, May 31st, 2016

A landowner may immediately appeal an agency’s determination that property contains “waters of the United States” that is subject to the federal Clean Water Act, according to a decision issued today by the United States Supreme Court.

The court’s holding in Army Corps of Engineers v. Hawkes Co. centered on a decision by the U.S. Army Corps of Engineers (the Corps) that property in Minnesota owned by the Hawkes Company (Hawkes) contained wetlands that were subject to the Clean Water Act.  Hawkes planned to mine peat on the property, and would have to comply with Minnesota regulations.  The Corps decided that Hawkes must also comply with federal Clean Water Act regulations, based on its “jurisdictional determination” that the property contained waters of the United States because its wetlands had a “significant nexus” to the Red River of the North, located 120 miles away.   

Hawkes challenged the Corps’ jurisdictional determination in federal district court.  The Corps requested dismissal of the case, arguing that its jurisdictional determination was not a "final agency action" that Hawkes could appeal in court.  Rather, the Corps asserted that Hawkes should apply for a Clean Water Act permit and challenge the results of the permit request if dissatisfied or should proceed without a permit and challenge the jurisdictional determination in a likely enforcement action.

The federal district court agreed with the Corps and dismissed the case.  Hawkes then appealed to the Eighth Circuit Court of Appeals, which reversed the district court’s decision.  The Corps requested review of the appeal by the United States Supreme Court, which accepted the case.

The Supreme Court concluded that the Corps’ jurisdictional determination is appealable according to the federal Administrative Procedures Act, which allows an aggrieved party to appeal a “final” agency action.  An action is final if it determines legal consequences,“marks the consummation of the agency’s decision making process,” and when there are no adequate alternatives for relief other than judicial review.  All three circumstances existed in the Hawkes case, said the Court, stating that parties should not have to await enforcement proceedings that carry the risk of criminal and civil penalties before challenging a jurisdictional determination or be forced through a lengthy and costly permitting process before being able to challenge the Corps’ jurisdictional determination. 

Read the decision in Army Corps of Engineers v. Hawkes Co. here.

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