SUPREME COURT OF THE UNITED STATES
UNITED STATES ARMY CORPS OF ENGINEERS, PETITIONER v. HAWKES CO., INC., et?al.
on writ of certiorari to the united states court of appeals for the eighth circuit
[May 31, 2016]
Justice Ginsburg, concurring in part and concurring in the judgment.
I join the Court?s opinion, save for its reliance upon the Memorandum of Agreement between the Army Corps of Engineers and the Environmental Protection Agency. Ante, at 6?7, and n.?3 (construing the memorandum to establish that Corps jurisdictional determinations (JDs) are binding on the Federal Government in litigation for five years). The Court received scant briefing about this memorandum, and the United States does not share the Court?s reading of it. See Reply Brief 12, n.?3 (memorandum ?does not address mine-run Corps jurisdictional determinations of the sort at issue here?); Tr. of Oral Arg. 7 (same); id., at 9 (reading of the memorandum to establish that JDs have binding effect in litigation does not ?reflec[t] current government policy?). But the JD at issue is ?definitive,? not ?informal? or ?tentative,? Abbott Laboratories v. Gardner, 387 U.?S. 136, 151 (1967) , and has ?an immediate and practical impact,? Frozen Food Express v. United States, 351 U.?S. 40, 44 (1956) . See also ante, at 7?8.1 * Accordingly, I agree with the Court that the JD is final.