Concurrence (Kagan)
Contents
SUPREME COURT OF THE UNITED STATES
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No. 15?290
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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 Kagan, concurring.
I join the Court?s opinion in full. I write separately to note that for me, unlike for Justice Ginsburg, see post, at 1 (opinion concurring in part and concurring in judgment), the memorandum of agreement between the Army Corps of Engineers and the Environmental Protection Agency is central to the disposition of this case. For an agency action to be final, ?the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.? Bennett v. Spear, 520 U.?S. 154, 178 (1997) . As the Court states, the memorandum of agreement establishes that jurisdictional determinations (JDs) are ?binding on the Government and represent the Government?s position in any subsequent Federal action or litigation concerning that final determination.? Memorandum of Agreement ??IV?C?2, VI?A; ante, at 6 (major-ity opinion). A negative JD thus prevents the Corps and EPA?the two agencies with authority to enforce the Clean Water Act?from bringing a civil action against a property owner for the JD?s entire 5-year lifetime. Ante, at 6?7, and n.?3. The creation of that safe harbor, which binds the agencies in any subsequent litigation, is a ?direct and appreciable legal consequence[?]? satisfying the second prong of Bennett. 520 U.?S., at 178.