Final Agency Action After Hawkes
On May 31, 2016, the Supreme Court decided United States Army Corps of Engineers v. Hawkes Co., 1 holding that Jurisdictional Determinations (JDs) made by the Corps are final agency actions subject to judicial review under the Administrative Procedure Act (APA).2 Following the Court’s decision in Sackett v. EPA in 2012, 3 also involving a dispute as to whether certain lands were wetlands subject to Clean Water Act jurisdiction, 4 this outcome was not surprising. 5 However, the Court’s opinion and the accompanying concurring opinions still leave much open to question regarding how the term “final agency action” in the APA is to be interpreted. This article will discuss first what the Court has decided and what it has suggested, and then it will discuss the questions left open and suggest how they might be answered.
In both Sackett and Hawkes, the plaintiffs were landowners with land they wished to develop in some fashion, but which federal agencies—the Environmental Protection Agency (EPA) in Sackett and the Corps in Hawkes—claimed were “navigable waters” under the Clean Water Act,6 which may not be developed without a permit from the Corps. The plaintiffs disputed that their lands were “navigable waters” within the meaning of the Act and the agencies’ regulations7 and sought review in court under the APA. The agencies asserted that review was not available under the APA because the agency action—an EPA compliance order in Sackett and a Jurisdictional Determination (JD) in Hawkes—was not “final agency action” as required by Section 704 of the APA. 8 In both cases a unanimous Supreme Court found the agency action to be “final agency action” subject to review.
