U.S. Army Corps of Engineers v. Hawkes Co., Inc.: Wetlands Jurisdictional Determinations and the Right of Federal Judicial Review

Like the jurisdictional decision in Sackett, the formal JD in this case has immediate and direct legal consequences. It is, in fact, an adjudicative decision that applies the law to the specific facts of this case and is legally binding on the agency and the landowner, thereby fixing a legal relationship; these are the elements of a “final agency action.” Therefore, the Corps’ Jurisdictional Determination or JD is justiciable.

Recent agency actions in this area of the law heighten the need for the Supreme Court to open the courthouse doors to landowners. On June 29, 2015, the Corps and EPA issued a controversial new rule redefining “waters of the United States” subject to federal control under the Clean Water Act.47 Among other things, this rule expands the scope of the Act to cover tributaries and isolated waters this Court held could not be regulated in Solid Waste Agency of N. Cook County v. U.S. Army Corps of Engineers48 and Rapanos. The new rule will affect millions of landowners nationwide.

Questions of reviewability of EPA and Corps actions under the CWA have been in the federal courts for decades. Much of the case law has focused on the reviewability of pre-enforcement actions. For a host of reasons, before Sackett, and now Hawkes, the courts had consistently held that APA review is unavailable for these types of actions. The Supreme Court in Sackett and the Eighth Circuit in Hawkes correctly changed the trajectory of administrative law and hemmed in agencies that had long ago left the bounds of reasonableness. That is why the Supreme Court of the United States should affirm the Eighth Circuit’s wise decision in Hawkes—that case, like Sackett before it, recognized the need to protect due process and basic fairness, and to cabin the power of agencies that for too long have acted well beyond their constitutional limits.

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