Final Agency Action after Hawkes

On May 31, 2016, the Supreme Court decided United States Army Corps of Engineers v. Hawkes Co. (Hawkes), holding that Jurisdictional Determinations (JDs) made by the Corps are final agency actions subject to judicial review under the Administrative Procedure Act. Following the Court’s decision in Sackett v. EPA (Sackett) in 2012, also involving a dispute as to whether certain lands were wetlands subject to Clean Water Act jurisdiction, this outcome was not surprising, but 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.