Perhaps A Corps Jurisdictional Interpretation Is Final Agency Action After All

After Sackett, the question on everyone's mind was "How far does it go?"  The first test of that question was the decision by the 5^th Circuit Court of Appeals – not known as a bastion of liberalism – in Belle Company v. Corps of Engineers, holding that a Corps jurisdictional determination is not final agency action subject to judicial review.  Late last week, however, in Hawkes Co. v. Corps of Engineers, the 8^th Circuit disagreed, creating a circuit split.

As we noted at the time, the 5^th Circuit decision in Belle focused on the differences between the Sacketts' position facing an enforcement order and that of Belle Company facing a Corps JD.  As the 5^th Circuit emphasized, the JD did not require Belle Company to do anything.  Nor did the JD expose Belle Company to penalties.  Nor did it prejudice Belle Company's ability to obtain a permit.  Nor did it include a finding of a CWA violation.