For Peat's Sake! Jurisdictional Determinations, Hawkes, and Judicial Review

Under the Clean Water Act, the U.S. Army Corps of Engineers (“Corps”) is vested with the power to regulate “waters of the United States” by administering a statutorily mandated permit process. A preliminary part of this permit process is the issuance of a Jurisdictional Determination (“JD”), which declares whether the property in question is considered to contain “waters of the United States” subject to the permit process. There are two types of JDs: preliminary and approved. JDs can also be revised by the Corps for various reasons. Until the Eighth Circuit issued its decision in Hawkes v. U.S. Army Corps of Engineers, only approved JDs could be appealed, and only through the Corps administrative appeal process. Prior to Hawkes and under Belle Co. v. U.S. Army Corps of Engineers, JDs were not subject to judicial review in the federal courts because according to the Fifth Circuit a JD is not a final agency action for which there is no other adequate remedy in a court, as required under the Administrative Procedure Act (APA). Hawkes, however, held that each of the criteria for reviewability was present in a JD, and that it was thus subject to judicial review. This split in the circuits will be short lived, as the Supreme Court has granted certiorari on Hawkes and will conclusively answer the question of a JD’s reviewability. The issue before the Court in Hawkes is whether a revised approved JD meets the requirements of finality and adequacy of remedy under the APA and is subject to judicial review. This Note seeks to provide the best framework for analyzing the reviewability of a JD, using the strongest arguments in support of Hawkes’ holding, while, at the same time, delineating the court’s proper role and its power of judicial review. It is the position of this Note that Hawkes was ultimately correct in its holding that a JD is subject to judicial review under the APA. However, the court’s rationale in Hawkes is flawed in two main respects. First, Hawkes inappropriately emphasizes the regulatory burden and impact of the permit process, and fails to make the stronger argument that a JD is, by † Editor-in-Chief, LIBERTY UNIVERSITY LAW REVIEW, Volume 11. J.D. Candidate, Liberty University School of Law (2017); B.S., Liberty University, 2010. I would like to dedicate this Note to my wife, Melanie. Whatever I accomplish is made possible because of God’s blessing and her support. 538 LIBERTY UNIVERSITY LAW REVIEW [Vol. 10:537 its very nature, a final agency action. By focusing on the JD itself, the court could have clearly demonstrated that a JD not only creates an obligation to complete the permit process, but also determines rights of the landowner. Second, the court should have tempered its analysis with the concerns of Judge Kelly’s concurring opinion and should not have been so critical of the Corps and the cost and efficiency of the entire regulatory scheme. In its prudential critique of this scheme, the court transgressed it constitutional power of judicial review by wrongly answering a political question. The court in Hawkes should have avoided this critique and addressed only the matter before it. While the Supreme Court should affirm the holding in Hawkes, it should avoid such a prudential critique in its analysis of the issue. Overall, a proper understanding of the strengths and flaws of Hawkes will help yield the correct outcome on appeal and illustrate the appropriate analysis that should be used in the process.