More on the Reach of Sackett: Corps Jurisdictional Determinations Are Not Final Agency Action


Early last month, we noted that the decision in Luminant v. EPA suggested that the reach of the Supreme Court decision in Sackett is not unlimited. The Court of Appeals for the 5th Circuit agrees. In Belle Company v. Corps of Engineers, the Court ruled that a Corps Jurisdictional Determination, or JD, is not final agency action subject to judicial review.

That had always been the law, but the plaintiffs argued that Sackett changed the landscape. Not so, said the Court. The Court agreed that the JD was the “consummation of the Corps’s decisionmaking process.” However, the Court did not agree that the JD was an action “by which rights or obligations have been determined, or from which legal consequences will flow.”

Why not? The Court gave four reasons. The compliance order in Sackett:

• “independently imposed legal obligations because it order the Sacketts promptly to restore their property…. By contrast, the JD … does not oblige Belle to do or refrain from doing anything….”

• exposed the Sacketts to penalties, whereas the JD “erects no penalty scheme.”

• “severely limited the Sacketts’ ability to obtain a 404 permit. The JD had no such impact.

• determined that the Sacketts had in fact already violated the CWA. The JD, on the other hand, did not find that Belle had violated the CWA.

Finally, the Court also noted that allowing judicial review of JDs would have the perverse incentive of discouraging the Corps from issuing them and thus:

would undermine the system through which property owners can ascertain their rights and evaluate their options with regard to their properties before they are subject to compliance orders and enforcement actions for violations of the CWA.

Case over. A perhaps shocking win for common sense. Sackett remains important, but not every administrative decision is reviewable just because it may affect private behavior.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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