In a significant new decision, the Eighth Circuit Court of Appeals has held that a United States Army Corps of Engineers’ (Corps) Approved Jurisdictional Determination (JD) that a property constitutes “waters of the United States,” and thus requires a permit, is a final agency action under the Administrative Procedures Act (APA) and therefore is ripe for judicial review.  Hawkes Co., Inc., et al. v. United States Army Corps of Engineers, Case no. 13-3067 (8th Cir. Apr. 10, 2015).  This decision splits from a recent decision in the Fifth Circuit holding that a JD is not a final agency action and therefore not reviewable.  Belle Co., LLC v. U.S. Army Corps of Eng’rs, 761 F.3d 383 (5th Cir. 2014), cert denied, 83 U.S.L.W. 3291 (U.S. Mar. 23, 2015) (No. 14-493).

The APA provides for judicial review of a “final agency action for which there is no other adequate remedy in a court.”  5 U.S.C. § 704.  The court determined that a JD satisfies both elements because: (1) it is a final agency action; and (2) there is no other adequate remedy.

Regarding the first element, the court found that a JD satisfies the two conditions the Supreme Court in Bennett v. Spear, 520 U.S. 154, 177-178 (1997), set forth as necessary to deem an agency action final: (1) that the action must mark the consummation of the agency’s decisionmaking process; and (2) that the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.  The court determined that a JD meets both conditions because it does mark the consummation of the Corps’ decisionmaking process, and, even though a JD does not compel affirmative action, such as compliance with a permit, it does prohibit otherwise lawful action without having to incur significant compliance cost or enforcement.

The court also split from the Fifth Circuit’s determination that a JD is not a final agency action “for which there is no other adequate remedy.”  While the Fifth Circuit held that an individual could proceed with a permit application and seek judicial review of a permit denial, or commence a project without a permit and await an appealable enforcement action, the Eighth Circuit concluded that both of these alternatives entail prohibitive cost and are therefore inadequate.

The court determined that by leaving an individual with no option for judicial review or an adequate alternative, the Corps is effectuating its desired outcome—an abandonment of a project.  Thus, the court reasoned that a pragmatic analysis of ripeness and final agency action compels the conclusion that a JD is subject to immediate judicial review.