Hawkes Co. and the Public Policy Rationale for Allowing Court Review of Jurisdictional Determinations

In 2012, the U.S. Supreme Court in Sackett v. EPA provided a right of
court review for wetland compliance orders, and the question then arose as to
how far courts would extend this holding. This has recently resulted in a split in
the circuits regarding the holding’s application to Jurisdictional Determinations
(JDs) of wetlands. The Fifth Circuit declined to apply this holding to JDs;
however, an Eighth Circuit court did. A look at the reasoning behind each
court’s decision reveals the differing approaches to three public policy issues.