Make My Day! Dirty Harry and Final Agency Action

17 Pages Posted: 17 Jan 2016

Date Written: January 15, 2016


In 1971 Clint Eastwood starred in the movie Dirty Harry, in which he plays a policeman, Harry Callahan. The movie begins and ends with Harry, gun in hand, facing a wounded gunman who has a gun within reach after an extended gun battle. It is not clear whether Harry still has any bullets left in his gun, so Harry asks the gunman, “You've got to ask yourself one question: ‘Do I feel lucky?’” In the first instance, the gunman surrenders only to find that Harry was indeed out of bullets; in the second instance, the gunman goes for his gun, and Harry shoots him dead. In a later movie, in a similar situation Harry simply says “Go ahead, make my day.” The gunman surrenders.

What does this have to do with “final agency action”? When the Environmental Protection Agency (EPA) issued a compliance order to the Sacketts claiming that they were violating the Clean Water Act by placing fill on their property without a permit, it was like Harry pointing the gun at the bad guy. If the Sacketts felt lucky, they could ignore the order and await EPA’s enforcement of the order. Then, if the Sacketts were right, and they were not violating the CWA, they would be free, but if they were wrong, and EPA was correct, then they would be subject to possible criminal penalties or significant civil fines. Trying to avoid this dilemma, the Sacketts sought judicial review of the compliance order. The government, however, argued among other things that the order was not “final agency action” under the Administrative Procedure Act (APA) and therefore was not reviewable. The Supreme Court unanimously rejected that argument, finding the order final agency action, in effect denying EPA the ability to extort compliance with its orders.

Currently pending before the Supreme Court is another case, U.S. Army Corps of Engineers v. Hawkes Co. In that case the Corps of Engineers had issued a formal Jurisdictional Determination (JD) that certain property was wetlands subject to its jurisdiction. The property owners disagreed, but, like the property owners in Sackett, they faced a dilemma. If they ignored that determination, awaited enforcement against their development of their property, and were correct, they would be free, but if the Corps was correct, they would be subject to potential criminal penalties or significant civil fines. So Hawkes sought judicial review, but the government, as it had in Sackett, argues that the Corps’ JD is not final agency action under the APA and therefore not judicially reviewable. The Eighth Circuit in Hawkes, contrary to decisions in both the Fifth and Ninth Circuit, held the JD to be final agency action subject to review. The Supreme Court will in Hawkes resolve this split. This article will explain how and why the Supreme Court should affirm the Hawkes decision, but it will suggest that this case presents a perfect opportunity for the Court to clarify what is necessary to constitute final agency action subject to judicial review under the APA more generally.

Part II of this article describes how the CWA regulates the discharge of fill into the “waters of the United States” and how the Supreme Court has interpreted the extent of the jurisdiction of the CWA. It then explains the process by which the Corps issues its Jurisdictional Determinations. Part III describes how the Supreme Court has interpreted “final agency action” under the APA and how the circuits have applied that doctrine to challenges of Jurisdictional Determinations. Part IV presents how the Court is likely to resolve the split in the circuits over the reviewability of Jurisdictional Determinations. Part V concludes the article.

Keywords: wetlands, clean water act, final agency action, administrative law, judicial review

JEL Classification: K23, K32, K41

Suggested Citation

Funk, William F., Make My Day! Dirty Harry and Final Agency Action (January 15, 2016). Environmental Law, Forthcoming, Available at SSRN:

William F. Funk (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219-7799
United States
503-768-6606 (Phone)
503-768-6671 (Fax)

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