The Supreme Court could be heading towards a precedent-setting vindication of property rights.
For more than 40 years, property owners in the United States have had no legal recourse to challenge certain parts of the Clean Water Act. If the Environmental Protection Agency or the U.S. Army Corps of Engineers determines that part of a property consists of “wetlands,” that ruling might as well be written in stone.
Even if the government made a mistake, there’s almost nothing the property owner can do to reverse the regulatory agency’s decision.
In U.S. Army Corps of Engineers v. Hawkes, the high court is being asked to change that.
During oral arguments last week, attorneys from the Pacific Legal Foundation argued the Clean Water Act gives the federal government virtually unchecked power to regulate any wetlands in the country. Those determinations should be subject to judicial review, said Reed Hopper, an attorney for PLF who argued the case on behalf of Hawkes.
“This is a case where it literally affects millions of property owners across the country,” he said.
Though the Clean Water Act was supposed to apply only to navigable waters — that is, bodies of water big enough to float a boat on, or to use for interstate trade and travel — the EPA has gradually expanded its jurisdiction to include just about any body of water in the country, no matter how small or insignificant.
Once a property is determined to contain wetlands, owners have to go through a lengthy and expensive permitting process if they want to alter their land in any way.
Property owners who disturb or alter a wetland can face fines from the EPA. To avoid those fines, many property owners, including the plaintiffs in this case, can ask the U.S. Army Corps of Engineers to issue a “jurisdictional determination” regarding the suspected wetlands.
The problem is, those determinations cannot be appealed.
“It takes an expert to determine whether the act applies to you or not,” Hopper said. “That shouldn’t be allowed in our country. We should all be able to understand the law, and anyone who questions the authority of an agency should have the ability to go to court to make their case.”
That’s what happened to Hawkes Co., Inc., a Minnesota-based company that provides peat to golf courses and athletic fields. When Hawkes tried to build a new peat bog, a process that requires the use of water, it asked the U.S. Army Corps of Engineers for a jurisdictional determination.
Although it was located more than 100 miles from the nearest navigable waterway, the U.S. Army Corps of Engineers determined the property to be “wetland” and therefore subject to the Clean Water Act. There is no surface water connection between Hawkes’ property and that navigable waterway, the Red River of the North.
Under the EPA’s rules, the jurisdictional determination cannot be appealed in court until the plaintiffs have gone through the permitting process and been rejected. Instead of doing that, Hawkes took the case directly to court, challenging the lack of judicial review over the process.
After a victory in the Eighth Circuit U.S. Court of Appeals, the case was pressed forward to the Supreme Court, where the PLF hopes Hawkes can set a major precedent for property rights over the Clean Water Act.
After oral arguments last week, Hopper said he believed another victory looked likely. Independent assessments of the case seem to agree — the government’s case faces “an uphill battle,” reported SCOTUS blog reporter Miriam Seifter.
Even liberal justices Sonia Sotomayor and Stephen Breyer seemed skeptical of the government’s authority under the Clean Water Act, said Hopper.
“They’ve gone too far, no question, and we have to reel back federal government overreaching,” he said.
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