Kent Recycling Services wanted to establish a solid waste landfill in Louisiana. But an overzealous Corps of Engineers issued a Jurisdictional Determination claiming the property contained wetlands subject to federal regulation under the Clean Water Act. Kent disputed this claim and sued. Lower courts rejected his lawsuit as unripe on the theory that the determination was not a final order and PLF, representing Kent, petitioned the Supreme Court to review the case. The Court originally declined, but a few days later the Eighth Circuit decision in Hawkes created a Circuit split on the precise issue before the Court. PLF asked the Court to reconsider. A few days after the Hawkes victory affirming landowners’ right to their day in court, the Court vacated the lower court decision in this case and ordered it to reconsider the case in light of the ruling in Hawkes.
Kent Recycling Company’s plan to use its property for a solid waste landfill was halted in its tracks by the U.S. Corps of Engineers, which issued a Jurisdictional Determination asserting its power to regulate the land. This particular property had been exempt from the Clean Water Act for decades as agricultural land and Kent received all local permits for the waste disposal site. Nonetheless, the Corps of Engineers suddenly withdrew the exemption and asserted that the site contains wetlands subject to federal regulation. Kent disagreed, and wanted to argue to a judge that the withdrawal of the exemption violated the agency’s own rules and that the Corps failed to provide sufficient evidence of covered wetlands on the property.
The Fifth Circuit Court of Appeals rejected Kent’s attempt to have a neutral judge review his case, holding that Jurisdictional Determinations are not appealable. Without the right of direct appeal to the courts, owners whose property is designated as “wetlands” are left with three options, none of which is feasible or fair: (1) abandon use of the land; (2) go through the pointless and costly permit process (averaging more than $270,000 and more than two years); or (3) proceed with property development without a permit, risking fines of $37,500 a day and imprisonment.
What happened next was a rare procedural victory that lead ultimately to victory on the merits. The Supreme Court initially declined PLF’s petition for writ of certiorari in Kent Recycling. PLF asked the Court to reconsider after the Eighth Circuit Court of Appeals, in Hawkes, issued a ruling that conflicted with the Fifth Circuit’s decision in this case. After holding the case for more than a year until after it granted review and decided Hawkes, the justices granted PLF’s petition for reconsideration in Kent Recycling, granted certiorari, and vacated the Fifth Circuit’s earlier opinion, all without even holding oral argument. The case returned to the lower courts to allow Kent’s challenge to proceed.