Tin Cup, LLC v. U.S. Army Corps of Engineers

Frozen ground is not “navigable water”

Cases > Property Rights > Tin Cup, LLC v. U.S. Army Corps of Engineers
Lost: Supreme Court declined to review the case.
Case Court: Ninth Circuit Court of Appeals

Richard Schok runs Tin Cup, LLC, a small family-owned pipe fabrication business in North Pole, Alaska. The Army Corps of Engineers won’t let his growing business relocate to land containing permafrost—land that’s frozen all year long—because the agency claims permafrost is federally protected wetland. However, its permafrost designation is based on illegal guidance documents concocted by the EPA and the Corps. Schok asked the U.S. Supreme Court to review the federal government’s inconsistent permafrost regulations and put the sweeping agency overreach on ice for good. The Supreme Court denied the request on April 27, 2019.

Tin Cup, LLC owns 455 acres in North Pole, Alaska, where its pipe fabrication company builds needed equipment for the North Slope oil fields. The growing company wants to relocate to a larger area where it can temporarily store pipe and other manufactured materials. The relocation requires laying down gravel, which the Clean Water Act considers a pollutant, so Tin Cup sought permission from the Corps of Engineers. The bureaucrats, however, ruled that 200 acres of permafrost in the relocation area are navigable waters under the Clean Water Act and therefore subject to federal regulation.

The problem is the Corps’ dubious definition of navigable waters.

In 1992, Congress told the federal government to base wetlands determinations on a 1987 technical manual. However, the EPA and Army Corps of Engineers are evading that manual by creating regional guidance documents to justify expanding agency reach beyond what’s authorized by the 1987 manual. One such document is called the “Alaska Supplement”; it sweeps permafrost, which covers vast swaths of Alaska, under federal jurisdiction, preventing property owners from making productive use of their land.

Tin Cup asked the Supreme Court to review the Corps’ permafrost enforcement for their private property. The Supreme Court denied the request on April 27, 2019.

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What’s at stake?

  • The Clean Water Act requires the Corps of Engineers to use a national manual to ensure a consistent, standard definition of wetlands throughout the country.
  • The Corps’ habit of expanding its jurisdiction by writing supplemental local wetlands rules violates Congress’ specific orders that the agency operate under national guidelines.

Case Timeline

September 21, 2018
April 20, 2018
May 02, 2016

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