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
Case Status: Active: Litigation is ongoing.

Representing Tin Cup, a family-owned pipe fabrication business, PLF filed a lawsuit challenging the “Alaska Supplement” to the Corps of Engineers’ 1987 Wetlands Delineation Manual, arguing that it fails to provide a legally adequate standard for determining the presence of wetlands under the Clean Water Act. This supplement sweeps permafrost – covering vast swaths of Alaksa – under federal jurisdiction, significantly reducing the ability of property owners to make productive use of their land. Relying the supplement, the Corps improperly asserted jurisdiction over 200 acres of permafrost on Tin Cup’s property. The district court of Alaska rejected Tin Cup’s challenge and the case is now on appeal.

Tin Cup, LLC, owns 455 acres in North Pole, Alaska, on which it runs a company, Flowline Alaska, which specializes in the fabrication of large pipe and steel structures needed to develop the North Slope oil fields. The successful company has outgrown its current location and wishes to move to a new site where it will have room for temporary storage of pipe and other manufactured material. The relocation requires placement of a gravel pad and construction of several buildings and a railroad spur. Because the project requires excavation and the laying down of gravel (defined as a “pollutant” under the Clean Water Act), Tin Cup sought permission from the Corps of Engineers.

Pursuant to the Clean Water Act, the Corps regulates the discharge of dredged and fill material into the “waters of the United States.” For decades the Corps has interpreted that phrase to include at least some wetlands. But defining what exactly qualifies as a wetland has been confusing and controversial. To dispel the confusion and quell the controversy, Congress passed a law requiring the Corps to use its 1987 Wetlands Manual for all wetland delineations, unless and until the Corps adopts a new “final wetland delineation manual.”

The Corps never adopted a new manual. Instead it published various regional “supplements” that allow the Corps to take advantage of regional “variations” to justify expansion of the agency’s jurisdiction beyond that authorized by the 1987 Manual. The Alaska Supplement adopts such a generous standard for what qualifies as a wetland that it allows the Corps to regulate permafrost, i.e., frozen ground.

This lawsuit challenges the Corps’ permafrost rule within the context of the agency’s decision to grant an onerously conditioned permit to Tin Cup to develop its property. Although this case deals directly only with the permafrost rule, the larger legal issue raised may affect how the Corps applies (or rather, misapplies) its 1987 Manual and supplements throughout the country. On behalf of Tin Cup, LLC, PLF asked the U.S. Supreme Court to review Tin Cup’s challenge to the Corps’ permafrost enforcement.

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What’s at stake?

  • The Clean Water Act requires the Corps of Engineers to use a national manual that describes how wetlands are delineated to ensure a measure of national consistency and predictability.
  • The Corps’ habit of expanding its jurisdiction through superseding “local rules” violates Congress’ direction that the agency operate under nationally applicable guidelines.

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September 21, 2018 Download

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May 02, 2016 Download

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