North Carolina businessman “Val” Valentine earned his living in commercial real estate, but he also kept a small portfolio of timberlands on the side. After his son, Skip, started a logging company, the pair decided to expand the family land business.
In 2016, the Valentines began buying 1,700 acres of rough timberland for forestry and recreation. The land cris-crossed with old, dilapidated logging roads. The father-son team were prepared to tackle the hard work necessary to get their business off the ground.
But nothing could have prepared them for a government agency so hell-bent on expanding its own authority, it ignored the Supreme Court to threaten financial ruin and trample their rights.
The Valentines’ property lies along the Roanoke River and a smaller stream called Devils Gut in eastern North Carolina. Their business plan was two-fold: cultivating a complex forest ecosystem for healthy hardwood timber in the long -term, financially supported in the short term by ecotourism, hunting, and fishing on the land.
With forestry certifications in hand, the Valentines went to work upgrading and extending the long-existing network of forest roads on their land, consistent with state and federal best practices.
Nevertheless, in 2018, the Army Corps of Engineers arrived with a cease- and- desist order accusing them of filling federally regulated wetlands on their property without a CWA permit.
Despite the false accusations, the Valentines repeatedly tried to work with the bureaucrats. They provided forest management maps drawn up by state forestry officials calling for the very road improvements the agency said violated the CWA.
Val and Skip even handed over some of their land along the Roanoke River to the government as a permanent conservation easement to protect the land. To no avail: The Army Corps aggressively pursued the Valentines for six more years until finally slapping them with a federal lawsuit that could very well amount to millions in civil penalties.
The agency’s entire case is built on an interpretation of the Clean Water Act’s “navigable waters” rules that was soundly rebuked by the Supreme Court in Sackett v. EPA. The decision ended decades of government abuses under the guise of CWA enforcement with final clarity, affirming that property that is clearly distinguishable from navigable waters cannot be subject to federal regulation.
The government has made no such determination for the Valentines’ property. Indeed, it would be obvious even to a child where the timberlands end and the navigable waters begin.
Even if the Valentines’ land did fall under CWA regulation, their land use activity does not, because the CWA has an exemption for forest roads. Furthermore, the CWA authorizes only the EPA to enforce alleged permit violations, not the Army Corps. And only Congress, not the EPA, can endow the Army Corps with such power.
No matter how strong its zeal to make an example of the Valentines and deter other landowners from pursuing similar development, the Army Corps cannot simply ignore a Supreme Court decision or assume enforcement powers it doesn’t have.
Represented by Pacific Legal Foundation at no charge, the Valentines are now making a full-throated defense of their right to make productive use of their own land, and to ensure both agency compliance and courts’ proper application of Sackett II.
PLF’s case Ward v. US Army Corps of Engineers also seeks to enforce the proper application of Sackett II.
What’s At Stake?
- The Supreme Court ruled in Sackett II that regulated wetlands must be indistinguishable from waters clearly covered by the Clean Water Act. Government agencies cannot willfully ignore Supreme Court precedent and punish landowners for activity that does not fall under CWA purview.
- Even if the Army Corps of Engineers had jurisdiction, the Valentines’ property is still exempt because Congress carved out a forest road exception in the Clean Water Act. Bureaucrats can’t rewrite the rules to require permits just because they don’t agree with Congress’s decision or don’t like the proposed land use.
