7 months ago

The Government, right or wrong!

By M. Reed Hopper Senior Attorney

In remarks to the U.S. Senate in 1872, Carl Schurz said,  “My country, right or wrong; if right, to be kept right; and if wrong, to be set right.”  This is a worthy sentiment that is gaining some traction in Congress with the advent of a new Administration. Under the Congressional Review Act, federal legislators are reviewing federal regulations with an eye toward revoking illegal, redundant, or counter-productive rules and policies. The effort is long overdue but the responsibility for correcting the Country’s course should not stop with Congress.

In our system of government, the courts have responsibility to keep and set the Country right by enforcing the rule-of-law.  This provides a necessary check on overreaching legislation and overzealous enforcement by the political branches of government.  But many courts abdicate their role as arbiters of the law and defer, in almost knee-jerk fashion, to the Government’s interpretation of the law.

For decades, the Army Corps of Engineers and Environmental Protection Agency exercised free rein over property owners nationwide by declaring virtually all waters and even dry land as navigable “waters of the United States” subject to complete regulatory control by federal bureaucrats under the Clean Water Act.  Until recently, the courts universally agreed with the Government that claims of federal jurisdiction under the Act were not subject to judicial review– even if the property owner could prove the agencies were wrong and had overstepped their authority.

Fortunately, that changed last Spring when a unanimous Supreme Court held in Army Corps of Engineers v. Hawkes, that property owners across the Country have the right to go to court  when the Corps and EPA wrongfully claim they can regulate private property as a wetland or other water subject to strict land use restrictions under the Clean Water Act.  But this 8-0 decision raises a question: Why did the lower courts consistently rule in favor of the Government?

When every justice on the U.S. Supreme Court, regardless of ideology, sees a legal wrong that must be set right, whereas almost every judge below fails to see a legal wrong at all, something’s amiss. The unanimous Hawkes decision is an indictment of government overreaching and judicial underreaching.

To be sure, the judicial system is designed to favor governmental actions.  The federal courts rely on a presumption that federal agencies act properly in the course of their duties and generally defer to technical agency decisions and legal interpretations.  But this should not be the case when the Government’s position is patently absurd.  In such cases, the courts must  set things right.

The Government’s position in Hawkes, that it could subject any area in the Nation to onerous federal regulation  without being held directly accountable in a court of law, is just such a case.  But there is another case, equally flawed, that’s working its way up to the Supreme Court.

The case is Markle v. U.S. Fish and Wildlife Service. Under the Endangered Species Act the government designates critical habitat for protected species. The Act defines “critical habitat” as habitat “essential to the conservation” of a species. Strict federal regulation applies to critical habitat, often impairing or prohibiting ordinary land or water use. In this case, the government designated over 1500 acres of private land as critical habitat for the dusky gopher frog that may cost the landowners up to $34 million in lost value, although it is undisputed that the dusky gopher frog cannot inhabit the designated area. The land is not used or occupied by the species; it is not near areas inhabited by the species; it is not accessible to the species; it cannot sustain the species without modification; and, it does not support the existence or conservation of the species in any way. In short, the Government claims this property is “essential” habitat for the gopher frog in the hope that it may someday become usable habitat.

In judicial decisions that defy credulity, two federal courts have backed this gambit.  A Louisiana trial court and a split panel of the Fifth Circuit Court of Appeals held “reluctantly” that although they may not agree with the Government’s decisionmaking they are bound to defer to the agency’s judgment in this matter.  This is nonsense!  The courts are not bound to defer to unreasonable or egregious governmental actions.  As the dissent observed in the Fifth Circuit, this decision is unprecedented and sweeping.  It allows the Government to regulate any area as protected habitat because with enough effort and time any area could be made suitable for some threatened or endangered species.  This approach cannot be squared with the language of the Endangered Species Act or the intent of Congress.  By definition, property that does not, and likely will not, play a role in sustaining a protected species cannot be “essential” to the species’ conservation.  At the very least, “critical habitat” must be habitat. To rule otherwise is to follow a “my government, right or wrong” approach to adjudication that should find no place in a court of law.  It is, in fact, a breach of the public trust. Instead of blindly deferring to governmental actions, the courts should keep the Government right, when it is right; and set the Government right, when it’s wrong.

For more information on the Markle case, see here.

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Markle v. U.S. Fish and Wildlife Service

The federally-protected dusky gopher frog lives exclusively in a small area of Mississippi, in designated critical habitat. However, the government designated over 1500 acres of privately-owned land in Louisiana as “critical habitat,” even while acknowledging that the frog does not, and cannot, live there.

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