1 year ago

Landowners nationwide win their day in court!

By M. Reed Hopper Senior Attorney

For more than 40 years, millions of landowners nationwide have had no meaningful way to challenge wrongful application of the Clean Water Act to their land.  That changed today when a unanimous U.S. Supreme Court ruled landowners have the right to challenge federal claims of jurisdiction in a court of law.

The Clean Water Act authorizes the Army Corps of Engineers and Environmental Protection Agency to regulate “navigable waters,” which these agencies interpret to mean virtually all waters in the United States and much of the land. Such “waters” are subject to complete federal control. They cannot be disturbed without a federal permit. This puts landowners at the mercy of the federal government.

In this case, a family-owned business in Minnesota, known as the Hawkes Company, sought to harvest peat moss, for landscaping, in nearby peat bogs. The Corps claimed jurisdiction over the property as regulated wetlands, even though a Corps reviewing officer found the jurisdictional determination erroneous. This put Hawkes in an untenable position: Hawkes could abandon all use of the land at great loss, seek a federal permit (which Corps officials openly opposed) for a few hundred thousand dollars, or proceed to use the land without federal approval subjecting Hawkes to fines of $37,500 a day and criminal prosecution.

Faced with this no-win situation, Hawkes decided to challenge the Corps jurisdictional determination in court. The problem was, since the Clean Water Act’s inception, every court to consider the matter had held landowners did not have the right to contest Corps jurisdiction. Incredibly, this was true even if the landowner could prove the Corps was wrong.  For more than 4 decades, the Corps has had the power to “federalize” any parcel of land with standing or flowing water without ANY accountability.  It is hard to conceive a regulatory regime with greater potential for abuse.

Fortunately, the Eighth Circuit Court of Appeals decided to rectify this travesty and held Hawkes could seek immediate judicial review of the Corps jurisdictional determination, relying in large part on PLF’s unanimous Supreme Court victory in Sackett v. EPA.  To set a nationwide precedent that would benefit all landowners, both public and private, we joined the Corps in urging the Supreme Court to hear the case.  Today, the High Court upheld the Eighth Circuit decision granting landowners their day in court to challenge federal overreaching under the Clean Water Act.  This is a long-awaited victory for property rights, fundamental fairness, and the “rule of law.”

The documents relating to this case can be found here.

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U.S. Army Corps of Engineers v. Hawkes

Hawkes Company is a family-owned business in Minnesota that harvests peat moss, for landscaping. The U.S. Army Corps of Engineers improperly claimed jurisdiction over the property as regulated wetlands. This put Hawkes in the untenable position of (1) abandoning all use of the land at great loss; (2) spending several hundred thousand dollars to seek an unnecessary federal permit; or (3) using the land without federal approval at the risk of $37,500-a-day fines and criminal prosecution. When Hawkes challenged the Corps in court, lower courts dismissed the case as unripe for review. But the Supreme Court disagreed, holding that a Jurisdictional Determination is a binding legal decision subject to immediate judicial challenge.

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