August 1, 2013

Legal fiction endangers individual rights

By M. Reed Hopper Senior Attorney

What you and I would call a fabrication is known in the Halls of Justice as a “legal fiction.”

A legal fiction is “an assumption that something is true even though it may be untrue, made especially in judicial reasoning to alter how a legal rule operates.” Black’s Law Dictionary

For decades, the courts have used a legal fiction to deny citizens the right to challenge certain determinations by the Corps and EPA under the Clean Water Act, like the onerous compliance order in Sackett. In that case, the EPA tried to compel the Sacketts to “restore” alleged wetlands on their half acre home lot (at a cost in excess of the lot’s value) or face penalties of $75,000 a day. The EPA compliance order was based on unproven allegations that the Sacketts’ property contained “navigable waters” subject to federal jurisdiction. When the Sacketts tried to challenge the jurisdiction of the government in court, the Ninth Circuit Court of Appeals refused to allow it, relying on the fiction that the compliance order did not impose any legal obligations on the Sacketts but was just advisory. Fortunately, all nine Justices on the U.S. Supreme Court saw through the fiction and held the Sacketts could seek judicial review of the agency’s claim of jurisdiction. However, the High Court’s unanimous decision in Sackett has yet to be applied to so-called Jurisdictional Determinations (i.e., wetland delineations) issued by the Corps.

A case in point is the decision issued today in Hawkes v. Corps of Engineers in which Minnesota landowners are seeking permission to harvest their swamp for peat moss used in landscaping. The landowners admit the swamp is a wetland by definition. However, under the Supreme Court decision in Rapanos, only wetlands that are adjacent to a permanent waterbody, or which have a “significant nexus” with traditional navigable waters, are subject to federal jurisdiction under the Clean Water Act. When the Corps issued a Jurisdictional Determination asserting the swamp was covered by the Act, without demonstrating the requisite connection to traditional navigable waters, the landowners sought to challenge the determination in court. We filed an amicus brief in the case arguing that the Sackett decision requires judicial review of Jurisdictional Determinations which are issued in the hundreds each year by the Corps nationwide. In a decision that can only be called disingenuous, the trial court relied on the old fiction, discredited in Sackett, that a Jurisdictional Determination does not impose a legal obligation on the landowners and is not ripe for judicial review. A Jurisdictional Determination showing “navigable waters” is a binding legal finding that requires the landowner to acquire a costly federal permit or face ruinous fines or imprisonment. To say that a Jurisdictional Determination has no meaningful legal effect is a pure fabrication. It is a legal fiction of the worst kind because it deprives ordinary citizens of their day in court to contest government overreaching.

Instead of following the Supreme Court’s lead in Sackett, the trial court asserted that the landowners could seek a federal 404 Clean Water Act permit (costing several hundred thousand dollars) and then challenge the Corps’ jurisdiction, or, ironically, they could proceed with the project without a permit in hopes that the Corps or EPA would issue a compliance order like the one in Sackett (risking $75,000 a day in fines) and then challenge the compliance order in court. This is ludicrous! The trial court seems to have willfully missed the point in Sackett that landowners should not be compelled to spend exorbitant amounts of money for a permit that may not be required or subject themselves to diastrous civil and criminal liability when federal jurisdiction is in dispute. These are not adequate remedies when the agency has already made a definitive jurisdictional determination. Hopefully, the case will be appealed to the Eigth Circuit Court of Appeals where it will receive a more objective consideration.

What to read next