March 3, 2016

Minnesota business challenges feds to have their day in court

By Minnesota business challenges feds to have their day in court

Should property owners have a right to challenge federal regulators who label their land as “waters of the United States” subject to complete federal control under the Clean Water Act? That is the question before the Supreme Court of the United States in a pivotal case called U.S. Army Corps of Engineers v. Hawkes Company.

Hawkes Company is a family-¬owned business that provides peat (a rich organic soil amendment) for landscaping and other purposes. When Hawkes Company sought to expand the business in nearby peat bogs, the Corps of Engineers declared the bogs were subject to federal jurisdiction and Hawkes Company could not proceed without federal approval.

Although a Corps hearing officer ruled the jurisdictional determination lacked sufficient evidence and was in error, the Corps would not back down. The Pacific Legal Foundation will represent Hawkes Company at the U.S. Supreme Court.

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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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