April 17, 2015

PLF files Petition for Rehearing at the Supreme Court

By Mark Miller Senior Attorney

Although the Supreme Court rarely grants a petition for rehearing, it does happen. With that in mind, Pacific Legal Foundation filed its Petition for Rehearing in the Kent Recycling Services LLC v. Army Corps of Engineers case now pending at the Court.  You can read more about Kent Recycling at this link.

Generally, PLF recognizes the unlikelihood of the Court agreeing to re-hear a case, and thus does not pursue further relief at the Court once it denies a petition for writ of certiorari.  But here, we had good reason to pursue rehearing: the win the Eighth Circuit Court of Appeals handed us in the Hawkes Inc., Co. v. U.S. Army Corps of Engineers case last week.   That court held that a Corps of Engineers’ Jurisdictional Determination (i.e.  wetlands delineation) is immediately reviewable in court and subject to challenge. In Kent Recycling, the Fifth Circuit addressed this same issue and came out the opposite way. That court held that JDs are not immediately reviewable in court. Now, the Supreme Court has a circuit split on an issue that means hundreds of thousands of dollars to landowners across the nation.  With that in mind, we filed our petition.

As my colleague Reed Hopper wrote last week about the Hawkes case:

For the first time since the inception of the Clean Water Act (1972), overzealous government bureaucrats can be held immediately accountable in court for their erroneous assertions of federal control over private wetlands and other waters.  This levels the playing field for landowners who have been at the mercy of overreaching government for far too long.

PLF believes this leveling of the playing field for landowners should apply across the nation.  For this reason, we think we have given the Supreme Court ample reason to rehear Kent Recycling, hear the dispute on the merits, and then issue a decision that makes the rule of Hawkes applicable from sea to shining sea.

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Kent Recycling Services, LLC v. U.S. Army Corps of Engineers

Kent Recycling Services wanted to establish a solid waste landfill in Louisiana. But an overzealous Corps of Engineers issued a Jurisdictional Determination claiming the property contained wetlands subject to federal regulation under the Clean Water Act. Kent disputed this claim and sued. Lower courts rejected his lawsuit as unripe on the theory that the determination was not a final order and PLF, representing Kent, petitioned the Supreme Court to review the case. The Court originally declined, but a few days later the Eighth Circuit decision in Hawkes created a Circuit split on the precise issue before the Court. PLF asked the Court to reconsider. A few days after the Hawkes victory affirming landowners’ right to their day in court, the Court vacated the lower court decision in this case and ordered it to reconsider the case in light of the ruling in Hawkes.

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