June 6, 2016

PLF wins another case at the Supreme Court!

By Mark Miller Senior Attorney

Our loyal readers may recall that we asked the Supreme Court of the United States to review the Fifth Circuit‘s decision in Kent Recycling Services v. U.S. Army Corps of Engineers nearly two years ago. Although the Court initially denied our petition for writ of certiorari early last year, our Eighth Circuit Court of Appeals win in the U.S. Army Corps of Engineers v. Hawkes Co. case—which occurred within days of the Supreme Court cert. denial—allowed us to ask the High Court to reconsider its decision in light of the new circuit split.

Talk about fortuitous timing!

Today, after more than a year, the Supreme Court of the United States granted our petition for rehearing, vacated its order denying review of Kent Recycling, granted review of the case, then at the same time vacated the Fifth Circuit’s adverse decision, and remanded the case to the Fifth Circuit for further review in light of the Court’s decision last week in Hawkes. Yes, that is indeed a mouthful.

So what does all that mean?

Simply put, it re-affirms that property owners across the country can hold overzealous federal bureaucrats immediately accountable in court for erroneous assertions of control over wetlands. This levels the playing field for landowners who have been at the mercy of an overreaching federal government for far too long.

This leveling of the playing field for landowners now applies across the nation—not just for Hawkes Company, not just for Kent Recycling Services, but rather for all Americans.

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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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