High Court is asked to recognize landowners’ right to appeal “wetlands” designations

WASHINGTON, DC;  October 29, 2014: In an appeal filed today, Pacific Legal Foundation (PLF) asked the United States Supreme Court to rule that property owners have the right of judicial review when federal regulators declare their land to be “wetlands.”

PLF submitted an appeal — or petition for certiorari — to the High Court in the case of Kent Recycling Services v. Army Corps of Engineers (formerly Belle v. Army Corps of Engineers).  The case deals with “jurisdictional determinations” by federal Clean Water Act (CWA) regulators — i.e., the regulators’ designations of property as “waters of the United States.”  The Fifth U.S. Circuit Court of Appeals held that a property owner may not seek judicial review of such a designation, even though it has the effect of bringing the property under the direct regulatory control of the federal government.

In filing this appeal, PLF attorneys represent Kent Recycling Services, which seeks to establish a solid waste landfill on property in Assumption Parish, Louisiana.  Kent has been stymied by the U.S. Army Corps of Engineers’ questionable claim that the property contains wetlands.

Kent disputes this claim and is seeking judicial review of the determination.

Landowners should not be denied their day in court

“Unfortunately, the Fifth Circuit Court of Appeals refused to give Kent its day in court,” said PLF Principal Attorney M. Reed Hopper.  “By denying a property owner any feasible means of appeal, the appellate court basically allows the bureaucrats to be their own judge, jury and enforcer when it comes to labeling property as wetlands and taking control over people’s land and their lives.

“We are asking the U.S. Supreme Court to review and reverse this decision, and recognize that Clean Water Act bureaucrats are not a law unto themselves,” Hopper continued.  “Under the clear precepts of the Administrative Procedure Act, property owners have the right to ask a court for review when federal regulators assert jurisdiction over their land.”

This case follows up on PLF’s Supreme Court victory two years ago in Sackett v. U.S. Environmental Protection Agency, where the court unanimously held that property owners may seek judicial review of “compliance orders” from Clean Water Act regulators.

“Just as Sackett established that federal wetlands orders may be appealed to the judiciary, in this case we’re arguing that the formal designation of a property as ‘wetlands’ by the federal government is also subject to judicial review, ” said Hopper.  “Anything else would imply that wetlands bureaucrats can do no wrong and make no mistakes.  But they’re human like the rest of us, so the property owners who are subject to their decrees have the right to ask the courts for a second opinion.”

The right of judicial review is especially important because regulators can assert Clean Water Act coverage over almost any piece of property if they are creative enough.  As Justice Samuel Alito commented in Sackett, the “reach of the Clean Water Act is notoriously unclear,” so “any piece of land that is wet at least part of the year” may be covered, “putting property owners at the agency’s mercy.”

“Because of the Clean Water Act’s potentially limitless scope, it is imperative that the courts safeguard a landowner’s right to challenge the erroneous application of the law to his property,” said Hopper.  “The Fifth Circuit’s failure to provide such a safeguard established a dangerous precedent, making this case highly appropriate for Supreme Court review.”

With no right of appeal, owners have no feasible options

Without the right of direct appeal to the courts, owners whose property is designated as “wetlands” are left with three options, none of which is feasible or fair:  (1) abandon use of the land; (2) go through the pointless and costly permit process (averaging more than $270,000 and more than two years); or (3) proceed with property development without a permit, risking immense fines of $37,500 a day and imprisonment.

“These are not legitimate options,” said Hopper.  “They are punitive sanctions imposed on landowners who dare to challenge federal jurisdiction under the Clean Water Act.”

The property that Kent intends to use has been exempt from the Clean Water Act for decades as agricultural land.  Kent received all local permits for the waste disposal site, but suddenly the Corps of Engineers issued a jurisdictional determination withdrawing the exemption and asserting that the site contains wetlands subject to federal regulation.

Kent maintains that the withdrawal of the exemption violated the agency’s own rules and that the Corps failed to provide sufficient evidence of covered wetlands on the property.

To add insult to injury, when Kent appealed the jurisdictional determination to the Corps itself, a hearing officer agreed that the determination was deficient and erroneous, but the Corps issued a final jurisdictional determination without correcting these deficiencies.  Kent’s petition to the Supreme Court seeks immediate review of the jurisdictional determination and argues that the agency’s issuance of an admittedly erroneous jurisdictional determination deprived Kent of its due process rights.

About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation is the leading legal watchdog organization that litigates for limited government, property rights, free enterprise, and a balanced approach to environmental regulations, in courts across the country.  PLF represents all clients free of charge.