High Court will hear PLF case over “wetlands” designations

WASHINGTON, DC;  December 11, 2015: The U.S. Supreme Court announced today it will hear a Pacific Legal Foundation (PLF) case in which PLF argues that property owners should have a right to judicial review when federal regulators label their land as “wetlands” subject to federal oversight.

The court granted the government’s petition for certiorari in Hawkes Co., et al. v. U.S. Army Corps of Engineers (Supreme Court docket no. 15-290), a case in which PLF was victorious at the court of appeals.  PLF, which has long litigated to establish judicial review of wetlands designations, supported the Hawkes petition, which opens the prospect of winning a Supreme Court ruling for that principle.

Donor-supported PLF is a watchdog organization that litigates for limited government, property rights, and balanced environmental regulations.  Today’s announcement builds on a powerful PLF record of reaching and winning at the U.S. Supreme Court on behalf of our clients.  Founded in 1973, PLF has won its last seven direct-representation cases at the High Court.

In the Hawkes case, PLF represents — free of charge — The Hawkes Co., Inc., Pierce Investment Company, and LPF Properties.  All three of these parties own property in New Maine Township, Marshall County, Minnesota, which was designated as “wetlands” over which the Army Corps of Engineers has regulatory authority under the Clean Water Act.  The Eighth Circuit agreed with PLF that property owners have the legal right to bring a court challenge to such a “jurisdictional determination” — and this PLF victory prompted the petition for certiorari by the federal government.

PLF statement on the Supreme Court’s announcement

“The Supreme Court’s decision to take this case gives it an opportunity to affirm the Eighth Circuit’s historic ruling and strike a blow for accountability in government and Americans’ access to justice,” said PLF Principal Attorney M. Reed Hopper.  “When Clean Water Act officials assert control over someone’s private property, they should be prepared to defend, in court, their claim that the property is, in fact, wetlands.  Their decisions should not be insulated from scrutiny and examination, as if the regulators were a law unto themselves.

“In the same way, when a government agency asserts control over people’s land and their lives, the affected property owners should not have the courtroom doors slammed in their faces,” Hopper added.  “There must be a reasonable right of appeal, or our system of checks and balances has been replaced by a regime of arbitrary bureaucratic dictates.

“This case is about the rights of property owners, but it’s also about more than that,” said Hopper.  “We’re arguing for credibility in the environmental regulatory process, and for the principle that bureaucracies are bound by the law and answerable to the courts, just like the rest of us.”

Building on PLF’s success in Sackett

This case follows up on PLF’s Supreme Court victory three 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 Hawkes 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.

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.”

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.