SACRAMENTO, CA; March 10, 2016: A new 4 ½ minute video from Pacific Legal Foundation provides an overview of the issues and personalities in PLF’s latest high-profile case at the U.S. Supreme Court for property owners’ rights, United States Army Corps of Engineers v. Hawkes Co., Inc.
Hawkes is a precedent-setting case that asks whether landowners anywhere in the country may appeal to the judiciary if their property is labeled as “wetlands” subject to the federal Clean Water Act. The U.S. Supreme Court will hear oral arguments in the case on Wednesday, March 30, 2016.
Produced by Brian Feulner, PLF’s Director of Audio and Video Production, the video features remarks by PLF Principal Attorney M. Reed Hopper, who will argue the case at the Supreme Court; Kevin Pierce, one of the owners of the family-owned and run businesses that PLF represents in this case; and one of his employees, Joel Swan.
PLF’s clients are family-owned and run businesses — Hawkes Co., providing peat for golf courses and other sports turf applications; and Pierce Investment and LPF Properties, which own some peat land. “Hawkes Company has been in business since 1983,” Kevin Pierce recounts in the video. “In the beginning we used it for landscaping and mixed it with black dirt for yards and turf and then we got into golf course greens and tees with it. We’ve done a lot of football stadiums, soccer stadiums. They cut their fertilizer usage, it helped cut the water consumption down by up to 60 percent. It makes the grass grow evenly. It can take more stress from the beating that the football players do to it and … actually, [with] the thicker the cushion you can have maybe the players get hurt a little less. Once we’re done mining an area, then we push the overburden back on it, then spread it out and then we reflood the field and get it all wet, and it starts its process over of being the same wetland that was before we started.”
The initial lawsuit was filed by Gray Plant Mooty, because these businesses are prevented from using their property in Marshall County, Minnesota, after the Army Corps of Engineers determined the land was subject to federal control under the Clean Water Act.
As the video points out, the Corps refused to back down from this “jurisdictional determination” (“JD”), even though a hearing officer ruled that regulators lacked sufficient evidence to meet the test for “navigable water” under the Clean Water Act. Federal jurisdiction triggers an onerous, costly, and often futile, permitting process for the use of one’s property. As the video records, site manager Joel Swan recounts that one federal regulator told him, “Well you probably might have to look for a different job.”
The businesses want to challenge the JD in court, and for good reason. The nearest traditional navigable water — the Red River of the North — is more than 120 river miles away, with no significant surface water connection between the two.
But the Obama Administration has insisted that such cases can’t be appealed until the landowner has navigated an expensive and lengthy permit process — and been rejected. Too often, this means justice denied, because the process is so costly and extended.
The Eighth Circuit ruled in favor of Hawkes and PLF, recognizing a right to appeal wetlands JDs. But the Administration refused to give up, so the Supreme Court has agreed to hear the case. “The Supreme Court will now make a definitive determination as to whether landowners have the right throughout the country to challenge these kinds of jurisdictional determinations,” Reed Hopper says in the video.
Kevin Pierce recognizes that the case is important for the rights of landowners across the country. This is especially the case after the Obama Administration unveiled its new, open-ended definition of “waters of the United States” last year. “The new wetland laws are affecting the farmers, the contractors, the house builders, developers — it’s getting pretty dramatic, how much the permitting is, [and] the timeline to get it done has just gone right off the record,” Pierce notes in the video.
“When government tries to control people’s lives and property, they should not have courtroom doors slammed in their faces,” said Hopper when the Supreme Court announced that it would accept the Hawkes case. “They must not be denied their day in court. Otherwise, our system of checks and balances has lost its meaning.”
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