February 26, 2016

PLF files Respondents’ Brief in Hawkes Clean Water Act case at Supreme Court

WASHINGTON, DC;  February 26, 2016: This week, attorneys with Pacific Legal Foundation (PLF) filed the Respondents’ Brief on the merits in United States Army Corps of Engineers v. Hawkes Co., Inc., a precedent-setting case that asks whether landowners 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.

PLF’s clients, owners of the Hawkes Co., provide peat for golf courses.  They are prevented from using property in Marshall County, Minnesota, because the Corps issued a Jurisdictional Determination categorizing it as federally controlled wetlands.

They want to challenge this, because the nearest navigable water — the Red River of the North — is more than 120 river miles away, with no surface water connection between the two.

But the Obama Administration insists such cases cannot 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 Jurisdictional Determinations.  But the Administration refused to give up, so the Supreme Court has agreed to hear the case and decide for the entire nation.

Federal wetlands regulators can’t deny landowners their day in court

“Of course, the Supreme Court should conclude that courts can review Jurisdictional Determinations under the Administrative Procedure Act,” said Mark Miller, Managing Attorney with PLF’s Atlantic Center in Florida, and one of the PLF attorneys representing Hawkes.  “After the federal government wrongly says a property contains wetlands subject to federal jurisdiction under the Clean Water Act, a landowner has only three alternatives.  He may:  1) abandon the property; 2) embark on a costly and lengthy permit process that isn’t needed; or 3) use the property and risk huge fines and even incarceration. These choices amount to no reasonable choice at all.  That is why the property owner should have access to the courts, in order to demonstrate that the property is not subject to federal jurisdiction under the Clean Water Act at all.”

Read Mark Miller’s blog post about this week’s filing of the Respondents’ Brief, at the PLF Liberty Blog.

PLF’s Hawkes litigation builds on previous PLF cases imposing accountability on wetlands regulators, such as our 2012 Supreme Court victory in Sackett v. Environmental Protection Agency, which secured judicial review for wetlands “compliance orders.”

“When government tries to control people’s lives and property, they should not have courtroom doors slammed in their faces,” said PLF Principal Attorney M. Reed Hopper.  “They must not be denied their day in court.  Otherwise, our system of checks and balances has been replaced by a regime of bureaucratic dictates.”

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