Solicitor General files opening brief in Hawkes

Earlier today, the Office of the Solicitor General for the United States filed its opening merits brief in U.S. Army Corps of Engineers v. Hawkes Co., Inc. The government continues to argue that a land owner suffers no legal consequences when the U.S. Army Corps of Engineers determines it has jurisdiction (by way of a “Jurisdictional Determination” or “JD” for short) over the owner’s property. That this JD simply advises the property owner of the federal government’s position that it controls the property owner and its wishes for its property.

For all time.

And ever more.

Respectfully, we think that argument holds no water. As the Eighth Circuit Court of Appeals explained below, in rejecting this same argument:

The Corps’s assertion that the Revised JD is merely advisory and has no more effect than an environmental consultant’s opinion ignores reality. “[I]n reality it has a powerful coercive effect.” Bennett, 520 U.S. at 169. Absent immediate judicial review, the impracticality of otherwise obtaining review, combined with “the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case . . . leaves most property owners with little practical alternative but to dance to the EPA’s [or to the Corps’] tune.” “In a nation that values due process, not to mention private property, such treatment is unthinkable.” Sackett, 132 S. Ct. at 1375 (Alito, J., concurring).

We look forward to filing our brief, and elaborating on the points made above by the Eighth Circuit, next month.