January 22, 2016

Solicitor General files opening brief in Hawkes

By Mark Miller Senior Attorney

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., IncThe 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.

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U.S. Army Corps of Engineers v. Hawkes

Hawkes Company is a family-owned business in Minnesota that harvests peat moss, for landscaping. The U.S. Army Corps of Engineers improperly claimed jurisdiction over the property as regulated wetlands. This put Hawkes in the untenable position of (1) abandoning all use of the land at great loss; (2) spending several hundred thousand dollars to seek an unnecessary federal permit; or (3) using the land without federal approval at the risk of $37,500-a-day fines and criminal prosecution. When Hawkes challenged the Corps in court, lower courts dismissed the case as unripe for review. But the Supreme Court disagreed, holding that a Jurisdictional Determination is a binding legal decision subject to immediate judicial challenge.

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