May 18, 2015

Supreme Court orders Solicitor General to respond to PLF rehearing petition

By Mark Miller Senior Attorney

Last month, Pacific Legal Foundation asked the Supreme Court to reconsider its order denying the petition for writ of certiorari we filed in an important wetlands case known as Kent Recycling Services LLC v. Army Corps of Engineers. You can read our petition for rehearing at this link.

Although the Supreme Court rarely grants a petition for rehearing, it does happen. Here, we had good reason to pursue rehearing: the win the Eighth Circuit Court of Appeals handed us in the Hawkes Inc., Co. v. U.S. Army Corps of Engineers case back in early April. That court held that a Corps of Engineers’ Jurisdictional Determination (i.e.  wetlands delineation) is immediately reviewable in court and subject to challenge. In Kent Recycling, the Fifth Circuit addressed this same issue and came out the opposite way. That court held that JDs are not immediately reviewable in court. Now, the Supreme Court has a circuit split on an issue that means hundreds of thousands of dollars to landowners across the nation.  With that in mind, we filed our petition.

This morning we received some good news about that petition: the Supreme Court asked the Government to file a response to the petition for rehearing within 30 days.

As my colleague Reed Hopper wrote about the Hawkes case:

For the first time since the inception of the Clean Water Act (1972), overzealous government bureaucrats can be held immediately accountable in court for their erroneous assertions of federal control over private wetlands and other waters. This levels the playing field for landowners who have been at the mercy of overreaching government for far too long.

PLF believes this leveling of the playing field for landowners should apply across the nation. For this reason, we think we have given the Supreme Court ample reason to rehear Kent Recycling, hear the dispute on the merits, and then issue a decision that makes the rule of Hawkes applicable from sea to shining sea. We appreciate that the Court recognizes the important issue the case presents and look forward to reading the Government’s response to our petition.

 

What to read next