March 23, 2015

U.S. Supreme Court denies review in Kent Recycling

By M. Reed Hopper Senior Attorney

Once again, the U.S. Supreme Court missed an opportunity to address a matter of great national importance.  The Corps of Engineers can subject private property to strict federal regulation without any meaningful judicial review.  This emboldens the agency to exceed its power at will and federalize local ditches, ponds and streams as “waters of the United States” under the expansive Clean Water Act.  Even when the agency blatantly misapplies the law, as in Kent Recycling, landowners have no practical recourse but to acquiesce to federal regulatory demands.

In Kent Recycling, the Corps issued the landowners (Belle Company) an erroneous Jurisdictional Determination claiming the subject property contained jurisdictional wetlands.  A reviewing officer concluded the determination was improper because it applied the wrong legal standard and was lacking in evidence.  But the Corps issued the determination anyway. The trial and appellate courts refused to review the determination leaving the landowner with only three options: (1) abandon the proposed use of the land, at great cost; (2) get a permit that may not be legally required at a cost of over $270,000; or (3), proceed with the proposed project and incur fines of $37,500 a day and possible criminal sanctions.

PLF petitioned the Supreme Court arguing that those with an interest in the property were denied due process and should have been allowed an opportunity in court to challenge the accuracy and validity of the Corps’ Jurisdictional Determination.  This was important not only for the petitioners, but for the tens of thousands of landowners across the Country who are illegally subjected to heavy-handed federal regulation of their property without a fair judicial remedy.  Unfortunately, the High Court denied review of the case today leaving landowners across the country a the mercy of agency overreaching.

Although the court did not address this issue in this case, there are other cases now pending in the appellate courts that raise the same issue, including our case in the 8th Circuit; Hawkes v. Corps.  We will continue to press the Supreme Court until it determines whether Jurisdictional Determinations are subject to judicial review just like the compliance orders in our landmark Sackett case.

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