In a podcast interview with Spero News, M. Reed Hopper of the Pacific Legal Foundation (PLF) described the precedent-setting victory for property owners’ rights that PLF attorneys won before the Supreme Court recently. In the decision in favor of property owners’ rights for due process before the law, the high court accepted the contention made by PLF that landowners have a Constitutional right to judicial review of bureaucratic designations of their property as wetlands and thus subject to federal jurisdiction under the Clean Water Act.
In the outcome in United States Army Corps of Engineers v. Hawkes Co. Inc., Hopper said previous statements that it is a “long-awaited victory for individual liberty, property rights, and the rule of law.” According to Hopper, for more than four decades, millions of Americans have had no way to challenge federal bureaucrats who wrongfully applied the federal Clean Water Act to their land. He said that landowners were at the mercy of government when land comes under complete federal control and effective confiscation. He personally argued before the Supreme Court, which ruled that jurisdictional determinations of wetlands can be immediately challenged in court. “Everyone who values property rights and access to justice should welcome this historic victory.”
M. Reed Hopper
The family-owned and operated Hawkes Co. – which produces peat for golf courses and sports applications, and LPF Properties, were PLF’s clients in the case. They have been prevented from using property in Marshall County, Minnesota, because the Army Corps of Engineers issued a jurisdictional determination categorizing it as federally-controlled wetlands.
Kevin Pierce, of Hawkes Co. said of the decision, “We are now guaranteed the right to appeal to the courts against the Corps’ jurisdictional wetlands’ decision, that doesn’t follow environmental policy or law, which harms our wetland-dependent business.”
In the podcast interview, Hopper said that PLF was joined in the case by 29 states and scores of municipalities and jurisdictions, as well as agricultural groups. “On the side of the Corps was nobody,” Hopper said. “This was not a controversial case.”
As for critics who claim that environmental damage may ensue because of the ruling, Hopper said “I don’t know where they are coming from. Everybody should support the notion that, under our system of government, the rule of law should prevail. This does not mean that the Corps or the EPA cannot regulate. It just means that they’ve got to regulate within the law.” He also argued that there is indeed a role that the Clean Water Act can play in ensuring the protection of waterways and other resources. Hopper said that he was once a hearing officer in the Coast Guard, where he duly enforced the Clean Water Act in cases involving the Mississippi River. “That’s a little ironic there. I’ve seen this from both sides.”
Hopper said that there is environmental damage posed, for instance, by ocean-going ships which discharge bilge water into the Great Lakes and thus admit invasive species such as zebra mussels and round gobies. “They definitely ought to be regulated where the harm to the environment is severe and interstate commerce can be severely affected because of these species that interfere with navigation can have a severe economic impact.”
“The Clean Water Act has a role to play in protecting waters,” said Hopper, “but what has happened since the inception of the Clean Water Act is that it has been interpreted in such a way that it has no meaningful limits.” He said that he believes that the Supreme Court was concerned by the agency’s “overly broad interpretation of the Act, and it’s just getting worse.”
Hopper said was inspired by his service in the Coast Guard to become a lawyer, but what troubled Hopper at the time was what he described as the “strict liability” applied in cases involving the Clean Water Act. “The law requires that one be punished even if one never intended to violate the law, and that to me seemed unfair.”
“I’m now glad that I can fight for individual rights against an overreaching government.”
What the Hawke family was asking in this case, Hopper said, “was the right to go to court and have their opportunity to present their case so that the court could decide whether the Corps of Engineers or the EPA have overstepped its authority.”
According to its website, the nonprofit Pacific Legal Foundation is the leading legal watchdog organization that litigates for limited government, property rights, free enterprise, and a balanced approach to environmental regulations. It has won numerous cases before the Supreme Court of the United States, and other courts. It represents all clients free of charge.