Spero News

Pacific Legal Foundation delivers blow for property owners against Obama administration
Wednesday, June 01, 2016
by Martin Barillas
The Supreme Court delivered a stinging blow to the Obama administration and a victory to property owners across the country in its unanimous decision in U.S. Army Corps of Engineers v. Hawkes Co case. In the 8-0 decision, landowners’ right to challenge federal claims of jurisdiction in a court of law has been confirmed when the Clean Water Act is wrongfully applied to their land.
The Hawkes Company was represented by the Pacific Legal Foundation, a non-profit public advocacy law firm. The company had sought to harvest peat moss on its own property to be used for landscaping purposes. The Army Corps of Engineers sought to prevent the company from doing so because the federal government claimed jurisdiction over the private property as regulated wetlands.
The Clean Water Act gives the Environmental Protection Agency and the Corps the authority to regulate navigable waters. And for more than forty years, the Corps has sought to "federalize" any parcel of land with standing or flowing water without any accountability. In the case for the Hawke Company, a Corps reviewing officer even found the jurisdictional determination erroneous. However, there was no way for the Hawkes Company to challenge this. Ultimately, the Eighth Circuit Court of Appeals ruled that this was wrong, and the Supreme Court has now agreed.
In a statement released by the Pacific Legal Foundation, there are wider implications of the Supreme Court’s unanimous ruling. “First, the Court's main opinion and a separate one by Justice Kennedy cast significant doubt on the Obama administration's controversial ‘Waters of the United States’ rule” in that its effectiveness was stayed by lower courts and will eventually be heard by the Supreme Court.
The PLF statement also contended, “Second, today's victory is not just one for millions of property owners, but will also allow others to challenge controversial executive actions that the administration has been trying to keep out of court.” This is the eighth consecutive win by the Pacific Legal Foundation before the Supreme Court. PLF specializes in cases involving government invasiveness and overreach, particularly with regard to private property. The ruling marks the second time in four years that the Supreme Court has unanimously given citizens more power to go to court with disputes over the application of the Clean Water Act on their private property.
PLF Principal Attorney M. Reed Hopper, who argued the case before the Supreme Court said that the ruling “marks a long-awaited victory for individual liberty, property rights, and the rule of law.” Hopper, a former Coast Guard officer assigned to the New Orleans area, told Spero in an interview that it is ironic that he once enforced the Clean Water Act in the Gulf of Mexico.
In a statement, Hopper said, “For more than 40 years, millions of landowners nationwide have had no meaningful way to challenge wrongful application of the federal Clean Water Act to their land.  They have been put at the mercy of the government because land covered by the Act is subject to complete federal control.  But all that changed today.  The Supreme Court ruled that wetlands ‘jurisdictional determinations’ can be immediately challenged in court.  Everyone who values property rights and access to justice should welcome this historic victory.”
The victory in the Supreme Court means that the approval process for landowners to develop wetlands may be eventually streamlined. Federal appeals courts had been divided on whether that type of decision can be challenged immediately in federal court. The Obama administration said a landowner may not sue until a permit application is rejected or the owner faces a federal enforcement action for proceeding without a permit.
‘Important Consequences’
Chief Justice John Roberts, in writing for the court, pointed to the "important consequences" of the Corps decision. He said it is binding on both the Corps and the Environmental Protection Agency for five years. Justice Roberts said the permitting process "can be arduous, expensive and long," while proceeding without a permit could mean fines as high as $37,500 per day and even criminal liability.
In a separate opinion, three conservative justices said the case underscored concerns about the reach and consequences of the Clean Water Act.
Writing for himself, and Justices Samuel Alito and Clarence Thomas, Justice Anthony Kennedy opined, that the law "continues to raise troubling questions regarding the government’s power to cast doubt on the full use and enjoyment of private property throughout the nation." 
The ruling marks the second time in four years that the justices have unanimously given landowners more power to go to court with disputes over the application of the Clean Water Act.
Land is subject to the Clean Water Act if it contains wetlands connected to a river, lake or other major waterway. Under the law, property owners may ask the Corps whether their land meets that test before deciding whether to apply for a permit.
The case is Army Corps of Engineers v. Hawkes Co., 15-290.

Spero News writer Martin Barillas is a former US diplomat, who also worked as a democracy advocate and election observer in Latin America. His first novel 'Shaken Earth', is available at Amazon.

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