Will landowners get their day in court?

Landowners throughout the nation will soon learn whether they have the right to challenge in court decisions by federal agencies asserting jurisdiction over what the feds say are “wetlands” on their property.

In a high-stakes drama affecting millions of acres of privately owned land, the U.S. Supreme Court is being asked to decide if, under the Clean Water Act (CWA), the Environmental Protection Agency (EPA) and the Army Corps of Engineers have carte blanche to regulate bodies of water on private land, leaving landowners no recourse to challenge the agencies’ actions.

The case, U.S. Army Corps of Engineers v. Hawkers Company, Inc. et al., originated in rural Marshall County in northwestern Minnesota. Family-owned and operated Hawkes collects and processes high-quality peat for golf course greens and sports fields. Several years ago, Hawkes, in an effort to expand its production, entered into a contract with two businesses that jointly owned a 150-acre property adjoining the Hawkes operation. But before Hawkes or the two owners took any steps to develop the parcel, they wanted a determination from the Corps that the site was not subject to wetlands regulation under the CWA.

The CWA: A Booby Trap

Like other federal environmental statutes, the CWA is fraught with vague language that has left the law open to numerous conflicting interpretations since its enactment in 1972. Furthermore, the CWA has a strict liability system that enables the government to impose severe penalties on parties found guilty of releasing pollutants into water, without prosecutors having to prove intent. Over the decades, the law has become a booby trap for unsuspecting landowners, while at the same time enabling EPA and the Corps to expand their power, and enriching consultants and lawyers, who are often the only ones who can interpret the statute’s murky language.

With this in mind, it’s no wonder Hawkes wanted to make sure the Corps wouldn’t assert federal CWA jurisdiction over the property. But following a contentious multi-year administrative process, the Corps issued a “jurisdictional determination” asserting control over the property’s peat wetlands based on their supposed “significant nexus” to the Red River of the North, some 120 miles away. The Corps’ assertion of CWA jurisdiction over the site means that the landowner must seek a federal permit to develop the property, a process that can take many years and entails huge costs.

The Right to Judicial Review

The Pacific Legal Foundation (PLF), which represents Hawkes, successfully argued in the Eighth Circuit Court of Appeals that that the agency’s jurisdictional determination is subject to independent judicial review in federal court. PLF’s position is based in no small way on the High Court’s 2012 ruling in Sackett v. EPA. In that case, an Idaho couple trying to build a home on property they owned, received a “compliance order” from EPA, telling them to cease work on the home and restore the property to its pro-construction state or face fines of $37,500 per day. EPA issued the compliance order citing its power under the CWA, even though the Sacketts’ property contained no wetlands or any other features subject to the CWA. In a unanimous, 9 to 0 decision, the Supreme Court ruled that the Sacketts had the right to challenge EPA’s action in court.

PLF represented the Sacketts in their victory over EPA, and the Sacramento, Calf.-based legal foundation is aiming for a similar win over the Corps. “The appellate court decision in Hawkes finally provided landowners with some practical safeguards against abusive or erroneous enforcement of the Act by the Corps within the states comprising the Eighth Circuit,” write PLF’s Shauneen G. Werlinger and Damien M. Schiff. “The High Court should now make that safeguard apply throughout the land.”

The Supreme Court is set to hear the case on March 30, with a decision expected sometime in June. PLF hopes the court will rule as it did in Sackett and affirm landowners’ right to judicial review of agency final decisions. Over 60 organizations and individuals, including 29 states, joined 16 amicus briefs in supporting the Eighth Circuit Court’s decision in Hawkes. The case plays out before the backdrop of separate but related litigation challenging EPA’s “waters of the United States” (WOTUS) rule. Billed by the Obama administration as an attempt to “clarify” EPA’s and the Corps’ regulatory authority under the CWA, WOTUS would subject millions of acres of private land to federal zoning, requiring landowners to seek federal permits before making land-use decisions regarding their property.

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About the Author: Bonner Cohen, Ph. D.

Bonner Cohen, Ph. D.

Bonner R. Cohen, Ph. D., is a senior policy analyst with CFACT.

  • marlene

    There’s nothing to “learn.” The Constitution DOES give landowners right right to NOT obey unconstitutional decisions and overreaching tyranny – period.

    • Herb1949

      Yeah, it also gives them the “right” to be jailed and murdered for standing up against the feds overreach.
      See the info on the NV and OR standoffs arrests and murders. See the info on the Waco and Ruby
      Ridge murders.
      http://freedomoutpost.com/federal-land-grabs-violate-basic-rights/

      • marlene

        You mean “see” this:
        READ:”Nunc Pro Tunc: The Coming Day of Burn Barrels and Blessings” Tim Brown
        READ:”Government Land Grabs” KrisAnne Hall
        READ:”BLM Employee to Miner: My Authority Supersedes the United States Constitution” dcclothesline
        READ:”BLM’s Law Enforcement Powers to be abolished in New Legislation” Tim Brown
        READ:”Oathkeeper: I’ve Got the Documents to Prove Our Government Committed Treason in Oregon and Nevada” dcclothesline
        READ:”Hammond Ranch sitting on precious metal, mineral, uranium deposits which the BLM desperately wants” Intellihub
        WATCH:”Our Government has committed treason” YouTube
        READ:”Criminal Counter Suit May Expose Criminal Conspiracy in LaVoy Finicum Murder, Including Oregon Governor” Jim White
        READ:”Feds: You Don’t Own Anything, We Do” KrisAnne Hall
        READ:”Red River Land Grab” OathKeepers
        READ:”Just like Bundy Ranch, the Hammonds’ Ranch is Valuable to the BLM – Here’s just how Valuable” dcclothesline
        WATCH:”Constitutional Sheriffs-message to Sheriff Ward: Burns, Oregon” YouTube
        WATCH:”Obama Set to Settle Score Against Oregon Constitutional Sheriff Outspoken On Second Amendment” YouTube
        WATCH: “Oregon Reconstruction Replacement Government-14th Amendment Usurpation” YouTube
        WATCH:”Oregon ‘Stand-off’ – What you are NOT being told but need to know” YouTube
        READ:”John McCain Confronted (Again) for Federal Grab of Sacred Apache Lands” Derrick Broze
        MUST READ:***”The Burns Oregon Report from a Pastor” Rev. David Whitney
        WATCH:”The Unlawful Federal Land Grab by Pastor David Whitney” YouTube
        READ:”Monumental Audacity-Obama Grabs Huge Western Lands by Executive Order” the newamerican
        READ:”LAND GRAB: Obama SEIZES 1.8 Million Acres in California” TeaPartyNews
        WATCH:”Constitutional Lawyer KrisAnne Hall on Oregon Standoff” YouTube
        READ: “Breaking News: The Hidden Agenda in Oregon” AmericanPolicyCenter
        READ:”Breaking: Sen. Harry Reid Behind BLM Land Grab of Bundy Ranch” Infowars
        READ” “It’s Not About Cliven Bundy-I’ts About Harry Reid and a Chinese Energy Giant” FreedomOutpost
        READ: “BLM Whistleblower: The Bundy Ranch Siege & Harry Reid Connection” FreedomOutpost
        READ: “Rockefeller-Regionalism: The shadow behind Oregon LCDC: an encyclopedia about political intrigue” Joe J. Spenner
        READ: “Two Separate Judges say the Federal Government has Acted Illegally in their Attack on Oregon Ranchers” EagleRising
        WATCH: “Burns Oregon False Flag Operation Busted Wide Open With A Little Help From Unknown Allies” YouTube
        LISTEN: “BREAKING PH CALL: Constitutional Judge Darby w U.S. Military Major General (Burns, Oregon)” YouTube
        WATCH: “What’s Really Going on in Oregon! Taking Back the Narrative” KrisAnne Hall YouTube
        READ: “Saudi Arabia is Running Dry”
        READ: “Saudi Arabia is Buying Up American Farmland to Export Agricultural Products Back Home” LibertyBlitzkrieg
        READ: “Oregon Protester Shot in the Face and Killed” CitizenAction
        WATCH: The Game Is Rigged! Ammon Bundy is doing Something About it!” TheFinancilArmageddon
        WATCH: “Oregon Sheriff Dave Ward in direct violation of the U.S. Constitution”

        • marlene

          MUST READ: “An Open Letter To Sheriff Ward of Harney County, Oregon” 12/15 Judge Anna Marie Reitzinger of Alaska; and at thepetesantillishow.com/wp-content/uploads/2015/12/AVR095
          AND AT: “An Open Letter to Sheriff Ward of Harney County Oregon and to All County Sheriffs in America – from Judge Anna Marie Reitziner” Angel4Light
          READ: “Malheur County targeted for gold, uranium mines” OregonLive.com
          READ: “Some More Federal Abuses in Oregon” Betty Freauf
          READ: “Private Property Ownership-the First Amendment Right to Die Under Barack Obama’s Tyranny” AmerricanPolicyCenter
          READ: “The Hammond Ranch Affair Will Become Waco II” SonsOfLiberty
          READ: “U.S. government STEALS American family’s land near Area 51 Air Force Base” NaturalNews
          READ: “URGENT Warning on OR Standoff: Military Special OP Assets Have Been Assigned for Standoff. Get All Children Out of Their Immediately” OathKeepers
          READ: “Welcome to the City of Burns-Planning Commission” – which receives grant money from UN Agenda 21..
          READ: “Oregon State Treasure-The Rockefeller Foundation”
          “The BLM Has No Power to Enforce Anything” http://www.americanbar.org/content/dam/aba/events/environmental_energy_resources/2014/03/43rd-spring-conference/conference_materials_po
          “Chapter 274 – Land is State Owned Not Federal”
          “Land Management Land Exchange in Harney and Malheur Counties”
          READ: “What Are The Enumerated Powers Of The Federal Courts?” TheWashingtonStandard
          READ: “UPDATE: Up to 5,000 Armed Militia Members Will Be Arriving in Bunkerville, Nevada” – if Oregon had 5,000 Militia Members, protesters, and armed patriot citizens, LaVoy Finicum would not have been murdered!

          Go to “BEN TIME TRAVELER” YouTube for several videos on this issue.

          • marlene

            And let’s not forget Hillary stealing privately and state owned lands and selling them to Russia and China.

  • AllenBarclayAllen

    Water and mineral rights are State owned by State Citizens and by General Warranty Deed ! The EPA is out of their leuge here since the reimergenc of the 14 Amendment to protect States Citizens rights of ownership from any other State clame to include the Federal Government ! Supreme Court should have read the 14 Before they used it for Gay rights ! They will have to reverse their oppiion on gay marriage ,with the 14 Amendment, to give the EPA permission to confiscate these private owned lands from the huge legal status of lawyers that are abliged to protect what is written in those documents about private owned land buy document Stamp ! Reaffirming the 14 Amendment States Rights for gay maritel rights did nothing for Obummers cause ! Should have payed attention in law school Obummers ! D students can’t compete with real lawyers ! Start Gay rights v WOTUS !

  • Peter Osborne

    They call themselves green because they are too yellow to admit they are red.