For decades, Americans had no timely, fair way to challenge the U.S. Army Corps of Engineers, or the EPA, when these agencies wrongfully applied the Clean Water Act to privately-owned land. That all changed Tuesday when Pacific Legal Foundation (PLF) won a precedent-setting victory for property rights. In U.S. Army Corps of Engineers v. Hawkes, the High Court accepted PLF’s arguments that landowners have a right to seek immediate judicial review when their property is designated as wetlands subject to federal jurisdiction under the Clean Water Act.
The Clean Water Act caused this litigation, just as it causes so much litigation in our country. The Act authorizes the Army Corps of Engineers and EPA to regulate “navigable waters,” which these agencies interpret to mean virtually all waters in the United States and much of the land. Such “waters” are subject to complete federal control. They cannot be disturbed without a federal permit. This puts landowners at the mercy of the federal government, and that is where the law has stood for decades. Land owners could not challenge the government until after spending hundreds of thousands of dollars and wasting years in the permitting process, all in the pursuit of a potentially illusory federal permit that the landowners believed was unnecessary, anyway.
Previously, both the Ninth Circuit Court of Appeals, in a case known as Fairbanks North Star Borough, and the Fifth Circuit Court of Appeals, in a case known as Belle Company, had confirmed that landowners were at the mercy of the government in this circumstance, without the opportunity for timely, meaningful judicial review. That is where the law stood when the respondents in this case filed suit.
And who were these respondents that have changed American law by way of their fortitude and willingness not to back down from a fight? They were Hawkes Company, a family-owned business that provides peat for golf courses and other sports turf applications, and Pierce Investment and LPF Properties, which own some peat land. The feds prevented these businesses from using their property in Marshall County, Minnesota, because the Corps issued a jurisdictional determination categorizing it as federally controlled wetlands. The feds then argued that they couldn’t even get into court to challenge that determination.
This week the justices of the Supreme Court of the United States told us – unanimously – that the feds were wrong.
There are also two bigger implications of this unanimous ruling: First, the Court’s main opinion and a separate one by Justice Kennedy cast significant doubt on the current administration’s controversial “Waters of the United States” rule that is currently on hold by order of the lower courts and will eventually be heard by the High Court. 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.
Simply put, this victory guarantees the rights of millions of property owners nationwide. When landowners are confronted with federal claims of jurisdiction over their property, they must have their right to their day in court. The Court’s ruling is a triumph for property rights, for simple fairness, and for the rule of law.