May the federal government destroy the value of your property and then prevent you from seeking judicial intervention to reverse the damage before you lose the ability to use that property forever? That is the question the Supreme Court will consider tomorrow when it hears United States Army Corps of Engineers v. Hawkes Company, Inc.
That description of the case reflects the stakes of a complicated case that blends administrative and environmental law, yet at bottom concerns property rights; that is, the right to own and reasonably use private property—the most fundamental of all civil rights, the engine of economic progress that has driven the United States since its founding. A review of the facts of the case demonstrates why the case matters to all Americans.
Hawkes Co., Inc., Pierce Investment Company, and LPF Properties (collectively, “Hawkes”), own property in Minnesota that contains peat bog wetlands that Hawkes intends to develop to make the soil amendments necessary to build the finest golf courses and sports fields around. Although the property contains wetlands, the property sits more than 100 miles from the nearest navigable waterway and shares no surface connection to or significant nexus with that river. For this reason, when a Corps bureaucrat concluded against virtually all evidence that the Hawkes’ property was subject to the Corps’ jurisdiction as a navigable waterway, a higher-ranking Corps official determined that such a conclusion was erroneous as a matter of law and told the bureaucrat to either make a better case or stand down. Instead, the bureaucrat insisted he was right and ordered Hawkes, pursuant to the bureaucrat’s “jurisdictional determination,” to submit to his authority and start the expensive and potentially endless permitting process.
Hawkes asserts that the Administrative Procedure Act opens the courthouse doors for it to bring a challenge to that jurisdictional determination. The federal government argues otherwise. The Obama Administration insists a landowner cannot appeal its jurisdictional determination until the landowner has navigated the expensive and often-years-long federal permit process, even though the landowner believes the federal government has no jurisdiction over his property in that it contains no wetlands subject to the federal government’s authority. In short, the feds insist that a landowner must spend years and hundreds of thousands of dollars completing the federal permitting process before that landowner can go to court to find out whether he even needs a federal permit.
That makes no sense.
The Eighth Circuit agreed it made no sense, and ruled in favor of Hawkes and fairness. But the Administration refused to give up, asked the Supreme Court to intervene.
Fundamental freedoms are at stake for landowners large and small. When any government – local, state, or federal – arbitrarily takes away the right to reasonably use real property, the Constitution demands that the landowner have access to the courts to right the wrong. The eight justices of the Supreme Court should agree.