WSJ Opinion: The Army Corps of Abuse

The Supremes rebuke another misuse of the Clean Water Act.

The Supreme Court is divided 4-4 on many issues, but the good news is that all eight Justices can still agree that Americans deserve their day in court to challenge intrusive government. That’s the essence of Tuesday’s unanimous ruling that the Obama Administration’s expansive interpretation of the Clean Water Act can be challenged in court.

In February 2012, the Army Corps of Engineers told the Hawkes peat mining company that marshy land it owns in Minnesota had a “significant nexus” to the Red River 120 miles away and thus could be regulated under the Clean Water Act. Hawkes tried to challenge this determination in federal court. But the Corps said the company couldn’t do so until it had finished the Corps’s permitting process, which the Corps said would be very expensive and take years (U.S. Army Corps of Engineers v. Hawkes).

This amounts to a pre-emptive veto of private land use. The Army Corps said the company must wait to challenge the Corps’ decision. But if Hawkes develops the land on the assumption it would win its challenge many years hence, the company runs the risk of major penalties if it loses in the end. Heads the Army Corps wins; tails Hawkes loses.

Chief Justice John Roberts wrote for the Court that Hawkes shouldn’t have to wait for the government to “‘drop the hammer’ in order to have their day in court.” He added that “parties need not await enforcement proceedings before challenging final agency action, where such proceedings carry the risk of ‘serious criminal and civil penalties.’”

In a concurrence joined by Justices Clarence Thomas and Samuel Alito, Justice Anthony Kennedy raised intriguing hints that parts of the Clean Water Act may be unconstitutional. He said the law is “notoriously unclear” and “the consequences to landowners even for inadvertent violations can be crushing.” 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,” he wrote.

Justice Kennedy is right, especially as the Army Corps has used the “waters of the United States” designation to claim jurisdiction over nearly every corner of the country. The courts should step up their scrutiny of what has become one of the most abused federal laws.

WSJ Opinion article of Jun 2 2016

Statement on PLF’s Supreme Court victory in Hawkes

WASHINGTON, D.C.; May 31, 2016: Pacific Legal Foundation (PLF) won a precedent-setting victory for property owners’ rights today when the U.S. Supreme Court ruled in our favor in the PLF case of United States Corps of Engineers v. Hawkes. The groundbreaking decision accepted PLF’s arguments that landowners have a right to seek judicial review when their property is designated as wetlands subject to federal jurisdiction under the Clean Water Act.

“Today’s ruling marks a long-awaited victory for individual liberty, property rights, and the rule of law,” said PLF Principal Attorney M. Reed Hopper, who successfully argued the case in front of the justices. “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.”



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