WASHINGTON, March 16, 2016 - Farm groups have joined dozens of states and landowners in a case now before the Supreme Court seeking to make wetlands determinations subject to judicial review.

The issue in the case is whether peat growers in Minnesota can challenge in court a jurisdictional determination (JD) issued by the U.S. Army Corps of Engineers. The Hawkes Co. and two other landowners have sought to expand their peat operations to about 150 acres of land, but the Corps’ JD concluded that the land qualified as wetlands and could not be developed. The landowners appealed through the Corps’ administrative process, but the Corps let the determination stand. The high court has set oral arguments for March 30.

The Corps has maintained that the JD is not “final agency action” under the Administrative Procedure Act and thus cannot be challenged in court. Instead, landowners can only go to court after they apply for a wetlands permit and wait for a final decision on that application.

The Eighth Circuit Court of Appeals disagreed, leading to the government’s petition to the Supreme Court, which was granted in December.

Earlier this month, the American Farm Bureau Federation and National Cattlemen’s Beef Association joined in one friend-of-the-court brief to the high court, and the California Farm Bureau Federation and California Cattlemen’s Association filed another.

“Given the dire consequences of violating the (Clean Water) Act, the government’s blithe assertion that a landowner or operator ‘may discharge without a permit if it is sufficiently confident’ of the law and the facts is frankly absurd,” AFBF said. “Given the intentional vagueness of the agencies’ regulations, the breadth of discretion claimed by the Corps, and the uncertain legal rules governing this area, it is the rare landowner or operator that would ever feel truly confident in its (or its consultants’) assessment that the property contains no waters of the United States.” In addition, “few rational decision-makers would be willing to accept any risk of an adverse judgment, no matter the level of their confidence, in the face of crippling fines and jail time,” AFBF said.

The California Farm Bureau said the issue is particularly difficult in the West. In that region, “the Corps asserts jurisdiction over vast swaths of land that are bone dry for many months at a time,” CFBF said. “Landowners should not be left to guess whether their everyday activities violate the Act.”

Allowing landowners and operators to challenge jurisdictional determinations immediately “would not open the floodgates of litigation in the way the government suggests,” AFBF said. “In those ‘easy’ cases where the Corps’ jurisdictional determination rests on sound analysis, those subject to the determination are much more likely to seek a permit, offer mitigation, and cooperate with the Corps than to pursue costly litigation that will cause delay and that is unlikely to be fruitful.”

And when a project is covered by a nationwide permit – which cover categories of small projects – “a landowner or operator will usually choose to comply with the general permit as the most economical and efficient course, rather than litigate jurisdiction,” AFBF said.

A Supreme Court decision from 2012 offers some clues as to how the court might rule in Hawkes. In Sackett v. EPA, the court ruled unanimously that Idaho landowners could sue the government over an EPA-issued compliance order seeking penalties for the Sacketts’ filling about a half-acre of their land with dirt and rock, in preparation for building a house.

At a Cato Institute seminar March 14, George Mason University Professor Steven Eagle said he thinks a favorable decision for the peat farmers in Hawkes would require “a very modest extension” of Sackett.

Eagle and his fellow panelists noted that 16 friend-of-the-court briefs have been filed in support of Hawkes, representing 29 states, the National Association of Counties, the U.S. Conference of Mayors, Utility Water Act Group, and many others. On the other side, no amicus briefs have been filed supporting the government.


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