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.
#30
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