Following the Yellow Brick Road…

Posted on June 2, 2016 by LeAnne Burnett

The Pacific Legal Foundation (PLF) fairly boasts that it lived up to its tag line “Rescuing Liberty from Coast to Coast” by following its 2012 Supreme Court victory in Sackett v. EPA with its May 31, 2016 victory in United States Corps of Engineers v. Hawkes Co., Inc.  In both Clean Water Act cases the PLF represented the property owners on appeal, arguing that the particular agency action was final, subject to judicial review.  The Supreme Court agreed both times.  Some boasting is due. 

The particulars of each case flow from disputes about the scope of “navigable waters” under the Clean Water Act.  Neither case resolved the merits issue.  Both cases considered only whether the dispute may be brought to court by challenging a pre-enforcement agency action. 

The Sacketts filled in a half acre of their 2/3-acre residential lot near Priest Lake, Idaho with dirt and rock in preparation for building a home.  EPA served a compliance order advising the Sacketts that they violated the Clean Water Act by filling in waters of the United States without a Section 404 dredge and fill permit.  The Order unilaterally prevented further construction and required the Sacketts to remove the fill material then restore the wetland pursuant to an EPA Restoration Work Plan. 

The Sacketts tried to challenge EPA’s order, but were told by EPA, then by the District Court, that they had no right to challenge the order until EPA attempted to enforce it.  The Ninth Circuit Court of Appeals affirmed, setting the Sacketts squarely on the horns of their dilemma.  Disregarding the unilateral compliance order subjected the Sacketts to potential fines of up to $75,000 per day.   Complying with the order meant spending hundreds of thousands of dollars to carry out the EPA’s Restoration Work Plan, and never getting to build on their property. 

The U.S. Supreme Court granted cert, and Justice Scalia, authoring the decision concluded that the compliance order met the Bennett two-prong test for reviewability:  (1) no adequate remedy other than review under the Administrative Procedures Act, and (2) no statute, in this case the Clean Water Act, precluded that review.  Justice Alito, concurring, declared:  “The position taken in this case by the Federal Government -- a position that the Court now squarely rejects -- would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees.” And later:  “In a nation that values due process, not to mention private property, such treatment is unthinkable.”    

The Hawkes case, four years later, is the same song, second verse.  This time the U.S. Army Corps of Engineers (USACE) issued the offending decision -- a jurisdictional determination (JD) that waters of the United States existed on 530 acres from which Hawkes Co., Inc. (Hawkes) and its affiliated companies planned to mine for peat.  Hawkes provides peat for golf courses and sports fields, and mining peat on the 530 acres would extend the life of its peat mining business by ten to fifteen years.  The USACE concluded that the property was connected by a “relatively permanent water” (a series of culverts and unnamed streams) that flowed into the Middle River and then into the Red River of the North, a “traditional navigable waterway” about 120 miles away.  With the USACE determination, Hawkes needed a permit to harvest peat.  Moreover, USACE advised that before it issued a permit, it would require additional hydrological and functional resource assessments and an evaluation of upstream potential impacts, the cost of which would exceed $100,000.

Using an analysis, discussed in my colleague’s post Sending a Message on WOTUS, the Court concluded that a JD satisfied both prongs of Bennett, and affirmed the Eighth Circuit, remanding the Hawkes companies to District Court of Minnesota - Minneapolis with the right to litigate the jurisdictional determination, same as the Sacketts.  When the Supreme Court ruled favorably on their case the Sacketts were remanded to the Idaho District Court, where their court battle continues.  Presumably, the battle will continue with the Hawkes’ companies as well. 

At the heart of each battle is whether or not the property actually contains “Waters of the United States.”  Following the procedural “yellow brick road” won’t get anyone out of Oz -- not until a clear definition of waters of the United States emerges.



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