Legal Newsline

Friday, August 23, 2019

Scotus affirms landowners' right to contest Clean Water Act determinations

By Andrew Burger | Jun 22, 2016

WASHINGTON (Legal Newsline) – The U.S. Supreme Court ruled in May that Kent Recycling Services can challenge the U.S. Army Corps of Engineers' claim of federal jurisdiction of wetlands Kent owns in Assumption Parish, La., under the Clean Water Act (CWA).

The ruling is the second time in just over two weeks that SCOTUS sided with plaintiffs in CWA-based determination of federal jurisdiction cases, actions that check the ability of the Army Corps and EPA to invoke the CWA to assert federal jurisdiction of wetlands and waterways on private land.

The eight Supreme Court justices on May 31 voted unanimously in favor of Hawkes Co.'s right to challenge in the courts the Army Corps asserting federal jurisdiction over wetlands in Minnesota, land Hawkes owns and on which it wants to develop a commercial peat harvesting operation. 

SCOTUS' May 31 ruling in Hawkes Co. v. U.S. Army Corps of Engineers reversed a previous ruling in favor of the defendants by the U.S. Court of Appeals for the Fifth Circuit and reaffirmed a decision made by the Eighth Circuit.

In Kent Recycling Services v. U.S. Army Corps of Engineers, the Fifth Circuit ruled that private landowners do not have the right to appeal EPA or Army Corps determinations of federal jurisdiction under the CWA.

That would have left the EPA and Army Corps' ability to essentially "federalize" private property unchecked, strictly limit landowners' use and require substantial investments of time, effort and money in any attempt to do so, according to Pacific Legal Foundation (PLF), which represented both Kent and Hawkes in their cases. 

Kent Recycling was actually the first of the two cases in line to be considered by SCOTUS, PLF principal attorney M. Reed Hopper told Legal Newsline.

"That was almost two years ago," he said. "The court initially denied 'cert' (certiorari) because there was no conflicting decision in the circuit."

That said, plaintiffs have 25 days after a 'cert' denial to ask the Supreme Court to reconsider their decision, Hopper explained.

"About 18 days after denying 'cert' in the Kent case, the Eighth District U.S. Circuit Court ruled in favor of Hawkes in its case against the Army Corps' determination of federal jurisdiction under CWA," he said. "That contradicted the Fifth District Circuit Court's ruling and provided PLF the basis to request the Supreme Court reconsider its cert ruling in Kent and reconsider hearing the case.

¨Resolving differences in the Circuit Court system is really the Supreme Court's primary purpose. Otherwise laws are interpreted and rulings are made inconsistently in courts throughout the country,¨ Hopper noted.

In addition to affirming landowners' right to contest CWA-based determinations of federal jurisdiction in the Kent Recycling decision, SCOTUS approved PLF's petition to send the case back to the Fifth Circuit for reconsideration.

PLF has represented both Kent Recycling Services and Hawkes Co. free of charge as the cases have wended their way to the Supreme Court. Funded by private donations, Sacramento, Calif.-based PLF was founded in 1973 with a mission to champion private landowner rights.

The EPA and Army Corps have been overreaching the bounds of their authority under the CWA by asserting federal jurisdiction over wetlands and waterways on private lands across the U.S. for some four decades, Hopper said.

SCOTUS' decisions in Hawkes and now Kent restore balance to the legal system by providing landowners legal recourse to contest CWA-based determinations of federal jurisdiction in the courts, he concluded.

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