Jurisdictional determinations under the Clean Water Act, revisited

Federal administrative agencies should comply with their own regulations.  Right?  It doesn’t always happen that way.

Yesterday, on behalf of our client, Gallagher & Henry, a second-generation, family – owned developer, we filed a lawsuit challenging a determination made by the United States Army Corps of Engineers that Gallagher & Henry’s property in Tinley Park, Illinois, is a jurisdictional wetland under the federal Clean Water Act. The complaint, filed in the United States District Court for the Northern District of Illinois, alleges that the property at issue is prior converted cropland, which is excluded from Clean Water Act jurisdiction by the Corps’ own regulations.  That regulatory exclusion is of keen interest to farmers and developers nationwide.

The federal government has consistently taken the position that jurisdictional determinations are not reviewable in court because they do not affect the legal relationship between property owners and the government.  The problem is that, once a jurisdictional determination is made, a property owner is forced to apply for a permit from the Corps, which could take years of effort at substantial cost, or forego developing the property, or simply proceed with the project without a permit, at the risk of substantial civil and criminal penalties.   PLF successfully litigated the reviewability issue in the Hawkes case, where the Eighth Circuit held that jurisdictional determinations are judicially reviewable.  But in another PLF case, the Fifth Circuit held in Kent that jurisdictional determinations are not reviewable.  In an effort to resolve the split between the circuits, PLF filed a petition for certiorari in the United States Supreme Court, seeking review of the Kent decision.  That petition is pending.

Undoubtedly, the government will argue here that the Corps’ jurisdictional determination is unreviewable.  But this case was filed in a federal district court in the Seventh Circuit, which is not bound by either Hawkes or Kent.  The reviewability of the Corps jurisdictional determination will be among the first battles in the case.

 

PLF sues Seattle bureaucrats who want to snoop through your trashcans

PLF sued the City of Seattle this morning in Bonesteel v. City of Seattle to challenge sweeping surveillance of residents and businesses. The City’s zeal for bumping its recycling rate bypassed constitutional boundaries when Seattle decided to have trash collectors and inspectors poke around for compostable contraband, such as … Continue reading

PLF sues the Corps and EPA over expansive water rule

Today we filed our complaint in the Federal District Court of Minnesota challenging the Corps and EPA’s extreme rule redefining “waters of the United States” subject to federal control under the Clean Water Act, and other laws. The case is … Continue reading

Eighth Circuit denies Corps petition in wetland case

As we noted here, PLF is involved in two cases to establish whether Army Corps of Engineer’s’ Jurisdictional Determinations (i.e., wetland delineations) are subject to immediate judicial review in court.  In Kent Recycling v. Corps (previously Belle v Corps), the … Continue reading

A modest proposal

What if we, the people, were to ask federal administrative agencies to respond in a timely manner to requests made under the Freedom of Information Act (FOIA)?  The current denizens of the federal government tell us they will respond only if and when sued.  Otherwise, we, the people, can pound salt.

That’s what happened in our challenge to the National Forest Service’s decision to padlock Plumas National Forest, Granat v. USDA.  Our clients asked for background information regarding the Forest Service’s action closing thousands of roads and trails to motorized travel, making Plumas National Forest accessible only to the most able-bodied among us.  The lawsuit addresses a number of important legal violations by the government, including the Forest Service’s failure to respond to FOIA requests.

As soon as we filed the Complaint, the Forest Service provided the information that it had withheld for almost five years.  At the same time, the Forest Service filed a Motion to Dismiss the FOIA claims, on the ground that, because the information was provided after we sued, the FOIA claims were “moot,” and the court could not provide any relief.

Not so fast.  We filed an opposition to the motion, arguing that Forest Service employees must respond to FOIA requests in a timely manner and not wait until they are sued to comply with the law.  What’s the point of having a law that guarantees citizens the right to information regarding how their government operates if government employees can violate it with impunity, as long as they comply after being sued?  The most charitable view is that the government is encouraging litigation. A less charitable view is that the arrogance of federal employees is eviscerating the FOIA.

Our modest proposal is this.  The federal government should comply with the FOIA in a timely manner, before it is sued. The current Administration, which promised to be the most transparent, has turned out to be among the least transparent, thereby turning the FOIA on its head.

Long-awaited Clean Water Act rule published

The final rule redefining “waters of the United States,” subject to federal control under the Clean Water Act, was published today in the Federal Register.  According to the rule, it will become effective on August 28, 2015, and will be … Continue reading

It is almost never “rational, never mind ‘appropriate’” to ignore regulatory costs

Today’s Supreme Court decision in Michigan, et al. v. EPA (consolidated with Utility Air Regulatory Group v. EPA and National Mining Assoc. v. EPA) invalidated EPA’s regulation on electric power plant hazardous air pollutants for not taking its enormous costs … Continue reading

It’s not the # of executive actions that proves abuse

Over 350 well-connected attorneys, scholars and press gathered at the Mayflower Hotel in Washington, DC last Thursday for the Federalist Society’s Third Annual Executive Branch Review Conference, and many others watched the conference live stream. Most of the breakout and … Continue reading

More clarification on “waters of the United States”

We have noted earlier that the EPA and the Corps of Engineers have issued a “pre-publication” version of their final rule redefining those waters (and land features) subject to heavy-handed regulation under the Clean Water Act, known as “waters of … Continue reading