PLF files Respondents’ Brief in Hawkes

Today, Pacific Legal Foundation filed its Respondents’ Brief on the merits in United States Army Corps of Engineers v. Hawkes Co., Inc. The Supreme Court of the United States will hear oral arguments in the case on Wednesday, March 30, 2016. PLF advances property rights cases for Supreme Court review in order to protect the constitutional rights of all Americans; the Hawkes case stands as the latest example of PLF’s commitment to that principle. To learn more about the case, read on after the jump.

The question before the Court is simple:

Is a Jurisdictional Determination, that is conclusive as to federal jurisdiction under the Clean Water Act, and binding on all parties, subject to judicial review under the Administrative Procedure Act?

Of course, the Supreme Court should conclude that courts can review Jurisdictional Determinations — “JDs” — under the Administrative Procedure Act (“APA”). After the federal government wrongly says a property contains wetlands subject to federal jurisdiction under the Clean Water Act (“CWA”) (which it does by way of the wrongful JD), a landowner has only three alternatives. He may: i) abandon the property; ii) embark on a costly and lengthy permit process that isn’t needed; or iii) use the property and risk huge fines and even incarceration. These choices amount to no reasonable choice at all; that is why the property owner should have access to the courts, in order to demonstrate that the property is not subject to federal jurisdiction under the Clean Water Act at all.

For its part, the government insists that a landowner must first apply for a wetlands permit, to the tune of hundreds of thousands of dollars, and only then may the landowner appeal the wetlands determination. The government says this even while conceding that the JD will almost never change between the original JD decision, and the time-consuming, sometimes years-long permitting decision. To quote a recently-departed Justice in another context: that is “pure applesauce.” There is no reason for the delay, and no reason for the land owner to have to spend thousands upon thousands of dollars to apply for a permit when it is the JD that ultimately controls the question of whether the federal government should have any say in the use of the property at all.

The Eighth Circuit Court of Appeals agreed with Pacific Legal Foundation that JDs are indeed subject to judicial review for the very reasons we argued there and in part set out above. That court explained:

Absent immediate judicial review, the impracticality of otherwise obtaining review, combined with “the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case . . . leaves most property owners with little practical alternative but to dance to the EPA’s [or to the Corps’] tune.” “In a nation that values due process, not to mention private property, such treatment is unthinkable.” Sackett, 132 S. Ct. at 1375 (Alito, J., concurring). We conclude that an Approved JD is a final agency action and the issue is ripe for judicial review under the APA.

Just so.

The Eighth Circuit further pointed out that an earlier PLF Supreme Court case, Sackett v. EPA, effectively controlled the Hawkes outcome. In her concurrence, Judge Kelly of the Eighth Circuit explained why:

In my view, the Court in Sackett was concerned with just how difficult and confusing it can be for a landowner to predict whether or not his or her land falls within CWA jurisdiction—a threshold determination that puts the administrative process in motion. This is a unique aspect of the CWA; most laws do not require the hiring of expert consultants to determine if they even apply to you or your property. This jurisdictional determination was precisely what the Court deemed reviewable in Sackett. See Sackett, 132 S. Ct. at 1374-75 (Ginsburg, J., concurring). Accordingly, I concur in the judgment of the court.

When a government agency asserts control over people’s land and their lives, the affected property owners should not have the courtroom doors slammed in their faces. That is what happened in Sackett, and that is why the Supreme Court said that the Sacketts had a right to judicial review of the EPA action in their case. The same principle applies here to Hawkes Company. There must be a reasonable right of appeal available for landowners in Hawkes Company’s position, or our system of checks and balances has been replaced by a regime of arbitrary bureaucratic dictates.

As PLF lead environmental lawyer Reed Hopper,  who will argue the case before the Supreme Court, has said:

This case is about the rights of property owners, but it’s also about more than that. We’re arguing for credibility in the environmental regulatory process, and for the principle that bureaucracies are bound by the law and answerable to the courts, just like the rest of us.

We are confident that the Supreme Court will agree.