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.
Dictionaries are apparently no match for EPA’s seemingly insatiable appetite for regulatory power. As we’ve noted, EPA has gone from exploiting ambiguous words to redefining words in a way that defies their common meaning. Only in EPA’s warped world does “navigable” … Continue reading
PLF is suing over the feds’ sweeping new definition of “waters of the United States,” which is so broad that it could impose The Clean Water Act on virtually any water – and land – anywhere. Click here to listen … Continue reading
It would be hard to miss the fact that last week, the EPA and Corps of Engineers announced a vast and illegal expansion of their asserted authority over private property under the Clean Water Act. In light of news that part of the … Continue reading
On Thursday, Pacific Legal Foundation and The Heritage Foundation are co-sponsoring a panel discussion on a draft regulation that would vastly expand the U.S. Environmental Protection Agency’s and U.S. Army Corps of Engineers’ jurisdiction to regulate the nation’s water and … Continue reading
To honor Chief Justice Robert’s first decade on the Supreme Court — more like castigate him — the Constitutional Accountability Center has released a series of papers on the court’s jurisprudence. The most recent of which addresses the court’s environmental … Continue reading
In Duarte v. Corps of Engineers, the trial court has, for the second time, denied a motion by the federal government to dismiss Duarte Nursery’s claims for violation of the Due Process Clause against the Army Corps of Engineers. Over … Continue reading
On Wednesday, February 4, a rare joint hearing of the House Transportation and Infrastructure Committee and the Senate Environmental and Public Works Committee will examine a controversial draft rule by the Environmental Protection Agency (EPA) and the U.S. Army Corps … Continue reading
The U.S. EPA and Army Corps of Engineers are attempting an unprecedented — and unconstitutional — power grab to extend the Clean Water Act (CWA) to cover “virtually any wet … spot in the country, including ditches, drains, seasonal puddle-like depressions, intermittent … Continue reading
Clean Water Act This week, we submitted comments on the Army Corps of Engineers and EPA’s proposed rule redefining the term “waters of the United States” under the Clean Water Act. The rule, if adopted, would be the largest expansion of power … Continue reading