UNITED STATES SUPREME COURT CLEARS THE WAY FOR LANDOWNERS AND DEVELOPERS TO APPEAL WETLANDS DECISIONS DIRECTLY TO COURT
5/31/2016 | Articles & Alerts
In a May 31, 2016 unanimous decision, the Supreme Court gave a helping hand to landowners and developers who have received a determination from the Army Corps. of Engineers that a property contains wetlands. These “jurisdictional determinations” often created a quandary for developers. The previous alternatives were not good. Either go through the permit process, typically with significant costs and delays, or develop without the permit and risk potential fines and litigation.
However, in United States Army Corps of Engineers v. Hawkes Co., Inc., Justice Roberts, writing for the Court, presented a much better alternative, i.e., obtain a “prompt judicial review” of jurisdictional determinations without being required to apply for a permit. Therefore, a developer who wishes to challenge a jurisdictional determination may now proceed directly to federal court. The decision is a companion to the court’s 2012 decision in Sackett v. Environmental Protection Agency, which granted a couple the right to sue over a compliance order the EPA slapped on their vacation property in Idaho.
In Hawkes, a Minnesota company that wanted to mine a peat bog on its land which lies 120 miles from the Red River of the North, the nearest navigable river. Nonetheless, the Army Corps determined this land was part of the “navigable waters” of the United States and subject to federal control because water could drain from there to the river. The company was then left with the choice of either seeking a federal permit to begin mining the peat, which would cost more than $100,000 and take years to complete, or go ahead with the development and risk fines of up $37,000 a day and perhaps criminal prosecution for illegally discharging pollutants into protected waters. Instead, the Justices permitted the company to proceed directly to court and to challenge the government’s claim that the peat bogs are connected to navigable waters. They “need not assume such risks [of huge fines] while waiting for EPA to drop the hammer in order to have their day in court,” said Chief Justice Roberts.
Justice Anthony M. Kennedy hinted he and others may go further if the judicial review proves ineffective. In a concurring opinion joined by Justices Alito and Thomas, Kennedy said he remained concerned about the “ominous reach” of environmental regulators. This authority “continues to raise troubling questions regarding the government’s power to cast doubt on the full use and enjoyment of private property throughout the nation,” he said.
The decision, apart from being a victory for landowners and developers, brings some measure of equality to this specific property rights dispute. The Court recognized that an n “affirmative” JD, has legal consequences because it deprives property owners of the five-year safe harbor that “negative” JDs afford. This conclusion also takes a more pragmatic approach to the issue of when “final” agency action is reviewable by the courts. In any event, this decision also gives landowners and developers hope for a more restrained regulatory scheme under the Clean Water Act. “The reach and systemic consequences of the Clean Water Act remain a cause for concern,” Justice Kennedy wrote in a concurrence joined by Justices Clarence Thomas and Samuel Alito. Citing Alito’s opinion Sackett, Kennedy said “the Act’s reach is ‘notoriously unclear’ and the consequences to landowners even for inadvertent violations can be crushing.”
For more information, please contact Neil Andrew Stein, Esquire at (610) 941-2469 or firstname.lastname@example.org