Robin Dufault and Mike Hanson of Hawkes Co. Inc bag peat product samples to clients in their testing lab at their headquarters in East Grand Forks, Minnesota.
Four years after the U.S. Supreme Court handed the Obama administration a huge defeat by allowing Americans to go to court to challenge “compliance orders” from federal agencies over the use of their own lands, the justice have done it again, determining that the courts are available to owners when agencies abruptly apply new confiscatory regulations to the use of the land.
The unanimous ruling against the Obama administration’s agenda came in a fight between the U.S. Army Corps of Engineers and the Hawkes Co., of Minnesota.
The Corps had designated land belonging to the company as a “wetlands” and told the private landowners they now had to comply with all the Corps’ rules and regulations. And the Obama administration argued that the company wasn’t even permitted to go to court to challenge the bureaucratic nightmare the owners now faced.
The Supremes slapped that down 8-0.
The Corps’ determination constitutes a “final agency action,” the justices ruled, which makes it eligible for challenge in the courts.
The Hill commented that the results are “likely to have consequences for the federal government’s entire enforcement of the Clean Water Act.”
In fact, WND reported last year on a massive power grab launched by agencies in Washington that would give them control of “practically every pond, stream and ditch in the country.”
“Today’s ruling marks a long-awaiting victory for individual liberty, property rights, and the rule of law,” said Hopper. “For more than 40 years, millions of landowners nationwide have had no meaningful way to challenge wrongful application of the federal Clean Water Act to their land.
“They have been put at the mercy of the government because land covered by the act is subject to complete federal control. But all that changed today. The Supreme Court ruled that wetlands ‘jurisdictional determinations’ can be immediately challenged in court. Everyone who values property rights and access to justice should welcome this historic victory.”
This case involved the Hawkes Co., a family owned business, providing peat for golf courses and other sports turf applications; and Pierce Investment and LPF Properties, which own some peat land.
They were prevented from using property in Marshall County, Minnesota, because the Corps issued a jurisdictional determination categorizing it as federally controlled wetlands.
“This victory guarantees the rights of millions of property owners nationwide,” said Hopper. “As we argued to the court – and as the court agreed today – when landowners are confronted with federal claims of jurisdiction over their property, they must have their right to their day in court. So today’s ruling is a triumph for property rights, for simple fairness, and for the rule of law.”
The new rule proposed just last year was put on hold because of the court challenges, and Tuesday’s court ruling could suggest that changes are needed.
Hopper warned at that time the rule was proposed that the federal government was imposing a virtually boundless authority over private property.
Have a retention pond in a park? Could be subject the new regulation. A low area where rain runoff from your neighborhood drains? Same thing. Isolated puddles in a cow pasture? Look out.
In fact, Hopper said, “Under its vague and limitless terms, the only waters that are clearly not subject to federal regulatory power are a few that are expressly excluded in the Clean Water Act, including artificial reflective pools, ornamental waters, some ground water, and gullies.”
The Clean Water Act, originally designated to protect “navigable” waters such as rivers, lakes and oceans, would including, under the Obama administration’s definitions, “tributaries” no matter how small or remote, “neighboring” water without any connections, and “even isolated waters that the Supreme Court has held to be beyond CWA coverage.”
“In short, the administration is engaged in a sweeping power grab,” Hopper said. “Property owners around the country will be faced with the prospect of being micro-managed by federal bureaucrats. This turns our federal system on its head. Under our constitutional framework, the states and localities are charged with the primary role in land use regulation and local water-quality protection.
In Tuesday’s decision, the majority decision, written by Chief Justice John Roberts, said that the Corps had refused the Hawkes’ request to use their own land because in contained “waters of the United States” and its proximity to the Red River of the North, some “120 miles away.”
The decision ended up being unanimous, with several concurring opinions.
Roberts noted the question was whether the agency action was reviewable in court, under the Administrative Procedure Act.
The simple answer?
Yes.
The agencies, the court noted, had said the company could discharge into the land and risk a prosecution, when it could argue no permit was needed, or it could apply for a permit and argue its case there.
“Neither alternative is adequate,” Roberts wrote. “As we have long held, parties need not await enforcement proceedings before challenging final agency action where such proceedings carry the risk of ‘serious criminal and civil penalties’.”
The earlier case, also won by the arguments of the PLF, involved an Idaho parcel. There the EPA issued a “compliance order” to landowners preventing them from using their own land, without hearings or processes.
Then the federal agency argued that its decision could not be argued in court until its own procedures were followed by the landowner.
The Supreme Court at that time struck the agency’s attempt to control the land.
In that case, Mike and Chantell Sackett bought a piece of land in a residential subdivision in Priest Lake, Idaho, and started work on their dream home.
Then the EPA arrived, told them to restore the land to its untouched condition, protect it for years and then go through a ruinously expensive application process to ask for permission to use their own land.
The EPA, in collusion with the 9th U.S. Circuit Court of Appeals, told the couple they could not even challenge the decision unless they went through that expensive process.
The Supreme Court then said the EPA simply is required to provide a process through which a challenge to its decision can be addressed in a meaningful way.
The couple had been facing fines of up to $75,000 per day for failing to follow the agency’s intrusive “compliance” plan through which federal officials not only effectively seized control of the land, but also the couple, by demanding their paperwork records and other detailed information.
“Constitutional Chaos: What Happens When the Government Breaks Its Own Laws”
from PropagandaGuard https://propagandaguard.wordpress.com/2016/05/31/supremes-slap-down-obama-in-wetlands-fight/
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