On Wednesday, March 30, the U.S. Supreme Court heard oral arguments in the Pacific Legal Foundation (PLF) case, United States Army Corps of Engineers v. Hawkes Co., Inc, a potentially precedent-setting case that asks whether landowners may “go to court” if their property is labeled as “wetlands” subject to the federal Clean Water Act.

Under the Clean Water Act, a jurisdictional determination by the Corps is required to determine if lands are deemed wetlands and technically a "water of the United States." If lands are determined a "water of the U.S." then use of those lands would likely require a 404 dredge and fill or other permit before use.

The plaintiffs are three related, family-owned and run businesses — Hawkes Co., providing peat for golf courses and other sports turf applications; and Pierce Investment and LPF Properties, which own some peat land.  They are prevented from using property in Marshall County, Minnesota, because it has been designated “navigable waters” subject to federal control.

They want to challenge this, because the nearest navigable water — the Red River of the North — is more than 120 river miles away, with no surface water connection between the two. But the Obama Administration insists such cases cannot be appealed until the landowner has navigated an expensive and lengthy permit process — and been rejected. Too often, this means justice denied, because the process is so costly and extended.

Traditionally, the Corps has argued that a jurisdiction determination only expresses the opinion of the agency and that a landowner cannot bring a legal challenge until a permit has been denied. However, Hawkes disagreed with the jurisdictional determination in their case and argued that such a determination constituted final agency action under the Administrative Procedure Act, action that could be challenged in court. The 8th Circuit Court of Appeals agreed with Hawkes and it appeared from the questions at the oral arguments that many of the justices did as well.

Mark Miller, managing attorney with PLF’s Atlantic Center in Florida, and one of the PLF attorneys representing Hawkes said,  “After the federal government wrongly says a property contains wetlands subject to federal jurisdiction under the Clean Water Act, a landowner has only three alternatives.  He may:  1) abandon the property; 2) embark on a costly and lengthy permit process that isn’t needed; or 3) 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.”

PLF’s Hawkes litigation builds on previous PLF cases imposing accountability on wetlands regulators, such as our 2012 Supreme Court victory in Sackett v. Environmental Protection Agency, which secured judicial review for wetlands “compliance orders.”

Specifically, Justice Kennedy noted the quagmire of the Clean Water Act's jurisdictional reach stating, "...the Clean Water Act is unique in both being quite vague in its reach, arguably unconstitutionally vague, and certainly harsh in the civil and criminal sanctions its puts into practice." The statement by Justice Kennedy is a powerful affirmation and recognition of the difficulties cattle producers face on a daily basis with the Clean Water Act and WOTUS.

“A victory by Hawkes would be a major win for landowners across the country,” said the National Cattlemen’s Beef Assn, who filed an amicus brief in support of Hawkes.

“It is clear that the jurisdictional determination by the Corps is the final agency action necessitating a permit. Given the subjective nature of a determination and the inconsistent application of the Clean Water Act; knowing what is, or is not a ‘water of the United States’ is ripe for challenge,” NCBA said. “The ability to challenge a determination before going through the time consuming and costly permitting process is only appropriate and provides a measure of fairness to landowners.”

The Supreme Court is expected to release their opinion by June.