'Waters of the United States' Return to SCOTUS
How much does the government have to do to you before you are entitled to your day in court? The Supreme Court will have an opportunity to answer that question once again this week when it hears oral arguments in Hawkes v. Army Corps of Engineers.
In 2011, Hawkes, Inc., decided to expand its peat farm. Before it could begin, however, the Army Corps of Engineers issued a "jurisdictional determination" that Hawkes' farm was a "water of the United States" — effectively terminating the project.
Under the Clean Water Act, it is a crime to move dirt into waters of the United States without a permit. The permit process alone costs thousands of dollars and can take months or even years to complete. Put simply, a jurisdictional determination by the Corps shuts down any development of the property without government approval. There is no further administrative appeal.
Hawkes sued in federal court, claiming that the Corps' claim of jurisdiction over the property was erroneous — there is no river, lake, or stream on or near the property. But rather than address the merits of Hawkes' claims, the government moved to have the case dismissed, arguing that the lawsuit was premature because the government had not taken any "action."
Let that sink in for a minute. The government has asserted jurisdiction over Hawkes' farm, claiming the property is a water of the United States. As a result, Hawkes cannot use the property in the way it desires without a permit, or it will face severe penalties. There is no further administrative appeal of that decision. Nonetheless, the government claims it hasn't taken action on Hawkes' property.
The Due Process Clause forbids the government from restricting life, liberty, or property without giving the injured party a chance to have his claims heard in court. Yet, if the government's position in Hawkes is upheld, the government's decision will be essentially unreviewable.
Unfortunately, this type of reasoning is nothing new. Four years ago, the Supreme Court struck down nearly identical arguments put forward by the EPA in Sackett v. EPA. In that case, the Sacketts were stopped from building their home when the EPA issued a compliance order claiming that their property was a jurisdictional wetland. When the Sacketts tried to appeal the determination to the agency, they were told that there was no administrative process to protest the decision — comply with the order, or risk crippling fines and penalties. When the Sacketts filed suit, the EPA claim that the suit was premature because it hadn't taken any action yet.
A unanimous Supreme Court rejected that reasoning outright. The Court made clear that once the EPA claimed to have jurisdiction over the property, it created a real threat of injury to the Sacketts. The Sacketts didn't have to comply with a potentially unlawful order or risk crushing penalties before challenging that determination in court. As Justice Samuel Alito noted, "In a nation that values due process, not to mention private property, such treatment is unthinkable."
A mere four years later, another property owner is before the Supreme Court dealing with essentially the same arguments that faced the Sacketts. The government argues that a jurisdictional determination is different from the compliance order the Sacketts received, but in fact, they are functionally equivalent. Once the Corps has decided that a property contains waters of the United States, any attempt to build on the property will spur enforcement action. Thus, the determination effectively prohibits building.
The government also points out that a compliance order lists potential penalties for non-compliance. But that, too, is a distinction without a difference. Once an area is declared a "water of the United States," the CWA and its penalties kick in automatically. The fact that the piece of paper the Sacketts received listed those penalties explicitly and the jurisdictional determination received by Hawkes merely points to the CWA doesn't matter — the threat of crippling penalties is just as real in either case.
It is outrageous that our government would fight this hard to ensure that its citizens are denied their day in court. It is outrageous that yet another property owner would have to spend years and thousands of dollars fighting its own government all the way to the Supreme Court to litigate an issue that has, truthfully, already been decided.
The Eighth Circuit Court of Appeals realized this and rejected the Corps' claims in Hawkes. Hopefully the Supreme Court follows suit, and tells the Corps that it can't simply ignore Supreme Court precedent.
Chance Weldon is an attorney with the Center for the American Future at the Texas Public Policy Foundation in Austin.