Owners Whose Property is Labeled “Wetlands” May Seek Judicial Review

The Swamp Stomp

Volume 15, Issue 17

The Army Corps of Engineers named property in Minnesota owned by The Hawkes Co., Inc., Pierce Investment Company, and LPF Properties as “wetlands” under a “Jurisdictional Determination.” This decision meant that the Corps gained regulatory authority over the land. The companies, however, appealed and brought a legal challenge over the regulatory finding.

The appeal, spearheaded by Pacific Legal Foundation (PLF) representatives, argues that Jurisdictional Determinations, “wetlands” designations under the Clean Water Act, are final agency actions subject to judicial review.

This latest attempt to appeal decisions about what properties deserve to be labeled “wetlands” follows the Sackett v. EPA landmark decision in 2012, whereby the Supreme Court ruled unanimously that if the EPA effectively seizes control of private property by declaring it as “wetlands,” then the landowners hold the right to a direct and meaningful judicial review.

The case was a result of the EPA issuing a “compliance” order directing Mike and Chantell Sackett to immediately stop the construction of their house, and to return the land to EPA standards. The Sackett’s land is 500 feet away from Priest Lake in Idaho, and the two are separated by another house and a road. It would have cost the Sacketts $27,000—$4,000 more than they paid for the land—in order to comply with the order.

When describing the process, Mike Sackett claimed, “As this nightmare went on, we rubbed our eyes and started to wonder if we were living in some totalitarian country.” This message was echoed by his wife, who said, “Bullying—that’s what the EPA does. They came into our lives, took our property, put us in limbo, told us we can’t do anything with it, and then threatened us with fines.”

Despite being told by the EPA that they could not get a direct court review, and if they failed to obey the “compliance” order then they would be charged with fines of up to $75,000 per day, the Sacketts appealed and won.

Damien Schiff, PLF Principal Attorney, said afterwards, “EPA is not above the law. That’s the bottom line with today’s ruling.” Mr. Sackett then added, “The EPA used bullying and threats of terrifying fines, and has made our life hell for the past five years. Now the Supreme Court has come to our rescue.”

Following this precedent that allows landowners to appeal directly to the judiciary from a federal wetlands “compliance order,” PLF, arguing on behalf of the Hawkes Co., Inc., Pierce Investment Company, and LPF Properties, convinced the Supreme Court to rule that landowners hold the right to judicial review when federal regulators label their land as “wetlands” subject to federal control.

M. Reed Hopper, PLF Principal Attorney, said, “This historic ruling is great news for everyone who values accountability in government and Americans’ access to justice. When Clean Water Act officials assert control over someone’s private property, they should be prepared to defend, in court, their claim that the property is, in fact, jurisdictional wetlands. Their decisions should not be insulated from scrutiny and examination, as if the regulators were a law unto themselves.”

This ruling underscores the importance of keeping accurately documented wetland delineations. Now, any project may end up in court to be reviewed, and the delineator will need to defend their work by presenting proper and up to date paperwork.

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