Thursday, March 31, 2016

Damien Schiff on what happens when land is labeled ‘#wetlands’



...a landmark case about Clean Water Act regulation, and whether Americans have a right to their day in court if their land is labeled as “wetlands” subject to federal jurisdiction.

The hearing in U.S. Army Corps of Engineers v. Hawkes Co. would be important in any case, but it carries special significance in the wake of the passing of Supreme CourtJustice Antonin Scalia. The outcome could test how durable Justice Scalia’s legacy will prove on some key issues that held special interest for him: the boundaries of federal environmental power, and the degree to which regulators are accountable to the courts.

Indeed, in one sense, the Hawkes case is fundamentally about regulatory accountability and the rule of law. From another standpoint, it is about property owners’ rights. These two perspectives merge into a single compelling question: Should landowners have the right of judicial appeal over regulatory decisions that affect their lives and livelihoods, or are unelected environmental bureaucrats their own judges and juries?

The issue is brought before the court by three related, family-owned 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 as federally controlled “wetlands.” The designation is factually and legally questionable, so the businesses want the courts to review it. But the Obama administration argues that such wetlands “jurisdictional determinations” cannot be challenged until the property owner has navigated a long and expensive permit process — and received a denial.....

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