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| AFBF President Zippy Duvall |
A
unanimous Supreme Court today ruled landowners may challenge the federal
government whenever the Army Corps of Engineers tries improperly to regulate
land with regulations designed to protect water.
Landowners
have attempted many times to challenge Corps rulings known as jurisdictional
determinations, but the government successfully argued that those
determinations were not "final agency actions" and the lawsuits were
dismissed. Now, when the Corps asserts jurisdiction over low spots that look
more like land than water, it will have to do so with the knowledge that its
jurisdictional determination can be tested in court.
"Today's
decision removes a huge roadblock that has prevented landowners from obtaining
relief from the courts when the Corps illegally claims their land is federally
regulated water," AFBF President Zippy Duvall said. "Now, farmers and
ranchers can have their day in court when the government tells them they cannot
plow a field or improve a ditch without a federal permit."
AFBF
filed amicus curiae briefs in the lower court and the Supreme Court
in support of the plaintiffs who were represented by the Pacific Legal
Foundation. The case was titled United States Army Corps of Engineers v.
Hawkes Co., Inc.
Today's
ruling builds on another unanimous ruling, Sackett v. EPA. The Court
today recognized that once the Corps finds that a landscape feature is a
"water of the United States," there are immediate and often dire
legal consequences to the landowner. A farmer can continue a farming activity
that results in an unlawful discharge and face an enforcement action with civil
fines up to $37,500 a day per discharge, or even criminal penalties. Or, the
farmer can spend tens, if not hundreds, of thousands of dollars seeking federal
Clean Water Act permits over several years only to have the permit ultimately
denied.
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