Only two years after Washington bureaucrats got their hands slapped by the Supreme Court for a king-like decree banning landowners from using their own property and refusing to let them challenge the decision, they are at it again.
And the issue once again has been brought up before the high court, in an appeal filed by the Pacific Legal Foundation on behalf of a Louisiana company, Kent Recycling Services.
The dispute began when the Army Corp of Engineers told Kent Recycling, which is trying to buy land in Louisiana to develop for a landfill, the government suddenly changed its definitions and determined the property included wetlands that required conservation.
Furthermore, the company was told, there is no challenge allowed to the decision.
So its options were to “abandon” the property, “go through the pointless and costly permit process (averaging more than $270,000 and over 2 years)” or simply “proceed without a permit, risking immense fines of $37,500 a day and imprisonment,” the brief to the high court explained.
“These are not legitimate options,” the PLF request for review said. “They are punitive sanctions imposed on landowners who dare to challenge federal jurisdiction under the Clean Water Act.”
The outline of the case is remarkably similar to the Sackett case that was decided by the Supreme Court in 2012. The Priest Lake, Idaho, couple bought a residential lot and started work on their dream home. Along came the Environmental Protection Agency with a determination that the parcel contained “wetlands” and the couple’s options were to abandon their land, seek a prohibitively expensive permit or face millions of dollars in fines.
The federal agency also contended the couple was not allowed to seek a judicial review of its decision.
But the Supreme Court ruled the EPA cannot issue a “drive-by” decision regarding wetlands and then prohibit the owner from using the property or challenging the decision.
The Supreme Court said the EPA must provide a process through which a challenge to its decision can be addressed in a meaningful way. The case, also handled by the PLF, was called a “precedent-setting victory for the rights of all property owners.”
A legal team spokesman said at the time: “The justices have made it clear that EPA bureaucrats are answerable to the law and the courts just like the rest of us. EPA can’t try to micromanage people and their property – it can’t order property owners to dance like marionettes – while denying them any meaningful right to appeal to the courts. It can’t threaten property owners with financial ruin and not have to justify its threats to a judge. And it can’t issue lazy, drive-by ‘wetlands’ edicts about private property.”
The Louisiana case also involves a private landowner, his planned use of the property and a federal agency’s decision about its use.
“Unfortunately, the Fifth Circuit Court of Appeals refused to give Kent its day in court,” said PLF Principal Attorney M. Reed Hopper. “By denying a property owner any feasible means of appeal, the appellate court basically allows the bureaucrats to be their own judge, jury and enforcer when it comes to labeling property as wetlands and taking control over people’s land and their lives.
“We are asking the U.S. Supreme Court to review and reverse this decision, and recognize that Clean Water Act bureaucrats are not a law unto themselves,” Hopper said. “Under the clear precepts of the Administrative Procedure Act, property owners have the right to ask a court for review when federal regulators assert jurisdiction over their land.”
Written by BOB UNRUH
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