Will the U.S. Supreme Court Allow Landowners into Federal Court?

Landowners that may have wetlands on their property are in a perplexing position.  If they fill wetlands that are covered by the Clean Water Act without a permit, landowners face jail time, criminal fines, and civil penalties of $37,500 per day per violation.  If they jump into the permitting process, they face upwards of two years and roughly $250,000 to complete that process with no control on the outcome.  If that were not enough discouragement, the United States Supreme Court has criticized the question on whether jurisdictional wetlands even exist on a property as being “notoriously unclear.”  Adding insult to injury, if the United States Army Corps of Engineers determines that it has Clean Water Act jurisdiction over a property, according to the government’s lawyers, the landowner cannot challenge that decision immediately in federal court.

Next week the Supreme Court is expected to decide whether to rehear a request to review a Louisiana case in which the Fifth Circuit Court of Appeals ruled that a landowner could not immediately challenge in federal court an Army Corps jurisdictional determination.  Belle Co., L.L.C. v. U.S. Army Corps of Engineers, 761 F.3d 383 (5th Cir. 2014).  The Supreme Court is considering the rehearing request because the Eighth Circuit Court of Appeals disagreed with the Fifth Circuit and ruled that landowners can challenge in federal court Corps jurisdictional determinations.  Hawkes Co. Inc. v. U.S. Army Corps of Engineers, 782 F.3d 994 (8th Cir. 2015).

Ultimately, if the Supreme Court resolves the circuit split, it will need to decide whether to extend to Army Corps jurisdictional determinations, the Court’s unanimous decision in Sackett v. U.S. Environmental Protection Agency, 132 S. Ct. 1367 (2012), that landowners can challenge in federal court EPA’s administrative compliance orders.