Property Owners Win: Supreme Court and Lower Court Right to Challenge Determinations

WASHINGTON, DC/ATLANTA, GA (Jan. 25, 2017): The EPA and Army Corps of Engineers want to regulate your land – that is no secret. For the last 18 months, SLF has been fighting the Federal Government’s largest land grab known as the “Waters of the United States Rule” which would allow the EPA and Army Corps to regulate your land because of a mere puddle.

While the WOTUS Rule is the Army Corp’s most well-known power grab it is only one example of executive overreach and one method of asserting federal jurisdiction. A more common, yet less commonly known method, is the “jurisdictional determination.” The Army Corps issues nearly 10,000 of these determinations each year.

For decades, the Army Corps has issued jurisdictional determinations under which it unilaterally decides that it can regulate a particular piece of land. Until last May, a property owner’s ability to challenge such a determination in a court of law stood on shaky ground as courts routinely sided with the agency and dismissed such challenges as unripe for review.

Last May, at the urging of SLF in our amicus brief, the Supreme Court of the United States issued a unanimous decision finding that such challenges were ripe for review and remanded the case at hand to the district court. Yesterday, after ten years of negotiation and litigation, Hawkes Company finally got vindication when the Federal District Court of Minnesota ruled the Army Corps had gone too far and could not exercise jurisdiction over the property at issue. It was a great day for not only property owners, but also for the Constitution. As SLF pointed out in its amicus brief, reviewability of agency actions is essential to protecting liberty.

Hawkes v. Army Corps of Engineers, District Court decision, Jan. 24, 2017

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