Executive Creep: Unaccountable Agency Destroys Life Plans of Property Owners

The Parks are residents of Connecticut who have spent their life savings purchasing and improving property that was once completely unimproved except an abandoned gravel driveway. After several years (and hundreds of thousands of dollars) spent obtaining the necessary local and state approvals they began work to improve the property which was connected to a public roadway via the gravel driveway. 

The United States Army Corps of Engineers (“Corps”) asserted that it had regulatory jurisdiction because the property contained regulated wetlands and demanded that the Parks halt work and obtain federal permits. The Parks spent three additional years and tens of thousands of dollars challenging the Corps jurisdictional determination (“JD”) only to have the Corps affirm its own determination. The Parks are now losing money on a property that they are not allowed to improve without completing the lengthy and expensive Federal permitting process which costs on average nearly $300,000. 

The Parks wish to challenge the JD in federal court, but if the Fifth Circuit’s decision in this case is allowed to stand, and if the Second Circuit follows that precedent, the Parks will likely be unable to afford the additional hundreds of thousands of dollars and approximately two years to pursue the federal permitting process before they can obtain review by an impartial Article III court. The JD issue in controversy is whether the Park property, which is 60 miles from the nearest river, is “directly adjacent” to a navigable water way (and thereby interstate commerce). The constitutional issue is whether the Parks should have to complete this expensive permit process (which has already taken the better part of a decade) before they can access a neutral arbiter of justice to vindicate their property rights. 

Issue Areas:

Limited Government, Property Rights

Case:

Kent Recycling Services, LLC, v. U.S. Army Corps of Engineers, No. 14-493 (Supreme Court) (petition stage)

Read the Amicus Brief:

Question(s) Presented:

Is a jurisdictional determination that is conclusive as to federal jurisdiction under the Clean Water Act, and binding on all parties subject to judicial review under the Administrative Procedure Act?

Additional Background:

The Fifth Circuit’s decision conflicts with Sackett v. Environmental Protection Agency, 132 S. Ct. 1367 (2012), in which this Court held unanimously that an assertion of federal jurisdiction, through the issuance of a compliance order, is “final” and subject to judicial review under the Administrative Procedure Act (APA), 5 U.S.C. §§ 702, 704.

The Clean Water Act (CWA) § 404(a), from which the Corps derives its permitting authority, provides “[t]he Secretary may issue permits. . . for the discharge of dredged or fill materials into the navigable waters at specified disposal sites.” CWA § 502(7), 33 U.S.C. § 1362(7) defines the term “navigable waters” as “the waters of the United States, including the territorial seas.” EPA and the Corps have defined “waters of the United States” in various ways, often quite expansively, but this Court has rejected the agencies’ broad definitions and has criticized the government for overreaching and abusing its power under the CWA. See Rapanos v. United States, 547 U.S. 715 (2006) (plurality holding that the agency’s expansive interpretation of the CWA is overly broad and creates federalism problems.); see also Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (regulation of remote ponds exceeds statutory authority and raises constitutional questions.); and Sackett v. Environmental Protection Agency, 132 S. Ct. 1367, 1375 (2012) (the “reach of the Clean Water Act is notoriously unclear” and that the regulators deem that “any piece of land that is wet at least part of the year” may be covered by the Act, “putting property owners at the agency’s mercy.” Alito, J. concurring.)

Under the Administrative Procedure Act, “agency action” is final and subject to judicial review if it (1) represents the consummation of agency decision-making on the matter and (2) “must be one by which ‘rights or obligations have been determined,’” or from which “legal consequences will flow.” See Bennett v. Spear, 520 U.S. 154, 177-78 (1997). An agency action may be final if it determines “rights or obligations.” Sackett, 132 S. Ct. at 1371.

ALF’s Amicus Brief:

In an amicus brief ALF argues that the Fifth Circuit’s holding that a landowner is not entitled to immediate judicial review of a CWA JD, even though the determination is the agency’s final word on its understanding of the extent of federal jurisdiction with respect to the property in question, establishes a dangerous precedent that, as a practical matter, will make it impossible or impractical for many property owners to resist unwarranted exercises of power by the regulatory agencies. This holding not only conflicts with the precedent of this Court, but condemns the property owners such as the Parks to financial ruin before having access to justice, or to abandon their property. Executive agencies cannot be allowed to unilaterally destroy the life plans of American citizens justified only by vaguely worded statutes and a biased appeals process that allows them to affirm their own interpretation and application. 

In practice when agencies are allowed to interpret vague statutes they play the role of law maker, which when combined with their executive power and judicial powers to determine their own jurisdiction and review their own actions, amounts to complete concentration of arbitrary power. The Separation of Powers doctrine embedded in the Constitution was intended to prevent such concentrations of power as a check against possible tyranny and corruption. The Constitution requires due process, including speedy access to a neutral arbiter of justice before an agency can ruin the life plans of its citizens through fines and imprisonment. See Sackett 132 S. Ct. at 1371; See Rapanos, 547 U.S. at 721.

The Foundation asks this Court to grant certiorari to affirm the rights of property owners that its own precedents have recently vindicated against these sprawling agencies. 

Status:

On March 23, 2015, the Supreme Court denied the petition.

After a filing for rehearing, the petition for a writ of certiorari was granted, the judgment was vacated, and the case was remanded to the United States Court of Appeals for the Fifth Circuit for further consideration in light of Army Corps of Engineers v. Hawkes Co, on June 6, 2016.