Supreme Court Rules Farmers and Ranchers
May Sue to Stop Clean Water Regulation of
Ordinary Farmland
A unanimous decision by the U.S. Supreme
Court 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.
West Virginia’s Attorney General Patrick Morrisey,
in cooperation with Ohio Attorney General Mike
DeWine, led 21 other states in filing a friend-ofthe-court brief, arguing property owners are entitled
to immediately challenge the U.S. Army Corp
of Engineers in court anytime its officials label
someone’s property as a protected wetland.
“Today’s ruling marks an important victory for
every West Virginian,” Attorney General Morrisey
said. “It yet again prohibits the federal government
from using regulation to exceed its authority.”
The ruling builds on another unanimous ruling,
Sackett v. EPA. The Court 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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West Virginia Farm Bureau News 5