Federal Abuse in Louisiana

Feds Upend Landowner’s Plans for Own Property,  Challenge claims government imposing 'punitive sanctions' by Bob Unruh WND

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.”

The Sackett case was a 9-0 decision against the government.

“Just as Sackett established that federal wetlands orders may be appealed to the judiciary, in this case we’re arguing that the formal designation of a property as ‘wetlands’ by the federal government is also subject to judicial review,” Hopper continued. “Anything else would imply that wetlands bureaucrats can do no wrong and make no mistakes. But they’re human like the rest of us, so the property owners who are subject to their decrees have the right to ask the courts for a second opinion.”

The danger of leaving the decision unchallenged is evident, the attorneys explain, because under the language of the Clean Water Act, a bureaucrat could claim authority over just about any piece of land in the nation. That point was made by Justice Samuel Alito in the Sackett decision, who said the law’s language is unclear and it could cover “any piece of land that is wet at least part of the year.”

The law, Alito said, puts “property owners at the agency’s mercy.”

Hopper said: “Because of the Clean Water Act’s potentially limitless scope, it is imperative that the courts safeguard a landowner’s right to challenge the erroneous application of the law to his property. The Fifth Circuit’s failure to provide such a safeguard established a dangerous precedent, making this case highly appropriate for Supreme Court review.”

The property that Kent wants to use has been exempt from the Clean Water Act for decades as agricultural land. But after Kent received all local permits for the waste disposal site, the Corps of Engineers abruptly issued a jurisdictional “determination” withdrawing the exemption and asserting that the site contains wetlands subject to federal regulation, the foundation said.

“To add insult to injury, when Kent appealed the jurisdictional determination to the Corps itself, a hearing officer agreed that the determination was deficient and erroneous, but the Corps issued a final jurisdictional determination without correcting these deficiencies,” PLF said.

Last year WND reported the EPA was being targeted by critics in Congress who warned the agency was working to “expand federal regulatory authority under the Clean Water Act to include even the most isolated wetlands, seasonal drainages, and prairie depressions.”

Critics contended a new set of regulations under consideration would give the agency “unprecedented control” over private property.

At the time, Rep. Lamar Smith, R-Texas, the chairman of the Science, Space, and Technology Committee, and Rep. Chris Stewart, R-Utah, the chairman of the Environment Subcommittee, said a “sweeping reinterpretation of EPA jurisdiction would give the agency unprecedented control over private property across the nation.”

They wrote the EPA, warning any “attempt to issue a proposed rule before completing an independent examination by the agency’s own science advisers would be to put the cart before the horse.”

Fox News’ judicial analyst Andrew Napolitano said the plan was truly alarming.

“The EPA is redefining the meaning of the word water … so as to give it, the EPA, the ability to regulate every body of water in the United States … whether it’s a little stream or whether it’s a freestanding pond. They have done this by finding a bogus scientific study which said …. under the earth, way down in the bowels of the earth, all these bodies of water are connected to each other.”

Mike Sackett said he and his wife were subjected to “hell” by federal bureaucrats in his case.

“The EPA used bullying and threats of terrifying fines, and has made our life hell for the past five years. It said we could not go to court and challenge their bogus claim that our small lot had ‘wetlands’ on it. As this nightmare went on, we rubbed our eyes and started to wonder if we were living in some totalitarian country,” he said. “Now, the Supreme Court has come to our rescue, and reminded the EPA – and everyone – that this is still America, and Americans still have rights under the Constitution.”

Source:http://www.wnd.com/2014/11/feds-upend-landowners-plans-for-own-property/  Read more at http://www.wnd.com/2014/11/feds-upend-landowners-plans-for-own-property/#p8ry309tftz0pv0F.99

Comments

This isn’t over. If Kent hasn’t bought the property, he could walk away. The current land owner would then need to take up the fight.  It’s up to the Corp of Engineers to justify its usurpation of local zoning. They should be made to do this in a Congressional hearing.

Norb Leahy, Dunwoody GA Tea Party Leader