Federal Overreach Reversed

Shocker! Private-property advocates win 9 straight at Supreme Court, 'A triumph for simple fairness and for the rule of law', by Bob Unruh, 6/8/16, WND

The U.S. Supreme Court this week handed victory to another private-property owner in a long series of fights against federal regulators, essentially overturning a lower court’s decision that gave a totalitarian power to the government to impose use regulations on private land – and prevent the owners from appealing.

Word of the latest victory for property owners comes from the Pacific Legal Foundation, which has fought many of the property rights disputes on behalf of those targeted by regulators from the Environmental Protection Agency, the Army Corps of Engineers and others.

In fact, it has now won nine straight times when it directly represents the private-property owners in fights with federal regulators, agencies or bureaucracies.

The newest decision involves Kent Recycling Services, which wanted to set up a landfill in Louisiana but saw its plans halted because of a bureaucrat’s decision that the land it wanted to use contained “wetlands.”

It followed by only days a high court decision on a similar fight in Minnesota. There, in a unanimous ruling against the Obama administration’s agenda, the justices said a private company, Hawkes Co. of Minnesota, has a right to challenge in court a ruling from the U.S. Army Corps of Engineers that the company’s land included “wetlands” and it wasn’t allowed to contest the decision. The Hill commented at the time that the decision is “likely to have consequences for the federal government’s entire enforcement of the Clean Water Act.” Judge Andrew Napolitano is issuing his warning, in “It Is Dangerous To Be Right When The Government Is Wrong.”

The Minnesota case involved the Hawkes Co., a family owned business providing peat for golf courses and other sports turf applications, and Pierce Investment and LPF Properties, which own peat land.

They were prevented from using property in Marshall County, Minnesota, because the corps issued a jurisdictional determination categorizing it as federally controlled wetlands.

“This victory guarantees the rights of millions of property owners nationwide,” said M. Reed Hopper, the PLF’s chief attorney, after the Minnesota win. “As we argued to the court – and as the court agreed today – when landowners are confronted with federal claims of jurisdiction over their property, they must have their right to their day in court. So today’s ruling is a triumph for property rights, for simple fairness, and for the rule of law.”

The organization now has announced victory for its client, Kent Recycling, in an almost identical fight. “PLF represents – free of charge – Kent Recycling Services, which seeks to establish a solid waste landfill in Assumption Parish, Louisiana. The U.S. Army Corps of Engineers stymied the company’s plan when the Corps issued its ‘jurisdictional determination’ that the land in dispute includes wetlands covered by the federal Clean Water Act (CWA),” the organization explained. “The issue in Kent Recycling is the same as in PLF’s Hawkes case: whether landowners may appeal directly to the courts if their property is declared ‘wetlands’ subject to federal control. In Kent Recycling, the Fifth U.S. Circuit Court of Appeals ruled that landowners do not have such a right of appeal. But last week, in Hawkes, the Supreme Court held otherwise: setting precedent, the court unanimously ruled that wetlands ‘jurisdictional determinations’ are indeed subject to immediate judicial review.”

So now, PLF explained, “Today, the Supreme Court ordered the Fifth Circuit to fall in line. It granted PLF’s petition in Kent Recycling, and sent the case back to the Fifth Circuit to reconsider its decision in light of the Hawkes outcome. This victory marks PLF’s ninth straight direct-representation victory at the Supreme Court in litigation for liberty and limited government – an unsurpassed record among organizations with a broad-based pro-freedom mission.”

Mark Miller, who manages PLF’s center in Florida, continued, “Today’s announcement marks another great victory for property rights. It reaffirms that property owners across the country can hold overzealous federal bureaucrats immediately accountable in court for erroneous assertions of control over wetlands. This levels the playing field for landowners who have been at the mercy of an overreaching federal government for far too long.”

WND reported when the case developed that the Army Corps of Engineers told Kent Recycling that it couldn’t use land it planned to use for commercial development, and further, there was no challenge possible to the decision.

The company was left with the options 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,” PLF explained.

An earlier victory for property owners came in the Supreme Court’s Sackett ruling, a case also argued by PLF. 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 then, in 2012, 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.”

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

At the time, Justice Samuel Alito said feds could claim authority over “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.”

Fox News’ judicial analyst Andrew Napolitano at that point said what the federal government was trying to do 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.”

Trust the government? Maybe you shouldn’t. Read the details in “Lies the Government Told You,” by Judge Andrew Napolitano.

In fact, WND had reported when a massive power grab was launched by agencies in Washington that would give them control of “practically every pond, stream and ditch in the country.”

Further, WND reported when a Wyoming rancher defeated a plan by the EPA to fine him $16 million after he got a state permit and built a stock pond on his ranch.

Fort Bridger, Wyoming, rancher Andy Johnson sued in 2015 after the federal agency filed a compliance order against him and threatened him with fines of $37,500 per day.

The case was settled with Johnson being allowed to keep his pond, and paying no fines. And an admission by the government there is not federal jurisdiction there.

Another victory for private property owners came when government regulators of housing and development near South Lake Tahoe reversed a ruling that prevented a couple from replacing a house on their land that was destroyed in a forest fire.

Teresa Avila-Burns and Ray Burns bought the property in foreclosure in 2009, two years after the house burned down. Their intent was to build a new home on the property for their elderly mothers.

But the Tahoe Regional Planning Agency ruled that the couple could not put a home on the same footprint because officials were worried about contaminating the water of Lake Tahoe, which is some five miles away.

The PLF said the agency then reversed itself, allowing the construction to begin.

There also was a fight over land in Wisconsin involving two different parcels purchased by the same family at different times. But because they were adjacent, the government said they could not sell, or build on, the second parcel.

Another fight erupted when the city of Oakland, California, decided to force builders to fund projects by artists who are chosen by the city in order to build there.

There also was a fight over New Mexico land-use limits on a “critical habitat” for the jaguar, even though the animal hasn’t been spotted in the state for years.

There even was an attempt by the government to impose land use limits on property in Utah because some rodents were having a “substantial” impact on “interstate commerce.”

http://www.wnd.com/2016/06/shocker-private-property-advocates-win-9-straight-at-supreme-court/ 

Comments

Victims of unconstitutional regulatory overreach should all receive legal expenses paid by the offending agency.

Norb Leahy, Dunwoody GA Tea Party Leader