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Do Landowners Have a Right to Challenge Federal Regulation of Their Property? A Preview of Army Corps of Engineers v. Hawkes on the Eve of Oral Argument

Four years ago, in Sackett v. EPA (2012), the Supreme Court unanimously rejected the EPA’s effort to deny judicial review of its determination that a rural lot where an Idaho couple was building their home was a federal wetland. The Army Corps of Engineers makes tens of thousands of similar wetlands determinations each year under the Clean Water Act (CWA), but it claims that Sackett doesn’t apply because these determinations are legally different from the EPA’s orders. On March 30, the Supreme Court will hear argument in U.S. Army Corps of Engineers v. Hawkes Co. to decide whether landowners have access to court to challenge agency rulings that their property contains wetlands that are subject to federal regulation. While 30 states are now suing to overturn the newest CWA rule expanding power over “waters of the United States,” invalidating that rule won’t change existing federal control over individual landowners if the agencies continue to assert similarly overbroad authority. What recourse do landowners have when federal agencies decide that private property contains wetlands? According to the Obama administration, landowners first must spend hundreds of thousands of dollars and many years seeking a permit from the same officials who may not have the proper regulatory authority to begin with. The Supreme Court rejected that approach in Sackett. A win for Hawkes here would provide much broader relief from abusive agency rulings and procedures.

Ilya Shapiro

Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review.