By J. P. Tangen
Special to Mining News 

Federal overreach stymied by Scotus

Once again, the Army Corps of Engineers has its interpretation of the Clean Water Act scrutinized by courts and found wanting


Last updated 6/19/2016 at Noon

In 1831, 26 year-old French lawyer Alexis de Tocqueville visited the United State [sic] of America for about 10 months and returned to his homeland to write the seminal "Democracy in America" wherein he described the experimental democratic republic for the benefit of his European peers. His masterpiece is a fountainhead of observations and concerns and it advances prescience reminiscent of Michel de Nostradame (a/k/a Nostradamus).

On the one hand, Tocqueville seemingly admires the structure of our constitution which divides power among three branches of government, thwarting the potential for despotism, especially the potential despotism of a tyrannous majority; and, on the other, he warns about the centralization of administrative control - something we might call "federal overreach" today.

If we fast-forward 200 years, the merits of Tocqueville's antipathy is palpable. In recent years, the U. S. Supreme Court has spoken several times about how the Environmental Protection Agency and the U.S. Army Corps of Engineers have twisted their purported statutory authority to an extreme when dealing with wetlands and waters of the United States. For the EPA/ACE, if land ever was wet or might ever be wet, in their mind it is jurisdictionally theirs to regulate. Flip a coin as to which agency has the lead. Witness the conversation about a pre-emptive 404(c) veto of the Pebble Project.

Recently, the Pacific Legal Foundation ("may its tribe increase") scored twice before the Supreme Court of the United States, in ramping back the propensity of EPA/Corps to expand its collective reach.

In the first instance, Army Corps of Engineers v. Hawkes, decided May 31, 2016, Scotus upheld an Eighth Circuit decision that an approved Corps jurisdictional determination declaring that wetlands on a land parcel located 120 miles away from the nearest river had a significant nexus to "waters of the United States" was a final decision and was, therefore, appealable under the Administrative Procedures Act.

In the second case, Kent Recycling Services v. U. S. Army Corps of Engineers, decided June 6, 2016, the same issue, whether landowners may appeal directly to the courts if their property is declared "wetlands" subject to federal control, was addressed and the judgment of the U. S. Court of Appeals for the Fifth Circuit was vacated and remanded for further consideration in light of Scotus' decision in Hawkes.

Given that the Hawkes decision was unanimous, and given that these two cases are literally the fifth and sixth time that Scotus has slapped the hand of the Corps over its interpretation of its jurisdiction, it would appear that the "democratic republic" that Tocqueville admired and worried about continues to thrive.

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For Alaska's miners, as well as anyone else in the country, the brash methodology used by the Corps is to make an "approved" jurisdictional determination finding that wetlands have a significant nexus to waters of the United States so that the applicant can begin a very expensive and time-consuming permitting process, which may result in the denial of the permit.

The approved jurisdictional determination is reviewable under the federal Act, "only if there are no adequate alternatives to APA review." The Corps responded that the miner can always proceed without a permit, and risk civil and criminal penalties.

Scotus found that alternative inadequate.

According to Scotus a developer has the right to challenge such jurisdictional determinations immediately.

The high court's opinion in Hawkes was authored by Chief Justice Roberts; however, separate concurring opinions also were placed in the record.

Justice Kennedy, joined by Justices Thomas and Alito, observed that 'The [Clean Water] Act … continues to raise troubling questions regarding the Government's power to cast doubt on the full use and enjoyment of private property throughout the Nation." Justice Kagan separately concurred, emphasizing that the decision by the Corps qualified as a final and therefore appealable decision.

Justice Ginsburg agreed with the majority that the Corps' jurisdictional determination was "definitive" and had "an immediate and practical impact" and therefore was "final."

This clear standard, hopefully, will be taken to heart broadly by the Corps. To paraphrase Tocqueville, we have no need of a government that, in the name of looking after us, is the absolute master of our liberty and life.


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