(Missouri Cattlemen's Association) -- The Supreme Court in United States Army Corps of Engineers v. Hawkes Co., Inc., unanimously set a precedent that landowners may challenge the Corps' jurisdictional determination specifying that a piece of property contains a "Water of the United States (WOTUS)." The National Cattlemen's Beef Association (NCBA) filed an amicus brief in support of Hawkes. NCBA President Tracy Brunner said this is a major victory for landowners across the country.
"This case highlights the issues landowners and land-use stakeholders have with the Clean Water Act," said Brunner. "Neither of the options provided to landowners are realistic under the current regulatory environment. Applying for a 404 permit is expensive, exhaustive and time consuming. Gambling on Environmental Protection Agency (EPA) enforcement and risking civil and criminal penalties is foolish. This case strikes a balance that at least gives us some measure of regulatory certainty in the notoriously unclear Clean Water Act."
The Hawkes case involved three companies engaged in mining peat in Minnesota. Due to the difficulty inherent in determining the need for a 404 Dredge and Fill Permit, the Army Corps allows property owners to obtain a standalone jurisdictional determination if a particular piece of property contains a WOTUS and therefore requires a 404 permit before using the land. Upon receiving an approved jurisdictional determination that their land did contain a WOTUS, the companies exhausted the administrative remedies available and then filed suit in Federal District Court challenging the Corps' jurisdictional determination. The government argued that such a jurisdictional determination was not final agency action and that landowners would have to either discharge without a permit and then challenge EPA enforcement or apply for a permit and challenge the outcome.
"Given the subjective nature of a determination and the inconsistent application of the Clean Water Act, knowing what is or is not a WOTUS was ripe for challenge," said Brunner. "The ability to challenge a determination before going through the time-consuming and costly permitting process, or gambling on EPA enforcement provides a measure of fairness to landowners."
In his concurrence, Justice Kennedy expressed the Court's continued concern with the Clean Water Act, "[t]he 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." NCBA is committed to continuing its WOTUS lawsuit on behalf of its members.
Recently, one of the lions of civil rights passed away in attorney Michael Ratner. The dark side of the New Deal, among other things, involved its treatment of the Japanese and other minorities. The internment of Japanese-Americans, none of whom ever showed any kind of disloyalty to our country, is one of the black marks of our history and has no place in our Constitution. While it was not the first such violation of human rights, it set a dangerous precedent for subsequent police state actions.
Neither our Democratic or Republican friends appreciate government overreach. Anything that targets our friends and neighbors is suspect; if we target a whole group of people for the actions of a few, or worse, their potential to commit crimes, how do we know that we won’t reap what we sow? This is why my ideal SCOTUS Justice is Michael Ratner. He was fearless and willing to take on Presidents of either party in the pursuit of human rights and justice.
Ratner made a career of suing the powerful. He sued Ronald Reagan for funding the contras in Nicaragua and invading Grenada, George H.W. Bush for invading Iraq without congressional authorization, Bill Clinton for warehousing Haitian refugees with HIV at Guantánamo Bay, and Defense Secretary Donald Rumsfeld for torture. He sued an Indonesian general, a Guatemalan defense minister, and a Haitian dictator, among others, for human-rights abuses. He sued the FBI for spying on Central American activists and the Pentagon for restricting press coverage of the Gulf War. The pattern was set early: His very first federal lawsuit was styled Attica Brothers v. Rockefeller, and sought to compel New York to prosecute state police responsible for killing prisoners at Attica State Prison after riots broke out there in 1971.Ratner knew that when you sue the powerful, you will often lose. But he also understood that such suits could prompt political action, and that advocacy inspired by a lawsuit was often more important in achieving justice than the litigation itself. He understood the inextricable links between advocacy in court and out. Consider, for example, his greatest victory—the Supreme Court’s 2004 decision in Rasul v. Bush, declaring that Guantánamo detainees had a right to seek judicial review of the legality of their detention as “enemy combatants.” As soon as Ratner filed the first habeas corpus petition on behalf of Guantánamo detainees, in 2002, he began working with Gareth Peirce, Clive Stafford Smith, and other British lawyers to build public support in the UK for his clients, several of whom were British. He understood that the British public would be more sympathetic to the plight of British detainees than would Americans, and that British public opinion could be a useful prod to American action. The public outcry in the UK forced Prime Minister Tony Blair, initially a full-throated supporter of Bush’s Guantánamo policy, to reverse himself and demand that the British detainees be released.
People like that need to sit on the bench in the Supreme Court. It shouldn’t matter if it is a sacred cow or something a few years old; the fact that Jim Crow had been in existence since the 1870’s did not make it any less unconstitutional. The problem with certain of the present judges is that their outrage is selective — they are willing to take on the opposite party when it is in power, but not their own. And Roberts only cares about what he deems as best for the bottom line, given his belief that corporations are the highest form of good and must be protected at all costs. This is a view that is shared by Donald Trump, who would sometimes tout the number of jobs certain corporations created on The Apprentice.
It shouldn’t matter how repugnant one’s beliefs are; one is still entitled to equal justice and protection under the law. The Nuremburg Trials were a perfect example. The Nazis were all repugnant war criminals; however, they were still entitled to equal justice under the law. They were granted the right to an attorney and the right to a fair trial even though we knew they were guilty. When they were finished, we had an extensive historical record of the nature of how the Nazis planned and implemented a war of aggression. This is how we should have dealt with Bin Laden — catch him and his lieutenants alive, try them for the war criminals they were, and carry out the appropriate punishments. That is what we should do with ISIS should we ever have the good fortune to capture their leadership.
The record of history is clear — when we gave the Nuremberg defendants a fair trial, we succeeded in permanently marginalizing Nazism as a political force. When we failed to give Al-Qaeda suspects the same kind of equal justice, we only succeeded in creating more enemies and spawning more terrorists. I don’t like the terrorists any more than our Republican friends do. But when we set aside our Constitutional principles in the name of expediency, the terrorists win.