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Army Corps flouts law in attempt to expand its control of private property

Kent Recycling Services, LLC v. U.S. Army Corps of Engineers

Contact: M. Reed Hopper


The U.S. Supreme Court denied the petition for writ of certiorari on March 23, 2015. PLF filed a petition for rehearing on April 16, 2015. The U.S. Supreme Court granted PLF's petition for rehearing, vacated its order denying review of Kent Recycling, granted review of the case, then at the same time vacated the Fifth Circuit’s adverse decision, and remanded the case to the Fifth Circuit for further review in light of the Court’s decision in Army Corps of Engineers v. Hawkes. To summarize, the Supreme Court overruled the Fifth Circuit in favor of Kent Recycling.

For almost two decades the Army Corps of Engineers has exempted from Clean Water Act jurisdiction all wetlands that had been converted to agricultural use prior to 1985, no matter how the “prior converted croplands” are used today.  Under this rule, “prior converted croplands” can lose their exemption only if they are abandoned for a number of years and the land regains its wetland characteristics.

But now, pursuant to a “policy pronouncement,” the Corps has adopted a new standard that withdraws the prior converted croplands exemption upon a change in use.  This could have a drastic effect on land use, as our client Kent Recycling has discovered firsthand.  According to the Corps, there are over 53-million acres of “prior converted croplands” throughout the country.  That’s the equivalent of half the land mass of the State of California.  And among those 53-million acres sits the property Kent Recycling is purchasing.

Our client in this case, Kent Recycling, is purchasing “prior converted croplands” in Louisiana that the company intends to convert to a waste disposal site.  Because of the change in use, the Corps issued a Jurisdictional Determination stating that the land is not subject to the exemption under the Corps’ “policy pronouncement.”  The property seller and Kent Recycling originally challenged the Jurisdictional Determination in an administrative proceeding and then in federal district court, but the courts erroneously ruled that they had to go through a pointless, lengthy, and expensive permitting process with the agency (that is based on the flawed Jurisdictional Determination itself) before the courts could intervene.

Kent Recycling is challenging this denial of federal court access in the U.S. Supreme Court, arguing that the Jurisdictional Determination is a final agency action subject to judicial review pursuant to Sackett v. EPA, 132 S. Ct. 1367 (2012).  In Sackett, the Supreme Court agreed with Pacific Legal Foundation and held that landowners have a right to direct, meaningful judicial review if the government (in that case, the EPA) seizes control of their property by declaring it to be “wetlands.”  Despite the reasonably clear applicability of Sackett to the instant case, the lower courts have refused to apply it, and held instead that Kent Recycling must:  1) abandon the planned use of the land;  2) submit to a costly, 2-year permitting process; or 3) go forward and risk fines of up to $37,500 a day and imprisonment for proceeding without a permit.  We disagree with those courts that this decision of the Corps is presently unreviewable, and believe the Supreme Court will, as well.

We will also argue that the manner in which the Corps reviewed the Jurisdictional Determination violated the Fourteenth Amendment.  When the Corps provided the Jurisdictional Determination that the land was not subject to the “prior converted cropland” exemption, because of the change in use, Kent Recycling and the prior landowner appealed.  Under Corps regulations, the district engineer issues the Jurisdictional Determination.  When appealed, that determination is reviewed by the division engineer who may remand it back to the district engineer.  Therefore, the same district engineer who issued the Jurisdictional Determination has the final word on the appeal.  In this case, the division engineer determined that the Jurisdictional Determination issued by the district engineer was deficient.  But when the appeal was remanded to the district engineer, he did not correct the deficiencies but simply reissued the Jurisdictional Determination on the same basis as the original.  Kent Recycling argues this is a due process violation.


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