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Contact:

M. Reed Hopper
Principal Attorney
Pacific Legal Foundation
mrh@pacificlegal.org
(360) 279-0937

Mark Miller
Managing Attorney
Pacific Legal Foundation
mm@pacificlegal.org
(561) 691-5000

Todd F. Gaziano
Executive Director, DC Center
Senior Fellow in Constitutional Law
tfg@pacificlegal.org
(202) 465-8734

Supreme Court is again asked to accept a key “wetlands” case

A new Eighth Circuit ruling creates a conflict with the Fifth Circuit that needs to be resolved


WASHINGTON, DC;  April 17, 2015: In the wake of a ruling from the Eighth U.S. Circuit Court of Appeals that sets up a split between circuits, Pacific Legal Foundation is again asking the U.S. Supreme Court to hear a Louisiana case over whether federal “wetlands” designations are subject to judicial review.


M. Reed Hopper
Principal Attorney

Mark Miller
Managing Attorney

Todd F. Gaziano
Exec. Dir., DC Center

PLF’s just-filed petition for rehearing comes in Kent Recycling Services v. Army Corps of Engineers (Supreme Court docket no. 14-493).

The Kent case is an appeal from the Fifth Circuit’s holding that landowners do not have a right to judicial review when their property is designated as “wetlands,” subject to U.S. Clean Water Act jurisdiction.  On March 23, 2015, the Supreme Court declined the petition for certiorari in Kent.  However, subsequently, on April 10, the Eighth Circuit, in a Minnesota case, issued a ruling that directly conflicts with the Fifth Circuit.  In Hawkes Co., et al. v. U.S. Army Corps of Engineers, the Eighth Circuit held that wetlands “jurisdictional determinations” are, indeed, subject to judicial review.

Because of this circuit split, Pacific Legal Foundation is asking the Supreme Court to reconsider accepting the Kent case, so this key question of wetlands law can be clarified for the entire nation.

Donor-supported PLF is a watchdog organization that litigates for limited government, property rights, and balanced environmental regulations.  PLF represents — free of charge — Kent Recycling Services, which seeks to establish a solid waste landfill in Assumption Parish, Louisiana.  Kent has been stymied by a federal determination that the land includes jurisdictional wetlands.

PLF also represents the victorious parties in Hawkes, in which the Eighth Circuit held — in contrast to the Fifth Circuit’s ruling in Kent — that owners may appeal to the courts when their land is labeled wetlands.

Statement by PLF’s M. Reed Hopper

“PLF is taking the extraordinary step of asking the Supreme Court justices to reconsider accepting the Kent case, because the situation that has developed is so extraordinary,” said PLF Principal Attorney M. Reed Hopper.  “The new ruling out of the Eight Circuit, which allows property owners to appeal federal wetlands designations, directly conflicts with the Fifth Circuit’s holding that such judicial appeals are not allowed. 

“America’s property owners — and courts throughout the country — need clarity where there is now, suddenly, conflict between circuits,” Hopper said.  “That clarity can come only from the nation’s highest court.  Therefore, we are petitioning the justices to reconsider and to accept the Kent case.  We are asking them to use this case as a vehicle to announce a clear and consistent rule on the important question of property owners’ access to the courts when federal wetlands officials assert control over their land.”

The case is Kent Recycling Services v. Army Corps of Engineers.  More information, including PLF’s petition for rehearing and a PLF Liberty Blog explanatory blog post, may be found at: www.pacificlegal.org.

About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation is the leading legal watchdog organization that litigates for limited government, property rights, free enterprise, and a balanced approach to environmental regulations, in courts across the country.  PLF represents all clients free of charge.