One of the best but unsung tributes to the late Supreme Court Justice Antonin Scalia was the Supreme Court ruling in the 2016 case United States Army Corps of Engineers v. Hawkes Co. Inc.
It dealt with the production of sod by Hawkes Co., which bought a piece of property in Minnesota. Senior Attorney Mark Miller of Pacific Legal Foundation walked Newsmax through the case.
“They cleared the state environmental assessment, yet the U.S. Army Corps of Engineers came and halted the peat mining on the property under the claim that this land was considered ‘navigable waters,’ Miller said. “Under the Clean Water Act, you can ask the federal government for a jurisdictional determination (JD), which determines if the US Army Corps does have jurisdiction.”
The more cumbersome aspect of the former status quo occurs when there is a jurisdictional determination ruled against your claim.
In Miller’s words,“If the government determines that the Army Corps of Engineers has jurisdiction, you have to pay for the permits [costing anywhere upwards of $200,000] stating that they have authority, and you can sue later and argue that they never really had that jurisdiction in the first place.”
This, of course, begs the question, that Miller mentions: “Why shouldn’t you have the right to go to court and have an impartial judge determine if you’re right or the government’s right, without having to submit to the government’s authority over the land? What’s the difference aside from the fact you have to spend a ton of time and money dealing with the JD permits?”
The flagrant abuse of administrative discretion has far-reaching constitutional issues.
As Miller puts it, “If you can just arbitrarily take the text of statutes and apply them to wherever the federal government wishes to exercise authority, then what is the practical point of having the safeguards in the Constitution?”
The constitutional issues that Hawkes raises are highly legitimate concerns that constitutional scholars, administrative law buffs, and small-government conservatives care deeply about, but how does it translate from legal theory to applicability?
According to Miller, “What the Supreme Court said in a unanimous decision was that you can indeed sue immediately to contest the verdict of a PD decision. Hawkes particularly opened the courthouse doors in a significant way. This is because when the government does something consequential that hurts your rights and impacts you, you should have the right to sue and you should not have to wait for years to challenge it.”
This ruling was ecumenical in a sense because it allows for both sides “to get into court sooner, so the environmental groups did not oppose nor support our efforts.”
A rather esoteric case at first blush, Hawkes nonetheless serves as the legal vehicle by which aggrieved Americans can appeal the decisions made by the professional bureaucrats inside the beltway.
In short, the Hawkes decision, Miller said, “has become a case regularly cited in recent administrative law cases and really any other type of law that deals with administrative law. It allows Americans who have been harmed to challenge any alphabet soup government agency you could imagine. It forces the government to give an account to judges, instead of autocratically saying ‘no, you lose’ and having the final say.”
It is no less a truth now than it was to the hallowed Court of John Marshall that “the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury.”
Michael Cozzi is a Ph.D Candidate at Catholic University in Washington D.C.
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