‘Waters of the United States’ Return to SCOTUS

The government has asserted jurisdiction over Hawkes’ farm, claiming the property is a water of the United States. As a result, Hawkes cannot use the property in the way it desires without a permit, or it will face severe penalties. There is no further administrative appeal of that decision. Nonetheless, the government claims it hasn’t taken action on Hawkes’ property.

The Due Process Clause forbids the government from restricting life, liberty, or property without giving the injured party a chance to have his claims heard in court. Yet, if the government’s position in Hawkes is upheld, the government’s decision will be essentially unreviewable.

Unfortunately, this type of reasoning is nothing new. Four years ago, the Supreme Court struck down nearly identical arguments put forward by the EPA in Sackett v. EPA. In that case, the Sacketts were stopped from building their home when the EPA issued a compliance order claiming that their property was a jurisdictional wetland. When the Sacketts tried to appeal the determination to the agency, they were told that there was no administrative process to protest the decision — comply with the order, or risk crippling fines and penalties. When the Sacketts filed suit, the EPA claim that the suit was premature because it hadn’t taken any action yet.

A unanimous Supreme Court rejected that reasoning outright.

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