My View From The Country

Opinion: Supreme Court Gives Landowners A Victory

Few people have the resources to outlast EPA in court, but a recent Supreme Court ruling gives landowners their chance to be heard.

While the national news coverage has centered around the lead up to, and beginning of, arguments before the Supreme Court regarding Obama Care, there was a largely unnoticed decision last week that can only be considered a major victory for agriculture and landowners.

The court case surrounded some homeowners in Idaho who purchased a property and began earthmoving, only to have the Environmental Protection Agency (EPA) come in after the fact, declare wetlands on the property and order construction stopped. EPA ordered that the property owners remove fill placed on their property and restore the area to its original condition or face penalties of $37,500/day. The property owners hired their own consultant to show the areas they filled were not regulated wetlands but EPA rejected their request for an informal hearing.

The problem is that the compliance order was not considered to be a final act by the EPA and thus the courts had no jurisdiction; this has become a major tactic of depriving landowners of the use of their land without having to provide due process and give landowners their day in court. In Sackett vs. EPA, the court ruled unanimously and harshly criticized EPA for this tactic. The ruling didn’t find that wetlands don’t exist on the property, but gave the landowners their day in court to challenge EPA’s exercise of jurisdiction under the Clean Water Act.

Few people have the resources to outlast a powerful government agency like EPA, but at least landowners now can have their day in court, and can’t be caught up in no man’s land.

Discuss this Blog Entry 1

David C. Holland (not verified)
on Apr 2, 2012

In August of last year, our supreme court here in Texas gave us a victory over big oil in an eminent domain case.

The oil industry's second motion for rehearing is due tomorrow.

This site has links to aspects and filings in the case: https://docketdb.com/public/docket/09-0901. The first link at the top under "Articles Mentioning this Case" contains I believe the first mainstream media editorial weigh-in.

A Google search for "Texas Rice Land Partners" will produce several pages of links a number of commentaries.

However the coverage you see does not describe the case. It is the tip of an iceberg and even then one only faintly visible through the fog. Denbury Resources attempted an end run around the Texas condemnation regime to prevent us from introducing evidence that the contemplated pipeline was private which the court's August opinion left them hoisted by their own petard (note original spelling rather than the Shakespearean pun).

The facts of condemnation case will become widely public as soon as the Texas Supreme Court is finished with the end run.

If you would like further information, feel free to contact me at my email address above.

By the way, something over a decade ago I was charged by the Corps of Engineers with willfully and wantonly rebuilding a levy the right to do which had been retained 50 years before in the grant document for the drain easement in order for us to impound the drainage water for crop irrigation.

What was actually at stake was the right of local poachers to access a mile of drainage shoreline. By going over the levy at high tide, they had removed enough of the culvert cover to be able to ford the entry in john boats and, with an irony lost on the Corp, gain access to a 130 acre reservoir that we maintained as a wildlife sanctuary.

The case was ultimately dismissed some years later when we provided evidence that I was out of the country during the entire time frame I supposedly performed the illicit act.

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What's My View From The Country?

As a fulltime rancher, opinion contributor Troy Marshall brings a unique perspective on how consumer and political trends affect livestock production.

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Troy Marshall

Troy Marshall is a multi-generational rancher who grew up in Wheatland, WY, and obtained an Equine Science/Animal Science degree from Colorado State University where he competed on both the livestock...

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