Advancing Judicial Review of Wetlands and Property Rights Determinations: U.S. Army Corps of Engineers v. Hawkes

George Mason Law & Economics Research Paper No. 16-35

Cato Supreme Court Review, Forthcoming

23 Pages Posted: 24 Aug 2016 Last revised: 6 Sep 2017

See all articles by Steven Eagle

Steven Eagle

George Mason University - Antonin Scalia Law School, Faculty

Date Written: August 22, 2016

Abstract

This Article analyzes recent U.S. Supreme Court decisions that enhance procedural protections for landowners alleging that stringent federal regulatory determinations threaten their Takings Clause rights. It uses as a focus the Court’s 2016 decision in U.S. Army Corps of Engineers v. Hawkes, involving the justiciability of “approved jurisdictional determinations” under the Clean Water Act. The Article reviews the practical difficulties resulting from the Corps of Engineers and Environmental Protection Agency’s sweeping definition of “Waters of the United States,” their demands involving wetlands, and landowners’ ability to meaningfully contest those demands in U.S. district court. The Article suggests how property owners might use the Court’s recent property rights and environmental holdings, and dicta, as guides to more effectively protect their property interests in the face of broad assertions of regulatory authority premised on very general statutory provisions.

Keywords: Sackett v. EPA, Horne v. U.S. Department of Agriculture, Penn Central Transportation Co. v. City of New York, Rapanos v. United States, Clean Water Rule, Koontz v. St. Johns River Water Management District

JEL Classification: K11, K32

Suggested Citation

Eagle, Steven, Advancing Judicial Review of Wetlands and Property Rights Determinations: U.S. Army Corps of Engineers v. Hawkes (August 22, 2016). George Mason Law & Economics Research Paper No. 16-35, Cato Supreme Court Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2827678

Steven Eagle (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty

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