- Property owners in North Carolina and Iowa are working with the Pacific Legal Foundation to challenge Army Corps of Engineers actions that appear to ignore US Supreme Court precedent.
- In both cases, the Army Corps claims property owners have violated Clean Water Act rules. PLF lawyers argue that the federal agency relies on an interpretation of the law "soundly rebuked" by the Supreme Court in 2023.
- In the North Carolina case, father-son business team Val and Skip Valentine face a federal lawsuit from the Army Corps because of their efforts to make forest road improvements on their timberland.
Property owners in North Carolina and Iowa are working with the Pacific Legal Foundation to challenge Army Corps of Engineers actions that appear to ignore US Supreme Court precedent.
Federal court documents filed in both states argue that the Army Corps is relying on an interpretation of Clean Water Act rules “soundly rebuked” by the high court in the 2023 case Sackett v. EPA.
The Tar Heel State case focuses on Val and Skip Valentine, a father-son business team working on timberland near the Roanoke River and a smaller stream, Devils Gut, in eastern North Carolina.
In 2016, the Valentines started buying 1,700 acres of “rough timberland for forestry and recreation,” according to PLF documents. “Their business plan was two-fold: cultivating a complex forest ecosystem for healthy hardwood timber in the long term, financially supported in the short term by ecotourism, hunting, and fishing on the land,” PLF explained.
“With forestry certifications in hand,” the Valentines started upgrading and extending a “long-existing network” of forest roads on their land.
The Army Corps responded in 2018 with a cease-and-desist order. The federal agency accused the Valentines of filling regulated wetlands without a permit under the Clean Water Act.
“Despite the false accusations, the Valentines repeatedly tried to work with the bureaucrats,” PLF reported. “They provided forest management maps drawn up by state forestry officials calling for the very road improvements the agency said violated the CWA.”
The Valentines turned over land along the Roanoke River to the government for a permanent conservation easement. Yet the Army Corps eventually filed a federal lawsuit “that could very well amount to millions in civil penalties,” PLF explained.
The Army Corps’ actions conflict with Sackett’s holding, the Valentines and their PLF lawyers argued. “The decision ended decades of government abuses under the guise of CWA enforcement with final clarity, affirming that property that is clearly distinguishable from navigable waters cannot be subject to federal regulation.”
The Army Corps did not make the necessary determination about the Valentines’ property to comply with Sackett, according to court filings. PLF lawyers raise other objections to the agency’s actions. First, forest roads are exempt from CWA restrictions. Second, the law authorizes only the US Environmental Protection Agency to enforce alleged permit violations. Third, EPA cannot give that power to the Army Corps of Engineers. Only an act of Congress could confer that authority.
“No matter how strong its zeal to make an example of the Valentines and deter other landowners from pursuing similar development, the Army Corps cannot simply ignore a Supreme Court decision or assume enforcement powers it doesn’t have,” PLF lawyers argued.
“The government’s displeasure with Sackett is no license to ignore it,” wrote PLF lawyers in a Feb. 9 court filing in United States v. Valentine.
In Iowa, landowner Dan Ward challenges the Army Corps’ attempt to regulate property that “bears more resemblance to a hiking trail than a body of water,” according to PLF lawyer Charles Yates. “The Corps seems to think that observing water trickling on one day, after a large rainstorm, magically transforms this unremarkable groove into a navigable water it can regulate under the Clean Water Act. It’s exactly the kind of thing the Supreme Court sought to end in Sackett, but the Corps hasn’t gotten the message.”
PLF filed a request for appeal this week in Ward v. US Army Corps of Engineers.