Everyone needs to get involved with "PLP" and "MMAC" - they are fighting for all of our rights including "Water Rights". I am an administrator for Alaska if you have any questions/suggestions. Mac
The MMAC bill covers this problem for miners in their Mining District.
From: Rachel Thomas
Sent: Dec 31, 2015 7:42 AM
To: Rachel Thomas
Subject: Supreme Court must give landowners right to challenge Corps http://www.wallowa.com/wc/editorial...enge-corps
Supreme Court must give landowners right to challenge Corps
Published: December 29, 2015 3:48PM
The Supreme Court must give landowners the right to challenge deterimination that their property is subject to the Clean Water Act.
The U.S. Supreme Court has agreed to take a case that will determine whether landowners can challenge in court a regulatory determination that their properties are subject to the Clean Water Act.
The government contends, and is backed by the 9th and 5th U.S. Circuit Courts of Appeal, that a regulatory determination by the Corps of Engineers that a property is subject to Clean Water Act restrictions is merely advisory in nature, and is not a final agency decision subject to litigation.
The 8th Circuit reached the opposite conclusion last year, setting up a clear conflict to be settled by the Supreme Court.
For farmers, ranchers and other landowners, the stakes are high. Regulatory requirements and restrictions under the act are expensive and can severely limit the owner’s property rights. Property owners should have the right to challenge a jurisdictional determination.
The government says landowners who disagree with a jurisdictional determination can go ahead with a planned project without a permit and then fight the determination when the government brings an enforcement action.
Or, the landowner can apply for the necessary permits. If the permit is denied or the landowner disagrees with the government’s findings, the landowner can file suit.
Neither of these are practical options.
A landowner would be foolish to expend capital and proceed without a permit if the Corps of Engineers has determined jurisdiction, whether that ruling is a final determination or merely advisory.
Having determined a landowner needs a permit, by whatever means, the Corps will certainly follow with an enforcement action if a landowner proceeds. Win or lose, the landowner will be saddled with the expense of defending his action. And should he lose, the government can pile on ruinous fines and penalties, and perhaps criminal charges.
Should the landowner acquiesce to the Corps’ determination, he submits to a costly, time-consuming process. If the permit is denied, or there is an issue with the terms, the litigating landowner walks into court having already conceded that the Corps has jurisdiction.
The Corps may consider its determinations advisory in nature, but the same can be said of a rattlesnake shaking its tail. Either are ignored only at great peril.
The rattlesnake’s warning can be appreciated for its honesty, while the Corps’ is veiled by semantics. Having been warned, the landowner will certainly feel the sting of the Corps’ strike.
The Corps’ determinations are final by any standard of common sense. As such, they should be allowed to be challenged in court without the landowner first being placed in legal or financial jeopardy.
We are confidant the high court will agree.