POTUS, SCOTUS & WOTUS: High Stakes for the High Court in ...

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POTUS, SCOTUS & WOTUS:

High Stakes for the High Court in

Election 2016

| Doug Kruse

D

uring the final stretch of the 2016

campaign, we can expect plenty

of debate between now and Nov. 8

about such issues as the rise of ISIS, security

threats abroad and at home, immigration,

racial divisions, and the economic woes

facing everyday Americans.

90 | The Journal, Fall 2016

One issue playing a more prominent

role than usual in this year¡¯s election is

the makeup of the Supreme Court. Justice

Antonin Scalia¡¯s untimely death, and the

political stalemate over replacing him, have

raised the stakes for the future of American

jurisprudence.

The Journal of The James Madison Institute

The U.S. Senate declared that it will he or she could provide the necessary fifth

not take up a high court nominee until vote for the left wing to prevail on several

after the election. Therefore, the winner of key issues making their way up to the Court.

November¡¯s contest¡ªeither Republican This would dramatically alter the landscape

Donald Trump or Democrat Hillary of America¡ªand be especially damaging to

Clinton¡ªwill get to make this important the cause of limited government.

appointment.

For many Americans, the drama

Replacing Justice Scalia is no surrounding the Supreme Court usually

ordinary matter. He was, after all, the plays out through several high-profile, hotnation¡¯s foremost champion of the judicial button issues: abortion, gay rights, gun

philosophy known as

control, free speech, health

originalism, under which

care and more. These are

one interprets law based

important issues, to be

¡°...one issue

on what a reasonable

sure. But one issue that

that often gets

person would understand

often gets overlooked

the text of the law to mean

amid these heated debates

overlooked

at the time it was passed.

is equally important:

amid

these

Advocates of limited

protecting property rights

heated debates

government

had

no

against

government

more ardent or articulate

overreach.

is equally

voice on the bench than

James

Madison

important:

Justice Scalia. Moreover,

once warned, ¡°When an

protecting

the Court was split along

excess of power prevails,

ideological lines prior to

property of no sort is duly

property

Scalia¡¯s death.

respected.¡± His words ring

rights

against

Justices

Breyer,

especially true today as the

government

Ginsburg, Kagan, and

Obama Administration

Sotomayor

routinely

has aggressively expanded

overreach.¡±

constituted

a

strong

the scope and authority of

liberal bloc. Justice Scalia

government at the expense

was typically joined on

of private property rights.

the conservative side by Justices Alito and The president has not had much success

Thomas, and often (though not always) in passing his radical environmental plans

Chief Justice Roberts. Meanwhile, Justice through Congress, so he has instead resorted

Kennedy often acted as a swing vote, to imposing his agenda through executive

sometimes coming down on the left and action. Perhaps the most egregious example

sometimes on the right.

is his Environmental Protection Agency¡¯s

If a conservative jurist takes Scalia¡¯s (EPA) proposed new rule that vastly expands

place, the general thrust of the Court could which ¡°waters of the United States¡± are

remain essentially the same. However, if subject to federal control under the Clean

the next president appoints a liberal jurist, Water Act.

| 91

The Journal of The James Madison Institute

While a functional Legislature may their case before the U.S. Supreme Court,

adequately respond to overreach by the EPA where we won a 5-4 decision that precludes

and other executive agencies, a gridlocked bureaucrats from using the permitting

Congress with numerous competing process to extort money from property

priorities has not proved effective in owners.

standing up for private property rights.

Earlier this year, PLF secured backThus, citizens typically must seek a judicial to-back wins in two more Supreme Court

remedy instead.

cases: U.S. Army Corps of Engineers v. Hawkes

The Pacific Legal Foundation (PLF) Co. and Kent Recycling Services v. U.S. Army

has been the nation¡¯s leading litigator for Corps of Engineers. Both cases built on our

private property rights, limited government landmark Supreme Court win four years

and free enterprise since our founding in earlier in Sackett v. EPA. The cases focused

1973. A string of recent Supreme Court on a common bureaucratic maneuver called

victories demonstrates that litigation can a ¡°jurisdictional determination,¡± in which

effectively protect private

the Corps deems property

property rights against

wetlands subject to federal

government overreach.

control under the Clean

For example, PLF

Water Act.

¡°Property

rights

won a major property rights

In Hawkes, PLF

victories do not

victory in 2013¡¯s Koontz

defended Kevin Pierce

v. St. Johns River Water

and his family, owners

always, or even

Management

District,

of a small peat farm

often,

come

a case out of Orange

business called Hawkes

unanimously.¡±

County, Florida. This

Company. The Corps

long-running saga began

issued a ¡°jurisdictional

in 1994 when Coy Koontz,

determination¡±

against

Sr. sought to develop land

the Pierces¡¯ property,

he owned. The Water Management District even though the land is 120 miles from any

initially conditioned the permit on Koontz¡¯s navigable waterway and therefore should

land dedicating a sizable portion of his not be subject to federal control based on

property to a conservation easement, which the Clean Water Act.

he agreed to do. Then the District required

The Pierce family faced three unfair

him to pay for wetlands mitigation on an options: (1) Abandon use of the property,

entirely different lot that neither belonged which would jeopardize their business;

to Koontz nor abutted his land. Rightly (2) Spend several years and hundreds of

recognizing this as extortion, Koontz filed thousands of dollars going through the

suit.

wetlands permitting process, with no way of

During the next 18 years, the recovering the lost time or money if it turns

Koontz family fought in one court after out the land did not contain federal wetlands

another, culminating in defeat at the Florida after all; or (2) Ignore the Corps and face the

Supreme Court. PLF stepped in to bring possibility of ruinous fines or even prison.

92 | The Journal, Fall 2016

The Journal of The James Madison Institute

PLF argued that the Pierce family -- would have resulted in a 5-4 ruling in the

indeed, all citizens -- should have the right government¡¯s favor, setting a damaging

to challenge a jurisdictional determination precedent for millions of property owners.

in a court of law before

enduring

the

costly,

unnecessary

permitting

process or, worse yet, facing

ruinous fines or prison. On

May 31, 2016, the Supreme

Court ruled unanimously in

favor of the Pierces.

Six days later, the

Justices issued another

unanimous ruling in Kent,

a second, similar PLF

case. As with Hawkes, this

case involved the question

of

whether

property

owners have a right to

their day in court to

challenge a jurisdictional

Coy Koontz Jr. persisted in a lawsuit against the St. Johns River Water

determination against their Management District that his late father inherited. Courtesy of George

Skene/Orlando Sentinel.

property.

The Court¡¯s action

in Kent was a nearly unprecedented turn of

The Scalia vacancy will likely impact

events because the Justices had previously PLF¡¯s third property case before the high

declined to hear the case. However, they court this year, Murr v. State of Wisconsin

reversed themselves after Hawkes, and then and St. Croix County. This case involves the

proceeded to rule in favor of PLF¡¯s clients important issue of ¡°relevant parcel.¡±

without requiring oral arguments.

William and Margaret Murr bought

PLF¡¯s two Supreme Court cases in a piece of land along the St. Croix River in

2016 resulted in unanimous victories despite 1960 and built a three-bedroom cabin there.

the absence of Justice Scalia. Certainly these Three years later, they purchased a separate,

wins give cause for celebration, but they adjacent lot for investment purposes. In the

decidedly do not allow for complacency early 1990s, William and Margaret gifted the

regarding the makeup of the high court.

properties to their six children.

Property rights victories do not

Today, the Murr siblings want to sell

always, or even often, come unanimously. the second property to finance renovations

Consider, for example, if a liberal justice, to the cabin that has been such an integral

and not Scalia, had been sitting on the part of their family history. However, the

Court for our 2013 Koontz case. That likely county is barring them from selling the

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The Journal of The James Madison Institute

vacant lot, citing land use regulations

that prohibit development or sale of the

property. This constitutes a clear ¡°taking¡± of

the Murrs¡¯ private property under the Fifth

Amendment to the U.S. Constitution, so

the government must compensate them for

their loss.

The government instead argues that

the two separate lots represent one parcel

of land. Therefore, preventing the sale of a

portion of the parcel does not amount to a

¡°taking,¡± which requires compensation under

the Fifth Amendment. The government

holds to this position even though the family

purchased the lots individually, for different

purposes, and pays taxes separately for each.

Central to the case: What constitutes the

¡°relevant parcel¡± for determining whether

an unconstitutional taking has occurred¡ª

the parcel at issue, or some larger property

that includes both the parcel at issue and

some additional property?

Oral arguments will take place this

fall, with a decision presumably issued

before a new justice fills the empty seat on

the Court. Thus, Scalia¡¯s absence means that

victory will require persuading the three

remaining conservatives, plus at least two

liberals, to side with the Murrs.

While the timing of the Murr case

likely means the 2016 election will not

directly impact it, other critical property

rights issues are expected to come before

the high court in 2017 and beyond. Again,

perhaps the most important such issue is the

EPA¡¯s new rule regarding ¡°waters of the U.S.¡±

(WOTUS).

The new WOTUS rule expands

federal authority under the Clean Water

Act to cover virtually all waters in the U.S.

and much of the land, extending to every

tributary of a ¡°navigable water,¡± isolated

pools and potholes, the 100-year flood plain

covering millions of stream miles, and, on

A ¡°river closed¡± sign appears on the Animas River due to toxic waste released by the EPA at the King Gold

mine in Silverton, Colo. Courtesy of iStock/KaraGrubis.

94 | The Journal, Fall 2016

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