Selected Articles from the LAND Newsletter
HARNED URGES FARMERS TO STAY INFORMED, INVOLVED
By LeAnn M. Harner, LAND Executive Director
Keynote speaker Karen R. Harned, urged members at the LAND Annual Meeting to “stay informed and stay involved” in protecting their private property rights. She commended LAND on its efforts to build coalitions and keep legislators apprised of the ramifications of their decisions.
Harned serves as Executive Director for the National Federation of Independent Business (NFIB) Legal Foundation. She’s been involved in filing amicus briefs to circuit courts and the Supreme Court on behalf of landowners fighting wetland regulation.
Harned reviewed the U.S. Supreme Court’s decision on Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers in 2001. The Court found that the Corps does not have jurisdiction over isolated, intrastate wetlands. It also stated that allowing the Migratory Bird Rule to regulate small ponds and wetlands would significantly change the amount of control states had traditionally had over water rights.
But not everyone agrees with the Court. Harned said in the “post-SWANCC” era, the Corps argues that they have control of such wetlands are “hydrologically connected” to interstate water through ditches or other waterways. She likened the Corps’ view of their regulatory power to the song: “the leg bone’s connected to the knee bone.”
Her group and others are watching U.S. v. Deaton from the 4th Circuit. Harned showed a photo of a manmade dry ditch that the Corps and the 4th Circuit calls a “tributary to a navigable waterway.” This is over 25 miles from a navigable waterway. Harned said, “If this ditch is ruled a tributary, then I submit to you that the Corps has just assumed control of all water in the United States.” The landowner argument to the Supreme Court is that the Corps is continuing their regulation just as if the Court hadn’t ruled in SWANCC. She assured the group that it’s common for the Supreme Court to hear a case when a regulatory agency appears to be ignoring a previous court ruling.
Two other wetlands cases may be heard by the Supreme Court:
U.S. v. Rapanos - Wetlands are 11 miles from a navigable water. Appealed to Supreme Court
Treascy v. Newdunn Associates (Virginia) - Here the wetlands are only connected by streams when there is excess surface water. This is in Circuit Court.
Harned commented that landowners need the Corps to recognize the SWANCC decision and act accordingly. When questioned, she admitted that identification of wetlands is a problem and defining wetlands another concern.
She urged LAND members to keep contacting members of Congress about the SWANCC decision. Right now there are two bills pending on Congress which would eviscerate SWANCC. “You need to talk to Congress.”
Harned commented that, whatever decisions the Corps makes, it knows that it will be sued. “It’s just a question of which side will sue,” she said.
During the question and answer session, several members told Harned about abuses of power they’d experienced from Federal agency personnel. She suggested that, if you have stories of abuse where the Federal government is unfairly enforcing regulations, call this toll-free number: 1-888-REG-FAIR. This is part of the Small Business Administration. They will try to act as an intermediary with the agency. “We at NFIB have had pretty good luck with them.”
