Idaho landowners fight federal power grab

Note: This is a guest op-ed by Louis Villacci of the Pacific Legal Foundation.

When the Supreme Court issues a ruling, whose job is it to enforce it? Everyone who’s taken high school civics can tell you the executive branch enforces the law. But what happens when the law needs to be enforced against the executive branch?

Meet Caleb and Rebecca Linck. The Lincks are normal, everyday people who own a small parcel of land in Bonner County, Idaho. After the U.S. Army Corps of Engineers tried to unlawfully claim authority over nearly a quarter of the Lincks’ property, Caleb and Rebecca decided to fight back.

Caleb and Rebecca Linck own a simple plot of land that has been in their family for over 40 years. The Lincks’ dream is to one day use the land for agricultural purposes. That dream is in danger because the Army Corps is not following the law.

Immediately north of the Lincks’ property is a 35-foot-wide gravel road owned by the county. Beyond the road is a purported “swale” which, about 350 feet from the road, allegedly abuts a relatively permanent tributary of a nearby stream. But none of that is on the Lincks’ land. The Army Corps hasn’t collected reliable onsite data related to the swale and tributary because it couldn’t get the permission of the landowner to access the northside property.

The Lincks hired a wetlands consultant to ensure compliance with the Clean Water Act, and because their land is one mile from the nearest stream and two miles from the nearest lake, they were not expecting any trouble. In May of this year, Caleb and Rebecca were surprised when the Army Corps claimed authority over nearly a quarter of their land pursuant to the Clean Water Act.

Under the Clean Water Act, Congress prohibited the discharge of pollutants to “navigable waters” (defined as “the waters of the United States”) and gave regulatory authority to both the EPA and the Army Corps. In Sackett v. EPA, the Supreme Court held the term “waters” in “waters of the United States” is limited to only “relatively permanent” bodies of water such as “streams, oceans, rivers, and lakes.”

In other words, a “water” should be obviously water. “Wetlands”—which are not traditionally recognizable “waters”—may only be regulated incidentally to such bodies of water. Thus, federally regulated wetlands must have a continuous surface water connection to, and be indistinguishably part of, a body of water. 

It's hard to imagine how an isolated plot of land fits that definition. But the Army Corps believes two or more wetland areas can be combined to constitute a single wetland. Using this logic, the Army Corps claims the Lincks’ property is one wetland with the alleged swale north of the county road. Because the swale allegedly abuts a tributary to a nearby stream, the Army Corps claims the CWA grants it broad authority to control the land. The Army Corps is essentially arguing that the Lincks’ land, despite being multiple steps removed from any water, is a navigable water.

Sackett closed the door on the Army Corps’ argument. The Court said “a barrier separating a wetland” from a covered water “would ordinarily remove that wetland from federal jurisdiction” so long as the barrier was built lawfully. This prohibits the Army Corps’ daisy-chain theory to extend its authority beyond certain barriers. Here, the county road to the north of the Lincks’ property is one such barrier, preventing the Army Corps from claiming authority over the Lincks’ land.

Therefore, even if the Army Corps is correct about the alleged swale and tributary across the road from the Lincks’ property, under Sackett, the Army Corps is prohibited from lumping both pieces of land together and claiming authority over it all because of the barrier—the county road separating the land. Under Sackett, the Army Corps’ argument must fail.

The Lincks are not alone. All across the country, the Army Corps is trying to work around the plain text of Sackett to lay claim to countless acres of privately owned land. More people like Caleb and Rebecca need to stand up in defense of private property and the rule of law.

When government agencies try to impose their will on the public by finding workarounds to avoid following the law, someone must stand up for individual liberties. It’s everyday Americans like Caleb and Rebecca Linck who stand up and enforce the law against an overreaching government.

Louis Villacci is a litigation fellow at Pacific Legal Foundation, a public interest law firm that defends Americans’ liberties against government overreach and abuse. He can be reached at LVillacci@pacificlegal.org.