Landowner wins property rights case against US army

Beef Central, 30/01/2017

As dozens of Queensland family farmers remain in limbo waiting to learn if they will lose their properties in a Department of Defence land takeover, an American landowner is celebrating a property rights victory over the US Army.

A US federal district court this week ruled against the Army Corps of Engineers (Corps) for incorrectly claiming jurisdiction over a private property.

The Corps had claimed that a piece of property owned by Hawkes Company, and used by Hawkes to harvest peat, was “waters of the United States” (WOTUS), which requires a federal dredge and fill permit under the Clean Water Act.

In March 2016, NCBA filed an amicus brief with the US Supreme Court to support Hawkes’ private property rights and argue that jurisdictional determinations should be reviewable by courts.

In a resounding victory, the Supreme Court ruled unanimously in favour of Hawkes, setting a precedent that landowners may challenge the Corps’ jurisdictional determinations.

The case was then remanded back to the district court for a final decision on the facts, which found the Corps failed to prove that a WOTUS was present on Hawkes’ land.

“This week’s district court decision is the cherry on top of a significant legal victory for landowners,” said Scott Yager, NCBA environmental counsel.

“This case highlights the subjectivity of how the agencies determine the presence of a WOTUS. It also gives landowners the option to use the courts for impartial review when confronted with questionable WOTUS determinations.

“Before Hawkes, the Corps had a rubber stamp on WOTUS determinations.”

The Hawkes case involved three companies engaged in mining peat in Minnesota. Due to the difficulty inherent in determining the need for a 404 permit, the Corps allows property owners to obtain a jurisdictional determination if a particular piece of property contains a WOTUS and therefore requires a 404 permit before using the land.

Upon receiving an approved jurisdictional determination that their land did contain a WOTUS, the companies exhausted the administrative remedies available and then filed suit in Federal District Court challenging the Corps’ jurisdictional determination.

“Not only is the Hawkes decision a significant victory itself, it adds to the momentum of getting the flawed WOTUS rule fixed,” said Mr Yager.

“NCBA is litigating the WOTUS rule, lobbying Congress, and working closely with the new administration to roll back this flawed rule.”

AgForce: Takeover is an abuse of power

Meanwhile, up to 100,000 head could be lost to Queensland’s beef cattle industry if the Department of Defence proceeds with plans to compulsorily acquire dozens of properties in Central and North Queensland, which it intends to use for training purposes with the Singaporean army.

Federal Defence Minister Marise Payne last week committed to fast-tracking a final decision so landholders know their fate within four weeks (late February).

AgForce General President Grant Maudsley said the Minister had given farmers a commitment to give more consideration to using existing Defence land reserves to cater for increased training needs.

“The Minister has stressed that compulsory acquisitions will only be ‘an absolute last resort’, that still effectively means that some farmers face being forced off their land when they don’t want to leave,” Mr Maudsley said.

“We are well aware the Federal Government has the power to enforce compulsory acquisitions, but we believe taking land from agricultural producers for the benefit of the Singaporean army is an abuse of that power.”

Mr Maudsley said the issue had highlighted the need to recognise the importance of agriculture and give it the priority it deserves in land use planning.

“Too often good quality agricultural land is being lost to competing interests such as mining, urban development, national parks and now military training expansions,” he said.

“Agriculture and farming are woven into the fabric of Australian culture, the economy and regional communities – and this should not and must not be compromised.

“AgForce will continue to do everything possible to assist affected landholders during this difficult and uncertain time, and we will do everything we can to hold politicians to account.”

Mr Maudsley called on Australians to demonstrate their support for affected landholders and communities by logging on to to send an email to Defence Minister Marise Payne urging her to take compulsory acquisition off the table.





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