Tuesday, March 22, 2011
Yesterday, the Supreme Court refused to hear a NJ couple's challenge of a fine and restoration order for filling wetlands in their backyard. The wetland violation was found when a NJ Department of Environmental Protection (“DEP”) agent inspected the property (upon a neighbor's complaint!). The agent found that the "homeowners had placed fill and maintained a manicured lawn on land designated as regulated freshwater wetlands and within a conservation easement." DEP issued a fine and an order to "fully restore, without exception, these areas to their 'pre-disturbance condition.'"
A New Jersey intermediate court upheld the inspector's actions (New Jersey Dept. of Environmental Protection v. Huber, Not Reported in A.2d, 2010 WL 173533, N.J.Super.A.D., January 20, 2010 (NO. A-5874-07T3)) holding that the inspection did not require a warrant and was authorized by state wetlands and environmental law.
In denying cert Justice Alito found that the New Jersey Supreme Court had not yet decided the issue. Jonathan Adler (Case Western Reserve School of Law in Cleveland) "told BNA that Alito's statement 'as a legal matter is not in any way binding on lower courts or anything like that.'" However, it does “indicate that several of the justices have concern about this practice … and I think, reading between the lines, these four justices indicated that they would be willing to look at this question were it raised in a proper case.”