NFIB

NFIB Legal Foundation Asks Court for Swift Action in Army Corps Wetlands Case
10/16/2002

The NFIB Legal Foundation today filed a motion with the U.S. District Court for the District of Columbia to sever its case against the U.S. Army Corps of Engineers from a group of more complicated cases against the Corps before the court. NFIB's case is a single straightforward charge against the Corps for violating the Regulatory Flexibility Act, and can be heard and decided much more quickly than the other cases.

"NFIB is simply asking the court to give America's small-business owners a speedy and efficient day in court," said Karen Harned, executive director of the NFIB Legal Foundation. "Justice delayed is justice denied. The Corps should not be able to evade prompt accountability for its failure to obey a law specifically designed to ensure fairness to small businesses by lumping our persuasive claim with others involving broader challenges."

In its original case filed in April 2000, the NFIB Legal Foundation charged the Corps of Engineers with violation of the 1980 Regulatory Flexibility Act when it arbitrarily eliminated Nationwide Permit 26, a streamlined process for permits to build on wetlands. The Corps failed to consider the impact of this regulatory change on small business, as the 1980 Act requires and, in fact, claims it is exempt from the law.

In September 2000, the court granted the Corps' request to consolidate NFIB's case with cases that the National Association of Homebuilders and the National Stone, Sand and Gravel Association had filed against the Corps. These other cases, involving issues under the Clean Water Act, National Environmental Policy Act and the Administrative Procedure Act, are substantially more complicated and fact-intensive and may have delayed any hearing or decision in NFIB's case.

In the more than two years since the NFIB Legal Foundation filed its case, the original judge, Thomas Penfield Jackson, presumably reassigned the case because his docket was too crowded to handle the complex issues raised by the other plaintiffs. Additionally, so much time has passed that the Corps has promulgated additional regulations on this matter, which has required NFIB to update its filing with the court.

"It should be relatively simple for a judge to decide whether or not the Corps is in violation of the Regulatory Flexibility Act. The court can then afford the more complex issues the time that they deserve. Whether by regulation or legal tactic, the Corps seems to specialize in tangling America's entrepreneurs in red tape. For the nation's small-business community, this case has already dragged on for far too long," Harned concluded.

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The NFIB Legal Foundation is a 501(c)(3) organization created to protect the rights of America's small-business owners by providing advisory material on legal issues and by ensuring that the voice of small business is heard in the nation's courts. The National Federation of Independent Business (NFIB) represents the consensus views of its 600,000 members in Washington and all 50-state capitals More information is available at www.nfiblegal.com.