September 21, 2018

Weekly litigation update — September 22, 2018

By James S. Burling Vice President for Litigation

Ninth Circuit holds that permafrost is a navigable water

Today the Ninth Circuit in this opinion ruled against our clients in Tin Cup LLC v. U.S. Army Corps of Engineers. Tin Cup, a family owned pipe fabrication business in North Pole, Alaska, sought to expand and relocate its business. The Army Corps of Engineers claimed jurisdiction over the new property, claiming that the permafrost on the property was a navigable water within the meaning of the Clean Water Act. But in 1993, Congress specifically directed the Corps to use a manual that makes permafrost not regulable under the Clean Water Act. The Corps argued that it was not bound by Congress’ directive, and the Ninth Circuit unfortunately agreed.

California trial court rules against coastal property owners

Last Friday, in Mark & Bella Greene v. California Coastal Commission, a California superior court judge held that the California Coastal Commission was justified in imposing several restrictions on the Greenes’ plans to remodel their modest coastal home. The Greenes planned to increase the square footage of their home consistent with Los Angeles zoning ordinances. Despite being in the middle of the block and 600 feet away from the ocean, the Commission demanded that the Greenes scrap their plans and submit new plans that halved the additional square footage. The California Superior Court found that only some of the Commission’s reasons for imposing the conditions were justified, but held that one reason was enough to affirm the Commission’s decision.

Do agency proceedings strip us of our constitutional rights?

Last week, PLF filed the opening brief on appeal in Preserve Responsible Shoreline Management v. City of Bainbridge Island, which involves a constitutional challenge to Bainbridge Island’s highly suspect shoreline master plan update. The appeal asks whether a citizen has a right to put on evidence necessary to prove a constitutional claim before the first court with jurisdiction to hear such a claims. The answer, we argue, is obviously yes. The right of each person to petition the courts for redress of harm is one of the most precious of the liberties safeguarded by the Bill of Rights. As a corollary to that right, each litigant has a constitutionally protected right to present evidence in support of his or her claims. Together, those basic rights guarantee that judges will be sufficiently informed to serve as arbiters and fact-finders. To hold that an individual must present all potentially relevant evidence to an administrative agency that lacks any authority to decide questions of fact or law relating to constitutional claims is absurd and does violence to this constitutional guarantee. For more, see our blog post here.

Ninth Circuit: states can ban mining on federal land

This week, the Ninth Circuit ruled against Oregon miners in Bohmker v. Oregontheir challenge that the state’s suction-dredge mining ban is preempted by federal law encouraging mining on federal land. As amicus, PLF argued that Oregon had gone too far: Congress has given states wide latitude to regulate environmental impacts of activity on federal land but it does permit the state to simply ban outright activity that Congress has chosen to encourage. The miners received some encouragement, however. Judge Smith dissented in the case, forcefully arguing that the decision upsets the balance in our federal system. That powerful dissent is sure to increase interest in the case if it is petitioned to the Supreme Court.

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Greene v. California Coastal Commission

Mark and Bella Greene challenge the California Coastal Commission’s decision to impose two conditions on the approval of a development permit to update and expand their home in Los Angeles. The first condition requires the Greenes to have a five-foot setback from their seaward property line, in conflict with Los Angeles zoning ordinances and the City-approved development permit. The second condition requires the Greenes to waive their constitutional and statutory rights to protect their home from storms and erosion by constructing a seawall. PLF represents the Greenes in a lawsuit challenging these unconstitutional conditions.

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