Rapanos v. United States
Supreme Court rules EPA “navigable waters” definition illegal
Back in 1989, Michigan developer John Rapanos was simply clearing his property to build homes and a shopping mall when he became so ensnared in a regulatory quagmire, it took the U.S. Supreme Court to resolve. John’s troubles began when he pulled up some trees on his 54-acre site and filled the stump holes with sand. Federal regulators claimed an adjacent drainage ditch qualified John’s land as a wetland that required a permit to develop and issued a cease-and-desist order. When John didn’t back down, the government filed a federal lawsuit accusing him of violating the Clean Water Act (CWA).
U.S. Army Corps of Engineers v. Hawkes
Landowners win right to challenge wetland determinations in court
Hawkes Company is a family-owned business in Minnesota that harvests peat moss, for landscaping. The U.S. Army Corps of Engineers improperly claimed jurisdiction over the property as regulated wetlands. This put Hawkes in the untenable position of (1) abandoning all use of the land at great loss; (2) spending several hundred thousand dollars to seek an unnecessary federal permit; or (3) using the land without federal approval at the risk of $37,500-a-day fines and criminal prosecution. When Hawkes challenged the Corps in court, lower courts dismissed the case as unripe for review. But the Supreme Court disagreed, holding that a Jurisdictional Determination is a binding legal decision subject to immediate judicial challenge.
Kent Recycling Services, LLC v. U.S. Army Corps of Engineers
Landowners win right to challenge wetland determinations in court
Kent Recycling Services wanted to establish a solid waste landfill in Louisiana. But an overzealous Corps of Engineers issued a Jurisdictional Determination claiming the property contained wetlands subject to federal regulation under the Clean Water Act. Kent disputed this claim and sued. Lower courts rejected his lawsuit as unripe on the theory that the determination was not a final order and PLF, representing Kent, petitioned the Supreme Court to review the case. The Court originally declined, but a few days later the Eighth Circuit decision in Hawkes created a Circuit split on the precise issue before the Court. PLF asked the Court to reconsider. A few days after the Hawkes victory affirming landowners’ right to their day in court, the Court vacated the lower court decision in this case and ordered it to reconsider the case in light of the ruling in Hawkes.
Robertson v. United States
Montana man unjustly convicted of violating Clean Water Act
Joe Robertson just wanted to protect his property in the Montana woods from the increasing risk of devastating fires. But when Joe built small fire protection ponds and narrow ditch near his land, the federal government criminally prosecuted and convicted him. The EPA said the ditch was a federally protected commercial waterway under the Clean Water Act and required a federal permit—even though his land is 40 miles from the nearest navigable waterway. The 77-year-old Navy veteran was sentenced to 18 months in prison and fined $130,000, a conviction upheld by the Ninth Circuit Court of Appeals. Joe asked the U.S. Supreme Court to overturn his conviction because nobody should have to face prison for incorrectly guessing what the government thinks is navigable. The Supreme Court granted Joe’s petition, vacated the Ninth Circuit’s ruling, and on subsequent consideration, the Ninth Circuit threw out his unconstitutional conviction and reversed the impoverishing fine.
Weyerhaeuser/Markle v. U.S. Fish and Wildlife Service
Government-sanctioned private land grabs over absent animals are illegal
The U.S. Supreme Court opened its fall term on October 1, 2018, with the famous “frog case” out of Louisiana. That’s where federal regulators declared more than 1,500 acres of private land as a critical habitat for the dusky gopher frog—a species not seen in the state for more than 50 years. PLF client Edward Poitevent owns 95 percent of the land in question. He was a party in the case filed by Weyerhaeuser Company, which owns the rest of the property. Neither the Endangered Species Act nor congressional intent justifies such government-sanctioned property theft. In a unanimous decision, the High Court agreed that the Fish and Wildlife Service illegally overstepped its authority with the critical habitat designation.
Bears Ears National Monument Litigation
Defending public lands access for all
In December 2016, under cover of the Antiquities Act, President Obama unilaterally created the 1.35 million acre Bears Ears National Monument. One year later, President Trump slashed the size of the monument by 85 percent—to around 200,000 acres, freeing up more than one million acres for public use. Outerwear retailer Patagonia, environmental groups, and others sued the federal government, saying the President’s decision was illegal. On behalf of recreationists, ranchers, sportsmen and conservation organizations, and Utah state representative Michael Noel, Pacific Legal Foundation is defending the monument’s reduction to ensure that public lands remain accessible to everyone.
National Association of Manufacturers v. Department of Defense
Unanimous U.S. Supreme Court victory for PLF and property rights
In 2015 PLF challenged the Environmental Protection Agency’s proposed rule to stretch federal control to nearly every pond, ditch, and puddle in the nation as nothing more than an outrageous—and illegal—power grab under cover of the Clean Water Act. And under the Act, people who are harmed by such rules have six years to sue in federal district court. That is, until the EPA rewrote the rule, trying to prevent legal action by giving property owners just 120 days to sue, and then only in federal appellate courts. On January 22, 2018, the U.S. Supreme Court rejected the EPA’s power play and unanimously ruled for PLF and property rights. The High Court agreed with PLF that the EPA cannot shelter its “waters of the United States” rule from judicial review by arbitrarily limiting where victims can sue.
Kansas Natural Resource Coalition v. Department of Interior
Bad rulemaking threatens good conservation
A buffalo rancher by trade, Ken Klemm also uses his 4,000-acre ranch in Kansas for conservation efforts. In fact, Klemm works with the Kansas Natural Resource Coalition (KNRC) to implement a conservation plan for the lesser prairie chicken. The U.S. Fish and Wildlife Service considers such local collaboration for determining endangered listings under its 2003 rule called the Policy for Evaluating Conservation Efforts When Making Listing Decisions (PECE Rule). Unfortunately, the rule is not lawfully in effect because the Service never submitted the PECE Rule to Congress as required by the Congressional Review Act (CRA). On behalf of KNRC, PLF filed a lawsuit demanding that the Service submit its rule to Congress so it could legally take effect and allow good conservation work to continue.
Hawkins v. Haaland
Fighting to restore water control to rightful government authority
Oregon’s Upper Klamath Basin has long supported wildlife, as well as the livelihoods of ranchers, farmers, and other landowners. Some water rights belong to the Indian tribes by treaty, with the U.S. Bureau of Indian Affairs (BIA) charged with exercising these rights consistent with the best interests of the Indian tribes, as well as the general public. But in 2013, the BIA handed over control of Upper Klamath Lake tributaries to the Klamath Tribes, resulting in widespread irrigation shutoffs that wipe out wildlife and agriculture. As a private party not expressly authorized by Congress to make water rights decisions, the tribes have no legal authority to assume BIA’s management responsibilities. More than two dozen ranchers and other water users have asked a federal court to decide just who should be calling the shots over their water rights.