President's Report – April 4, 2014
Property Rights – California Coastal Commission
We reported last week that the California Court of Appeal issued an adverse decision in SDS Family Trust v. CCC, based on its misunderstanding of the facts related to when the family challenged the mile-long easement imposed on its property. This week, PLF filed a petition for rehearing that identifies a number of mistakes of law and material misstatements of facts contained in the Court’s decision, including most importantly, the conclusion that a permit applicant is bound to all conditions contained in a permit, if he does not appeal or litigate over the permit–even if he does not exercise it or take any of its benefits.
Environmental Law – Mining
California forbids the use of suction dredge mining equipment until the agency in charge of regulating this mining—the Department of Fish and Wildlife—develops regulations to mitigate any adverse environmental effects. However, the Department sees no way to mitigate those effects, thus turning the temporary moratorium into a permanent ban. This week, PLF filed a comment letter criticizing the state’s proposed expansion of the ban. As described in more detail on PLF’s blog, under federal law, the ban must provide an exception for those federal mining claims that can only be profitably worked using suction dredge technology. Because the proposed regulations provide no exception, they would violate federal law and should not be adopted.
Environmental Law – Clean Air Act
PLF filed a joint brief in its appeal of the challenge to the joint rulemaking of the federal Environmental Protection Agency and the National Highway Transportation Authority that regulates greenhouse gas emissions from heavy duty vehicles (HDVs) and engines used for commercial or personal transportation throughout the United States. PLF’s portion of the brief in Delta Construction Co. v. EPA (shared, by order of the D.C. Circuit Court of Appeals, with other petitioners with different interests), focuses on increased costs suffered by the trucking industry by the regulations, demonstrating injuries that the court should redress.
Environmental Law – Endangered Species Act
This week, PLF sent a 60-day notice on behalf of the Florida Home Builders Association to the United States Fish and Wildlife Service, warning that we will sue if they continue to fail to act on their proposed rule to downlist the woodstork from endangered to threatened. The Service published a notice of a proposed regulation to reclassify the wood stork as threatened over one year ago. Since that time, they have not acted, as required by law.
Free Enterprise – Individual Responsibility
Elizabeth Helbing went on a night-time outing to lay on a platform beneath a railroad trestle to experience the “rush” of the train passing overhead, then fell between the ties when she climbed back up on the bridge. She sued the upperclassmen who invited her on the outing, claiming they had a duty to protect her. PLF filed an amicus brief in the Texas Supreme Court in Hunt v. Helbing, arguing that adult college students must be held legally competent to assess risks and make their own decisions about dangerous excursions they choose to undertake. More details available here.