President's report — December 7, 2012

December 07, 2012 | By ROB RIVETT

Property Rights — Arkansas Game & Fish Commission v. United States

We had a major win earlier this week when the Supreme Court unanimously ruled that the United States could be liable for a taking after it systematically and regularly flooded trees belonging to the State of Arkansas for a number of years, destroying millions of dollars worth of timber.  Justice Ginsburg wrote the opinion for the Court.  Although she did manage to create some ambiguity in part of her opinion that described various “factors” that go into a takings analysis.  All in all, however, it is an excellent decision, if we may say so.

Property Rights — Unconstitutional Conditions

We’ve filed our notice of appeal in Powell v. County of Humboldt with the California Court of Appeal.  The County told the Powells they would have to obtain a permit and fix an awning over their mobile home — only to tell them that in order to get a permit they would have to dedicate an avigation easement that would allow overflight of airplanes from a nearby airport.  The Powells refused  After losing in the trial court, we are now asking the Court of Appeal to review the case.

Individual Rights — Obamacare

We filed our opposition to the Government’s motion to dismiss in Sissel v. Dep’t of Health & Human Services.  The Claremont Center for Constitutional Jurisprudence filed an amicus brief supporting us.  The Wall Street Journal commented our case, we responded to that.

Environment — Permitting

The Supreme Court heard oral argument in Decker v. Northwest Environmental Defense Fund, the forest road case, on Monday.  This is the case where the Ninth Circuit held that all forest road culverts and ditches may need a permit under the Clean Water Act — potentially requiring the review of hundreds of thousands of new permits.  Surprisingly, on the Friday before oral argument the EPA issued a new rule that may have mooted the case.  The focus of the argument centered around the impact of the new rule.

Environment — National Forest Management

In Friends of Tahoe Forest Access v.  United States, the federal district court partially granted the motion to intervene filed by the Wilderness Society, local Sierra Club, and others represented by Earthjustice.   Because the “interests” of environmental groups are largely represented by government defendants already, the Court allowed intervention only for limited purposes.