President's weekly report — December 11, 2015
Supreme Court grants cert in PLF wetlands jurisdiction case!
The Supreme Court just granted the government’s motion for writ of certiorari in Army Corps of Engineers v. Hawkes. This case will answer the question of whether a landowner is entitled to judicial review of a wetlands jurisdictional determination by the Corps of Engineers. This is the case that we won at the 8th Circuit. No word on the companion case, Kent Recycling, where we lost at the 5th Circuit. (We’re representing the landowners in both of these cases pro bono.) We suspect that Kent will be held pending the decision in Hawkes. Readers may recall that in both of these cases, the Corps issued jurisdictional determinations, asserting authority over the putative wetlands. The landowners did not believe that the Corps has any jurisdiction over their properties. In both cases the our clients appealed through the Corps administrative process. In both cases a hearing officer reversed the Corp’s initial determination and sent the case back to the district engineer. In both cases the district engineer reinstated the original determination and the our clients went to court. The question is whether the landowners can file suit rather than facing a rather unpalatable Hobson’s choice: Spend hundreds of thousands of dollars and years of time for an unnecessary permit or ignore the Corps’ jurisdictional determination and use the property anyway — and face draconian fines and time in a federal prison. You can read the case files in Hawkes here and Kent Recycling here. This will mark, by the way, the ninth time that PLF has made a trip to the Supreme Court.
Saving property rights at Lake TahoePacific Legal Foundation – Pacific Legal Foundation
We filed this complaint on behalf of Teresa-Avila and Ray Burns against the TahoeRegional Planning Agency. In 2007, the Angora fire wiped out a large swath of South Lake Tahoe, in significant part because the agency rarely granted permits to cut and thin trees in the area. In any event, a few years later the Burns bought in foreclosure a residential lot in a burned out area about three miles south of the lake. Although there used to be home on the lot, the agency claims that the lot is in a “stream environment zone” and refuse to allow the Burns to put up a new home to replace the one that burned down. The Burns had hoped to build the home for their mothers. This leaves the lot with no use or value and we think that’s a taking.
Reining in EPA’s regulatory omnipotence
PLF and a group of forestry organizations filed a brief urging the U.S. Supreme Court to grant certiorari in American Farm Bureau Federation v. EPA, an important case about the federal-state balance of power in the Clean Water Act. The precise issue is the EPA’s usurpation of state authority in regulating the “total maximum daily load” of a pollutant that a water body can accept. These levels in turn establish all sorts of other water quality standards and regulatory constraints. For more about the significance of this case, see our blog post here.
School choice in Northern California
We filed this amicus brief in support of Shasta Charter Academy in Anderson Union High School District v. Shasta Secondary Home School. In this case, a school district is trying to stop an out-of-district nonclassroom-based charter school from operating a resource center within the boundaries of the school district. The school district’s lawsuit is an attack on school choice. You can read more on our blog here.
What to read next
PLF asks the U.S. Supreme Court to rule that there is no “legislative exception” to the unconstitutional conditions doctrine
It seems that some governments and courts prefer to treat Supreme Court precedent as an option, rather than a requirement. The Supreme Court has ruled—twice—that it’s unconstitutional for government to … ›