President's weekly report — December 14, 2012

Environment — Clean Water Act

We filed our complaint on behalf of Peter and Frankie Smith against the Army Corps of Engineers.  At issue is whether a mostly dry arroyo, 25 miles from the Rio Grande, is a water of the United States.  After acquiring the property, Peter Smith began to clean out years of accumulated waste and trash.  In doing so, he smoothed out some of the ruts to make it easier to clean.  Now the Corps has made a jurisdictional determination and will not let him do further work without a permit.  This case will help determine whether in the post-Sackett world a jurisdictional determination can be reviewed, and in a post–Rapanos world, whether the arroyo is a water of the United States.

Environment — Endangered Species Act

We filed our petition to downlist the West Indian Manatee this week.  Five years ago, the FWS concluded in its review of the species that the manatee was very unlikely to become endangered anytime in the next 100 years and that it should be downlisted. Yet the FWS has still done nothing, leaving us with no option but to file our petition, the first step on the road to litigation.

Individual Rights — Equality Under the Law

The Ninth Circuit set argument for February 11, 2013, in Associated General Contractors v. California Department of Transportation.  This is the case where we’ve challenged minority bid preferences being used by Caltrans as unjustified by any meaningful evidence of past discrimination and, therefore, is in violation of the Equal Protection Clause.