President's weekly report — February 8, 2013
Endangered Species Act — Uninhabitable Critical Habitat
This week we filed our complaint in Markle Interests v. United States Fish & Wildlife Service in response to the government’s listing 1544 acres of private property in Louisiana as critical habitat for the Mississippi Gopher Frog. The problem is that the frog doesn’t inhabit those acres and isn’t likely to anytime soon — because the land is totally unsuitable as frog habitat. The government thinks that the land could be converted into suitable habitat sometime in the future — but that is an absurd (and illegal) basis for designating critical habitat today. Under the government’s reasoning, it could designate the Capitol building in Washington, D.C. as critical habitat for endangered bats — because it could be converted from its present use to something more benign. Which, come to think of it, might not be such a bad idea …. In any event, our lawsuit, described here, argues that the listing is illegal because of the lack of frogs, lack of usable frog habitat, lack of adequate environmental review of the listing, and lack of any relationship to interstate commerce. We’ll keep you posted.
Property Rights — California Coastal Commission
Once more unto the beach, dear friends, once more. Once again, we are suing the California Coastal Commission over pretty much the same thing we beat them on in 1987 in Nollan v. California Coastal Commission and onother occasions since. In Nollan the Commission demanded that the Nollans give up one-third of their property in exchange for a permit to replace a one-story bungalow with a two-story home. The Supreme Court called it an “out-and-out-plan of extortion.” This time, in Altman v. California Coastal Commission the Commission is demanding public access, removal of piers on a neighboring parcel, and an agreement never to develop the neighboring parcel in exchange for a permit to convert an abandoned tavern into a bed and breakfast. Our complaint points out that this is, once again, an illegal act by the Commission. Of course, one wonders why the Commission continues its attempts at extortion in the face of clear precedent. Litigation should never have been necessary, and we’re hoping the Commission will come to its senses someday. For more, watch our video.
Property Rights — More Extortion
We filed our opening brief this week in Powell v. County of Humboldt. Here, the owners of a mobile home were told they needed to get a permit to regularize a porch and carport that had been attached to their home by a prior owner. But in order to get the permit, the Powells had to dedicate an “avigation easement” to the County — meaning they had to give up the airspace over their property. In other words, in order to get a permit to fix an awning they had to agree to forever give up their right to complain about airplane overflights in the event a nearby airport were to expand. What porches have to do with airplane overflights is anybody’s guess — and the County certainly hasn’t justified the connection. Which is why we sued.
Environment — What is the difference between a hole way under the ground and a wetland?
We filed an amicus brief this week in Huron Mountain Club v. United States Corps of Engineers. After being in decline for years, Michigan’s upper peninsula may soon have its first new copper and nickel mine in many years — unless an environmentalist lawsuit stops the mine. In particular the Huron Mountain Club claims the new Eagle Mine needs a wetlands dredge and fill permit because mining, deep underground, might affect a river. While are plenty of environmental permits that the mine must and has obtained, a permit to dredge and fill where there will be no dredging and filling is not one of them.
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 … ›