President's weekly report — January 10, 2014

Environment — Clean Water Act

We filed this reply brief in Hawkes v. United States, the case where a peat farmer is trying to establish that his property is not subject to the jurisdiction of the Corps because it is not connected to a navigable waterway.  The owner is trying to challenge the Corps’ Jurisdictional Determination in court before spending potentially hundreds of thousands of dollars on the 404 permitting process.  The trial court distinguished our victory in Sackett v. United States on the ground that a JD is not the same as the compliance order issued to the Sacketts.  Yet, without judicial review, the effect will be about the same:  spend hundreds of thousands of dollars on the permitting process or risk civil and criminal fines for violating the statute.

Property Rights — Petition Watch

We’re watching to see what the Supreme Court did today with Mehaffy v. United States, a takings case where the lower courts held that mere notice of an existing regulation effectively obviates his taking claim, because he knew he would have to get a permit before using the property.  This issue had been resolved favorably in PLF’s Palazzolo case, but some courts seem insistent on ignoring the holding of that case, which is why we’re hoping the Court takes this one up.  As the Supreme Court has held, just because one must get a permit before using property, doesn’t mean that the government can avoid liability when it denies a permit.   The Court held its conference on the case today, Friday, and the Court already listed several cases from today’s conference that it will take up, but didn’t list any denials.   So we’re still holding our breath for this case, hoping the Court recognizes the threat this case holds for property rights.