President's weekly report — January 31, 2014

January 31, 2014 | By ROB RIVETT

Environment — Right to challenge wetlands designation mistake

We filed this opposition to the federal government’s motion to dismiss our case against the government in Duarte Nursery v. United States Army Corps of Engineers.  That’s the case where the Corps ordered John Duarte to stop farming on his property, supposedly because he planted winter wheat in a wetland.  Duarte doesn’t believe the crop is in a wetland and is demanding a hearing on the issue.  But, apparently having learned little from Sackett, the Corps is telling Duarte to apply for an expensive (and unnecessary) permit or wait until the Corps drops the hammer and sues.  We’re arguing that due process requires Duarte be given a hearing on the simple question of whether there are wetlands on the farm.

Property Rights — Can the Federal Government ever admit it’s wrong and pay for the damage it causes?

One never ceases to marvel at the machinations the federal government will employ to evade its legal and moral responsibility to its citizens.  In the case of Banks v. United States Corps of Engineers, certain facts are not in dispute:  the government constructed a massive jetty on the shores of Lake Michigan, the jetty caused severe erosion downcurrent landowners, and the government spent years promising to fix the problem, only to fail with multiple attempts.  See this blog post for some illuminating photographs.  Finally the government gave up, essentially telling the landowners, “too bad, your property is toast and so are you.”  The landowners sued in 1999 and the government, instead of paying for the damages they knew they had caused, argued  that the landowners should have sued earlier.  First the government lost the argument that the lawsuit should have been filed once the erosion was first discovered.  The court held that the claim accrued around 2000, when the government gave up trying to fix the problem.  But that wasn’t enough to convince the feds to do the right thing and make the landowners whole.  Instead the Corps next argued that the claim should have been brought sometime after 1903 when the jetties were first constructed but — long before the extent of damage was known and long before the government stop promising to fix the situation.   We filed this amicus brief.  Earlier this week, the Federal Circuit Court of Appeals said enough, and denied the government’s motion to dismiss allowing the case to move forward.  Perhaps by the end of the decade justice will be done.


We filed this amicus brief in Hobby Lobby v. Sibelius, the challenge to Obamacare’s provision requiring corporations to abide by the “contraception mandate.”  As explained in our blog, individuals joining together in corporate form have the same right to follow their religious tenets as those who choose to remain alone.  In this case, there is little question that the owners of the plaintiff corporations have deeply held religious beliefs that forbids them from supporting contraception.  While the administration might not respect these rights, we’re hoping the Supreme Court will.

Environment — Endangered Species Act

We filed this 60-day notice asking the Fish and Wildlife Service to downlist the manatee from endangered to threatened.  The endangered status of the species is not supported by the service’s own data and there is no need for the listing as endangered and the difficulty that creates for the people living along the coast in Florida.  In a review of the status, the Service itself found the listing not to be warranted, but the Service refuses to initiate the downlisting process.