President's weekly report — July 10, 2015
Clean Water Act — Hawkes victory stands. On to the Supreme Court?
You may recall that PLF recently won an important victory for landowners in Hawkes Inc., Co. v. U.S. Army Corps of Engineers, when the Eighth Circuit Court of Appeals held that a determination by the government that your property is subject to Clean Water Act jurisdiction is reviewable in Court. However, the government doesn’t like it when they can be taken to court, so they asked the full Eighth Circuit to review the case en banc. This week the Eighth Circuit denied that request. This final decision sets up a direct conflict with another PLF case decided in the Fifth Circuit, that held that these “jurisdictional determinations” are not reviewable. In that case, Kent Recycling v. US Army Corps of Engineers PLF attorneys are asking the Supreme Court of the United States to resolve this circuit split. For more on these exciting developments with the Clean Water Act, you can read PLF Attorney Reed Hopper’s posts here and here.
Free Enterprise — Fighting the plaintiffs’ bar
Should individuals be able to sue businesses for practices that did not cause any harm? That’s the issue before the Supreme Court in Spokeo, Inc. v. Robins, where a plaintiff is suing a credit reporting business for publishing false information about him. Namely, that he was wealthy, married, and had a graduate degree. Obviously, this false information only helped his credit worthiness, but he sued anyway because it was a “technical” violation of a federal statute that forbids publishing false information. The Constitution, however, only allows federal courts to hear “cases and controversies,” so the question is whether an uninjured person presents a “case or controversy” simply by showing a violation of a federal statute. As Deborah La Fetra explains in this blog post, these lawsuits benefit no one except the plaintiffs’ attorneys, who are sure to receive a lot of cash for their tireless work defending the uninjured. PLF filed this amicus brief before the Court.
Endangered Species Act — Downlisting the manatee
Last year the U.S. Fish and Wildlife Service agreed that our petition to downlist the manatee from “endangered” to “threatened” presented significant scientific evidence that warranted further review. That triggered a requirement giving the Service a year to conduct its own analysis to determine if the manatee should be downlisted. The time has now elapsed, and the Service hasn’t produced the required review. Accordingly, this week, PLF, on behalf of our clients, Save the Crystal River, PLF filed this 60-day notice telling the Service we will file suit if they continue to ignore the ESA’s requirements.
Property Rights — The government must pay for what it takes
In Andress Family Florida, L.P. v. Charlotte County, the court agreed that the government engaged in an unlawful temporary taking of the landowners’ property when it failed to maintain a septic system for five years. Although the government taking rendered the property useless for five years, the court only awarded the landowners a paltry sum that will not even compensate them for the municipal service fees they are still required to pay. This week, PLF attorneys filed this amicus brief in the Florida Court of Appeal, arguing that landowners are entitled to be made whole when the government unlawfully takes their property. PLF attorney Christina Martin has more on this case in this blog post.
Endangered Species Act — Green sturgeon critical habitat
The Ninth Circuit issued an unfavorable opinion in our lawsuit challenging the National Marine Fisheries Service’s designation of critical habitat for the green sturgeon. The Service has designated the entire West coast as critical habitat, and our lawsuit argued it must at least consider excluding some areas from that designation. The Ninth Circuit ruled that a decision on whether “not to exclude” certain areas from critical habitat is not judicially reviewable. For more on this decision, you can read this blog post.