President's weekly report — July 26, 2013
Property Rights — Victory in North Carolina
We finally put an end to the Williamson County remove-and-dismiss gambit in the 4th Circuit with a decision in Sansotta v. Town of Nags Head. As explained in our blog post, Williamson County was a Supreme Court decision that held that a landowner must sue a local or state defendant first in state court for a takings claim — even if the claim is based on the federal constitution. But the Court has also allowed government defendants to remove a takings claim filed in state court to federal court. So far, so good. But under the “remove-and-dismiss” gambit an increasing number of government defendants have — after removing a takings claim to federal court — moved to dismiss the federal takings claim because under Williamson County, they say, the case belongs in state court. But wait, that’s where the landowner filed in the first place. No matter, say the government defendants, the case must be dismissed. And an astonishing number of federal courts bought it and dismissed the claims in federal court, which forced the landowners to go back to state court to start all over again with a federal claim. Joseph Heller would have been proud! Until this week, when the 4th Circuit saw what a sham this gambit is, and put a stop to it. This is a result, by the way, that we’ve been fighting to get for over a decade, thus proving two things: 1) justice grinds slowly in the federal courts, and 2) we never give up.
Property Rights — A glimmer of hope ?
As you may recall, we filed an amicus brief in support of a petition for writ of certiorari, in which we asked the Supreme Court to take up Mehaffy v. United States. That is the case where a court of appeals held a landowner had no right to challenge a wetlands permit denial because the owner acquired the property after the Clean Water Act was adopted. But if the prior owner was not able to ripen a claim (by not applying for a dredge and fill permit) why should the government get a de facto interest in the property just because a new owner has come along to apply for a permit? That was an issue we thought had been resolved (in our favor) in Palazzolo. Maybe there’s a glimmer of hope. After the United States declined to file a brief opposing the petition seeking review, the Court asked the Department of Justice to file a response. Somebody at the Court may be paying attention to this.
Environment — Funny name, but not so funny consequences
We filed comments opposing a critical habitat designation for the so-called White Bluffs bladderpod. We say “so-called” because of the recent DNA study showing that this bladderpod is the same as Columbia (a.k.a. Douglas) bladderpod. As mentioned in our blog, listing this plant could have all sorts of negative consequences for farmers in Eastern Washington.
Environment — Unlawful EPA regulations
We filed an amicus brief in National Mining Association v. Perciasepe in the District of Columbia Court of Appeals. Federal agencies are required by law to go through a public notice and comment period before adopting regulations. But the EPA thinks it has found a way around this requirement by labeling its regulations as something less than a regulation — such as “guidance” as in this case where it has released “guidance” covering coal mine permits. But we think if it looks like a regulation, walks like a regulation, and can mess with business just like a regulation, then it is a regulation. And if it wasn’t adopted after a public notice and comment period, then it’s an illegal regulation.