President's weekly report — May 29, 2015

POTUS’s WOTUS headed for SCOTUS?

The President’s EPA minions issued the long-dreaded Waters of the United States rule this week, guaranteeing another clash before the Supreme Court of the United States. For more, and a link to our comments on the rule as proposed, see this blog post. Ever since our victory in Rapanos over EPA’s interpretation of “navigable waters” in the Clean Water Act, EPA has done everything in (and out) of its power to eviscerate the Court’s opinion.  Now it has truly run amok with a new rule asserting vast new and expanded authority over wetlands and others waters, including many that are neither wet nor flowing.  Wikipedia defines “running amok” to mean: “”an episode of sudden mass assault against people or objects … that  …  is now increasingly viewed as psychopathological behavior.”  How else can one explain the EPA’s twisting of the English language to achieve results that are beyond absurd?  As Reed Hopper explains in a recent blog post:

For example,  the word “navigable” is defined to include nonnavigable.  The word “waters” is defined to include areas of mostly dry land.  The word adjacent, which normally means abutting, is defined to include neighboring which means whatever government officials say it means, on a case-by-case basis.  The term “surface water” may include groundwater and “continuous flow” includes occasional flow.     These are all words which the Corps and EPA use to define waters subject to federal regulation.

Revolutionary era patriot and lawyer James Otis once said, “It is a clear truth that those who every day barter away other men’s liberty will soon care little for their own.”  We wonder what Otis would say about POTUS and WOTUS.

.Endangered Species Act — Utah prairie dog

We had six briefs, including a brief submitted by nine state governments, filed this week in the Tenth Circuit supporting our victory in People for the Ethical Treatment of Property Owners v. United States Fish & Wildlife Service.  This demonstrates the rather extraordinary interest and support we’ve received for our position that there are limits to federal jurisdiction: here there is no demonstrable commerce in this rodent that is found only in Utah. For a description of and links to these briefs, check out this blog post.

Endangered Species Act — Dunes sagebrush lizard

We filed this amicus brief in support of not listing the Dunes sagebrush lizard in Defenders of Wildlife v. Jewell.  The brief argues that voluntary state conservation programs are preferable to an ESA listing, both for the individuals affected and the species.

Property Rights — challenging an illegal tax

We received an adverse judgment in our Building Industry Association of the Bay Area v. San Ramon, our challenge to an illegal tax imposed on all undeveloped properties.  We’ll be appealing in the next 30 days.  See our blog post explaining the case here.

Argument scheduled in case of phantom frog habitat

Next week we’ll be arguing before the Fifth Circuit in the case of the Fish & Wildlife Service’s listing as critical habitat frog that doesn’t inhabit its habitat and isn’t likely to do so any time soon.  In Markle v. United States the Service listed our client’s property as critical habitat for the dusky gopher frog — despite the fact that the frog hasn’t been seen on the property for over a half-century and the property is now totally unsuitable for the frog.  Now the Service argues that if the owner stops using it for timber or agriculture, then the land might someday be suitable as habitat.  But that’s like saying if we remove buildings and cars from Manhattan, then Central Park could make for some great critical habitat for the Gray Wolf.  For more, see our blog post here.

Tort reform — no injury, no remedy.

PLF filed an amicus brief in Sadler v. Pacific Care, a case where plaintiffs are seeking class action relief for injuries they did not suffer.  As explained here in our blog, Pacific Care failed to ensure that proper procedures were followed in its injection practices, potentially exposing patients to disease.  While Pacific Care has offered to test the patients for potential illnesses, some plaintiffs have sued, seeking an expensive and burdensome and unnecessary medical monitoring program.  Oh, there would also happen to be very large fees for the plaintiffs’ lawyers.  We think that absent any discernible injuries, the plaintiffs should not be allowed to proceed.