May 31, 2013

President’s weekly report — May 31, 2013

By President’s weekly report — May 31, 2013

This week is the calm before the storm of filings next week (and who knows what decisions!).

Environmental Law – Judicial Review

On Wednesday, PLF filed an amicus brief in the District Court of Minnesota in Hawkes Co., Inc. v. United States Army Corp of Engineers. This is only the second court to address judicial review of a wetlands delineation in a jurisdictional determination since our victory in Sackett v. EPA. The brief explains that an adjudicative decision that applies the law to the specific facts of a case, and is legally binding on the agency and landowner, is a final agency action that the landowner may challenge in court.

Environmental Law – ESA

Today, PLF sued the Department of Interior for failure to respond to PLF’s petition to reclassify five species under the Endangered Species Act. Representing the New Mexico Cattle Growers’ Association, Arizona rancher Jim Chilton, the New Mexico Farm & Livestock Bureau, New Mexico Federal Lands Council, and Texas Farm Bureau, the complaint in New Mexico Cattle Growers’ Assn. v. Jewell was filed in the District of New Mexico. The government’s own scientists issued studies concluding that the five species should either be removed from the endanged list, or reclassified, but it has failed to act. As a result, farmers and ranchers are subject to onerous restrictions on land use to “protect” species that are in no need of special protection. Daniel Himebaugh provides all the background information here.

Property Rights – Water Rights

PLF has long supported Nevada rancher E. Wayne Hage in his decades-long battle with the U.S. Forest Service and Bureau of Land Management. Most recently, PLF filed an amicus brief supporting Hage’s petition for writ of certiorari arguing that the federal government took his water rights by intefering with his ability to access certain streams in which his water flowed. In a related skirmish between Hage and the government, a Nevada district court issued a 104-page ruling castigating the federal government for its “vindictive,” “shocking,” and “nonsensical” actions against the Hage family, their ranch, and their water rights. The court found that certain government officials had “entered into a literal, intentional conspiracy to deprive the Hages not only of their [cattle grazing] permits but also of their vested water rights.” Brian Hodges provides the details on the Liberty Blog.

Property Rights – Shoreline Protection

After a severe storm destroyed numerous homes on Plum Island in Massachusetts, owners sought permits to rebuild. The local authorities approved the permits, but the Massachusetts Department for Environmental Protection (DEP) intervened. DEP imposed two conditions on permits to rebuild: One condition required waiver of the right to ever build a seawall or other device to protect the new homes from shoreline erosion and, ultimately, destruction. The second effectively required waiver of the right to pursue any remedy against the State in the event of any damage or destruction of the new home. At the request of concerned Plum Island residents, PLF submitted a letter explaining why the conditions were unconstitutional (under Nollan v. California Coastal Commission) and should be stricken. The next day, DEP rescinded the conditions–reportedly because of PLF’s letter.

learn more about

U.S. Army Corps of Engineers v. Hawkes

Hawkes Company is a family-owned business in Minnesota that harvests peat moss, for landscaping. The U.S. Army Corps of Engineers improperly claimed jurisdiction over the property as regulated wetlands. This put Hawkes in the untenable position of (1) abandoning all use of the land at great loss; (2) spending several hundred thousand dollars to seek an unnecessary federal permit; or (3) using the land without federal approval at the risk of $37,500-a-day fines and criminal prosecution. When Hawkes challenged the Corps in court, lower courts dismissed the case as unripe for review. But the Supreme Court disagreed, holding that a Jurisdictional Determination is a binding legal decision subject to immediate judicial challenge.

Read more

What to read next