President’s weekly report — November 7, 2014

Property Rights — Coastal Land Rights Victory

We received a mixed, but largely favorable opinion from the federal trial court in Sansotta v. Town of Nag’s Head. This is the case where the town refused to allow beachfront homeowners to protect their homes during a storm, and then declared their homes to be nuisances because they were on the “public trust,” and then refused to issue repair permits. (We had previously won on Williamson County in the fourth circuit). On cross motions for summary judgment, we won an important victory on the Town’s claim against our clients for civil penalties accruing daily due to the cottages’ location on the dry sand beach. The court said the Town may not enforce or collect such a penalty. We also won declaratory relief on the question of whether the Town had authority in the first place to enact a law declaring the cottages a nuisance merely because of their location. The court said it does not. The court rejected our per se physical takings claim, but said a jury would need to decide our temporary regulatory takings claim.

Endangered Species Act and the Commerce Clause

We had this huge win this week in People for the Ethical Treatment of Property Owners v. United States Fish & Wildlife Service.  The federal district court held that the government has no power under the Commerce Clause to regulate the Utah Prairie Dog, a rodent that exists, 40,000 strong, only in Utah.  Because the “take” of the plague-carrying rodent has no discernible impact on interstate commerce, Congress has no authority to regulate it either under the Commerce Clause or the Necessary and Proper Clause of the United States Constitution.  This is a very big win for common sense, not only because of the spectacular harm the rodent is causing to the people of Utah, but because a number of courts previously ruled that Congress could regulate the take of purely intrastate species under the Commerce Clause (including in our case challenging Delta Smelt related water cutbacks in the Ninth Circuit.)  The court here discussed and dismissed the reasoning in those cases, correctly holding that there must be a logical stopping point to the ability of Congress to regulate activities when their impacts on commerce are too attenuated.  The next stop is likely the Tenth Circuit and then, perhaps, the United States Supreme Court. For more, see our blog post.

Endangered Species Act — Sea Otters

We filed this this complaint complaint in California Sea Urchin Commission v. Bean, our challenge to the United States Fish & Wildlife Service’s refusal to obey the requirement that it control the spread of sea otters into the habitat of sea urchins.  As cute as they may be, sea otters can have a devastating impact on sea urchin populations, and could wipe out a valuable commercial fisheries if these otters are not removed from sea urchin habitat.  When the federal government transplanted otters from the North into Southern California, it did so under the proviso that it would not allow the otters to spread beyond the relocation zone.  Now that it has reneged on its agreement, we’re suing.

Equality under the law project

We filed this reply brief in Lippman v. City of Oakland, our challenge to Oakland’s runaway scheme of citing properties for code violations without giving the owners a chance to defend themselves before a neutral arbitrator — as required by state law.

Courts set oral argument dates in PLF cases

The 8th Circuit set oral argument for December 11, 2014, in Hawkes Co., v. United States Army Corps of Engineers.  We previously filed this reply brief in this case, where a peat farmer is trying to establish that his property is not subject to the jurisdiction of the Corps because it is not connected to a navigable waterway. The owner is trying to challenge the Corps’ Jurisdictional Determination in court before spending potentially hundreds of thousands of dollars on the 404 permitting process.

The D.C. Circuit set oral argument in Shea v. Kerry, our challenge to discriminatory promotion practices at the Department of State, for January 20, 2015.