President's weekly report — November 8, 2013
Environment — Clean Water Act and Wetlands
We filed our opening brief in Hawkes v. U.S. Army Corps of Engineers. Here, the property owners have been told that they must obtain a Clean Water Act Section 404 permit before they can harvest and sell peat on their property. The Corps asserts that its jurisdictional determination (JD) demonstrates that the property is a water of the United States because it contains jurisdictional wetlands. However, the landowner disagrees because the property lacks a connection to a navigable waterway. The owner is trying to challenge the JD in court before spending potentially hundreds of thousands of dollars on the 404 permitting process. The trial court distinguished our victory in Sackett v. United States on the ground that a JD is not the same as the compliance order issued to the Sacketts. Yet, without judicial review, the effect will be about the same: spend hundreds of thousands of dollars on the permitting process or risk civil and criminal fines for violating the statute. We think there ought to be a better choice: the right to challenge the jurisdictional determination in the first place.
Pursuant to our settlement agreement in California Cattlemen’s Ass’n v. Jewell, the Fish & Wildlife Service published a proposed rule to delist the Inyo California Towhee on Monday. As noted in our blog, its unfortunate that we’ve been forced to sue the agency to do what its own data suggests it should have done years ago.
Free Enterprise Project — Class Action Tort Reform
We filed this this amicus brief in Sears Roebuck v. Butler and Whirlpool Corporation v. Glazer asking the supreme Court to grant certiorari. As described in more detail in our blog, in these cases plaintiffs are seeking to certify as a class all purchasers of front-loading washing machines manufactured by defendants. However, many members of the “class” have never experienced any mold problems or suffered any alleged injury. We’re arguing that even it is more “efficient” class action lawsuits shouldn’t be made up of individuals most of whom have never been injured.
Property Rights — Grazing & Water
The trial court issued this adverse opinion in Estate of Hage v. United States, the latest in the long-running litigation between the United States and the late Wayne Hage Sr. The plaintiffs are considering their options.
Property Rights – Koontz Article
PLF CPIL Christina Martin has completed her article on the Koontz decision: Nollan and Dolan and Koontz – Oh My! The Exactions Trilogy Requires Developers to Cover the Full Social Costs of Their Projects, But No More. You can read the abstract and download it on SSRN here or read it here.
Equality Under the Law Project
Be sure to listen to our podcast on the Township of Mt. Holly v. Mt. Holly Gardens Citizens in Action disparate impact lawsuit now before the Supreme Court.
What to read next
PLF asks the U.S. Supreme Court to rule that there is no “legislative exception” to the unconstitutional conditions doctrine
It seems that some governments and courts prefer to treat Supreme Court precedent as an option, rather than a requirement. The Supreme Court has ruled—twice—that it’s unconstitutional for government to … ›