President's weekly report — October 2, 2015

October 02, 2015 | By ROB RIVETT

Endangered species — Utah prairie dog

Oral argument was held this week in People for Ethical Treatment of Property Owners v. United States Fish & Wildlife Service, the case where we are challenging the right of the federal government to regulate the Utah prairie dog, a rodent that lives only in the State of Utah and which has no discernible impact on interstate commerce.  You can listen to the full argument here or read more about the case on our blog here.

Endangered species — strict liability?

On behalf of a consortium of New Mexico ranchers and landowners, PLF attorneys moved to intervene in WildEarth Guardians v. United States Department of Justice. Traditionally, to be guilty of a crime, one must have knowingly committed the crime.  For a number of years the Department of Justice has had the sensible policy not to prosecute folks who may have innocently taken an endangered species by accident.  WildEarth Guardians thinks otherwise, it wants everybody prosecuted — even if there is a credible innocent mistake defense.  We’ve intervened to protect the rights of citizens everywhere who might otherwise get caught up in a prosecution arising out innocently taking one of around 1500 species currently listed under the Endangered Species Act. This can be especially problematic when an endangered species resembles one that is not endangered. See our blog post for more.

Meaningful review of regulations in Florida

PLF attorneys filed this amicus brief in Halsnik v. Hillsborough County Public Transportation Commission in support of meaningful judicial review of the county’s restrictions on limousine businesses.  Here, the County forbids limo drivers to negotiate prices with their customers — even forbidding lower prices.  Under the Florida and federal constitutions, courts should give meaningful review to such anti-competitive regulations, and not just rubber-stamp them.  For more, see our blog here.

Coastal horrors — unrecorded easement upheld

A California Court of Appeal upheld the validity of an old easement that the Coastal Commission asserted against a landowner in exchange for a permit in the 1979.  In Kretowicz v. California Coastal Commission, the commission demanded an easement across a property in exchange for a permit — this was before the Supreme Court put an end to that practice in our 1987 Nollan case.  Although the easement was contested when first demanded, lay dormant for years and was never enforced or recorded, the court held it was still in effect despite the lack of public notice to the new owners of the property.  The court reasoned that purchasers could have gone down to the Coastal Commission headquarters and asked about it, or perhaps have learned about it by reading the towns local coastal plan.  In other words, a title search no longer suffices to determine what legal impediments exist on a parcel of property. We had filed this amicus brief.

Wetlands “Jurisdictional Determinations” in Hawkes and Kent Recycling

The Supreme Court has not yet ruled whether it will hear our Kent Recycling v. United States case, though it did just ask for briefing in response to the government’s request that it hear Hawkes v. United States instead of Kent Recycling.  At issue is whether landowners have a right to challenge a Jurisdictional Determination for a wetlands, without first spending a small fortune and several years pursuing a permit, or risking fines and jail time for proceeding without a permit.  In both of these cases, the landowners have good reasons to believe they have no jurisdictional wetlands on their property, yet they cannot get their day in court. For more, see our blog here.

Wetlands in Alaska — jurisdiction upheld

A federal district court in Alaska upheld in this opinion the Corp’s assertion of jurisdiction over a wetlands in Universal Welding Co. v. Corps of Engineers. While we know the Corps can regulate navigable waters, and wetlands that are adjacent to or affect navigable waters, this case involves an exception for those wetlands that are adjacent to other wetlands.  The exception is based on the assumption that such “adjacent to adjacent” wetlands are simply not connected in a way meaningful enough to affect interstate commerce.  The court, however, found the exception to be so narrow as to be meaningless — despite our prior victory on nearly identical facts in the Great Northwest case a few years ago.

Property rights — San Juan County land grab

PLF attorneys asked the Washington Supreme Court to take up Common Sense Alliance v. Growth Management Hearings Board.  Here, the County has imposed large blanket buffer zones on shoreline properties without any showing that the buffer zone is necessitated by actual necessity.  For more see our blog here.

Property Rights — adverse Washington State decision

The Washington Supreme Court issued this this adverse opinion in Citizens Alliance for Property Rights v. San Juan County where the county adopted a general plan without complying with the state’s Open Meetings Act. In a nutshell, the Court held that body doing the planning was not subject to the act.  Why?  Because the county used a subcommittee composed of half the city council plus staff to create the plan.  We had filed this amicus brief. For our thoughts on making public decisions behind closed doors, see our blog here.