President's weekly report — October 9, 2015

October 09, 2015 | By ROB RIVETT

WOTUS rule stayed!

The 6th Circuit Court of Appeals stayed EPA’s infamous Waters of the United States rule today.  While the court still has yet to decide whether it actually has jurisdiction over the challenges brought to the rule (as opposed to the challenges starting in various federal district courts around the nation where separate lawsuits have been brought) the court thought the WOTUS rule should be put on ice for the time being for several reasons.  First, noting the procedural irregularities surrounding the adoption of the rule — such as the failure to allow for adequate notice and comment — the court found that the challengers had a good chance to win on the merits. Moreover, the court thought that the rule’s consistency with the Rapanos decision is questionable and that the rule’s impact on the states’ land-use authority is likely inconsistent with the language of the Clean Water Act. Finally, the court considered the potential harm of enforcing the far-reaching rule and concluded, “the sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being.”  You can see our blog post on the rule here and more information about PLF’s pending challenge to the rule here.

Judicial review of wetlands jurisdictional delineations and the Supreme Court

We have two cases where the Court has been asked to take up the issue of whether a landowner can go to court to challenge a wetlands jurisdictional determination by the Corps of Engineers.  It’s a Hobson’s choice:  either the landowner can spend years and hundreds of thousands of dollars on a permit that might not be necessary, or the property owner can go ahead and use the property while risking fines and jail time. While the Supreme Court had an internal conference on our petition for cert in Kent Recycling on September 28, it has not granted cert.  Nor was Kent among the 74 pages of cert denials this Monday. We suspect the Court has put the case on hold, pending its decision over what to do with Hawkes, the case where we won on the same issue in the 8th Circuit.  There, the government has petitioned for cert and the Court just asked Hawkes to reply by October 28th.  For more, see our blog here.

Property rights — land use denial by stalling

Yesterday, PLF filed a friend-of-the-court brief in the Second District Court of Appeal in GolfRock, LLC v. Lee County.  This case demonstrates what happens when courts fail to recognize that a  property rights claim is “ripe” (i.e., adequately developed for the court to determine the merits of the claim).  This is another one of those cases, where the government stalls and stalls on a land use application, only to change the rules before approving (or denying) the application.  For more, see our blog here.

Property rights not for the dogs in East Providence

We had oral argument in our Perfect Puppy v. City of East Providence case this week.  This is the case where a well-managed pet store was closed down shortly after it opened because the town passed a new ordinance that banned all pet shop puppy sales.  The owners sued in state court and the town moved the case into federal court.  Where it promptly argued that the case should be dismissed in federal court because it belonged in Federal Court.  We should have a decision within a month or so.

Property rights and federal court review

We also had oral argument on Friday in Arrigoni Enterprises, LLC v. Durham Planning and Zoning Commissiona case where a Connecticut town prohibited all development of a parcel — while it permitted nearly identical development on neighboring parcels.  This is yet another case where a local government is trying to avoid judicial review of its actions by claiming the case belongs in state court — even after the state courts already provided no relief to the landowner.

Property rights — Denial of use of parcel

We filed this  this appellate amicus brief in Kinderace v. City of Sammamish before the Washington Court of Appeals.  At issue is whether the complete denial of the use of a buildable parcel results in a taking.  After a boundary line adjustment created a new parcel, the city imposed various buffers and setbacks — making it impossible to build on the parcel.  As our brief argues, this is a clear regulatory takings for which compensation is due.