President's weekly report — September 20, 2013

September 20, 2013 | By ROB RIVETT

Environment — Right to Judicial Review

Some things should be simple.  But when government is involved, they’re not.  We filed our notice of appeal in Hawkes v. United States.  Back when we were arguing the Sackett case, most folks thought it was a no-brainer: if the EPA tells a family that their home site is a wetlands and threatens them with an economic death sentence (i.e. fines of $75,000 per day) for using their land, then the family ought to have the right to challenge — in court — the assumption that the property is a wetland.  But not the EPA and the Department of Justice: they fought against the right of the Sacketts to have a court review the wetlands determination all the way to the Supreme Court — where the government was trounced 9-0.

Now fast forward to the Hawkes case.  Here, the landowners want to mine peat in Wisconsin.  The landowners fully recognize that there are wetlands on the property — they are, after all, peat bogs.  But there is no connection to any navigable waterway, and, hence, no connection to interstate commerce — a necessary prerequisite for federal control.  The Corps of Engineers  says otherwise — that there is some remote connection and the federal government has jurisdiction.  When the landowners sought judicial review, the Corps said, surprise surprise, “no.”  The difference between this case and the Sackett case, according to the Corps,  is that the landowners here aren’t actually subject to any fines yet — and won’t be unless they decide to use their own property.  Then they can have the book thrown at them and then they can challenge the jurisdiction, if they’re not already facing huge fines and jail time.  Or they can spend over $100,000 in studies and permit application costs, or they can go somewhere else and pound sand.  But they cannot challenge the Corps’ determination of jurisdiction.

As we explained last month, we think the Corps is somehow missing the 9-0 message of Sackett.  More fundamentally, the Corps doesn’t seem to grasp any notion of fundamental fairness. And in a decision last month, neither did a trial court.  So, we’re appealing.

Education Reform — Charter Schools

We filed this amicus brief this week in Bullis Charter School v. Los Altos School District.  Just because the local school district doesn’t like the competition from a charter school doesn’t mean that the district can ignore state law when it comes to allocating resources to the charter school.  In this case, as we explained last month, the district already lost that argument in court a couple of years ago.  But guess what?  That was then, and this is now.  Because that decision involved the district’s distribution of money a few years ago, the district claims it is free to violate the law this year unless they are sued all over again, starting from scratch.  If the school district likes to play such games one wonders how the district is teaching civics lessons.  Our amicus brief suggests that the court needs to put a stop to such procedural gamesmanship.

Property Rights — Unlawful Exactions

Be sure not to miss this week’s podcast on Hillcrest v. Pasco County, where the county is trying to ignore three Supreme Court rulings when it is demanding landowners to sacrifice “transportation easements” in exchange for permits.