President's weekly report — September 25, 2015
Supreme Court and wetlands determinations — again?
After we won Sackett on the question whether a landowner is entitled to judicial review of a wetlands ruling before facing ruinous penalties and permitting costs we had hoped the federal government would get the message. It hasn’t. So now we have two new petitions before the Supreme Court where the federal government is fighting landowners who are trying to get judicial review of wetlands determinations. In both of these cases, the landowners have some pretty strong arguments that there are no wetlands subject to federal control. In fact, in both cases the Corps of Engineers’ own review board disagreed with the assertion of jurisdiction — only to be ignored by the Corps bureaucracy. While the feds haven’t yet threatened the landowners with any immediate fines, it has told the landowners that they must spend hundreds of thousands of dollars for (likely unnecessary) permits or abandon use of the land. If the owners were to proceed without a permit, then they could be subject to massive fines and jail time.
In Kent Recycling v. United States, the 5th Circuit disagreed with us, finding there is no right to judicial review of a federal wetlands ruling. But the 8th Circuit in agreed with our arguments in Hawkes v. United States. In Hawkes, incidentally, one Corps official told an employee that “he should start looking for another job” because the permitting process would be so long and costly. We’ve asked the Court to take up Kent Recycling and the government has asked the Court to take up Hawkes. The Court is scheduled to look at these cases on September 28 and October 9, respectively. For more, see our blog here.
The Tenth Circuit to hear Utah Prairie Dog case
On September 28, the Tenth Circuit will hear PETPO v. United States Fish & Wildlife Service, our Utah Prairie Dog case. We will be arguing that the federal government has no jurisdiction over an animal that exists only in one state and has no impact on interstate commerce. Remember, the framers of the Constitution envisioned a federal government with limited jurisdiction — over only those things specifically spelled out in the Constitution. When the government asserts “Commerce Clause” jurisdiction over something that has absolutely nothing to do with commerce, then we have a different paradigm: a system where the federal government can regulate pretty much anything it wants. For more, see our blog here.
A federal district court issued an adverse decision in California Sea Urchin Commission v. United States. This is the case where we are trying to hold the federal government to a statute that requires the feds to stop sea otters from spreading out and harming a fishery. This was part of deal allowing the government to transplant otters from one spot off the California coast to a new site. In the wake of concerns from the local fishing industry, the feds agreed to confine the otters to the relocation site. But now the government is saying, “we didn’t mean it.” So much for government promises. Even if they are in a statute. For more, see our blog here.
We filed this complaint in Save Crystal River v. Jewell asking the federal government to downlist the Florida manatee. The population of the manatee has been steadily increasing, and there is no longer a scientific justification for the listing. But the federal government won’t do what it’s supposed to do unless we sue them. So we did. For more, see our blog post here.
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California Sea Urchin Commission v. Jacobson
A federal statute requires the U.S. Fish and Wildlife Service to exempt lawful fishing activities from the broad prohibitions against the incidental taking of sea otters. This compromise between the Service’s desire to establish a new sea otter population and the fishing industry reflects Congress’s recognition that introducing sea otters into Southern California waters could severely impair the health and sustainability of local fisheries, threatening the livelihood of those who depend on them. The Service ignored this Congressional balancing of interests and PLF sued on behalf of sea urchin and abalone divers, lobster trappers, and other fishermen whose livelihoods are threatened by Service’s unilateral termination of protection for lawful fishing activities.Read more
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