President's weekly roundup

July 20, 2012 | By ROB RIVETT


On Tuesday, PLF filed its lawsuit in Friends of Tahoe Forest Access v. United States Dep’t of Agriculture, which challenges the United States Forest Service’s decision to close over 800 miles of roads and trails to motorized recreation at the Tahoe National Forest.  The lawsuit raises several claims under the National Environmental Policy Act, a federal statute that requires that government agencies provide full and public disclosure of the impacts resulting from significant environmental decisions.    The problem in this case is that the Forest Service largely hid the impacts of road and trail closures from the public. Among other flaws, the Forest Service provided misleading information that suggested that motorized recreation would benefit through the addition of roads and trails to the Tahoe National Forest’s route system, when in fact motorized recreation was significantly curtailed by the Forest Service’s decision.  PLF’s lawsuit asks the district court for the Eastern District of California to redo its motorized route designation process so that our clients and all who have an interested in motorized recreation at the Tahoe National Forest have a fair shot in the regulatory process.

PLF’s lawsuit was announced by a press release, blog post, video, and other social media.  It has been well received by motorized recreation enthusiasts and others who understand the importance of public access to national forests.  Local papers have done a good job in describing this complex but significant case.

Also this week, the Ninth Circuit issued its decision in Natural Resources Defense Council v. Salazar, in which NRDC claimed that the renewal of Central Valley water delivery contracts should be subject to Endangered Species Act Section 7 consultation in order to protect the delta smelt.  PLF filed an amicus brief in support of Central Valley water users that argued that Section 7 consultation is not required for contract renewals, and on Tuesday the Ninth Circuit ruled in our favor.

Property Rights

In Town of Nag’s Head v. Toloczko, PLF filed the opening brief  in the Fourth Circuit Court of Appeals in support of Matthew and Lynn Toloczko.  In this case, the Town attempted to convert the Toloczkos’ residentially developed beachfront land into a public beach park and to remove their family cottage so the public can have the area for recreation. The Town formally declared the Toloczkos’ family beach cottage to be a nuisance because it suffered minor damage during a 2009 storm, and (more importantly) had come to be located on “public trust lands” — defined by the Town as any land seaward of the first line of vegetation.  The Town gave the Toloczkos 18 days to remove the cottage and begin imposing daily fines.  The trial court refused to rule on the Toloczkos’ claims because it would involve defining the scope of North Carolina’s “public trust,”  a task the court felt better suited to state courts.  PLF’s brief on appeal argues that federal courts cannot abdicate their legitimate role of determining whether a state has violated a property owner’s constitutional rights.

On Tuesday, the Florida Court of Appeal issued a per curiam affirmance of a trial court order dismissing a property owner’s claim of a regulatory taking in Friedman v. South Florida Water Management District.  As amicus PLF had argued that the Williamson County ripeness requirements do not apply to a taking claim based upon non-regulatory pre-condemnation activity that resulted in pre-condemnation “blight,” severely diminishing the property owner’s ability to use the property.