President's weekly roundup

August 06, 2012 | By ROB RIVETT

Rob Rivett here, a day late.  Sometimes the President’s duties at PLF make blogging a bit difficult, but I will continue to try to get you updates on the happenings at PLF each week.  Without further ado, this is what our attorneys were doing last week.

Property Rights —  Destruction of a Fundamental Attribute of Property

In Lemire v. Washington Department of Ecology, the Washington Supreme Court agreed to take the case of Joseph Lemire, a rancher who was ordered by Washington’s Department of Ecology to fence off a portion of his property to keep livestock from accessing a creek.   As our amicus brief in in support of review pointed out, a restriction that destroys a “fundamental attribute” of property – here the right to access and use water – it constitutes a per se taking.  As our blog points out, there is a lot of confusion in Washington State over what constitutes a taking, and the Court’s grant of review may help clarify matters.

Property Rights – 21 Year Old Takings Case Premature 

The Estate of Wayne and Jean Hage suffered a setback when the Federal Circuit reversed a favorable decision by the Court of Federal Claims in which Judge Loren Smith found the United States liable for a takings after the government confiscated the rancher’s cattle, fenced off his water supplies, allowed third parties to access his property, and attempted to make his life miserable.  All this occurred after Hage published Storm Over Rangelands, a book that was highly critical of the Forest Service.  The unfortunate details of the Federal Circuit’s decision are described in more length in our blog here.  Our most recent amicus brief in this saga can be found here.  The heirs are considering their next moves.

Environment – Free the Orca from the Endangered Species Act

Pacific Legal Foundation filed this petition to remove the Pacific Northwest Orca from the list of endangered species.  Although the Orca is common throughout the world, the National Oceanic & Atmospheric Administration, Fisheries, listed the Pacific Northwest Orcas as an endangered  “distinct population of a subspecies,” a category that is not found in the Endangered Species Act.  Indeed, by splitting and resplitting the Orca into ever smaller components the federal government seems to be listing some species, such as a the Orca, by the smallest geographical units possible.  But since that’s not what the ESA calls for, it is unjustified.  It is especially unjustified because of the impacts this listing may have on agricultural water supplies – where farmers have already suffered water cutbacks because of the ESA.  Here, on the theory that fish such as the Delta Smelt help feed bigger fish which in turn are eaten by the Orca, farmers face further cutbacks from actions taken to protect this subpopulation of Orcas.  More information and links to the petition can be found here in our press release.

Environment – Latest in Same Old Sackett Saga

Some of you may remember that soon after the Sackett decision was released, the EPA tried its best to prove that it’s aura of arrogance was unbowed by its 9-0 shellacking at the Supreme Court.  In particular, and as described here by the Idaho Statesman, Mark Pollins of EPA’s water enforcement division gave a speech suggesting that for EPA is incapable of learning from its mistakes: “What’s available after Sackett? Pretty much everything that was available before Sackett.  Internally, it’s same old, same old.”  This led to some pointed questions posed to EPA Administrator Lisa Jackson by a group of 16 United States Senators.  Today, we saw EPA’s response.  Needless to say, someone in the public relations department interceded to make sure the response was a bit more humble.  Rather than the “same old, same old” we now read that “The EPA will, of course, fully comply with the Supreme Court’s decision” and even the “same old, same old” remark “does not accurately represent the overall message … or the agency’s position that the Sackett decision does significantly change the law.”  Here’s hoping that this represents the first sign of a new, improved, and more humble EPA.  But, just in case it’s not, PLF is ready, willing, and able to bring EPA back to court.  Stay tuned.