President's weekly roundup

August 24, 2012 | By ROB RIVETT

Property Rights – Unlawful Exactions

In Powell vs. County of Humboldt the trial court denied the Powells’ motion for summary judgment and granted the County’s motion for summary judgment.  This is the case, described here, where we are arguing that the county cannot demand that the Powells grant an avigation easement in exchange to repair a porch on their mobile home – repairs that the county is demanding.  The Court determined that (1) the Powells’ needed to first prove a physical taking in order to prevail on a Nollan/Dolan claim, and (2) Nollan/Dolan do not apply to legislatively imposed exactions, apparently even when the exaction takes an interest in real property.  We are discussing an appeal with the clients.

Environment – Endangered Species Act

The Ninth Circuit dismissed one of several ongoing appeals in the Delta Smelt litigation,  San Luis & Delta-Mendota Water Authority v. Salazar.  This appeal was filed by the environmentalists over the trial court’s injunction limiting enforcement of a biological opinion.  The appeal became moot as the injunction is no longer in effect.  Other appeals remain pending and will be heard on September 10.  For a link to the opinion, see our blog here.

Environment – Clean Water Act & Wetlands

With local counsel we are filing our amicus brief in Belle v. United States Corps of Engineers today.  This is the first case to consider the judicial reviewability of Jurisdictional Determinations (JDs) since the Sackett decision.  We argue that the JD in Belle is more of an adjudicative decision than the Administrative Compliance Order in Sackett, and therefore final agency action, and that the logic of Sackett should apply to the JD in Belle.

Individual Rights – Commerce Clause

The Ninth Circuit set oral argument in Montana Shooting Sports Association v. Holder for October 9, 2012.  This is the case, described here, where state residents are challenging federal regulation under the Commerce Clause of guns that are produced, sold, and retained solely within the State of Montana.