Weekly litigation report — April 5, 2019

Adverse decision in Sackett v. EPA
The Idaho federal district court issued its long awaited decision in the Sacketts’ twelve year-long (so far) lawsuit challenging the EPA’s authority over their home site near Priest Lake, Idaho, under the Clean Water Act. The court ruled in favor of the EPA, in an opinion which we think is erroneous on several grounds. We will be filing an appeal with the Ninth Circuit by early June.

Bureaucrats should determine whether permafrost is a navigable water
This week, PLF filed its final brief asking the Supreme Court to hear Tin Cup, LLC v. Army Corps of Engineers. In 1992, Congress directed the Army Corps of Engineers to follow specific procedures when determining what is a wetland under the Clean Water Act. For decades, the agency followed that requirement. Yet when Tin Cup, a family-owned pipe fabrication business, sought to expand its operations, the Corps reversed its position, and argued it did not need to follow Congress’ command. Tin Cup has asked the Supreme Court to take the case so that Congress retains control over the limits of the Clean Water Act. The Court will decide whether to take the case later this month.

Seattle asks Washington’s High Court to move the Constitution out of the City’s way … again
The City of Seattle is having a problem with the Constitution. It just keeps getting in the way. That pesky right to privacy torpedoed the City’s plan to have garbage collectors snoop through your trash cans. Due process sunk the City’s demand that landlords accept the first person to apply for an apartment. The uniformity clause (which requires equal taxation) sunk its plan to adopt a so-called wealth tax. Is there a common thread running through these cases? Why, yes. There is. In each case, the City knowingly adopted a law that violates the constitution in the hope that Washington’s Supreme Court would do away with the constitution to allow more progressive lawmaking. Now, the City is asking the High Court to remove property from its place among those fundamental rights protected by the constitution in order to uphold a City law prohibiting landlords from checking rental applicants’ criminal histories and restricting access to sex offender registries. Earlier this week, PLF filed its brief in the case, Yim v. City of Seattle, arguing for property rights to remain protected under the state and federal constitutions.