August 13, 2016

Weekly litigation report — August 13, 2016

By James S. Burling Vice President for Litigation

Wetlands by proxy

We filed this petition for cert in Foster v. Vilsack where we are asking the Supreme Court to take the Arlen and Cindy Foster’s case. At issues is whether the Department of Agriculture can impose a “wetlands by proxy” determination on the Foster’s farm. Because the Fosters have plowed their land, the Department claims it cannot determine whether it was once a wetlands so it insists it can use a pre-selected wetlands site 30 miles from the family’s farm as a fair comparison to make that determination. But by that method, every farm would be a wetland. 30 miles might be “close enough for government work” but not for the Constitution. For more, see our blog post here and listen to our podcast here.

States support critical habitat rehearing

Fifteen states filed this friend of the court brief with the Fifth Circuit urging it to rehear our Markle Interests v. U.S. Fish & Wildlife Service case — where the Fish & Wildlife Service imposed a critical habitat designation over our client’s property despite the fact that the land hasn’t seen a frog in over a half-century, the land is today totally unsuitable as frog habitat, and the landowner has no plans to make it suitable as frog habitat. For more, see our blog post here.

Tort reform — liability for third party actions?

We filed this amicus brief in Queens Village Committee for Mental Health for Jamaica Community Adolescent Program v. Oddo before New York’s highest appellate court. This case raises the question whether a halfway house can be held liable for the criminal acts of an evicted resident. For more see our blog post here.

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