August 27, 2016

Weekly litigation report — August 27, 2016

By James S. Burling Vice President for Litigation
  • Victory over the Coastal Commission
  • Unreasonable EPA denial of road permit
  • Property Rights in Washington State
  • Brief filed in Alaskan wetlands case
  • Court asks government to respond in frog case
  • California Supreme Court says no to miners

Victory over the Coastal Commission

We had this nice Statement of Decision from a California trial court in Capistrano Shores Property v. California Coastal Commission. In this case the owners of a run-down mobile home wanted to replace it with a newer and slightly smaller home. The Commission demanded that the owners first obtain a development permit. Next, the Commission held the permit hostage, refusing to grant it unless the owners agreed never to ask for permission in the future to repair or replace a seawall that protects not only their mobile home, but the homes of 89 other families in their mobile home park. The court found this condition to be illegal. Our blog post is here.

Unreasonable EPA denial of road permit

We filed this amicus brief in federal district court in Michigan supporting the Marquette County Road Commission in its case against the EPA as the commission seeks to build a much-needed road across the Upper Peninsula of Michigan. Although the commission had obtained all necessary state approvals the EPA’s vetoed those approvals with arbitrary and capricious objections. The commission had offered all sorts of minimization and mitigation for any affected wetlands but that was not good enough for the EPA which simply has caved to those interests that do not like roads anywhere. But by relieving a substantial amount of in-town traffic, this new road would reduce traffic congestion, reduce the time idling in traffic, and ensure greater safety for drivers and pedestrians alike. What’s not to like? We don’t like the EPA using its veto power in such an arbitrary and capricious fashion. For more, see our blog post here.

Property Rights in Washington State

We filed this friend of the court brief in Snohomish County  v. Washington State Department of Ecology with the Washington Supreme Court. The case questions whether the Department of Ecology can get around Washington’s rules of vesting — meaning the rules that allows landowners to proceed with a development plan based on the laws in place when the owner seeks permits. This prevents communities from adopting last-minute zoning and regulation changes to stop a developer who has already begun a project relying on existing rules. Here the Department is trying to impose new water quality rules well after a project has vested, allegedly because EPA told it to do so.

Brief filed in Alaskan wetlands case

We filed this opening brief in Universal Welding v. U.S. Army Corps of Engineers. This is another case where the Corps is saying that property is a wetland subject to federal jurisdiction when it’s not. At issue is whether the federal government can regulate wetlands that aren’t actually next to a navigable water, but are only next to other wetlands. For more see our blog post here.

Court asks government to respond in frog case

In an unusual development, the Fifth Circuit Court of Appeals asked the government to file a response to our petition for rehearing in Markle Interests v. U.S. Fish & Wildlife Service. This is the case where the Service designated Markle’s property as critical habitat for the dusky gopher frog despite the fact that the frog doesn’t live anywhere near the property and the property is currently completely unsuitable as frog habitat.

California Supreme Court says no to miners

The California Supreme Court issued this unfortunate decision this week in People v. Rinehart, a case involving the right of small miners to mine gold out of rivers in California using small suction dredges. Since the miner was on his federal mining claim, we think that while federal law allows states to regulate such activity, it does not allow states to ban mining outright. That is, after all, the only allowable use for an “unpatented” federal mining claim. (“Unpatented means that the federal government still owns the land because the mining claimant hasn’t yet “patented” the claim. In such a case, the claim owner only has the right to mine.) We had filed a friend of the court brief in support of the miners. The court ruled, however, that California’s ban on suction dredging is not preempted by federal law. Our blog post is here.

 

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