Weekly litigation report — February 17, 2018

• Good schools for all – regardless of race
• Florida court sides with NIMBYs and against property rights
• Indiana Supreme Court loses its way in public trust doctrine case
• Corps cannot treat permafrost as navigable waters
• EPA ignores PLF advice on CRA and WOTUS

Good schools for all – regardless of race

Representing seven families, PLF filed a complaint against the State of Connecticut to ensure that Black and Hispanic students have the same educational opportunities as all children in the State. The case involves the City of Hartford’s world-class magnet schools. These schools are so successful that demand outstrips the schools’ capacity, and a lottery is used to decide who can attend. But under the guise of reducing “racial and ethnic isolation,” Connecticut law imposes racial quotas on these schools—enrollment must be at least 25% White or Asian. As a result, Black and Hispanic students are denied admission if their attendance at a school would raise minority enrollment above 75%—even if that means empty seats remain unfilled. And so, rather than run at full capacity, Hartford’s magnet schools leave hundreds of seats empty so as not to violate the State’s arbitrary 25/75 ratio. PLF believes that this law runs afoul of the Fourteenth Amendment’s Equal Protection Clause. The lawsuit, Robinson v. Wentzell, which was filed in the United States District Court for the District of Connecticut, aims to vindicate the civil rights of PLF’s clients, who ask that Connecticut focus on their children’s education rather than the color of their skin.

Florida court sides with NIMBYs and against property rights

In P.I.E. v. DeSoto County, PLF represented a property owner who invested two million dollars in a land use plan to support his business that local government officials tacitly approved. But when neighbors got wind of the plan and complained, the government reversed course. The government killed the plan and thus killed his once-thriving business. When he went to the courts of Florida seeking justice, he found no relief. To read more about a property owner who deserved much more than the courts of Florida gave him, read our case page here.

Indiana Supreme Court loses its way in public trust doctrine case

 The states bordering the Great Lakes have long tried to wrest control of private beachfront property from the owners of the property in favor of “the public.” The government will invariably declare the private beachfront to be subject to a ‘public trust’ that enable anyone to use the property as they see fit. This week, the Indiana Supreme Court went one step further and declared what was long understood to be private property sometimes subject to the public trust to actually be the property of the state of Indiana. For more on this judicial taking of private property rights, read our blogpost here.

Corps cannot treat permafrost as navigable waters

Thursday, PLF filed an opening brief in the Ninth Circuit in Tin Cup, LLC v. Army Corps of Engineers. The case is brought by a small, family-owned pipe fabrication company that wishes to relocate to a new site for its expanding business. The company has not been able to start the relocation, however, because the Army Corps of Engineers has asserted jurisdiction over about 200 acres of permafrost on the land. The Corps says that the permafrost on the land is “navigable waters” within the meaning of the Clean Water Act. This determination is based on a document the Corps adopted in 2007 that applies only in Alaska and defines permafrost as wetlands.  As Tin Cup points out in its opening brief, the use of this document is unlawful.

EPA ignores PLF advice on CRA and WOTUS

This week Pacific Legal Foundation Senior Attorney Tony Francois was featured in E&E News (subscription required), for advice he sent to EPA last year encouraging the agency to use the Congressional Review Act to submit a 2008 guidance memo to Congress as part of its strategy to reform prior administrations’ profligate definitions of “navigable water” to include land features that are neither navigable nor even water. Submitting the 2008 Guidance Memo, paired with Congressional disapproval of it under the CRA, would prevent current and future administrations from adopting new regulations based on the illegally overbroad guidance, and give EPA a clear path to implement President Trump’s executive order calling for a narrower and more reasonable definition of water based more faithfully on the text of the Clean Water Act. Sadly, but perhaps predictably, EPA has not followed our advice. Read more at our blog.