July 29, 2017

Weekly litigation report — July 29, 2017

By James S. Burling Vice President for Litigation

Did the government err in going after John Duarte?

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Can you spot the mini-mountains here? Hint: they’re in the foreground, not off in the distance.

In Duarte Nursery v. Army Corps of Engineers, we filed a motion to dismiss the Army Corps’ Clean Water Act counterclaim against Duarte Nursery and its president, John Duarte, for lack of federal court subject matter jurisdiction. This is the case where the government is accusing a farmer of creating “mini-mountains” out of wetlands when he used a plow to plant wheat — despite the farming exception to the Clean Water Act’s permitting requirements. The government relies, for federal court jurisdiction, on a federal statute that only applies to claims brought by or on behalf of the EPA Administrator. But the Corps never even referred this case to the EPA, and the current Administrator takes a decidedly dim view of it. Since the court lacks jurisdiction over Army Corps claims like this (alleged unpermitted discharges into navigable waters), the case must be dismissed.

Short term rentals in Music City

This week we filed another amicus brief in Anderson v. Metropolitan Gov. of Nashville and Davidson Cty. If you’ll recall, Nashville enacted a restrictive cap on non-owner-occupied short-term rentals that limits available permits to 3% of the properties in a given census tract. With the help of our friends at the Beacon Center, the Anderson family challenged this restriction when they discovered that all of the permits in their neighborhood were taken, preventing them from renting out their home on Airbnb. The trial court struck down the cap last year, and the government has now appealed to the Tennessee Court of Appeals. Our brief clarifies the application of the rational basis test, and shows the court that it is a meaningful standard of review that provides a check on government overreach. For more, see our blog post.

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