November 10, 2018

Weekly litigation report: Navigable wetlands, water rights, and more

By James S. Burling Vice President for Litigation

PLF asks Supreme Court to take up wetlands enforcement case

This Wednesday we filed a cert. petition in the Supreme Court in Robertson v. United States. Joe Robertson is appealing his Clean Water Act conviction for digging water supply ponds to protect his property from forest fires. The Environmental Protection Agency (EPA) claimed that a foot-wide nameless channel where Robertson dug the ponds is a federally protected “navigable” stream. We should hear in January if the Supreme Court will take the case.

Supreme Court hears argument in Alaskan case where National Park Service exceeded its jurisdiction

This Monday the Supreme Court heard oral argument in Sturgeon v. Frost. In this case, an Alaska moose hunter used his personal hovercraft to travel upriver to his hunting grounds, and the National Park Service is trying to stop him from using the hovercraft where the river passes through a national preserve.

PLF filed this amicus brief in the case, arguing that the Park Service has no ownership interest in the rivers that would allow it to regulate hovercraft use. PLF Senior Attorney Tony Francois wrote about the case in The Hill, and spoke about the oral argument in this Federalist Society podcast.

Amicus letter filed urging California Supreme Court to clarify public trust obligations

We filed this amicus letter asking the Supreme Court of California to take up Environmental Law Foundation v. State Water Resources Control Board.

The California Court of Appeal held that any activity that might have a deleterious impact on a public trust resource requires consideration of public trust interests before a county can approve the activity. However, all sorts of human activities might plausibly affect a public trust resource, and the court’s decision offers virtually no guidance on when public trust requirements are triggered and how to implement them.

Without a limiting principle, the decision will create significant uncertainty for dozens of California counties and will likely lead to a flood of litigation in California’s already-overloaded court system. That’s why we’ve asked the California Supreme Court to take a closer look. For more, see our blog post here.

PLF attorney on wetlands panel

Recently, PLF Senior Attorney Tony Francois moderated a panel at the American Agricultural Lawyers Association’s annual meeting in Portland, Oregon, on the ongoing confusion over EPA regulation of wetlands and ditches under the Clean Water Act, and the status of the multiple lawsuits challenging those regulations. This blog post provides a summary of the state of play, along with a helpful status map.

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Robertson v. United States

The Environmental Protection Agency and the U.S. Army Corps of Engineers prosecuted Joe Robertson for allegedly polluting waters of the United States as a result of a series of ponds he built on land above the small town of Basin, Montana. The prosecution turned on a definition of “waters of the United States” that included land 40 miles away from the nearest navigable river. A jury agreed with this definition, finding the ponds had a “significant nexus” to the river, and convicted Robertson. PLF has asked the U.S. Supreme Court to overturn Robertson’s conviction.

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