Weekly litigation update — April 1, 2017

April 01, 2017 | By JAMES BURLING
  • Good decision in Florida takings lawsuit
  • Petition to delist the Preble’s Meadow Jumping Mouse
  • Victory in Manatee downlisting
  • 10th Circuit rules against communities in Prairie Dog challenge
  • Loss in California environmental review case
  • Corps and EPA stage coup, breathing permits will be easy to get for most

Good win in Florida takings lawsuit

We received this court order in our challenge to Walton County’s ordinance declaring public “customary” ownership in a large portion of all privately owned beaches in this Florida County. In Goodwin v. Watlton County, Florida, the County first prohibited home owners from erecting signs that discouraged the public from trespassing onto the private lots of the home owners. Next the county passed an edict declaring that all beach front home lots were subject to “customary” public use, with the public given full right to use the private beaches. We sued and the county moved to dismiss. On Friday,the federal district court ruled against the County. First, the court found that the Goodwins had properly filed a ripe facial takings claim alleging a physical invasion of their private property as well as that of other homeowners. The court held that because the Goodwins were not asking for money, the case belonged in federal court. Moreover the court found that the Williamson County doctrine did not prevent the Goodwins from pursuing the relief they sought in federal court. Finally, while the court declined to issue an immediate injunction because the Goodwins had not suffered an irreparable harm but then noted that they might be entitled to compensation later. The Goodwins will now have an opportunity to prove that their property has actually been taken and get an order striking down the ordinance.

Petition to delist the Preble’s Meadow Jumping Mouse

We filed this petition to delist the Preble’s  Meadow Jumping Mouse. We’re basing this petition on the latest science which shows conclusively that the mouse is identical to other jumping mice found throughout the West, and does not deserve to be characterized as endangered. This is important because of the severe restrictions the mouse listing has imposed on ranchers, farmers, and home builders in Wyoming and Colorado. For more, see our blog post here.

Victory in Manatee downlisting

After many years of lawsuits and delays, the United States Fish & Wildlife Service has finally done what it’s own scientists said should be done years ago: change the designation of the Manatee from Endangered to Threatened. Rather than embrace this positive development, the agency has been dragging its feet for years and activists have opposed this commonsense recognition that Manatee populations are improving. We eventually brought suit in Save Crystal River v. United States Fish & Wildlife Service and won. We hope this small step will make life easier for people who live and work near Manatee habitat, and allow the government to refocus its priorities to species that are more in need of help. Our blog post is here.

10th Circuit rules against communities in Prairie Dog challenge

After an 18-month delay, the 10th Circuit Court of Appeals issued this decision reversing our trial court victory in People for Ethical Treatment of Animals v. United States Fish & Wildlife Service. We had argued that because the Prairie Dog lives only in Utah and has no impact whatsoever on commerce, the federal government cannot impose regulations pertaining to the purely intrastate species. The court, however, found that because the Endangered Species Act is part of a national scheme to protect species, there is adequate justification for federal control under the Commerce Clause. We disagree because there is simply no economic activity associated with this animal. And economic activity of some sort has been an essential factor found in all of the cases where the Supreme Courts has found Commerce Clause jurisdiction to date. We are considering our options, which may well include a petition to the Supreme Court. For more, see out blog post here.

This beautiful oil field has been saved once again from housing, open space restoration and park development

Loss in California environmental review case

The California Supreme Court issued this decision in Banning Ranch Conservancy v. City of Newport Beach. This case arises out of Orange County where there is a severe shortage of affordable housing. So when a developer proposed to build — consistent with the general plan — over a 1000 units of new housing in largely undeveloped area — partly on an old oilfield facility — the reaction was swift and unsurprising:  Not in My Backyard! Well, in this case the backyard was claimed to be habitat for the allegedly endangered gnatcatcher and the 600 pages of environmental review documents supposedly didn’t properly identify all of the habitat in just the right way. Elevating form over substance, the court condemned the developer to many more years of delay. We had filed this amicus brief supporting the housing and the adequacy of the environmental review. For more, see our blog post here.

Corps and EPA stage coup, breathing permits will be easy to get for most.

In a stunning announcement, early this morning the staffs of the Army Corps of Engineers and the Environmental Protection Agency announced a coup d’etat and retook jurisdiction of all the Waters and Airs of the United States. At a joint press conference, Army Colonel  W. Otis thundered, “We had’ em before, and we figured we’d get ’em back eventually, but we saw no point in just chilling for at least four more years. So we took ’em back this morning.” Acting EPA Undertheweather Secretary Loof Lirpa declared that steps would be taken immediately to combat one or more of the looming global catastrophes, and that all persons henceforth will be required to obtain breathing permits. “If we don’t limit all human emissions of carbon dioxide immediately, something very bad will happen. Believe me, it will be very bad. So everyone will be required to obtain a breathing permit.” When asked how difficult it would be to obtain permits, Ms. Lirpa reassured the press, “Not to worry. Most people we like will get a permit without a hitch.”