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Weekly litigation update — August 12, 2017

By James S. Burling Vice President for Litigation
  • Wheat farming goes on trial Tuesday
  • EPA defends its actions in response brief filed with Sixth Circuit
  • Critical habitat for frogs and a toad challenged
  • Amicus brief filed in Indian “reserved” groundwater dispute
  • Petition for rehearing denied in Utah prairie dog case
  • Pennsylvania school boards may flout the law
  • Siskiyou County appeal on public trust doctrine and groundwater use
  • California Supreme Court denies rehearing in our seawall challenge
  • Procedural win in challenge to state’s failure to review its species listings

Wheat farming goes on trial Tuesday

Image result for sacramento federal courthouse
On Tuesday John Duarte goes to trial in this Sacramento federal courthouse for the offense of wheat farming 

Duarte Nursery v. Army Corps of Engineers goes to a penalty trial starting this coming Tuesday in federal court in Sacramento, on the Army Corps’ demand for tens of millions in penalties and mitigation payments from the company for plowing its property to plant a winter wheat crop with the agency’s permission. Today’s blog post has a handy summary of what PLF and the rest of the Duarte litigation team will prove at trial, in asking the judge to impose only a nominal penalty. The post also includes a link to this excellent article that appeared today on the Daily Caller’s website.

EPA defends its actions in response brief filed with Sixth Circuit

This week the EPA, along with the other defendants in our Marquette County Road Commission v. EPA case, filed its brief responding to our arguments in favor of immediate court review of the EPA’s veto of the 404 permit the State of Michigan planned to issue to our client.That permit would have allowed the Road Commission to build the important road project it had planned for the Upper Peninsula of Michigan, but the EPA veto prevented the project from going forward. For more on the case, see our blog post here.

Critical habitat for California frogs and a toad challenged

We filed this complaint in California Cattlemen’s Association v. U.S. Fish & Wildlife Service. Last year, the U.S. Fish and Wildlife Service designated over 1.8 million acres in 16 California counties as “critical habitat” for two frogs and a toad. But the agency failed to comply with the Regulatory Flexibility Act (RFA) that protects small businesses from excessive governmental regulation.  The RFA requires federal agencies to analyze the impacts of their regulations on small businesses and adopt alternatives that would lessen the regulatory burdens. The Service claims it’s exempt from the RFA because a “critical habitat” designation only burdens other federal agencies and not small businesses. This is incorrect, both factually and legally. The designation of “critical habitat” is not a benign exercise of federal authority. It is an intrusive regulatory regime that places disproportionate physical and administrative burdens on small entities, particularly private landowners. The designation of “critical habitat” is the very type of agency rule-making the RFA was designed to address. PLF has sued the Service on behalf of ranchers and farmers who risk losing their livelihood due to unnecessary restrictions on grazing in the “critical habitat” area. Some of these areas could have been excluded from the designation without harming the species. A favorable decision in this case would allow thousands of landowners, small businesses, and municipal jurisdictions, to challenge needlessly onerous regulations nationwide. Our blog post is here.

Amicus brief filed in Indian “reserved” groundwater dispute

PLF submitted an amicus brief in the United State Supreme Court in support of two cert petitions filed by Southern California water districts in Coachella Valley Water District v. Agua Caliente Band of Cahuilla Indians. The petitions seek review of a Ninth Circuit decision holding, as a matter of first impression in the federal courts, that federal reserved water rights can apply to groundwater. In reaching that result, the Ninth Circuit gave no attention to whether inferring the existence of such a reserved right might result in a taking of non-federal groundwater rights, in violation of the Fifth Amendment. Our amicus brief discusses the plausibility of that odious outcome and highlights how the lower court’s failure to address its decision’s property-infringing impacts merits the high court’s corrective review.

Petition for rehearing denied in Utah prairie dog case

On Tuesday, the Tenth Circuit denied our petition to have the entire court hear People for the Ethical Treatment of Property Owners constitutional challenge to the Endangered Species Act. This was the last obstacle in the case’s path to the Supreme Court. Since we won the case in the trial court in 2014, the state has worked with property owners to protect the prairie dog, principally by moving them from developed areas, like backyards, playgrounds, and airports, and relocating them to publicly owned conservation areas. The state plan has proved a success; population surveys the last two years have reported the largest numbers since surveys began in 1976. The Tenth Circuit’s decision threatens to criminalize this successful state program so, next week, we’ll be asking the court to stay the decision while we seek Supreme Court review.

Pennsylvania school boards may flout the law

The Pennsylvania Supreme Court issued an unfortunate decision this week in Discovery Charter School v. School District of Philadelphia.  Discovery Charter is a successful school with a substantial waiting list of students eager to enroll. In 2012, Discovery sought to amend its charter with the school district to expand its enrollment, but the district failed to act on the request. As a result, Discovery sought review with the state Charter School Appeal Board, and ultimately the Pennsylvania appellate courts. Unfortunately, this week the PA Supreme Court held that Pennsylvania’s charter school law does not provide a mechanism for amending material terms of a charter, and that a school district’s refusal to act on an amendment request is not appealable. As a result, school districts will be able to thwart charter school expansion in Pennsylvania with pocket vetoes by deliberately refusing to act on charter amendments in the future. Our amicus brief reminded the court of the likelihood of that result due to the routine hostility with which districts treat charter schools, but in the end, the court punted to the state legislature for a solution. You can read more in our blog post.

Siskiyou County appeal on public trust doctrine and groundwater use

This Wednesday, we filed a friend of the court brief in the California 3rd District Court of Appeal for the case of Environmental Law Foundation v. State Water Resources Control Board. We filed on behalf of ourselves and the California Farm Bureau Federation, and we argued that the court ignored history, California precedent, and legislative intent when it held that agencies needed to consider effects on navigable waters when issuing well permits. We also argued that the sudden expansion of the public trust doctrine could frustrate long-settled expectations of groundwater rights in California, and raised serious constitutional questions. After all, courts—just like legislatures—can be liable for a taking under the Fifth Amendment or a deprivation of property without due process under the Fourteenth Amendment. Read more at the Liberty Blog.

California Supreme Court denies rehearing in our seawall challenge

Wednesday, the California Supreme Court denied our petition for rehearing in Lynch v. California Coastal Commission. The adverse decision was handed down July 6, and turned on the concept of “equitable forfeiture,” an issue that was not raised or discussed by either party throughout the entire course of litigation. In our petition, we asked the court for clarification on the scope of the opinion and for an opportunity to brief the issue of forfeiture. This denial of rehearing not only ends this case, it means that permittees across California will have a tough choice to make: accept unconstitutional conditions on permits, or wait years to build while those conditions are litigated through the courts.

Procedural win in challenge to state’s failure to review its species listings

PLF prevailed on a minor, but important, motion in California Cattlemen’s Association v. California Department of Fish and Wildlife. That’s the case where we demanding that the state review 233 species listings — a review required by law every five years. In April, we asked the court to allow us to amend our original petition—something that California courts always permit, unless the request is untimely or would prejudice the other party. The purpose for amendment was to streamline the Association’s claims and eliminate the need for some very extensive discovery request from the government.  The government opposed our request to amend, but failed to present any evidence of untimeliness or prejudice. The court granted our motion and ordered us to file the amended petition.

 

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California Cattlemen’s Association v. U.S. Fish and Wildlife Service

The Regulatory Flexibility Act requires the federal government to assess the economic impact of proposed federal rules on small businesses and government entities. The federal Fish and Wildlife Service ignored this command when it declared 1.8 million acres across 16 California counties to be untouchable “critical habitat” for the Yosemite toad and two yellow-legged frog species. PLF filed a complaint in federal district court on behalf of three agricultural industry organizations to challenge the Service’s refusal to comply with the law that requires the government to balance regulatory goals with the needs of a healthy economy.

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