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Weekly litigation update — October 7, 2017

By James S. Burling Vice President for Litigation
  • New lawsuit challenging ESA overreach
  • WOTUS at SCOTUS on Wednesday
  • An end to mobilehome park fight in Palo Alto
  • Opposing another legislative tax-limitation end-run, this time in Arizona
  • Motion for Judgment attacking unconstitutional permit fees

New lawsuit challenging ESA overreach

This week we filed a complaint challenging the 2016 biological opinion issued by the National Marine Fisheries Service for the national flood insurance program in Oregon.  Styled City of Coos Bay v. Ross, our lawsuit contends that the Service had no authority to issue the opinion, which imposes significant land-use restrictions as a condition for local communities to obtain federal flood insurance.  A biological opinion may be issued only when a proposed federal action may harm species or habitat protected by the Endangered Species Act.  But here, the FEMA insurance program has no impact, as a matter of law, on the physical environment, because FEMA has no authority to regulate or to prohibit floodplain development.  For more, please see our blog post here.

WOTUS at SCOTUS on Wednesday

The wetlands “Waters of the United States” (WOTUS) rule will be argued at the Supreme Court of the United States (SCOTUS) on Wednesday morning. This is the rule that vastly expands federal “wetlands” jurisdiction over vast areas of dry uplands on the pretext that some water might somehow flow someday into a navigable waterway somewhere. While the rule does not follow from the Clean Water Act, it does follow from two laws of nature:  all water flows downhill and all bureacratic empires spread like The Blob. But what the Clean Water Act does say is that challenges to rules like the WOTUS rule can be brought within six years of enactment in a federal district court. Nonetheless, the Corps of Engineers and the Department of Justice is telling the Court that all such lawsuits must be filed within a mere 90 days and only in a federal appellate court. The effect of such a rule would be to drastically limit the ability of citizens to fight back against unjust wetlands rules. The case being argued is National Association of Manufactures v. Department of Defense, a case that was joined with PLF’s case, Washington Cattlemen’s Association v. EPA

An end to mobilehome park fight in Palo Alto

On Wednesday the Ninth Circuit dismissed PLF’s case involving the Jisser family and their mobile home park in Palo Alto, Calif., pursuant to a settlement between the Jissers and the city. We had sued the city in an unconstitutional conditions case, challenging its extortionate demand that the Jissers pay roughly $8 million to their tenants as a condition of closing the mobile home park. The case was dismissed by the district court on . While that ruling was on appeal in the Ninth Circuit a coalition of regional government agencies made a market-priced offer to buy the land on which the park sits so it would continue to be operated as a mobilehome park for the foreseeable future. Settling allows the elderly Jissers to avoid many years of litigation while allowing them to retain a portion of their land for future commercial use, keeping at least some of their property in their family as the hoped. See our blog post.

Opposing another legislative tax-limitation end-run, this time in Arizona

In Biggs v. Betlatch, the Arizona Supreme Court will decide whether a Medicaid expansion tax is, in fact, a tax – or whether it is some other kind of non-tax revenue raising device, such as a fee or assessment. As explained in PLF’s amicus brief, joined by the Howard Jarvis Taxpayers Association, voters and taxpayers resent the “creativity” of government officials, validated by court decisions that effectively evade procedural requirements for tax increases. The Arizona Constitution, amended by voters in 1992 to require a supermajority vote for approval of tax increases, applies to the so-called “assessment” levied against hospitals to pay for Medicaid expansion. We urge the court to protect the state’s institutions by respecting the will of the voters and taxpayers in limiting the Legislature’s ability to increase taxes.

Motion for Judgment attacking unconstitutional permit fees

On Tuesday, we filed a motion for judgment in the Marin County (Calif.) Superior Court seeking to strike down and refund a so-called “affordable housing” fee imposed as a condition of granting a permit to split a single residential lot into two lots. Dart and Esther Cherk, now in their 80s, sought to split a lot they inherited from Dart’s father and sell half to supplement their diminishing retirement savings. But during the permitting process the County enacted a new “affordable housing” law requiring them to pony up $40,000 in exchange for approval of the lot-split. Nothing about the Cherk’s lot-split contributes to or causes the County’s lack of affordable housing—if anything, splitting the lot increases land available for new housing—and so the fee scheme violates the unconstitutional conditions doctrine. The way to make housing affordable is to build more housing, not to scapegoat individual property owners with extraordinary costs that should in fairness be borne by the public as a whole. For more see our blog post.

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