What to expect from PLF’s Northwest Center for the rest of 2012

We had a great time reliving the Pacific Northwest Center’s 20 years of victories at our celebration last week, but now many of you are wondering what’s next for us.  Here’s a quick summary of the major cases being litigated from the PNW office that could see some action throughout the summer and fall:

U.S. Supreme Court

Arkansas Fish and Game Commission v. United States: Whether government actions that subject private property to recurring floods must continue forever to constitute a taking.  The Court granted certiorari and will hear this case in its upcoming term.  We are preparing an amicus brief supporting the position that federal policies which created recurring floods for a period of eight years effected a taking under the Fifth Amendment.  Oral argument is scheduled for October.

Bruner v. Whitman: Whether Oregon’s decision to terminate “Measure 37 waivers,” which allowed property owners to develop their property free from certain land use regulations, violates the rule disfavoring retroactive legislation.  We are preparing an amicus brief in support of the pending certioriari petition.  The Court has not scheduled a conference yet.

Decker v. Northwest Environmental Defense Center: Whether rainwater runoff on forest roads must be regulated as industrial pollution under the Clean Water Act.  We filed an amicus brief urging the Court to review the case, primarily due to the enormous costs such a rule would inflict on owners of forested property.  The Court will decide whether to grant certiorari on June 21.

St. Johns River Water Management District v. Koontz: Whether constitutional protections against unlawful permit conditions apply to exactions other than the dedication of real property, and whether those same protections apply when a permit is denied because the property owner refuses to submit to unlawful conditions.  PLF directly represents the petitioner in this case.  We filed our petition for certiorari in May and are expecting a response in July.  The Court is likely to conference on the petition in the fall.

Vargas v. City of Salinas: Whether a large attorney fee award to the government in a citizen’s case challenging the City of Salinas’ unlawful expenditure of funds unconstitutionally chills speech or infringes on the individual right to petition the government.  Our amicus brief is due in July.

Ninth Circuit Court of Appeals

Laurel Park Community, LLC v. City of Tumwater: Whether a City of Tumwater law that prevents owners of mobile home parks from converting the property to a different use constitutes a taking.  We filed an amicus brief last year, supporting the argument that the law effected a taking and violated park owners’ due process rights.  The court will hear oral argument in August.

Richter v. City of Des Moines: Whether ownership of property is sufficient to create a “property interest” for purposes of suing the government for a violation of due process, and whether the City of Des Moines’ permit appeal process unconstitutionally prevents permit applicants from receiving a fair hearing.  The appeal was filed in May, and we are preparing an amicus brief.

Samson v. City of Bainbridge Island: Whether the City of Bainbridge Island violated shoreline property owners’ federal civil rights when the city continued to enforce a moratorium on shoreline development after the Washington Supreme Court ruled that the moratorium was unconstitutional.  We filed an amicus brief in support of the property owners last year, and we expect an opinion soon.

Other Federal Circuit Courts

United States v. Hage: Whether a district court’s determination that a taking had occurred when the U.S. Forest Service blocked a rancher’s access to streams should be affirmed.  We filed an amicus brief arguing that Hage’s access to water should be protected, and that the district court was right to find a taking.  We are awaiting a decision.

Federal District Courts

Colorado River Cutthroat Trout v. Salazar: Whether the U.S. Fish and Wildlife Service was correct to determine that the Colorado River cutthroat trout should not be listed as a protected species under the Endangered Species Act, and whether the historical habitat of a species should be included as “range” when the Service makes listing decisions.  We filed a brief last year urging the court not to treat species’ lost habitat as current range.  We expect a decision soon.

Uintah County v. Salazar: Whether the Interior Department’s “wild lands” policy, which implements a new decision-making process for restricting access to public lands, violates federal land management laws.  We filed an amicus brief last year arguing that the wild lands policy should be invalidated because it was not promulgated pursuant to appropriate notice and public comment standards.  The district court will hold a hearing to address some motions in July.

Washington Supreme Court

Birnbaum v. Pierce County: Whether a permit applicant whose permit application is not processed by the government within legally established time lines may sue for damages under a particular Washington statute.  We represent the petitioner in this case, and will file a petition for review to the Washington Supreme Court soon.

Washington Court of Appeals

Lemire v. Washington Department of Ecology: Whether a government order that requires a rancher to install cattle exclusion fencing around a large portion of his property near a creek constitutes a taking.  We filed our amicus brief earlier this year supporting the argument that the order should be treated as causing a taking under Washington law.  The court will hear oral argument in September.

Whidbey Environmental Action Network v. Island County: Whether Washington’s Growth Management Act requires cities and counties to take agricultural land out of production to create large wildlife protection buffers.  We will file an amicus brief this fall in this administrative appeal arguing that the GMA is satisfied by a county program that allows farmers to adopt best management practices to protect the environment, rather than being forced to create large buffers.

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About Brian T. Hodges

Brian T. Hodges is the managing attorney of PLF’s Northwest center. He is a strong proponent of individual and property rights and actively litigates in the areas of regulatory takings, due process, land use, water law, environmental law, growth management, Indian law, and administrative law.