Composting v. Constitution–Townhall runs op-ed on trash snooping

An op-ed on PLF’s lawsuit against the City of Seattle for unconstitutional trash surveillance appeared today on Townhall.com. The op-ed explains how the City’s composting mandate is enforced through weekly searches of the trash cans of every resident and business in … Continue reading

Jurisdictional determinations under the Clean Water Act, revisited

Federal administrative agencies should comply with their own regulations.  Right?  It doesn’t always happen that way.

Yesterday, on behalf of our client, Gallagher & Henry, a second-generation, family – owned developer, we filed a lawsuit challenging a determination made by the United States Army Corps of Engineers that Gallagher & Henry’s property in Tinley Park, Illinois, is a jurisdictional wetland under the federal Clean Water Act. The complaint, filed in the United States District Court for the Northern District of Illinois, alleges that the property at issue is prior converted cropland, which is excluded from Clean Water Act jurisdiction by the Corps’ own regulations.  That regulatory exclusion is of keen interest to farmers and developers nationwide.

The federal government has consistently taken the position that jurisdictional determinations are not reviewable in court because they do not affect the legal relationship between property owners and the government.  The problem is that, once a jurisdictional determination is made, a property owner is forced to apply for a permit from the Corps, which could take years of effort at substantial cost, or forego developing the property, or simply proceed with the project without a permit, at the risk of substantial civil and criminal penalties.   PLF successfully litigated the reviewability issue in the Hawkes case, where the Eighth Circuit held that jurisdictional determinations are judicially reviewable.  But in another PLF case, the Fifth Circuit held in Kent that jurisdictional determinations are not reviewable.  In an effort to resolve the split between the circuits, PLF filed a petition for certiorari in the United States Supreme Court, seeking review of the Kent decision.  That petition is pending.

Undoubtedly, the government will argue here that the Corps’ jurisdictional determination is unreviewable.  But this case was filed in a federal district court in the Seventh Circuit, which is not bound by either Hawkes or Kent.  The reviewability of the Corps jurisdictional determination will be among the first battles in the case.

 

PLF challenge to Corps and EPA water rule heats up

When we filed our complaint challenging the Corps and EPA’s extreme redefinition of “waters of the United States” subject to federal control under the Clean Water Act, we noted that more suits would be filed.  So far, at least 10 … Continue reading

President’s weekly report — July 17, 2015

WOTUS WOTUS every where, nor a drop to drink We filed this challenge in Minnesota District Court on behalf of a variety of landowners and organizations to EPA’s new Waters of the United States (WOTUS) rule,  This rule, like the stuff … Continue reading

Courting Liberty Podcast on WOTUS Lawsuit

PLF is suing over the feds’ sweeping new definition of “waters of the United States,” which is so broad that it could impose The Clean Water Act on virtually any water – and land – anywhere. Click here to listen … Continue reading

PLF sues the Corps and EPA over expansive water rule

Today we filed our complaint in the Federal District Court of Minnesota challenging the Corps and EPA’s extreme rule redefining “waters of the United States” subject to federal control under the Clean Water Act, and other laws. The case is … Continue reading

Victory for California water rights builds on PLF’s Duarte case

In the course of California’s long drought, state regulators have taken ever more aggressive measures to gain control of local and private water supplies, under cover of emergency declarations from Governor Brown, and emergency regulations adopted by the State Water Resources … Continue reading

Adverse decision in green sturgeon critical habitat challenge

Today a Ninth Circuit three-judge panel issued a remarkable legal opinion.  The bottom line: Decisions to include areas as part of critical habitat for endangered or threatened species under the ESA are judicially reviewable, while decisions not to exclude areas from critical habitat are not judicially reviewable.  It’s one heck of a legal opinion.

Logic dictates that decisions to include or exclude areas from critical habitat are flip sides of the same coin. When deciding which area to include, one necessarily decides which areas not to include, i.e., which areas to exclude.  It comes down to a question of what to leave in and what to leave out.  But the Ninth Circuit panel didn’t see it that way when it opined that government decisions “not to exclude” areas from critical habitat designation for the green sturgeon species could not be judicially reviewed, on the ground that there was “no law to apply.”

The decision is wrong on the facts and wrong on the law.  But this case is of more than academic interest to lawyers.  Almost the entire West Coast of the United States has been designated by the government as critical habitat for the green sturgeon, placing substantial roadblocks to economic development and growth in the states of Washington, Oregon, and California.  Quality of life issues for millions of Americans are at stake.

We are reviewing our legal options.

Eighth Circuit denies Corps petition in wetland case

As we noted here, PLF is involved in two cases to establish whether Army Corps of Engineer’s’ Jurisdictional Determinations (i.e., wetland delineations) are subject to immediate judicial review in court.  In Kent Recycling v. Corps (previously Belle v Corps), the … Continue reading