Ninth Circuit to decide whether federal wildlife regulators must honor their agreements

Tomorrow morning is Ninth Circuit day at PLF. Immediately following Ted Hadzi-Antich’s oral argument in the Green Sturgeon critical habitat listing case, the same panel will hear another very important Endangered Species Act case. Bear Valley Mutual Water Co. v. … Continue reading

Green sturgeon critical habitat challenge: oral argument this week

On Thursday, March 5, 2015, at 9 a.m., I’ll be arguing at the 9th Circuit in support of our challenge under the Endangered Species Act to the critical habitat designation for a marine species known as the green sturgeon.  The critical … Continue reading

CEQA victory in California Supreme Court

This morning the California Supreme Court issued its decision in Berkeley Hillside Preservation v. City of Berkeley, announcing that projects which are categorically exempt from review under the California Environmental Quality Act are exempt even if they might have negative … Continue reading

President’s weekly report — February 27, 2015

Overcriminalization and the fishy abuse of Sarbanes-Oxley The United States Supreme Court issued a good decision in Yates v. United States, in favor of fisherman John Yates.  As described in our blog,  because Yates threw some undersized fish overboard after an inspection, … Continue reading

Commerce Clause articles available

Two of my articles were recently published in the Kentucky Journal of Equine, Agriculture, and Natural Resources Law.  The first is entitled “Bringing in The Sheaves: Home Grown Wheat, Weed, And Limits on The Commerce Clause.”  This article  involves a … Continue reading

You’re in the Army now: don’t follow the rules

Under the Clean Water Act, the United States Army Corps of Engineers regulates wetlands throughout the nation.  Owners must obtain a permit from the Corps to develop, build upon, or otherwise alter their properties, if those properties contain “jurisdictional wetlands.”  The Corps’ rules specifically exclude from the permitting requirement properties that are separated from other wetlands by man-made barriers, such as roads or dikes.  The problem:  in an effort to expand its authority, the Corps is ignoring the regulatory exclusion.

Representing a small Alaska company, Universal Welding, PLF filed a lawsuit last week against the Corps for requiring the company to obtain a permit to expand operations on its property, which is separated from a jurisdictional wetland by a county-owned public road.  A clearer man-made barrier could not exist.  Accordingly, Universal Welding’s property in Fairbanks, Alaska, qualifies for the regulatory exclusion.

But the Corps says it is not bound by its own rules and can require Universal Welding to obtain a permit.  Does the Corps care that it is ignoring the rules?  No. It has drafted lawyers from the United States Department of Justice in Washington, D.C. to defend against PLF’s lawsuit, which is intended to enforce the rule of law against a bloated government bureaucracy seeking to impose its will in every corner of the nation under the guise of enforcing the Clean Water Act.  We will meet them in court.  Our motion for summary judgment can be found here:  MSJ – Universal Welding.