Every once in a while, someone who doesn’t like the free legal representation PLF provides to individuals threatened by government abuse or who opposes our mission to restore individual liberty from coast to coast will scour the internet for some … Continue reading
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.
On behalf of a group of concerned local residents, PLF is challenging Seattle’s food-waste law for treating key freedoms as disposable. The new law violates privacy and due process rights by commissioning garbage collectors to engage in intrusive surveillance of people’s … Continue reading
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
PLF sued the City of Seattle this morning in Bonesteel v. City of Seattle to challenge sweeping surveillance of residents and businesses. The City’s zeal for bumping its recycling rate bypassed constitutional boundaries when Seattle decided to have trash collectors and inspectors poke around for compostable contraband, such as … Continue reading
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
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
I decided it was not too late to blog about the Fourth of July—despite it having passed a week ago—once I realized that an iconic American beauty of a rock band celebrated its demise 20 years after that band, you know, actually … Continue reading
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.
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