Thousands of loyal grassroots supporters can’t be wrong: PLF is no “tool” of big business

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

NRO piece on PLF suit challenging Oakland’s public art exaction

Earlier this week, National Review Online ran my piece on PLF’s lawsuit against the City of Oakland. The lawsuit challenges an illegal ordinance requiring builders of residential and commercial projects in the City to either produce public art displays on … Continue reading

President’s weekly report — July 24, 2015

A complaint that a four-year old could file? We filed this complaint in Oakland’s mandatory art fee case, Building Industry Association of the Bay Area v. City of Oakland.  The premise is simple — the City wants to be more … Continue reading

PLF sues to stop unconstitutional public art fee on new homes

Today’s money-no-object urban planning elite have a long list of things they think no modern city should be without, but many have no money to buy the stuff on their list. And, city residents tend not to support tax increases to pay for … 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

Federal government argues it cannot be sued in federal court for a violation of the Fifth Amendment

In Brott et. al. v. United States, a group of Michigan property owners have brought suit against the United States for a violation of their rights under the Fifth Amendment. They contend that the federal “rails to trails” program has … Continue reading

PLF attorneys discuss the California Raisin case in new article

Earlier this week, PLF attorneys Brian Hodges and Christopher Kieser published a professional commentary in Jurist, discussing the Supreme Court’s decision in the raisin case, Horne v. Department of Agriculture. In it, they argue that Horne provides more evidence that the … 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