California is suffering an historic drought: there is not enough water to go around. The state’s courthouses may be the only places that have had their fill of water of this year, or at least had their fill of fights about it. Last week PLF asked the state Supreme Court to review whether the public trust doctrine applies to groundwater, and this week we filed this amicus letter in Light v. SWRCB, asking the Court to review whether the State Water Resources Control Board can limit the use of water rights without giving the water right owner a due process hearing.
As California’s drought continues (and perhaps worsens), it is becoming more critical that the California Supreme Court define and appropriately limit the regulatory power of the State Water Resources Control Board over existing surface and groundwater rights, to ensure that private property is not expropriated without compensation when the Board balances the needs of the state’s people and their environment.
Pacific Legal Foundation attorneys represent two bluff-top homeowners in Encinitas: Tom Frick, and his neighbor, Barbara Lynch. They applied to the California Coastal Commission for a permit to install a new seawall to protect their homes from erosion after a massive storm destroyed the old wall. They also sought to rebuild a stairway connecting their homes on top of the bluff to the property that they own on the sandy beach below.
Yesterday, a federal court in Salt Lake City held the hearing on PETPO’s request for a ruling on their claim that regulations protecting the Utah prairie dog exceed the federal government’s constitutional authority. The judge had tough questions for both sides. As reported by the AP, no deadline has been set for the court to issue a ruling.
As readers will recall, PETPO’s members are the residents, property owners, and municipal government of a city that has been overrun by 40,000 rodents. They can’t address this problem because Washington bureaucrats won’t listen to them. This is precisely the type of local issue that the Constitution entrusts to state and local governments.
On Monday, Pacific Legal Foundation filed a new lawsuit on behalf of Universal Welding, a small family-run-and-owned steel fabrication business based in North Pole, Alaska. The action, against the US Army Corp of Engineers, challenges that agency’s assertion of Clean Water Act jurisdiction over 14 acres of what the Corps has deemed “low-quality” wetlands that lie on Universal Welding’s property. PLF’s lawsuit contends that these putative wetlands are beyond the power of the Corps to regulate because they are adjacent to other jurisdictional wetlands, and therefore exempt from regulation under the Corps’ own regulations. The case relies on a prior PLF victory from the same judicial district, Great Northwest, Inc. v. US Army Corps of Engineers. That case held that property that is separated from a jurisdictional water by two man-made barriers, with wetlands in between each barrier, is non-jurisdictional, based on the above-mentioned adjacent wetlands regulatory exception. In Universal Welding’s case, the Corps contends that Great Northwest is inapplicable because Universal Welding’s property is separated from other wetlands by only one man-made barrier (a county road). PLF’s lawsuit argues that this is a distinction without a difference. A final decision in the case is expected sometime in early 2015.
Last week we noted the filing of our amicus letter on behalf of the California Farm Bureau Federation, to support Siskiyou County’s request for the California Supreme Court to review immediately the trial court’s decision extending the public trust doctrine to groundwater extraction. Shortly thereafter, the Real Party in Interest environmental parties filed their response, agreeing with the County that the Supreme Court should hear the appeal now. That’s a good sign that the Court may very well take up the case.
We have discussed recent efforts by the Corps of Engineers and EPA to expand the scope of the Clean Water Act beyond statutory, and even constitutional, limits in one of the largest power grabs in U.S. history. See here and here.
In response to this agency overreach, the U.S. House of Representatives has passed H.R. 5078, the Waters of the United States Regulatory Overreach Protection Act, by a vote of 262-152. As explained here:
This legislation prohibits the Environmental Protection Agency (EPA) and the Army Corps of Engineers from finalizing and enforcing a proposed rule that would redefine “waters of the United States” under the Clean Water Act, or using the rule as a basis for future administrative actions. It is the authority of Congress, not the administration, to change the scope of the Clean Water Act.
It will be interesting to see how this plays out in the Senate.
We recently reported on the Fifth Circuit Court of Appeals’ decision in The Aransas Project v. Shaw, which held that the Texas Department of Environmental Quality had not committed illegal take of endangered whooping cranes by issuing permits for diversion of water hundreds of miles upstream from their refuge on the Gulf Coast.
Another recent federal court decision rejects the same theory, namely that a government agency can be liable for take of endangered species merely if it issues permits for otherwise perfectly lawful activity. In California River Watch v. County of Sonoma, the plaintiff alleged that permits which the County issues for vineyard development would harm federally listed California Tiger Salamander, because vineyards could be developed in areas that are listed as critical habitat for the amphibians. River Watch claimed that the County should be held liable under the ESA just for issuing the permits.
But the federal district court in San Francisco held that the connection between issuing vineyard permits and any potential future harm was too tenuous. The court found that River Watch was unable to identify any particular take that would occur in any particular place as a result of the issuance of a permit, and that the suit was therefore not ripe. This decision is a good one for balanced implementation of the ESA. It requires that citizen suits be focused on actual harm to members of a species, instead of using speculative concerns as a lever to micromanage an entire county permitting program.
I will be speaking at the annual Brigham-Kanner Property Rights Conference at the William & Mary Law School this October 31 in Williamsburg, Virginia. The list of speakers promises this to be a lively seminar. As a special treat, this year’s conference will be honoring our great friend, Michael Berger, who is a scholar, gentleman and renowned litigator who has argued more regulatory takings cases before the United Supreme Court than any other individual.
Water rights and the public trust doctrine going underground
We filed this amicus letter brief in Environmental Law Foundation v. State Water Resources Control Board asking the California Supreme Court to review a disturbing opinion from the Court of Appeal. Historically, the “public trust doctrine” referred to a common law rule that owners of land next to navigable waterways such as rivers and harbors could not block the public from accessing those waters for fishing and navigation — only the legislature could do so if there were an important public interest at stake. But in recent years, especially in California, that doctrine has morphed into an ecological protection rule — where riparian and shorelands are protected for recreational and ecological purposes. Moreover, based on the theories of a law professor, the California Supreme Court in 1983 found that the doctrine had migrated upstream to cover nonnavigable tributaries to navigable waters. Now, in the present case, the court of appeal ruled that the doctrine applies to groundwater that might affect navigable waters. Thus we have seen this once obscure common law doctrine that promoted economic activity (fishing and boating) transmogrify into an ecological protection rule that could affect groundwater extraction throughout the state. We’re hoping the California Supreme Court will take up this case to put limits on this blob-like expansion of the doctrine.
Property Rights — Liability for flooding in Alaska
We filed this amicus brief this amicus brief in Beeson v. City of Palmer. Here, the municipality did road work that it knew, unless fixed, could cause flooding to the Beeson’s property. The work wasn’t done and flooding followed. The City, however, is arguing that its inaction (the failure to fix the problem) cannot lead to liability. When the case reached the Alaska Supreme Court, the Court asked PLF to file an amicus brief. Our brief explains that when flooding from a government project is foreseeable the government can be liable — whether or not it intended the flooding to occur and even if inaction rather than action is the cause of the flooding. Continue reading →
We received good news this week from the California Court of Appeal. The court reversed a decision by the lower court, and allows us to continue our legal challenge against the California Citizens Redistricting Commission. The court’s favorable decision is here. As we posted earlier, a California statute requires that members of the Commission be chosen partly on their race and ethnicity. But the U.S. Supreme Court holds that race may never be a qualification for public office. More about the favorable decision by the Court of Appeal can be found here. Attorneys for PLF are representing Ward Connerly and the American Civil Rights Foundation. The case is Connerly v. State of California.