PLF warns forest service not to take water rights

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Several of America’s best known ski areas operate on national forests under permits from the Forest Service.  They own private water rights to make snow as well as basic services at their ski lodges, restaurants, and hotels.  The ski areas did not get these water rights from the Forest Service, which cannot grant any water rights.  They, just like every other private water right holder, acquire water rights under state law in the Western states, through proper state agencies.

For decades, the Forest Service has coveted the water rights of private parties that hold permits to work on national forests.  The campaign to take water rights from cattle ranchers in the forests is well known to Liberty Blog readers.  In the past few years, the Service has added ski area water rights to its list of ‘must-take’ private property.

One of the Forest Service’s bogus legal theories is that when a permit holder uses water rights in the forest, the Service is entitled to the water right.  US and state law flatly refute this nonsense, but being wrong has not stopped the Forest Service from making the claim.  After landmark losses in court, the Forest Service started taking a more sinister approach: threats to revoke permits if ski areas do not hand over their water rights.

Last December, the National Ski Areas Association won a lawsuit against the Forest Service in federal district court in Colorado.  The court ruled that the Forest Service illegally adopted the water rights permit term it was forcing on ski areas to exact their water rights from them.  Since the permit term was illegally adopted, the court did not address the merits of whether the permit term itself violates the Takings Clause of the U.S. Constitition.

So the Forest Service has gone back to the drawing board, to cure the process errors in drafting a water rights seizure policy.  PLF recently submitted a comment letter laying out the basic problem with the Forest Service’s view of water rights.  The Forest Service will be taking private property without compensation if it exacts ski area water rights as a condition of holding or renewing their permits.  The Forest Service should avail itself of state water law forums to protect any real interests it may have in ski area water rights, and otherwise leave the ski areas’ privatge property in peace.

Is the environment made for humans or vice versa?

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Today PLF filed a motion for summary judgment in federal district court to reverse the government’s decision to prohibit motorized travel on hundreds of miles of roads and trails in Tahoe National Forest. Historically, these routes were available to individuals who wanted to experience the natural pleasures afforded by the forest. In a misguided effort to protect the forest from human enjoyment, the government has tabooed entry to remote and wild areas that are accessible to most people only by means of motor vehicles.

To enjoy the wilds, you need to be able to get to the wilds. Before the government’s prohibition, over 800 miles of routes in Tahoe National Forest took people into the majesty of the deep woods by motor vehicle. Now, 90 percent of those roads and trails are closed, thereby setting insurmountable barriers for many who wish to enjoy Mother Nature at her wildest.

Representing eight clients who for years have enjoyed the pleasures of the forest via motorized access, PLF filed its legal brief in the case of Friends of Tahoe Access v. United States Department of Agriculture, explaining that the National Environmental Policy Act (NEPA) protects the human environment and was enacted by Congress to preserve the environment for people. NEPA was never meant to keep people out of the environment. But that is the result under the wrong-headed government decision to close hundreds of miles of access routes in Tahoe National Forest.

The hearing on PLF’s legal challenge is scheduled for September 25, 2013, in the United States District Court for the Eastern District of California.

Continuing the fight in Humboldt County

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Scott and Lynn Powells home

The home and property of Scott and Lynn Powell

As reported, PLF represents Humboldt County residents Scott and Lynn Powell in their fight against government extortion.  The County of Humboldt demands that the Powells obtain a building permit to bring some covered porches on their mobile home up to code.  (The prior owner never bothered to get a permit).  But the County won’t issue the permit unless and until the Powells deed to the County an overflight easement allowing airplanes to fly over their house—along with the attendant noise, vibrations and other disturbances.

The state and federal constitutions prohibit government from taking private property without paying “just compensation.”  Here, the Powells’ are being forced to surrender their constitutional right to receive just compensation for the taking of the easement, in exchange for a building permit.  This, according to the U.S. Supreme Court, is an “unconstitutional condition” and illegal:

Under the well-settled doctrine of “unconstitutional conditions,”  the government may not require a person to give up a  constitutional right—here the right to receive just compensation  when property is taken for a public use—in exchange for a  discretionary benefit conferred by the government where the  benefit sought [here, a building permit] has little or no  relationship to the property [the easement].

Continue reading →

Got a permit? EPA doesn’t care

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When the Supreme Court of the United States issued its opinion in Rapanos v. United States a few years ago, it highlighted that the average applicant for a Clean Water Act Section 404 permit spends 788 days and $271,596 to complete the permitting process.  Why would an applicant commit so much time and money to the Section 404 permit process?  Because the permit provides protection—it allows the applicant to discharge dredged or fill material (an essential activity for many development projects) without fear of violating the Clean Water Act, so long as the permit holder abides by the terms of the permit.

Now a recent opinion from the D.C. Circuit Court of Appeals could change everything.  Well, not quite everything.  Section 404 permits will still be expensive and take a lot of time to acquire.  They will just provide less assurance that the permit holder’s project will actually comply with the Clean Water Act.

The source of the uncertainty is the D.C. Circuit’s opinion in Mingo Logan Coal Co. v. EPA.  Mingo Logan operates a coal mine in West Virginia that the Army Corps of Engineers permitted under Section 404 in 2007.  Mingo Logan’s permit governs disposal of materials at the mine, and specifies which water bodies are available for use as discharge sites.  Years after the Corps issued the permit and the mine began operations, EPA “revoked” the permit by pronouncing that Mingo Logan was barred from discharging into some of the streams that the Corps had designated as disposal sites.  Mingo Logan challenged the EPA and prevailed in federal district court, but the Court of Appeals issued a sweeping opinion that allows EPA to withdraw Corps-designated disposal sites “whenever” EPA determines it is necessary.

So what is a Section 404 permit worth if EPA can take it away at any time?

It remains to be seen whether the plaintiffs in Mingo Logan will seek Supreme Court review.  In the meantime, the opinion is attracting the attention of legal practitioners, the mining industry, and even Congress.

Trying to avoid disparate impact causes a disparate impact

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You can’t make this stuff up.  Banks have been under intense scrutiny from Obama Administration for lending practices that result in a disparate impact against racial minorities.  To avoid such threatening lawsuits, a small bank in Maryland put in place a practice that capped the amount that could be recouped from loans to minorities and women.  Unsurprisingly, that caused a disparate impact against whites.  The bank was ordered to pay back millions of dollars for causing a disparate impact.

Sadly, this type of result is exactly what should be expected when run-of-the-mill statistical disparities can subject firms to catastrophic lawsuits.  The only thing that firms can do to avoid disparate impact liability is overtly racially balance their workforce, which, of course, would be unconstitutional.  Rock meets hard place.

Is the Roberts Court pro-business?

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A recent New York Times article reports that many scholars believe the Roberts Court is more pro-business than its predecessors. To support this claim, they point mostly to procedural decisions, especially limits the Court has put on class action lawsuits. It is bizarre to call this Court more “pro-business” than its predecessors simply because it has maintained the rules adopted by the earlier (presumably anti-business) Courts.

Indeed, it takes a perspective hostile to business to imagine – as the Times article does – that the Court’s ruling in Wal-Mart Stores v. Dukes proves a “pro-business” bias. That case was the largest class action lawsuit in history, brought on behalf of more than 1.5 million present and former Wal-Mart employees. The lawsuit claimed that since women received on average fewer promotions and less compensation than men, the only cause could be a “culture of discrimination” subtly at work within Wal-Mart. Continue reading →