This Friday, May 6th, the Ninth Circuit will consider whether federal bureaucrats can escape judicial review of their illegal acts by pointing to their prior violations of the law. The U.S. Fish and Wildlife Service argues that PLF’s challenge to an illegal rule regarding the sea otter should not be heard because this isn’t the first time that the Service has exceeded its authority under the statute. Let’s call this absurd argument the “Scofflaw defense.”
So asks Tin Cup LLC v. United States Army Corps of Engineers, a new lawsuit filed late yesterday by PLF attorneys in federal district court in Alaska. (Check out our press release). Representing a small, family-owned pipe fabrication company, PLF challenges the Army Corps of Engineers’ special “Alaska Supplement” for wetland jurisdiction under the Clean Water Act. Pursuant to that Act, the Corps regulates the discharge of dredged and fill material into the “waters of the United States.” For decades, the Corps has interpreted that phrase to include at least some wetlands. But defining what exactly qualifies as a wetland has been confusing and controversial. To dispel the confusion and quell the controversy, Congress legislated in the early 1990s to require the Corps to use its 1987 Wetlands Manual for all wetland delineations, unless and until the Corps adopts a new “final wetland delineation manual.”
Well, the Corps has never adopted a new manual. Instead, it has published various regional “supplements” to the 1987 Manual. The upshot of these supplements is to allow the Corps to take advantage of regional “variations” to justify an expansion of the agency’s jurisdiction over against what its 1987 Manual would countenance. A case in point is the Corps’ Alaska Supplement, which adopts a very generous standard for what qualifies as a wetland—so generous that it would allow the Corps to regulate permafrost, i.e., frozen ground. Of course, the 1987 Manual would not allow such an ambitious assertion of authority, one reason why Congress mandated its use and certainly the main reason why the Corps has disregarded it.
Our lawsuit challenges the Corps’ permafrost rule within the context of the agency’s decision to grant an onerously conditioned permit to Tin Cup to develop its property. Although this case deals directly only with the permafrost rule, the larger legal issue raised may affect how the Corps applies (or rather, misapplies) its 1987 Manual and supplements throughout the country.
As recreational drone use expands, hobbyists won’t be the only ones who are flying them. Reports suggest that law enforcement officials are considering adding drones to their tool kit. According to these reports, drones will give law enforcement a bird’s-eye view of major car crashes, active wildfires, and wreckage created by tornadoes and hurricanes.
But might the use of drones in other contexts violate the Fourth Amendment? Law enforcement’s use of drones to examine real property would implicate the Fourth Amendment’s ban on unreasonable searches and seizures. It is important to determine whether the use of drones is a “search” within the meaning of the Fourth Amendment. If the use of drones results in a “search,” then the government needs to acquire a warrant to examine someone’s property. The use of drones to examine someone’s property will be a search within the meaning of the Fourth Amendment if: (1) the property owner shows a subjective expectation of privacy in the area examined, and (2) if society views that expectation of privacy as reasonable.
We had this resounding trial court victory in Bonesteel v. City of Seattle, our challenge to Seattle’s trash-snooping law. In a city where political correctness trumps individual rights, the city passed an ordinance that not only requires Seattlelites to compost their food waste, but required its trash collectors to inspect trash cans for excess food waste, with the threat of shaming notices and fines for noncompliance. The problem here is that the Washington State Constitution’s right to privacy doesn’t allow this — according to well-established state Supreme Court precedent. You can read more here.
Victory at Tahoe!
The Tahoe Regional Planning Agency agreed to settle our lawsuit on behalf of Ray and Teresa Avila-Burns. That’s the case where the agency refused to let the Burns rebuild a home on the site of a home that burned down in the Angora fire. For more, see our blog post here.
Free speech for doctors Continue reading
Does the exclusion of churches from an otherwise neutral and secular aid program violate the Free Exercise and Equal Protection Clauses of the U.S. Constitution? That is the question the Supreme Court will answer in the case of Trinity Lutheran Church of Columbia v. Pauley.
Trinity Lutheran Church operates a daycare which includes a playground used by both students and members of the surrounding community. Trinity applied for a grant, offered to nonprofit organizations by the State of Missouri, which would allow it to replace the rock surface of the playground with a safer rubber surface made from recycled tires. Trinity’s application was denied. Why? Because it is a church. Continue reading
Yesterday, the trial court in Martin County, Florida, let the infamous, anti-property-rights Martin County Commission members know that they can’t hide public emails behind private email addresses and think they will get away with it. One of those commission members—a former judge, of all things—failed to turn over emails regarding public matters to a property owner who requested them. The commissioner held the emails for years without turning them over, despite a legal requirement to do so.
The local court skewered the Martin County Commission in its order on the matter. The court’s words are more damning than anything PLF could write:
Please tune in at 4:30 p.m. (PDT) this afternoon to hear Andy Caldwell and me discuss two current lawsuits with huge ramifications for agricultural businesses and the rule of law.
PLF clients Ray Burns and Teresa Avila-Burns just wanted to build a small house on their vacant lot in South Lake Tahoe so that their elderly mothers could enjoy the high quality of life in the Lake Tahoe area. But the Tahoe Regional Planning Agency (TRPA) said the parcel the Burns had purchased was entirely inside a Stream Environment Zone, preventing El Dorado County from issuing a building permit. The Burns were unable to build even though their parcel had a home on it for three decades before it was destroyed in the Angora fire in 2007.
After having little success negotiating with TRPA for permission to build their new home, Ray and Teresa contacted PLF. We sued TRPA in federal court on their behalf, arguing that the agency cannot take away all use of property without paying the owners just compensation. As we said in our complaint, governments can set aside private property as open space, but the Fifth Amendment requires that they compensate the owners. This important principle ensures that property owners do not pay disproportionately for public benefits.
Today, Judge Beth Andrus ruled that Seattle cannot hunt through its residents’ garbage in search of prohibited food waste. Our lawsuit, Bonesteel v. City of Seattle, challenged a Seattle law that says garbage collectors must search through trash cans along their routes each week to determine whether more than ten percent of the volume of your garbage contains food waste or recyclables. We relied on Washington’s right to privacy, which ensures that “no person shall be disturbed in his private affairs” without a warrant. The judge agreed that the garbage can contains private information about our lives that deserve protection from prying eyes. If Seattle wants to rifle through your trash, it’ll now need a warrant. You can read the judge’s opinion here.