Did the raisin case silently insulate the Endangered Species Act from the Constitution?

A recent article in Greenwire, reports that opponents of robust Constitutional protections for property rights and limits on federal power are finding a kernel of hope in the Supreme Court’s opinion in the raisin case decided last term. They contend … Continue reading

Can agencies ignore Congress and do whatever they want?

This week, PLF filed its final brief on the motion for summary judgment in the sea otter case. The case will be argued in L.A. on Sept. 21. Representing fishermen whose livelihood depends on being able to access Southern California’s … Continue reading

Adverse decision in green sturgeon critical habitat challenge

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.

ICYMI: Capitol Hill event on the constitutional limits of the Endangered Species Act (ESA)

On Tuesday, June 2, 2015, Pacific Legal Foundation (PLF) and Competitive Enterprise Institute held a joint event on Capitol Hill to discuss the constitutional limits of the Endangered Species Act (ESA). With U.S. Sen. Mike Lee (R-Utah) and U.S. Rep. … Continue reading

There are many ways to protect endangered species

If species aren’t protected under the Endangered Species Act’s burdensome approach, they’ll receive no protection at all. This is an all too common refrain. But it’s a false choice. There are many ways to try to conserve and recover species. … Continue reading

It’s good to have friends

Many friend-of-the-court briefs have been filed supporting People for the Ethical Treatment of Property Owners‘ challenge to the federal government’s unconstitutional Utah prairie dog regulation. These briefs are a reminder of how important the issue is and how unnecessary the … Continue reading

Is the Constitution a paradox?

In defending the constitutionality of the Utah prairie dog regulation, the government makes a paradoxical claim. Conceding that federal intrusions into areas of traditional state authority are unconstitutional, the government nonetheless argues that the Necessary and Proper Clause allows the … Continue reading

Endangered Species Day is for protecting species, not federal control

May 15 was Endangered Species Day. For some farmers, ranchers, and other property owners who can’t develop or use their land in a productive manner because of federal dictates, every day is devoted, unwillingly or not, to endangered species. As … Continue reading

Is Chief Justice Roberts anti-environment?

To honor Chief Justice Robert’s first decade on the Supreme Court — more like castigate him — the Constitutional Accountability Center has released a series of papers on the court’s jurisprudence. The most recent of which addresses the court’s environmental … Continue reading