President’s weekly report — August 28, 2015

WOTUS halted! A federal district court judge in North Dakota enjoined with this order EPA from enforcing it’s new breathtakingly illegal Waters of the United States rule.  The court found that the harm to the states who had sued was … Continue reading

PLF challenges EPA’s threat of massive fines against innocent property owner for improving the environment

Andy Johnson owns eight acres of land in Fort Bridger, Wyoming, where he’s made his family’s home and raises livestock. A small stream crosses his property near the road and provides water for his livestock, as it has for prior … Continue reading

President’s weekly report — August 14, 2015

The more you own the more government can steal? We filed this petition for writ of certiorari in in Murr v. Wisconsin.  William Murr and his wife bought two contiguous lots along the Lake St. Croix waterfront on separate dates in 1959.  The … Continue reading

President’s weekly report — July 31, 2015

Free speech in Texas We filed this amicus brief asking the Supreme Court to take up Hines v. Alldredge (Texas Board of Veterinary Examiners).  Texas law forbids vets from offering advice without first physically examining the animal. And even though this … 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

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.

 

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

President’s weekly report — June 19, 2015

Bad news on property rights from the California Supreme Court To celebrate the Magna Carta’s 800th birthday, the California Supreme Court issued this unanimous and depressing opinion on the state of property rights in California.  California Building Industry Association v. … Continue reading

President’s weekly report — June 12, 2015

California Supreme Court to rule on forced housing subsidies We’re expecting a ruling on Monday in California Building Industry Association v. City of San Jose, the challenge to San Jose’s affordable housing mandate.  While it admitted that it had not shown … Continue reading