|
|
|
|
Government Designates Thousands of Acres of Land in Southern California to Protect Tiny Crustacean----Riverside Fairy Shrimp
Between May 2001 and December 2012, the U.S. Fish and Wildlife Service (FWS) published several revised rulings designating approximately 6,870 acres of land in southern California as critical habitat for the Riverside fairy shrimp ( Streptocephaluswoottoni), tiny crustaceans commonly known as "sea monkeys." When fully mature, they are approximately 23 millimeters in length. Under good conditions, they live about 90 days. And they do not travel unless carried on the tires of vehicles or by other means. In our August 2011 newsletter, we discussed a 2011 ruling by the U.S. Court of Appeals for the D.C. Circuit, regarding a similar species ----the San Diego fairy shrimp ( Branchinectasandiegonensis). Riverside fairy shrimp are distinguishable from San Diego fairy shrimp primarily by the second pair of antennae on the adult male. Both the Riverside and San Diego fairy shrimp have been listed as endangered species by FWS since 1993. The 2011 D.C. Circuit ruling vacated the Government's designation of 143 acres of privately owned land in southern California as "critical habitat" for the San Diego fairy shrimp. Now, the same landowners ----Otay Mesa Property ----are once again fighting yet another wrongful Government designation of their land as critical habitat, this time for the Riverside fairy shrimp. In June 2011, FWS published a rule designating critical habitat for the Riverside fairy shrimp, not including the Otay Mesa property. But on December 4, 2012, FWS published a revised final rule, this time designating 57 acres owned by Otay Mesa Property as critical habitat for the Riverside fairy shrimp. The Otay Mesa property that was designated as critical habitat is characterized by tire ruts ----deemed vernal pools for the Riverside fairy shrimp by FWS. |
|
|
|
What People Are Saying About Marzulla Law:
"I have over 40 years of experience testifying as an expert witness dealing with real estate matters in courts from coast to coast. I would rate Roger and Nancie Marzulla of Marzulla Law without question the best in the business. They and their staff's preparation and presentation was precise, concise and of the highest quality and integrity. It was a pleasure to be on their team."
Michael W. Massey, MAI
|
Expert Spotlight:
Michael W. Massey, MAI
 Michael W. Massey is the President of Michael W. Massey & Associates Real Estate Appraisers & Consultants. Massey brought his appraisal experience to Marzulla Law in the case of Love Terminal Partners v. United States, Massey has over 40 years of experience in the appraisal of real properties, including commercial, industrial, special purpose and mineral interest, for mortgage bankers, savings and loan associations, insurance companies, attorneys, private individuals, public utilities, and government agencies. His areas of expertise include West, Southwest and Southeast United States, Mexico, Puerto Rico, and the U.S. Virgin Islands. A graduate of Texas Technological Institution with a BBA in Marketing, Massey is recognized as an expert in Real Estate Valuation in federal, state, and county courts in several states.
|
|
|
|
The Otay Mesa property lies along the U.S.-Mexico border in San Diego County and has tremendous development potential for the owners. A new border crossing in Otay Mesa was approved by a Presidential Permit in December 2008 and is anticipated to open in 2014. To support the new border crossing, a new interchange connecting three highways will be built near Otay Mesa's property. The new border crossing is a "development magnet" for the adjacent land, including the property now designated as critical habitat. On February 25, 2013, the landowners filed a complaint in the U.S. District Court for the District of Columbia for declaratory and injunctive relief ----the same court that invalidated the prior designation of their land as San Diego fairy shrimp habitat. Under the Administrative Procedure Act, 5 U.S.C. § 702, the final actions of each federal agency are subject to judicial review. Section 706 of the Act provides that, in all cases, agency action must be set aside if the action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"; "contrary to constitutional right, power, privilege, or immunity"; "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right"; "without observance of procedure required by law"; or "unsupported by substantial evidence." The complaint alleges that the Government's final rule designating the landowners' property as critical habitat for the Riverside fairy shrimp is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law for numerous reasons: - The Government presents no substantial evidence to support the statutorily-required finding that the landowners' property is one of the specific areas within the geographical area occupied by the Riverside fairy shrimp which has the physical or biological features that are essential to conserving the species and which may require special management considerations or protection.
- The Government presents no substantial evidence that Riverside fairy shrimp were present on the landowners' property in 1993, when the species was listed as endangered. Since there is no evidence that the landowners' property was "occupied" by the Riverside fairy shrimp at the time of listing in 1993 as required by the Endangered Species Act (ESA), the land does not meet the statutory definition of critical habitat and therefore should not be designated as such. Instead of citing scientific evidence, the Government's rule simply presumes that the area was occupied at the time of listing, while admitting that FWS "lacked surveys confirming the presence of Riverside fairy shrimp... at the time of listing.
- The Secretary of the Interior, who oversees FWS, refused to exclude the land from critical habitat designation under Section 4(b)(2) of the ESA, although the benefits of doing so outweigh the benefits of designation. Specifically, San Diego County has zoned 450 acres of the landowners' property----including the 57 acres designated as critical habitat----for construction of a new, state-of-the-art, much-needed San Diego County recycling center and landfill. The benefits of this project, approved by 85% of voting citizens in May 2010, far outweigh the theoretical benefits of designating the area as critical habitat under the ESA.
- The Government presents no substantial evidence to support its determination that, although the landowners' property is an area "outside the geographical area occupied by the species at the time it is listed," their property is nevertheless "essential for the conservation of the species."
- The Government presents no substantial evidence to support the finding that the landowners' property possesses the principal constituent elements identified for Riverside fairy shrimp conservation. To the contrary, the record demonstrates that Riverside fairy shrimp have only been identified on one small portion of the landowners' property, in a single artificially-created stock watering pond for cattle. And this stock pond normally is only wet for 14-21 days per year. Yet according to FWS, the Riverside fairy shrimp require 48 to 56 days to hatch and mature once a pool is inundated with water....What was once a cattle pond, and which is not a vernal pool or vernal pool complex at all, is actually a ravine dammed up with soil at one end and is dry most of the year, during which it is crisscrossed by Border Patrol and recreational vehicles as well as foot traffic.
- In preparing its proposed critical habitat designation, the Government made no effort to comply with the National Environmental Policy Act (NEPA), which requires federal agencies to examine the environmental effects of proposed federal actions and to inform the public of the environmental concerns that went into the agency's decision-making. NEPA requires that all agencies of the federal government,"to the fullest extent possible," prepare environmental impact statements for all "major Federal actions significantly affecting the quality of the human environment."
The Government's unlawful designation of the Otay Mesa property as critical habitat for the Riverside fairy shrimp has already caused hardship for the landowners, and will continue to do so since the designation makes it more time-consuming and expensive to develop and market what is very valuable land. |
U.S. Court of Federal Claims Judges Retire or Will Soon Retire
The 1982 Federal Courts Improvement Act authorized the appointment of 16 active judges on the U.S. Court of Federal Claims. Each judge, appointed by the President and confirmed by the Senate, can serve a term of 15 years, although in certain cases, judges can be reappointed.
There are currently 14 active judges on the CFC.
Two Judges Recently Retired
Christine Odell Cook Miller
Judge Miller was appointed to the U.S. Court of Federal Claims, where she served with distinction for 30 years. In February 2013 Judge Miller retired from the court.
Lawrence M. Baskir, Former Chief Judge
In 1998 President Bill Clinton nominated Judge Baskir to the U.S. Court of Federal Claims, where he served as Chief Judge from 2000 to 2002. Judge Baskir retired from the court in April 2013.
Retirement Slated for Seven Senior Judges
Seven Senior Judges of the U.S. Court of Federal Claims will be honored at a Bar Association reception on Thursday, May 30, 2013 at the Dolly Madison House, National Courts Building, from 5:30 p.m. to 7:00 p.m.
Loren A. Smith, Former Chief Judge  Loren A. Smith graduated from Northwestern University, receiving a B.A. in 1966, and went on to receive his J.D. from the same school in 1969. In 1972, he was the host of a nightly radio program called What's Best For America? From 1973 to 1974 Judge Smith served as Assistant to the Special Counsel to the President from 1973 to 1974, and then went on to serve as Special Assistant United States Attorney for the District of Columbia, 1974-1975. From 1976 to 1980 Judge Smith was Chief Counsel for the Reagan for President campaigns, and then served as Deputy Director of the Executive Branch Management Office of Presidential Transition from 1980 to 1981. Judge Smith was appointed a judge of the U.S. Court of Federal Claims on July 11, 1985 and entered duty on September 12, 1985. He was designated Chief Judge on January 14, 1986. He has served with great distinction on the U.S. Court of Federal Claims.
James F. Merow James F. Merow received his A.B. degree (with distinction) from George Washington University in 1953 where he was made a member of Phi Beta Kappa and Omicron Delta Kappa. In 1956 he received his J.D. degree (with distinction) from George Washington University Law School where he served on the Board of Editors of the Law Review and was made a member of the Order of the Coif. From 1956 to 1959, Judge Merow served as an officer in the Army Judge Advocate General Corps, and as a trial attorney/Branch Director, Civil Division, Department of Justice in 1956 and from 1959-1978 (obtaining the John Marshall Award in 1976). From 1978 to 1982 he served as Commissioner (Trial Judge) with the U.S. Court of Claims. Judge Merow has served as a Judge of the U.S. Court of Federal Claims since October 1, 1982. He retired on August 5, 1998, and entered senior status at that time.
John P. Wiese Born in Brooklyn, New York in 1934, John P. Wiese graduated Phi Beta Kappa from Hobart College in 1962, and received his L.L.B. from the University of Virginia School of Law in 1965. He served in the United States Army from 1957 to 1959. Judge Wiese served as a staff law clerk in the Trial Division of the U.S. Court of Claims from 1965 to 1966, and then as law clerk to the late Judge Linton M. Collins in the Appellate Division of the U.S. Court of Claims from 1966 to 1967. Thereafter, Judge Wiese engaged in the private practice of law with the firms of Cox, Langford & Brown (1967-1969) and Hudson, Creyke, Koehler & Tacke (1969-74). From 1974 to 1982 he served on the U.S. Court of Claims as a Trial Commissioner. On October 1, 1982, Judge Wiese was appointed a Judge of the U.S. Court of Federal Claims.
Robert J. Yock Born in St. James, Minnesota in 1938, Robert J. Yock graduated from St. Olaf College, receiving a B.A. degree in 1959, and received his J.D. from the University of Michigan Law School in 1962. He served as a Lieutenant in the United States Navy, Judge Advocate General's Corps from 1962 to 1966. From 1966 to 1969, Judge Yock practiced law in Minneapolis/St. Paul, Minnesota. He then went on to serve as Chief Counsel for the National Archives and Record Service, General Services Administration, 1969 to 1970; Executive Assistant and Legal Advisor to the Administrator, General Services Administration, 1970 to 1972; Assistant General Counsel, General Services Administration, 1972 to 1977; and Trial Judge, U.S. Court of Claims, 1977 to 1982. Judge Yock was appointed Judge of the U.S. Claims Court (now the U.S. Court of Federal Claims) on October 1, 1982.He retired on August 5, 1998, and was recalled to senior status at that time.
Lawrence S. Margolis Lawrence Margolis earned his Bachelor of Science degree in Mechanical Engineering from Drexel University in 1957, and went on to earn his J.D. in 1961 from the George Washington University Law School. From 1962 to 1963 he was Patent Counsel at the U.S. Naval Ordnance Laboratory. From 1963 to 1966 he served as Assistant Attorney General for the District of Columbia. From 1966 to1968 he was an attorney with the Criminal Division of the U.S. Department of Justice. From 1968 to 1971 he served as Assistant U.S. Attorney for the District of Columbia, after which he went on to serve as a United States Magistrate Judge until 1982. Judge Margolis began serving as a Judge of the U.S. Court of Federal Claims on December 15, 1982. On December 15, 1997, he took senior status.
Bohdan A. Futey Born in the Ukraine in 1939, Bohdan A. Futey graduated from Western Reserve University receiving a B.A. in 1962 and an M.A. in 1964; he received a J.D. degree from Cleveland Marshall Law School in 1968. From 1968 to 1972 Judge Futey was a partner in the law firm of Futey & Rakowsky. He went on to become Chief Assistant Police Prosecutor for the City of Cleveland from 1972 to 1974, and then served as Executive Assistant to the Mayor of Cleveland from 1974 to 1975. From 1975 to 1984 he returned to private practice as a partner with the law firm of Bazarko, Futey and Oryshkewych. In 1984, Judge Futey served as Chairman of the Foreign Claims Settlement Commission of the United States. In 1987, he began serving as a Judge of the U.S. Court of Federal Claims.
Robert H. Hodges, Jr. Robert H. Hodges, Jr., attended Wofford College, Spartanburg, South Carolina, and graduated from the University of South Carolina with a B.S. in 1966 and received his J.D. from the University of South Carolina Law School in 1969. Judge Hodges formerly served as: legislative aide to Senator Strom Thurmond; legislative assistant to Congressman Floyd Spence; Vice President and General Counsel of First National Bank of South Carolina; Executive Vice President and General Counsel of South Carolina Bankers Association. He practiced law in Columbia, South Carolina before his appointment in 1990 as a Judge of the U.S. Court of Federal Claims. In 2005, he entered senior status with the court.
|
  Marzulla Law, LLC is the nation's leading law firm for takings claims against the federal government. ML represents landowners, developers, water districts, Indian tribes, business, and corporate interests in litigation of property rights and contract claims. ML also represents clients in environmental enforcement actions, and litigation involving natural resources and permitting issues, in federal district courts and courts of appeal.
We hope that this Newsletter will serve as a resource for you.
Best regards, 
Nancie and Roger Marzulla
Marzulla Law, LLC
Tel.: 202.822.6760 
www.marzulla.com
|
|
Marzulla Law, LLC is a Washington D.C.-based law firm. Nancie G. Marzulla and Roger J. Marzulla help property owners get paid just compensation when the Government takes their property through inverse condemnation.
ML lawyers practice in the federal courts, especially the U.S. Court of Federal Claims, the Federal Circuit Court of Appeals, and the U.S. District Court for District of Columbia, as well as other federal district courts, appellate courts, and the U.S. Supreme Court. ML also represents clients in administrative agencies, such as the Interior Board of Indian Appeals.
Chambers has recognized Marzulla Law as one of the top ten water rights litigation firms in the country. Nancie Marzulla and Roger Marzulla have been selected by their peers to be included on the list of Best Lawyers in America, and their firm has the highest AV-rating from Martindale-Hubble. Nancie and Roger Marzulla have been recognized by Best Lawyers as a Top Tier law firm by U.S. News & World Report for environmental law, and Marzulla Law is a proud member of the International Network of Boutique Law Firms.
|
|
|
