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Greetings! |
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We're pleased to bring you the first Northwest Center Sentry of the new year! Thanks again for helping us have another successful year in 2013. The battle for liberty continues on. We look forward to reporting on our progress during the year. We encourage you to our newsletter with friends and colleagues who have the same passion for protecting our freedom as you do.
 Warmest regards,  Jim Katzinski Regional Director Fund Development & Planned Giving Pacific Legal Foundation
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Meet Maureen Richter, PLF's latest Supreme Court Petitioner |
| Maureen Richter |
It began almost eight years ago with a simple request for a permit to clear a footpath on her own property. This month, PLF helped Maureen Richter, of Des Moines, Washington, petition the U.S. Supreme Court to hear her challenge to her city's procedure for reviewing land use applications -- a procedure that is unconstitutionally stacked against property owners.
Ms. Richter just needed a safe way to get to the beach on her property. What she got instead was a stop-work order and the threat of a quarter million dollar fine. Even after she hired a team of engineers to design a trail that met the city's requirements under various shoreline management rules, the city denied her permit application.
When city officials deny a permit application, the landowner's only recourse is to appeal the decision to a hearing examiner; but instead of acting as a neutral arbiter, the Des Moines hearing examiner is required, by city ordinance, to side with the city in most circumstances. On this tilted playing field, the hearing examiner is expected to defer to the city's version of any disputed facts that might be at issue in a landowner's appeal.
Ms. Richter sued to overturn the city's denial of the permit for her trail, the details of which you can read here. The case has wound through state and federal courts since that hearing examiner's decision. PLF attorneys contributed a "friend of the court" brief when the case was appealed to the Ninth Circuit Court of Appeals. When that court ruled against Richter last summer, PLF took over representation in order to petition the U.S. Supreme Court.
"The city denied my permit without going through a constitutionally proper process, and I'm fighting back against this abuse of power," said Richter. "There has to be accountability among government agencies and government officials for what they do and how they treat people. I'm not a developer. I'm an average person who was just seeking a permit for normal and responsible work on my property. I'm grateful that Pacific Legal Foundation is helping me as I ask the U.S. Supreme Court to take this case, because the issues are important for all homeowners and other property owners. It's about justice for property owners, and it's about requiring government to treat people fairly and honestly."
The Richter v. Des Moines petition should be reviewed and accepted or declined by the high court later this year. The petition for certiorari, news release, podcast, and other background material may be found at www.pacificlegal.org.
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Supreme Court tough on government's "convenient" arguments |
The Supreme Court heard oral argument this month in Brandt v. United States, a case in which the United States is trying to argue that abandoned railroad easements are not, in fact, easements. The reason the United States is arguing that the easements are not easements is because they claim they are instead a strange and previously unknown creature of law where the government gets the land under the tracks after the railroad is abandoned, and not the actual owner of the land. If that isn't confusing enough, the owners here, ably represented by our friends at Mountain States Legal Foundation, rested much of their argument on a prior Supreme Court case where the Court agreed with the United States' arguments (made 70 years ago) that the easements were easements. The Justices seemed more than a little perturbed with the government's convenient inconsistency. Based on the questioning by the Justices, we have a good feeling where this one might be going. For more on the case, read the amicus brief, see our blog, listen to our podcast, or read the transcript of the oral argument.
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Hawkes v. Corps of Engineers: Legal Fiction Endangers Civil Rights |
By Reed Hopper
What you and I would call a fabrication is known in the Halls of Justice as a "legal fiction."
A legal fiction is "an assumption that something is true even though it may be untrue, made especially in judicial reasoning to alter how a legal rule operates." Black's Law Dictionary.
For decades, the courts have used a legal fiction to deny citizens the right to challenge certain determinations by the Army Corps of Engineers and EPA under the Clean Water Act, like the onerous compliance order in Sackett. In that case, the EPA tried to compel the Sacketts to "restore" alleged wetlands on their half-acre home lot (at a cost in excess of the lot's value) or face penalties of $75,000 a day. The EPA compliance order was based on unproven allegations that the Sacketts' property contained "navigable waters" subject to federal jurisdiction. When the Sacketts tried to challenge the jurisdiction of the
 | The wetlands at issue in the Sackett case: "Navigable"? By what? |
government in court, the Ninth Circuit Court of Appeals refused to allow it, relying on the fiction that the compliance order did not impose any legal obligations on the Sacketts but was just advisory. Fortunately, all nine Justices on the U.S. Supreme Court saw through the fiction and held the Sacketts could seek judicial review of the agency's claim of jurisdiction. However, the High Court's unanimous decision in Sackett has yet to be applied to Jurisdictional Determinations (i.e., wetland delineations) issued by the Corps.
A case in point is Hawkes v. Corps of Engineers, in which Minnesota landowners are seeking permission to harvest their swamp for peat moss used in landscaping. The landowners admit the swamp is a wetland by definition. However, under the Supreme Court decision in Rapanos v. United States, only wetlands that are adjacent to a permanent waterbody, or which have a "significant nexus" with traditional navigable waters, are subject to federal jurisdiction under the Clean Water Act. When the Corps issued a Jurisdictional Determination asserting the swamp was covered by the Act, without demonstrating the requisite connection to traditional navigable waters, the landowners sought to challenge the determination in court. We filed an amicus brief in the case arguing that the Sackett decision requires judicial review of Jurisdictional Determinations which are issued in the hundreds each year by the Corps nationwide. In a decision that can only be called disingenuous, the trial court relied on the old fiction, discredited in Sackett, that a Jurisdictional Determination does not impose a legal obligation on the landowners and is not ripe for judicial review. In reality, a Jurisdictional Determination showing "navigable waters" is a binding legal finding that requires the landowner to acquire a costly federal permit or face ruinous fines or imprisonment. To say that a Jurisdictional Determination has no meaningful legal effect is a pure fabrication. It is a legal fiction of the worst kind because it deprives ordinary citizens of their day in court to contest government overreaching.
The High Court's unanimous decision in Sackett has yet to be applied to wetland delineations issued by the Corps.
Instead of following the Supreme Court's lead in Sackett, the trial court asserted that the landowners could seek a federal 404 Clean Water Act permit (costing several hundred thousand dollars) and then challenge the Corps' jurisdiction, or, ironically, they could proceed with the project without a permit in hopes that the Corps or EPA would issue a compliance order like the one in Sackett (risking $75,000 a day in fines) and then challenge the compliance order in court. This is ludicrous! The trial court seems to have willfully missed the point in Sackett that landowners should not be compelled to spend exorbitant amounts of money for a permit that may not be required or subject themselves to disastrous civil and criminal liability when federal jurisdiction is in dispute. These are not adequate remedies when the agency has already made a definitive Jurisdictional Determination.
PLF was asked by Hawkes to appeal the case to the Eighth Circuit Court of Appeals, which we did. The briefing in the case is complete. We are now waiting for oral argument and a final decision. Hopefully, the Eighth Circuit will see this wetland delineation for what it is (a final jurisdictional determination) and stop perpetuating the myth that the agency action is of no legal consequence. Thousands of landowners across the country are awaiting their day in court.
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Getting the word out about Koontz victory |
Pacific Northwest Office Principal Attorney Brian T. Hodges will be on tour as a speaker this year. The speaking engagements capitalize on the interest in PLF's victory at the Supreme Court last year in Koontz v. St. Johns River Water Management District.
Topic: "Koontz and its Impacts on Washington Land Use Practice."
Host: Washington Association of Prosecuting Attorneys Conference
Date: April 18, 2014
Location: Richland, Washington. The presentation will be repeated June 20 at the WAPA conference in Chelan.
| NWBC Brian Hodges of PLF on Property Rights Dec 11th 2013 |
Mr. Hodges will also be a guest lecturer at Seattle University School of Law, speaking about Koontz, Regulatory Takings, and Washington Land Use law, on April 23.
PLF welcomes invitations for our attorneys to speak about the foundation's cases.
The video at right was provided by a group which sponsored an engagement last year: Mr. Hodges addresses the Northwest Business Club in Bellingham, Washington. |
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