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Browsing the archives for the Pacific Legal Foundation category.

PLF sues California regulators for not monitoring protected species

Endangered Species Act, Lawsuits, Pacific Legal Foundation

PNP comment: This is great news. In the initial aspect of the ESA, it was intended for populations of ESA-listed species to improve. The goal was to remove species from the ESA. Ha! Now, the government agencies act is such a way that proves they do not want species de-listed or removed from the ESA, so they can continue to bring tyrannical regulations on the heads of property owners and destroy businesses, communities and economies. — Editor Liz Bowen

Pacific Legal Foundation Press Release

SACRAMENTO, CA;  February 24, 2016:

Attorneys with Pacific Legal Foundation have just sued the California Department of Fish and Wildlife (DFW), to force it to perform overdue status reviews for 233 species that are listed as “endangered” or “threatened” under the California Endangered Species Act (CESA).

Damien M. Schiff
Principal Attorney

Tony Francois
Senior Staff Attorney

Wencong Fa
Staff Attorney

Donor-supported PLF is the leading legal watchdog organization that litigates for limited government, property rights, and a balanced approach to environmental regulations.

In this lawsuit, launched today in San Diego County Superior Court, PLF attorneys represent the California Cattlemen’s Association.

CESA requires that the status of every listed species be reviewed every five years.  (Cal. Fish and Game Code, Section 2077).  The DFW has listed 235 species for more than five years, but it has conducted the required five-year status reviews on only two of them — the Swainson’s hawk and the California least tern.  The rest have not been monitored under the five-year review process mandated by law.  PLF’s lawsuit — a petition for writ of mandamus — asks the courts to declare that the DFW is in violation of law for failing to monitor these 233 species in a timely manner, and to order the agency to move forward with status reviews on all of them, as required by California Fish and Game Code Section 2077.

“This lawsuit seeks to ensure that species protection in California is pursued with integrity, effectiveness, and accountability to science and the rule of law,” said PLF attorney Wencong Fa.  “The state’s failure to monitor protected species is an abdication of both legal and environmental responsibilities, and a violation of public trust.  It is unfortunate that the Department of Fish and Wildlife has to be sued to do its duty and conduct five-year reviews, because keeping current on the condition of protected species is fundamental for credible regulations.”

Conducting timely status reviews isn’t just common sense – it’s the law

“The law requires five-year status reviews for an obvious, commonsense reason — so regulators can base decisions on up-to-date scientific information,” Fa continued.  “Timely reviews allow officials to determine whether there is a need for a change in a species’ listing and in the level of regulatory protection.  Indeed, keeping current on the status of listed species is the only way to monitor the effectiveness of regulatory protections.

“Periodic status reviews also safeguard property owners from unnecessary regulatory burdens imposed for species that no longer need protection,” Fa continued.  “And five-year reviews protect taxpayers — and the cause of efficient environmental policy — by making sure resources are focused on species that need them, and not diverted to species that are out of danger.”

Feds update the status of species — while the state stalls

The list of plants listed as “endangered” or “threatened” under the CESA is available at https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=109390&inline.

The list of animals listed as “endangered” or “threatened” under the CESA is available at https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=109405&inline.

“Tellingly, seven of the species listed under California’s ESA law have already been reclassified or recommended for reclassification by federal officials under the Federal ESA,” Fa noted.  “Because California officials have not conducted status reviews on any of those species within the last five years, they have no idea whether reclassification is also appropriate under state law.”

Those seven species are the Beach Layia (found in Humbolt County, Marin County, Monterey County, and Santa Barbara County); Santa Cruz Cypress (San Mateo County and Santa Cruz County); Modoc Sucker (Lassen County); Least Bell’s vireo (found in 20 counties in both Northern and Southern California); and the San Clemente Island Indian Paintbrush; San Clemente Island larkspur; and San Clemente Island bush-mallow.

(Note:  This federal updating of species listings came about as a result of earlier PLF legal action that prodded federal officials to conduct their own overdue five-year status reviews of federally protected species, as required by the U.S. Endangered Species Act.)

Plaintiff:  The California Cattlemen’s Association

In the lawsuit against DFW, PLF attorneys represent the California Cattlemen’s Association (CCA), a nonpartisan, nonprofit trade organization founded in 1917 to represent beef cattle producers in legislative and regulatory affairs.  The association currently has over 3,000 individual members and 38 affiliated county or multi-county cattlemen’s associations located throughout California.  CCA has members in every county in California, and its members raise cattle in every county except for San Francisco.  The beef cattle industry contributes over 26,000 jobs and more than $1.5 billion annually to California’s agricultural economy.

Beef cattle producers own or manage approximately 38 million acres within California.  A substantial number of CCA members own or manage properties inhabited by species listed as either “threatened” or “endangered” under the CESA.  Because species listings can impose economically harmful regulatory restrictions on grazing and other responsible property use, CCA members have a vital interest — along with all taxpayers and everyone who values sound, informed environmental policy — in ensuring that the status of listed species is reviewed as required by CESA, so that listings and regulations reflect accurate, up-to-date science.

The case is California Cattlemen’s Association v. Department of Fish and Wildlife.  More information, including the petition of writ of mandamus is available at www.pacificlegal.org.

About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation is the leading legal watchdog organization that litigates for limited government, property rights, free enterprise, and a balanced approach to environmental regulations.  PLF represents all clients without charge.



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Agriculture, Clean Water ACT - EPA, CORRUPTION, Federal gov & land grabs, Illegal, Lawsuits, Pacific Legal Foundation, Water rights, Water, Resources & Quality

PNP comment: Way to go Pacific Legal Foundation ! — Editor Liz Bowen

Claiming control over ‘every pond, stream and ditch’ in country

July 16, 2015

Published: 1 hour ago

World Net Daily.com

A massive new power grab by bureaucrats in Washington that would give them control of “practically every pond, stream and ditch in the country” and the lands where they are is being challenged in court by a legal team that already has taken on – and defeated – federal efforts to run roughshod over Americans with water rules.
The newest fight is against the Environmental Protection Agency, the U.S. Army Corp of Engineers and others for their announcement, at the end of June, to vastly expand the jurisdictional term “waters of the United States” under the clean Water Act.
A lawsuit was filed by the Pacific Legal Foundation because, as its principal attorney, M. Reed Hopper, explained, “This new regulation is an open-ended license for federal bureaucrats to assert control over nearly all of the nation’s water, and much of the property, from coast to coast.”
Have a retention pond in a park? Could be subject the new regulation. A low area where rain runoff from your neighborhood drains? Same thing. Isolated puddles in a cow pasture? Look out.
In fact, Hopper said, “Under its vague and limitless terms, the only waters that are clearly not subject to federal regulatory power are a few that are expressly excluded in the Clean Water Act, including artificial reflective pools, ornamental waters, some ground water, and gullies.”
Plaintiffs include the Washington Cattlemen’s Association, California Cattlemen’s Association, New Mexico Cattle Growers Association, New Mexico Wool Growers Inc., New Mexico Federal Lands Council, Duarte Nursery Inc., Pierce Investment Co.’ LPF Properties and Hawks Co.
Judge Andrew Napolitano is issuing his warning, in “It Is Dangerous To Be Right When The Government Is Wrong.”
The case was filed in U.S. District Court in Minnesota.
The Sacramento-based legal team said the Washington rule “could bring virtually all the nation’s water and much of the land under direct federal regulatory control” because “it sets no limit on the CWA’s reach.”
It explicitly expands federal control to waters that the U.S. Supreme Court already has ruled “off-limits,” the team said.
The Clean Water Act, originally designated to protect “navigable” waters such as rivers, lakes and oceans, would now include “tributaries” no matter how small or remote, “neighboring” water without any connections, and “even isolated waters that the Supreme Court has held to be beyond CWA coverage.”
“In short, the administration is engaged in a sweeping power grab,” Hopper said. “Property owners around the country will be faced with the prospect of being micro-managed by federal bureaucrats. This turns our federal system on its head. Under our constitutional framework, the states and localities are charged with the primary role in land use regulation and local water-quality protection.
“The Obama administration’s sweeping new rule usurps the authority and responsibility of the states, and empowers bureaucrats in Washington, D.C., to act as zoning and land use czars for the entire nation.”
Billy Gatlin, of the California Cattlemen’s Association, said the rule is vague and creates confusion over what ranching activities might, or might now, now be allowed.
Jose Varela of the new Mexico Cattle Growers Association noted his family has been on his land for 14 generations.
“I believe we have the history to prove that we are caretakers of the water and the land without the help of the Environmental Protection Agency,” he said.
The complaint seeks declaratory judgments that the EPA’s expansive claims to control of all tributaries, adjacent waters, interstate waters, isolated waters and more is contrary to law and invalid.
It explains that the Supreme Court already has ruled that the agencies can regulate some wetlands adjacent to navigable waters, but they cannot take control of isolated water bodies or certain tributaries.
The EPA proposed the rule change in 2014, and made it final on June 29, 2015.
If the rule change stands, the complaint explains, “landowners” will be required to seek a federal permit, at a significant cost perhaps of tens of thousands of dollars, to use their own property.
Lawsuits also have been filed over the past few days by 27 states challenging the EPA plan because it violates the Clean Water Act, Supreme Court precedent and state rules in its action.
“The results of this rule will carry a tremendous cost to our state, our economy, and our families,” South Carolina Attorney General Alan Wilson said in a statement.
“The EPA’s proposed expansion would bring many roadside ditches, small ponds on family farms, water features on golf courses, and storm water systems under extremely burdensome federal regulation.”
States involved include South Carolina, West Virginia, Alabama, Florida, Georgia, Kansas, Kentucky, Utah, Wisconsin, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, Wyoming, Ohio, Michigan, Texas, Mississippi and Louisiana.
The Pacific Legal Foundation has taken on Washington’s bureaucrats directly in the past, most notably in the Sackett case from Priest Lake, Idaho. There a couple bought some land and, with building permissions, started work on their dream home.
Along came the Environmental Protection Agency with a determination that the parcel contained “wetlands” and gave the couple the options to abandon their land, seek a prohibitively expensive permit or face millions of dollars in fines.
The federal agency also contended the couple was not allowed to seek a judicial review of its decision.
But in a case assembled by the foundation, the Supreme Court ruled the EPA cannot issue a “drive-by” decision regarding wetlands and then prohibit the owner from using the property or challenging the decision.
The Supreme Court said the EPA must provide a process through which a challenge to its decision can be addressed in a meaningful way. The case was called a “precedent-setting victory for the rights of all property owners.”
A legal team spokesman said at the time: “The justices have made it clear that EPA bureaucrats are answerable to the law and the courts just like the rest of us. EPA can’t try to micromanage people and their property – it can’t order property owners to dance like marionettes – while denying them any meaningful right to appeal to the courts. It can’t threaten property owners with financial ruin and not have to justify its threats to a judge. And it can’t issue lazy, drive-by ‘wetlands’ edicts about private property.”
WND reported earlier on the looming rule change, when the PLF submitted comments to Washington warning of the dangers.
“On its face, the proposed rule covers virtually every water in the nation,” the team told the government in a comment procedure in advance of any final decision on the plan. “Under this rule, a prudent legal practitioner would have to advise his client that the only waters not covered are those few that are expressly exempt.”
The legal team warned, “If a water body isn’t a ‘traditional navigable water,’ it is a ‘tributary.’ If it isn’t a ‘tributary,’ it is an ‘adjacent water.’ If it isn’t an ‘adjacent water,’ it is an ‘other water.’ All of which are subject to onerous federal regulation.
“If it isn’t a water at all, it is still covered by the fine print in Footnote 3 of the proposed rule that states the terms ‘waters’ and ‘water bodies’ ‘do not refer solely to the water contained in these aquatic systems, but to the system as a whole including associated chemical, physical and biological features.’”
Pacific Legal said the “seemingly innocuous language is troubling because it can be interpreted to include runoff, dry land, man-made structures, and flora and fauna.”

Read more at http://www.wnd.com/2015/07/feds-sued-over-massive-water-rule-power-grab/#RuZ9Xbs774mhaEBz.99

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Siskiyou County seeks high court review of groundwater decision

Pacific Legal Foundation, Siskiyou County, State gov, Water rights, Water, Resources & Quality


Siskiyou County seeks high court review of groundwater decision

Pacific Legal Foundation.org

Liberty Blog

August 28, 2014Damien M. Schiff

Last month, the Sacramento Superior Court issued a decision in Environmental Law Foundation v. State Water Resources Control Board, holding among other things that Siskiyou County cannot issue any new well permits unless it assesses the impacts of new groundwater withdrawals on the Scott River. The decision is the first of a California court holding that the common law public trust doctrine extends, under any circumstance, to groundwater extraction.
This week, the County filed an original writ in the California Supreme Court asking for immediate review of the trial court’s decision. Although such direct review is generally not granted, the California Supreme Court has often agreed to such review of cases presenting issues concerning water rights and the public trust doctrine (for example, such review was granted in the Court’s leading public trust doctrine decision, National Audubon Society v. Superior Court). For the high court to address and definitively resolve the public trust doctrine’s relationship to groundwater would undoubtedly have a significant impact on the Legislature’s debate over whether to enact a new regulatory regime for groundwater extraction.

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PLF – Supreme Court Alert 6-23-14 on EPA

Federal gov & land grabs, Lawsuits, Over-regulations, Pacific Legal Foundation

Supreme Court Alert

We have breaking Supreme Court news to announce.

Today, in the case Utility Air Regulatory Group v. EPA, the Supreme Court held that the Environmental Protection Agency violated the Clean Air Act in some ways when it limited carbon dioxide emissions from some stationary sources.

Pacific Legal Foundation submitted a friend of the court brief opposing the EPA’s regulatory overreach. Here’s our statement about the ruling from PLF attorney Tony Francois:

“EPA was trying to be a law unto itself, writing its own rules about where its authority over ‘greenhouse gas’ emissions starts and stops. EPA officials were trying to regulate greenhouse gases from all large stationary sources, without establishing that the emissions actually came within EPA’s statutorily defined jurisdiction.

“The Supreme Court called them on this abuse of power, to the extent EPA was regulating facilities, such as apartments and office buildings, that might emit greenhouse gases, but weren’t emitting conventional air pollution. To this extent, the court’s ruling is a victory for accountability in government. In a representative democracy, unelected bureaucrats can’t invent regulatory power for themselves that hasn’t been assigned to them by Congress.”

The majority opinion, written by Justice Scalia, noted – in strongly worded terms – that EPA’s authority to regulate “small sources” of carbon dioxide emissions should be held in check:

“In the Tailoring Rule, EPA asserts newfound authority to regulate millions of small sources – including retail stores, offices, apartment buildings, shopping centers, schools, and churches – and to decide, on an ongoing basis and without regard for the thresholds prescribed by Congress, how many of those sources to regulate. We are not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery. We reaffirm the core administrative-law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.”

PLF attorneys are involved in several high-profile cases like Utility Air to limit government power and achieve balance in environmental regulations in courts across the country. Your generous support of PLF helps us hold powerful agencies like the EPA and the California Air Resources Board accountable to the Constitution and the rule of law.

Please follow our Blog for more on this case, and other PLF cases.

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Pacific Legal Foundation Alert

Federal gov & land grabs, Pacific Legal Foundation

Nov. 21, 2013

They never stop trying to grow their power

                        Federal regulators have an insatiable thirst to control more land and water throughout the nation. It’s not enough that they’ve starved family farms and rural communities in the San Joaquin Valley of precious water to protect Delta smelt in recent years, now the U.S. Environmental Protection Agency is on a mission to expand its authority to regulate isolated water bodies in the country.

“We seem to be witnessing a push to stretch federal power so broadly that it could potentially cover every pond, puddle, and pothole in the country.” – M. Reed Hopper, PLF Principal Attorney

Without a vote of the Congress, and relying on an EPA report on “connectivity” that is still in draft form, regulators at the EPA and the Army Corps of Engineers are asserting that all streams (no matter how small or intermittent) are interconnected and have an effect on downstream navigable waters. And that’s not all – the report makes mention of groundwater even though courts have routinely excluded groundwater from federal jurisdiction.

Pacific Legal Foundation just fired off a warning to the EPA in formal comments on the “connectivity” report. PLF Principal Attorney M. Reed Hopper said “the report seems designed to serve an agenda of unlawful expansion of federal power under the Clean Water Act.”

M. Reed Hopper

PLF Principal Attorney

  • It ignores Justice Kennedy’s holding in PLF’s 2006      victory at the U.S. Supreme Court in Rapanos v. United States that waters      must have a significant effect on traditional navigable waters in order      for the federal government to have jurisdiction. A mere connection is not      enough.

  • The report uses very broad terms for      “streams,” “wetlands,” and “adjacent,” which      are different than those used by the Supreme Court or in current practice      in government agencies.

  • EPA’s proposed rule is being made despite the fact      that the connectivity report is still in draft form and has not been      presented for public comment.

“We seem to be witnessing a push to stretch federal power so broadly that it could potentially cover every pond, puddle, and pothole in the country,” Hopper said. “This kind of micro-management of property, water, and land use decisions from Washington, D.C., is at odds with Supreme Court precedent, the spirit and letter of the Clean Water Act, and the U.S. Constitution’s limits on federal authority. Federal regulators should be warned that if their new water rule veers away from statutory and constitutional principles, they risk sailing into a lawsuit.”

Be assured that PLF will keep close tabs on federal regulators. When government bureaucrats overstep the bounds of their constitutional authority, PLF, with your support, pushes back.

We’d like to take this opportunity to wish you and yours a Happy Thanksgiving. It’s because of Americans like you that PLF is so successful in safeguarding our precious freedoms in courts across the nation.

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Feds sued over shutdown order at wheat farm

Agriculture - California, Federal gov & land grabs, Pacific Legal Foundation

PNP comment: Yep this is outrageous. Sure is good the Pacific Legal is in the battle. — Editor Liz Bowen

Tim Hearden


The Pacific Legal Foundation is suing the U.S. Army Corps of Engineers for ordering a nursery to stop farming a wheat field in Tehama County, Calif., because of concerns over wetlands. Duarte Nursery lost the $50,000 it cost to plant the field and lost the ability to farm it this season.

RED BLUFF, Calif. — A property rights group is suing the U.S. Army Corps of Engineers on behalf of a family-owned nursery that was ordered to stop farming a wheat field south of here without being given a hearing.

The Pacific Legal Foundation filed the suit Oct. 10 in U.S. District Court in Sacramento on behalf of Duarte Nursery and its president, John Duarte, who say they were deprived of a crop this year.

In February, the Corps issued a cease-and-desist letter and a notice of violation that accused Duarte of illegally filling wetlands. While Duarte disputes the accusation, the PLF also argues the government violated the business’ Fifth Amendment due-process right in not allowing it to answer the charge.

PLF attorney Tony Francois called the stop order an example of “dictatorial behavior” by federal officials, and said the suit will enable the Duarte family to “get their day in court.”

“They’re entitled, just like anyone else who’s accused by the government of breaking the law, to an opportunity to present their case and set the record straight,” Francois told the Capital Press. “In this case it’s clear that they didn’t do what the Corps said they did.”

A Corps spokesman in Washington, D.C., did not immediately return a call and email seeking comment.

The suit also names members of the Central Valley Regional Water Quality Control Board, which also claimed Duarte violated the Clean Water Act, Francois said. State water board spokesman George Kostyrko said the agency could not comment on the litigation.

The PLF asserts the agencies should have advised Duarte before taking an enforcement action and given him a reasonable opportunity to “set the record straight.”

Founded in 1989 near Modesto, Calif., Duarte Nursery and its subsidiary, Dry Creek Farms, produces rootstock for a variety of agricultural products, including prunes, almonds, pistachios, walnuts and citrus, according to its website.

The PLF maintains a federal hearing before a shutdown order could have shown that Duarte hired a consultant to identify wetlands on its 430-acre property on Paskenta Road in rural Tehama County and that no plowing took place in those areas.

The organization contends that areas where plowing occurred did not meet tests the U.S. Supreme Court has set for wetlands subject to Clean Water Act oversight. Francois said the Corps relied on a wetlands map created in 1994, when the legal definition of a wetland was much more widely applied.

As a result of the enforcement action, Duarte Nursery lost the $50,000 it cost to plant the wheat and has lost the ability to farm its property, Francois said. In a statement, John Duarte said the family was “blindsided” by the stop order.

“We have always been careful to conserve and protect the land, and the Corps is wrong to suggest we’ve harmed any wetlands,” he said. “But beyond that, the Corps is wrong to deny us our constitutional right to answer their allegations in a hearing prior to enforcement.”

Francois asserts the stop order is part of a larger pattern of federal officials failing to recognize that Congress exempted normal farming practices from requiring wetlands permits from the Corps.

“All the Duarte Nursery did was use a tractor to plow and plant a winter wheat field,” he said. “So if the Corps is going to now be going around issuing violation notices basically for farming, this is a serious problem. This is something Congress has told the Corps they have no authority over.”

– See more at: http://www.capitalpress.com/article/20131010/ARTICLE/131019986/1169#sthash.pXGWyb6d.dpuf

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In a PLF beach case, court crushes the Williamson County removal-ripeness trap

Liberty, Pacific Legal Foundation

In North Carolina, Texas, California and other regions, Pacific Legal Foundation has worked diligently to protect the property rights of coastal land owners . We have also fought for many years to ensure that property owners of all sorts have equal access to the federal courts to defend their constitutional rights.

Today, the Fourth Circuit Court of Appeals issued a significant, favorable published decision in Sansotta v. Town of Nags Head that advances both causes.

(Pacific Legal Foundation)

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Come to one of PLF’s briefings on our challenge to the cap-and-trade auction

Pacific Legal Foundation

Jennifer L. Rohde Pacific Legal Foundation jlr@pacificlegal.org (916) 419-7111

Sacramento, CA;

June 21, 2013: Over the next several weeks, Pacific Legal Foundation will host a series of regional community briefings on PLF’s lawsuit challenging California’s “cap-and-trade” auction regulation.

The regulation requires targeted businesses that emit significant amounts of carbon dioxide to bid for carbon “credits” from the state. PLF’s lawsuit challenges the regulation because it constitutes an illegal tax. The tax is illegal because the California Air Resources Board concocted it without approval by two-thirds majorities in both chambers of the Legislature, as required after Propositions 13 and 26 amended the state constitution.

In challenging the auction regulation, PLF represents a broad spectrum of California businesses, trade associations, and individuals harmed by the regulation. At each of the PLF briefings, attendees will be given an overview of PLF’s litigation against the cap-and-trade auction scheme, and invited to ask questions.

Briefings are free and open to the public. Please RSVP or contact Jennifer Rohde at PLF: (916) 419-7111; jlr@pacificlegal.org.

Register Now Button

Scheduled briefings are as follows:

Tuesday, July 9Sacramento Pacific Legal Foundation 930 G Street Sacramento, CA 95814 5:30 – 7:00 p.m. Complimentary refreshments and hors d’oeuvres

Wednesday, July 10Salinas Grower-Shipper Vegetable Association (Co-hosted with Western Growers) 512 Pajaro Street Salinas, CA 93902 3:00 – 5:00 p.m. Complimentary refreshments and hors d’oeuvres

Thursday, July 11Coalinga Harris Ranch 24505 West Dorris Avenue Coalinga, CA 93210 11:00 a.m. – 1:00 p.m. Complimentary lunch


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PLF Statement on Koontz v. St. Johns River Water Management District Victory

Lawsuits, Pacific Legal Foundation

Pacific Legal Foundation

Sacramento, CA; June 25, 2013:  The U.S. Supreme Court today handed a victory to all property owners by ruling in favor of Pacific Legal Foundation’s client, Coy Koontz Jr., in his constitutional challenge to the heavy, unjustified demands that his family faced as a condition for a building permit.

The case is Koontz v. St. Johns River Water Management District.

PLF is a donor-supported, nonprofit watchdog organization that litigates nationwide for property rights.  As with all our clients, PLF represents Coy Koontz, Jr., free of charge.

PLF Principal Attorney Paul J. Beard II, who argued on behalf of Mr. Koontz at the U.S. Supreme Court, issued this statement today, after the Court’s ruling was announced:

“Today’s ruling says the Fifth Amendment protects landowners from government extortion, whether the extortion is for money or any other form of property.”

“The ruling is a powerful victory for everybody’s constitutional property rights, from coast to coast,” Beard continued.  “The Koontz family was challenging permit demands that were wildly excessive and had no connection to their land use proposal.  Today, the Court recognized that the Koontz family was the victim of an unconstitutional taking.  The Court’s message is clear: Government can’t turn the land use permitting process into an extortion machine.

“The ruling underscores that homeowners and other property owners who seek permits to make reasonable use of their property cannot be forced to surrender their rights,” Beard stated.  “Regulators can’t hold permit applicants hostage with unjustified demands for land or other concessions — including, as in this case, unjustified demands for money.

“The court has recognized that money is a form of property, and the Constitution prohibits grabbing money from property owners the same way it prohibits grabbing land without compensation,” Beard said.

“The Koontz family sought permission to develop a few acres in Central Florida, and they were told they must spend up to $150,000 to improve the government’s property, miles away from the Koontz family’s land,” Beard explained.  “This demand was far in excess of any impact that their land use proposal would create.  They fought this injustice in the courts for nearly two decades, and today they have won a landmark decision, for themselves and all property owners.  Their victory protects all permit applicants from government extortion.  Everyone who values constitutional property rights owes the Koontz family a debt of gratitude for this historic victory.”

Koontz case is important for all property owners, nationwide

The late Coy Koontz, Sr., sought a development permit for three acres he owned in Orange County, Florida.  Even though he offered to dedicate the rest of his property — 11 acres — for conservation, he was told he must also pay for upgrades on government land, miles away, at a cost of up to $150,000.  This demand was far out of proportion to any impact that the development plans might have had on the environment.

Mr. Koontz sued, but passed away in 2000.  PLF attorneys represented his son, Coy Koontz, Jr., in petitioning the case to the U.S. Supreme Court, and arguing it in front of the justices.

The case is Koontz v. St. Johns River Water Management District.  More information, including PLF’s briefs to the Supreme Court, podcasts, and videos, may be found at:  www.pacificlegal.org.

About Pacific Legal Foundation

Donor-supported Pacific Legal Foundation (www.pacificlegal.org) is a nonprofit, public interest watchdog organization that litigates for limited government, property rights, individual rights, free enterprise, and a balanced approach to environmental regulations, in courts nationwide.

The Koontz case is PLF’s eighth direct-representation case at the U.S. Supreme Court for liberty and limited government.  Last year, PLF won Sackett v. EPA at the High Court, in which the justices unanimously held that property owners have a right to challenge federal “wetlands compliance orders” in court.


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Justices blast property ‘shakedown’ by government

Constitution, Federal gov & land grabs, Lawsuits, Pacific Legal Foundation, Property rights


Family embroiled in 18-year court battle over fees to develop land

 By Bob Unruh

In a 5-4 decision, the U.S. Supreme Court today called a halt to a government “shakedown” procedure in Florida that required a landowner to pay up to $150,000 to be allowed to develop several acres of ground.

“Extortionate demands for property in the land-use permitting context run afoul of the Takings Clause not because they take property but because they impermissibly burden the right not to have property taken without just compensation,” the opinion said. “It is settled that the unconstitutional conditions doctrine applies even when the government threatens to withhold a gratuitous benefit.”

In the Florida case, a water district demanded a property owner pay up to $150,000 to develop land originally purchased by his father.

The case was argued by the Pacific Legal Foundation on behalf of the Koontz family.

The nonprofit legal group had said it wanted the Supreme Court “to make it clear that the Constitution forbids any kind of shakedown in the permitting process: money grabs (such as the Koontz family was hit with) are just as unconstitutional as land grabs.”

PLF principal attorney Paul J. Beard II  said Tuesday, “Today’s ruling says the Fifth Amendment protects landowners from government extortion, whether the extortion is for money or any other form of property.

“The ruling is a powerful victory for everybody’s constitutional property rights, from coast to coast,” Beard continued. “The Koontz family was challenging permit demands that were wildly excessive and had no connection to their land use proposal. Today, the court recognized that the Koontz family was the victim of an unconstitutional taking. The court’s message is clear: Government can’t turn the land use permitting process into an extortion machine.

“The ruling underscores that homeowners and other property owners who seek permits to make reasonable use of their property cannot be forced to surrender their rights,” Beard stated. “Regulators can’t hold permit applicants hostage with unjustified demands for land or other concessions – including, as in this case, unjustified demands for money.

“The court has recognized that money is a form of property, and the Constitution prohibits grabbing money from property owners the same way it prohibits grabbing land without compensation,” Beard said.

Earlier he explained the case is historic because of the impact it can have on local government agencies that make demands of citizens and property owners in order for them to exercise their rights.

The opinion, delivered by Justice Samuel Alito, said the court already had decided that “a unit of government may not condition the approval of a land-use permit on the owner’s relinquishment of a portion of his property unless there is a ‘nexus’ and ‘rough proportionality’ between the government’s demand and the effects of the proposed land use.”

“In this case, the St. Johns River Water Management District … believes that it circumvented [those precedents] because of the way in which it structured its handling of a permit application submitted by Coy Koontz, Sr., whose estate is represented in this court by Coy Koontz, Jr. The district did not approve his application on the condition that he surrender an interest in his land. Instead, the district, after suggesting that he could obtain approval by signing over such an interest, denied his application because he refused to yield.”

The opinion noted that the owners volunteered to give up development on 11 acres to obtain permission to develop about 3.7 acres.

“The district considered the 11-acre conservation easement to be inadequate, and it informed petitioner that it would approve construction only if he agreed to one of two concessions. First, the
district proposed that petition reduce the size of his development to 1 acre and deed to the district a conservation easement on the remaining 13.9 acres. … In the alternative, the district told petitioner that he could proceed with the development as proposed, building on 3.7 acres and deeding a conservation easement to the government on the remainder of the property, if he also agreed to hire contractors to make improvements to district-owned land several miles away. Specifically, petitioner could pay to replace culverts on one parcel or fill in ditches on another,” the court said.

The opinion continued: “We have said in a variety of contexts that ‘the government may not deny a benefit to a person because he exercises a constitutional right. … By conditioning a building permit on the owners’ deeding over a public right-of-way, for example, the government can pressure an owner into voluntarily giving up property for which the Fifth Amendment would otherwise require just compensation. … Extortionate demands of this sort frustrate the Fifth Amendment right to just compensation, and the unconstitutional conditions doctrine prohibits them.”

The Supreme Court ordered the case returned to the Florida court system for further review. It noted that Florida law allows plaintiffs “to recover damages for unconstitutional conditions claims predicated on the Takings Clause.”



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