Saturday, April 28, 2012

Yankeetown Litigation Settled by Community Planning Glitch Bill

Governor Scott signed the Community Planning Glitch Bill.The bill corrected a number of problems with last year's Community Planning Act, including approving language settling Yankeetown v. DEO (37 2011 CA 002036). Yankeetown had asked the court to declare that the Community Planning Act, HB 7207 (ch. 2011-139, Laws of Fla.), was unconstitutional. The real problem was that the Act did not grandfather previously-enacted local government comprehensive planning referendum requirements when it prohibited them.

The docket for the case shows that the Yankeetown filed a notice of voluntary dismissal earlier this month. That means the case is over, and the Community Planning Act appears safe from constitutional attack. Some are celebrating "the will of the people," but only time will tell whether the communities that have kept their referendum requirements will be better off for it.

Friday, April 20, 2012

Background on Sackett from the Environmental Consultant

Earlier this month I wrote about how the U.S. Supreme Court gave the Sacketts the right to take the EPA to court over the EPA's compliance order finding the their property to be wetlands. Take a look at the interesting discussion going on at the LinkedIn page of ABA Section on the Environment, Energy, and Resources Law's. Ray Kagel, Jr., of Kagel Environmental, LLC writes about the background of the Sackett case. His firm had involvement early on working with the Sacketts. It seems their neighbor had also been subject to EPA enforcement actions:
When Mike and Chantell Sackett asked us (Kagel Environmental, LLC), to perform a wetland assessment of their personal homesite property located at Priest Lake, Idaho, we agreed to their request since we had already traveled to northern Idaho to provide expert testimony at a federal trial whereby Sackett's neighbor, Jack Barron, had been criminally charged for allegedly filling 4 acres of wetlands associated with the construction of his retirement home. Upon digging several soil [test] pits on the approximate .6 acre Sackett homesite, it became clearly evident to us that the major portion of Mike and Chantell's property was NOT a jurisdictional wetland. To their demonstrated courage and resolve, their unshakable belief in our professional [wetlands] opinion, and to the credit and excellent legal representation by the Pacific Legal Foundation, a unanimous Supreme Court handed down a serious spanking to the EPA as a consequence of their "high handedness" against private property owners everywhere. My firm anticipates a return to the Sackett homesite to complete a more comprehensive identification and/or delineation of jurisdictional wetland resources later this year in hopes of helping Mike and Chantell to reach final, and satisfactory resolution to a nightmarish ordeal that unfortunately is far from unique to the Sacketts'. By the way, after an 8-day trial whereby EPA and Corps of Engineers wetland experts tried to convince a 12 member jury that his entire 4-acre homesite was jurisdictional wetlands, the jury determined that Mr. Barron's wetland consultants demonstrated stronger scientific evidence to the contrary, and Barron was therefore acquitted of all 4 felony counts upon which he'd been indicted.
This was interesting to me because I had been wondering why the EPA started looking at the Sacketts' property. It will be interesting to see how Mr. Kagel's firm is able to help the Sacketts reach a final resolution in their case.

EDIT 4/28/12: Here is a story about Jack Barron's plight.

Wednesday, April 11, 2012

Property Owners Win the Right to Take EPA to Court

In January, I wrote about the U.S. Supreme Court hearing Sackett v. EPA. On March 21, the Sacketts won their case. Landowners should be happy with this opinion. As the Wall Street Journal wrote, "these are hard times for economic liberty, but the [Court has] offered a modest reason to hope." One attorney wrote about the decision:
Justice Antonin Scalia found it easy to give Mike and Chantelle Sackett their day in court. Writing for a unanimous Supreme Court in the case of Sackett v. EPA, Justice Scalia said that the EPA could not find that the Sacketts had illegally filled wetlands on their property, order them to remove the fill, and then threaten them with penalties without allowing them to appeal the order. The outcome in the case had been widely predicted based on the sympathetic plight of the plaintiffs, which had moved the case into the mainstream media and the stump speeches of presidential candidates. When due process allows a driver to appeal a parking ticket before paying it, providing the Sacketts the opportunity to seek judicial review of EPA’s administrative enforcement order without having to wait for EPA to first sue them was not much of a stretch.
Justice Alito had asked during oral argument: "If you related the facts of this case as they come to us to an ordinary homeowner, don't you think most ordinary homeowners would say this kind of thing can't happen in the United States?" This time, the Court was on the side of ordinary homeowners. Following this line of thought, another commentator described the potential property rights implications of the case:
The Court stressed that it was not deciding whether Michael and Chantell Sackett will win their court case, but only that they had a right to file it at their choosing, now that the EPA “compliance order” is final. The decision reflected the strongly negative reaction most of the Justices had to the denial of a right to sue when this case was argued in January. Justice Samuel A. Alito, Jr., who was among those protesting most strongly at that hearing, wrote a separate opinion Wednesday complaining that the scope of the Clean Water Act’s application to private property is unclear, and Congress or the EPA should move to clarify it. Alito also argued that the treatment of the Sacketts, and others denied a right to sue EPA, was “unthinkable” in a country that values due process.

When the Sacketts take the EPA to court, they are expected to argue that their property is not even a wetland. Stay tuned.