Monday, June 25, 2012

U.S. Supreme Court Grants Review of Forest Roads Case

This morning, the U.S. Supreme Court granted consolidated review of two petitions from a Ninth Circuit decision that concluded a Clean Water Act permit is necessary for forest roads runoff. See Decker v. Nw. Entl. Defense Ctr., U.S. No. 11-338; Ga.-Pac. W. Inc. v. Nw. Entl. Defense Ctr., U.S. No. 11-347. The owners of forest lands across the country are watching this case closely because the permitting requirement would significantly impact their costs of doing business. The case will be argued this fall, and a decision should be issued by June 2013.

I've written a number of articles about this important issue: focusing on the case background before the Ninth Circuit, commentary on why this would be a good case for the U.S. Supreme Court to accept, Congress's temporary stay on permitting, and EPA's proposed short-term regulatory fix. I'm working on a detailed article suggesting a course of action for the Supreme Court.

The question presented by the Georgia-Pacific petition for certiorari focused on EPA's longstanding Silvicultural Rule:
Since passage of the Clean Water Act, the Environmental Protection Agency has considered runoff of rain from forest roads—whether channeled or not —to fall outside the scope of its National Pollutant Discharge Elimination System (“NPDES”) and thus not to require a permit as a point source discharge of pollutants. Under a rule first promulgated in 1976, EPA consistently has defined as nonpoint source activities forest road construction and maintenance from which natural runoff results. And in regulating stormwater discharges under 1987 amendments to the Act, EPA again expressly excluded runoff from forest roads. In consequence, forest road runoff long has been regulated as a nonpoint source using best management practices, like those imposed by the State of Oregon on the roads at issue here. EPA’s consistent interpretation of more than 35 years has survived proposed regulatory revision and legal challenge, and repeatedly has been endorsed by the United States in briefs and agency publications. 
The Ninth Circuit—in conflict with other circuits, contrary to the position of the United States as amicus, and with no deference to EPA—rejected EPA’s longstanding interpretation. Instead, it directed EPA to regulate channeled forest road runoff under a statutory category of stormwater discharges “associated with industrial activity,” for which a permit is required. The question presented is: 
Whether the Ninth Circuit should have deferred to EPA’s longstanding position that channeled runoff from forest roads does not require a permit, and erred when it mandated that EPA regulate such runoff as industrial stormwater subject to NPDES.
The Decker petition for certiorari focused on slightly different legal issues:
(1) Congress has authorized citizens dissatisfied with the Environmental Protection Agency’s (EPA’s) rules implementing the Clean Water Act’s (CWA’s) National Pollutant Discharge Elimination System (NPDES) permitting program to seek judicial review of those rules in the Courts of Appeals. See 33 U.S.C. § 1369(b). Congress further specified that those rules cannot be challenged in any civil or criminal enforcement proceeding. Consistent with the terms of the statute, multiple circuit courts have held that if a rule is reviewable under 33 U.S.C. § 1369, it is exclusively reviewable under that statute and cannot be challenged in another proceeding.  
Did the Ninth Circuit err when, in conflict with those circuits, it held that a citizen may bypass judicial review of an NPDES permitting rule under 33 U.S.C. § 1369, and may instead challenge the validity of the rule in a citizen suit to enforce the CWA? 
(2) In 33 U.S.C. § 1342(p), Congress required NPDES permits for stormwater discharges “associated with industrial activity,” and delegated to EPA the responsibility to determine what activities qualified as “industrial” for purposes of the permitting program. EPA determined that stormwater from logging roads and other specified silvicultural activities is non-industrial stormwater that does not require an NPDES permit. See 40 C.F.R. § 122.26(b)(14). 
Did the Ninth Circuit err when it held that stormwater from logging roads is industrial stormwater under the CWA and EPA’s rules, even though EPA has determined that it is not industrial stormwater? 
I will update this post periodically with commentary on the case as it comes in today.

Thursday, June 21, 2012

As U.S. Supreme Court Considers Forest Roads Case, Judge & Commentators Urge Review

The U.S. Supreme Court's docket shows that it is in conference today to decide whether to hear two cases reviewing a Ninth Circuit decision holding that forest and logging roads are subject to Clean Water Act permits because the Silvicultural Exemption was invalid. The Supreme Court will probably issue its decision next Monday in its order list.

Meanwhile, the blog chatter is increasing. The discussions point to the large number of environmental cases that the Supreme Court is considering reviewing right now, of which the forest roads case is one. Although the Solicitor General recommended against review, the past indications are that the Supreme Court still takes up the review of many of these cases when they are related to the environment or coming from the Ninth Circuit. In a recent Ninth Circuit dissent, one judge did everything but call for the Supreme Court to take up the case:
this is not the first time our court has broken from decades of precedent and created burdensome, entangling environmental regulations out of the vapors. In one of the most extreme recent examples, our court held that timber companies must obtain Environmental Protection Agency permits for stormwater runoff that flows from primary logging roads into systems of ditches, culverts, and channels. Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063 (9th Cir. 2011). In the nearly four decades since the Clean Water Act was enacted, no court or government agency had ever imposed such a requirement. Indeed, the EPA promulgated regulations that explicitly exempted logging from this arduous permitting requirement. Id. at 1073. Yet our court decided to disregard the regulation and require the permits.
One commentator indicated that this could be an excellent case for the Supreme Court to review:
In my view, the Court should grant the petition. First, the Court should determine whether or not the Clean Water Act itself can even plausibly be read to give EPA power over rainwater runoff from logging roads. This a very important issue for which the nation needs a definite answer. 
Second, in order to give the Court time to act, Congress enacted an appropriations rider forbidding enforcement of the new permitting requirement under the Georgia-Pacific theory. (And since EPA can’t issue permits, private plaintiffs cannot sue to compel road owners to either obtain permits or shut down the road.) But the ban expires on September 30. (That the Solicitor General took have a year to file a cert. amicus brief prevented the case from possibly being heard on the merits this spring.) Because of the time necessary for Notice and Comment for EPA rulemaking, the new EPA regulation cannot possibly be operative before the litigation freeze expires. 
Besides that, if the 9th Circuit is correct, then EPA “cannot” make the regulatory choice not to require discharge permits for logging roads. Thus, EPA’s new rule will itself the subject of further litigation. As long as the 9th Circuit’s panel decision in Georgia-Pacificremains valid, EPA will have to write a regulation complying with it, and so it seems inevitable that a huge number of logging roads will be requires to get point source discharge permits.

Monday, June 18, 2012

Will the Silvicultural Exemption to Clean Water Act Permitting Survive?

Recently I posted about EPA's move toward regulation of forest and silviculture runoff. I also spoke recently on the issue. The U.S. Supreme Court is considering whether to hear two cases reviewing a Ninth Circuit decision affecting the former Silviculture Rule. See Decker v. Nw. Entl. Defense Ctr., U.S. No. 11-338Ga.-Pac. W. Inc. v. Nw. Entl. Defense Ctr., U.S. No. 11-347.

This week, I focus on the background of the issue. The American Bar Association's Forest Resources Committee is publishing the article below, which I coauthored with Jessie Marlowe, who just graduated from Florida State University's College of Law. The article summarizes the background of Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2011). The article is reposted in this link and below.


Jessica Marlowe and Jacob T. Cremer

The U.S. Supreme Court is mulling whether to review Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2011). It may be “the most significant judicial holding to directly (and negatively) impact private and public forest landowners, operators, managers and their collective economic activities.” Thomas Gould, Judicial Regulation and Killing Jobs: The Ninth Circuit’s Forest Roads’ Decision—Waving Goodbye to Science-Based BMPs and More than 35 Years of Regulatory Precedent, Evergreen Mag. (Feb. 2, 2012), available at

Although review by the Supreme Court is usually a long shot, the chances it would review Brown were much improved when the U.S. Solicitor General agreed to the Court’s request to weigh in. If the U.S. Supreme Court decides to grant certiorari, it will be determining, first, whether the Ninth Circuit had proper subject matter jurisdiction to hear the case and, second, whether a Clean Water Act (CWA) permit is required for ditches that collect natural runoff from forest roads.


The Northwest Environmental Defense Center (NEDC) brought suit against the Oregon State Forester, members of the Oregon Board of Forestry in their official capacities, and various timber companies (defendants). The NEDC argued that the system of ditches, culverts, and channels that collected stormwater on two forest roads—owned by the Oregon Department of Forestry and the Oregon Board of Forestry—required National Pollutant Discharge Elimination System (NPDES) permits. The defendants contended that the timber roads and their associated natural stormwater systems fell under the Environmental Protection Agency’s (EPA) silvicultural rule categorical exemption and were therefore exempt from the NPDES permitting process. In the alternative, the defendants argued that the 1987 amendments to the CWA allowed such an exemption.

The CWA requires a NPDES permit for the discharge of any pollutant into the waters of the United States from a “point source.” 33 U.S.C. §§ 1311(a), 1342. The CWA defines a “point source” to be “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel [or] conduit . . . from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). While the CWA does not define what a “nonpoint source” is, the CWA does exempt “agricultural stormwater discharges and return flows from irrigated agriculture” from the definition of “point source.” Id. EPA promulgated a rule in 1976 that categorically exempted certain silvicultural activities from the definition of “point source,” commonly known as the “silvicultural rule.” The silvicultural rule limits silvicultural point source activities to “rock crushing, gravel washing, log sorting, or log storage facilities which are in connection with silviculture activities and from which pollutants are discharged. . . .” 40 C.F.R. § 124.85 (1976). Specifically enumerated in the silvicultural rule as nonpoint sources are “silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff.” Id.

Procedural Posture

The district court sided with the defendants, concluding that the timber road runoff collected into a system of ditches, culverts, and conduits and discharged into waters of the United States were exempt from NPDES permit requirements under the silvicultural rule. Nw. Envt’l Def. Center v. Brown, 476 F. Supp. 2d 1188 (D. Or. 2007). The district court did not address whether the 1987 amendments to the CWA allowed such an exemption. The district court ultimately dismissed the NEDC’s complaint for failure to state a claim. The NEDC appealed to the Ninth Circuit. The Ninth Circuit reversed, issuing two opinions on this case. The first opinion, issued in August 2010, addressed the validity of the silvicultural rule. In May 2011, the court denied the petitions for rehearing and rehearing en banc but issued a revised opinion. This second opinion was substantially the same as the August 2010 opinion, but it sua sponte addressed subject matter jurisdiction. Although the parties did not dispute jurisdiction, the court addressed the issue. The case was appealed to the U.S. Supreme Court. The Court has not granted or denied certiorari. It has, however, asked the U.S. Solicitor General to weigh in on the issue. In late May, the solicitor general recommended against review. According to the Solicitor General, the Ninth Circuit should have deferred to EPA’s longstanding interpretations of the Clean Water Act and the Silvicultural Rule. Even so, the Solicitor General recommended against review because of efforts by Congress and EPA to address the practical effects of the Ninth Circuit’s decision.

Subject Matter Jurisdiction

The Ninth Circuit’s revised opinion specifically addressed subject matter jurisdiction, unlike the original opinion. The court was concerned because it held on the merits that the silvicultural rule was ambiguous, with no discussion of jurisdiction. 640 F.3d at 1068.

Under § 1365(a) of the CWA, a citizen can bring suit against any person alleged to be in violation of “an effluent standard or limitation” under the CWA. This includes persons illegally discharging pollutants into jurisdictional waters without a NPDES permit. However, § 1369(b) places limitations on suits that challenge the validity of an action taken by the EPA administrator, including the promulgation of effluent standards, prohibitions, or limitations, determinations, approvals, issuance, or denial. Such suits must be brought within 120 days from the date of the administrator’s action unless the basis for the suit arose more than 120 days after the agency action. 33 U.S.C. § 1369(b)(1). Despite the silvicultural rule being on the books since 1976, the court determined that this case came within the § 1369(b)(1) exception. The court reasoned that since the silvicultural rule was susceptible to two different readings, there was no way for the public to know which reading EPA would adopt. According to the court, EPA’s filing of its initial amicus brief first put the public on notice for which reading it would adopt. The court was silent on the 30-plus years of EPA’s interpretation of the silvicultural rule.

Silvicultural Rule Validity

The Ninth Circuit agreed with NEDC, holding that any runoff collected in a ditch, culvert, or the like, regardless of its origin, is a point source. After a thorough review of the statutory definition of “point source” under the CWA, the court looked to case law to determine the distinction between nonpoint and point source runoff. In one case cited, the Ninth Circuit had adopted the Tenth Circuit’s view that “point and nonpoint sources are not distinguished by the kind of pollution they create or by the activity causing the pollution, but rather by whether the pollution reaches the water through a confined, discrete conveyance.” 640 F.3d at 1071. Relying on another Ninth Circuit case, the court wrote: “Storm sewers are established point sources subject to NPDES permitting requirements. . . . Diffuse runoff, such as rainwater that is not channeled through a point source, is considered nonpoint source pollution and is not subject to federal regulation.” Id.

The Ninth Circuit also reviewed the legislative histories of the CWA and the silvicultural rule. It found that the term “point source” was not to be interpreted narrowly and that Congress did not provide EPA with discretion to define any statutory terms. The court mentioned that Congress added a statutory exemption to the NPDES permitting system for agricultural irrigation in 1977 and that no similar exemption has been created for silviculture. In reviewing the history of the silvicultural rule, the court noted that the original version of the rule was found invalid by the D.C. Circuit Court. The D.C. Circuit Court held that “the EPA Administrator does not have the authority to exempt categories of point sources from the [NPDES] permit requirements. . . .” 640 F.3d at 1077, citing Natural Res. Def. Council v. Costle, 568 F.2d 1369, 1377 (D.C. Cir. 1977).

While the D.C. Circuit Court was reviewing the silvicultural rule, EPA amended it. In 1976, EPA justified its final version of the silvicultural rule—only slightly different from today’s rule—by stating that a proper interpretation of the CWA’s legislative history and supporting case law showed that not every ditch or the like was meant to be a point source under the CWA. According to EPA, ditches that served only to convey nonpoint runoff from precipitation were not intended to be subject to the NPDES permitting program. The Ninth Circuit flatly rejected EPA’s justification, stating that “even though not every ‘ditch, water bar, or culvert’ is a point source within the meaning of the statute, it hardly follows that a system of ditches, pipes and channels that collects ‘controlled water used by a person’ and discharges it into a river is a point source, while an identical system that collects and discharges natural precipitation is not.” The court also applied the D.C. Circuit Court’s reasoning used in striking down the initial version of the rule, concluding that EPA did not have the authority to “exempt categories of point sources from the [NPDES] permit requirements. . . .” 640 F.3d at 1077.

The Ninth Circuit found the silvicultural rule subject to two possible readings: one valid and one invalid. The first reading is a reflection of EPA’s intent in adopting the rule. Under this reading, it exempts all natural runoff from silvicultural activities “irrespective of whether, and the manner in which, the runoff is collected, channeled, and discharged into protected water.” 604 F.3d 1080. The court held that this reading is inconsistent with the CWA. The CWA distinguishes between point and nonpoint sources depending on whether the pollutant is channeled and controlled through a “discernible, confined and discrete conveyance.” In contrast, the silvicultural rule categorically distinguishes between discharges depending on the source of the pollutant. The court held that the definition of “point source” in “no way depends on the manner in which the pollutant arrives at the ‘discernible, confined and discrete conveyance.’ That is, it makes no difference whether the pollutant arrives as the result of ‘controlled water used by a person’ or through natural runoff.” 640 F.3d at 1079. The court concluded that the silvicultural rule, as EPA interpreted it, was not a permissible interpretation of the CWA.

The second reading “does not reflect the intent of EPA, but would allow [the court] to construe the Rule to be consistent with the statute.” Id. Under this reading, natural runoff remains exempt from the NPDES permitting process so long as it remains natural. According to the court, “the exemption ceases to exist as soon as the natural runoff is channeled and controlled in some systematic way through a ‘discernible, confined and discrete conveyance’ and discharged into the waters of the United States.” Id. Under either reading, the court held, the rule does not exempt the timber road stormwater runoff that is collected into a system of ditches, culverts, and conduits from the NPDES permitting system.

1987 Amendments to the CWA

Even if the discharges were point sources, the defendants argue that the 1987 amendments to the CWA approved of the silvicultural rule by failing to revise or repeal it. Because Congress never mentioned or alluded to the rule in the legislative history, the court held that Congress was not aware of the rule during the amendment process. Thus, the court reasoned, Congress could not have assented to the rule. 640 F.3d at 1081.

The Ninth Circuit also held that the 1987 amendments fundamentally changed statutory treatment of stormwater discharges and that the relevant statutory language was “flatly inconsistent with the Silvicultural Rule.” Id. The court determined that the 1987 amendments were added to help EPA eventually address all stormwater point sources. They recognized, however, that the major contributors should be regulated first and minor sources should be studied first. It is within EPA’s discretion to regulate de minimis sources like rain gutters of churches, schools, and residential properties.

The 1987 amendments added § 402(p), which established a tiered approach to permit stormwater discharges. Phase I required the major contributors to obtain their NPDES permits first. Among the major contributors are those “associated with industrial activity.” 33 U.S.C. § 1342(p)(2)(B). EPA regulations defined which industrial activities required NPDES permits, stating, “Storm water discharge associated with industrial activity means the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant.” 40 C.F.R. § 122.26(b)(14). The court noted that while this regulation states “directly related to manufacturing, processing or raw materials storage areas at an industrial plant,” EPA has stated that it would not limit the definition to just those practices.

Accordingly, EPA expanded the definition to “various types of areas that are directly related to an industrial process (e.g., industrial plant yards, immediate access roads and rail lines, drainage ponds . . .).” 55 Fed. Reg. 47,990, 48,007 (Nov. 16, 1990). The EPA regulation defining which industrial activities require NPDES permits goes on to provide: “The term does not include discharges from facilities or activities excluded from the NPDES program under this part 122.” 40 C.F.R. § 122.26(b)(14). This exclusion refers to the silvicultural rule. Again, the court points to congressional intent, stating that “Congress made clear in § 402(p) that it did not exempt ‘discharges associated with industrial activity.’ 33 U.S.C. § 1342(p)(2)(B). Indeed, Congress specifically mandated that EPA establish a permitting process for such discharges.” 640 F.3d at 1083.

The Standard Industrial Classification (SIC) defines the industries covered by the Phase I “associated with industrial activity” regulation. It was undisputed that logging was considered an industrial activity. The court rejected the argument that logging sites are not “industrial facilities” because they are not typical industrial plants. The court held that the definition of “facility” is very broad and includes timber roads. Therefore, the court held that the reference to the silvicultural rule in the EPA regulations defining which industrial activities require NPDES permits cannot exempt such discharges from the Phase I regulations requiring permits for discharges “associated with industrial activity.”

Review Before the U.S. Supreme Court

Forest owners and managers should be concerned about whether the Brown decision stands. If it does, then EPA will be forced to develop a NPDES permit program. This program will probably not be able to appreciate local conditions as well as the science-based Best Management Practices that states and the forestry industry have developed at great cost over time. See Gould, supra. Ironically, the Ninth Circuit’s opinion may lead to less clean water. Id.

EPA seems to have recognized this in its recent regulatory proposal. EPA recently responded to the Ninth Circuit decision with a notice of intent to exempt logging roads from permits under the Clean Water Act. 77 Fed. Reg. 30473. This exemption will relieve owners and operators of  logging roads from having to comply with NPDES permit requirements. EPA plans to address the broader category of forest roads  by studying their water quality impacts further and holding public meetings this summer. EPA is requesting comments by June 22, 2012 on approaches for regulating forest road stormwater discharges; EPA is especially interested in learning about the current best management practice programs across the country. These comments will help EPA determine its regulatory approach to forest roads.

The U.S. Supreme Court appears likely  to review Brown, the solicitor general’s recommendation notwithstanding. The Court may wish to rule on the substance of Brown, since the opinion seems to be in conflict with the decisions of courts in other jurisdictions. Other courts have affirmed EPA’s regulation that forest roads are nonpoint sources that do not require NPDES permits. See Sierra Club v. Martin, 141 F.3d 803 (8th Cir. 1998); Newton Cnty. Wildlife Assoc. v. Rogers, 71 F. Supp. 2d 1268, 1303 (N.D. Ga.1999). If it takes up the case, the Court will be leery of allowing a challenge to an agency’s long-standing statutory interpretation (of over 30 years).

Even if the Court strikes down the Brown opinion, it might not go so far as to explicitly affirm the validity of the silvicultural rule. It may not be willing to overlook the procedural issues in Brown to get to the merits of the case. The Roberts Court has emphasized restraint in its holdings, adhering to a philosophy of judicial minimalism. See, e.g., William J. Rinner, Roberts Court Jurisprudence and Legislative Enactment Costs, 118 Yale L.J. (Pocket Part 177) (2009), This suggests that, if it takes up the case, the Court may dispense with it on subject matter jurisdiction. This would still be helpful to the forest industry, but it may make for uncertainty because EPA might feel the need to develop a rule that is on stronger footing. EPA’s recent regulatory proposal appears to have been developed with this in mind.

If the Court decides not to review Brown, or if it affirms the Ninth Circuit’s opinion, Congress may be willing to take up the issue. Bills have been introduced that could solve the issue. See Gould, supra. For now, Congress has stayed the effect of this controversial decision through its Omnibus Appropriations Bill until October 1, 2012. Id.

Jessica Marlowe is a third-year law student at Florida State University, pursuing a Certificate in Environmental and Land Use. She has clerked in local government, environmental, and land use law. She holds a B.A. in environmental science from the University of Florida.

Jacob T. Cremer practices environmental and land use law at Hopping Green & Sams, P.A., in Tallahassee, Florida. He assists clients with property development, environmental permitting, and natural resource management. He is a fifth-generation owner of timberlands in Florida.

Monday, June 11, 2012

Property Owner Asks U.S. Supreme Court to Review Florida Decision Limiting Exactions Law to Real Property Dedications

In a case with implications for property owners across the country, as well as permitting officials and land use planners, a Florida property owner has asked the U.S. Supreme Court to review a Florida Supreme Court decision about exactions. In St. Johns River Water Management District v. Koontz, 77 So. 3d 1220 (Fla. 2011), the Florida Supreme Court declined to recognize an exaction under U.S. Supreme Court precedent. The petition requesting the U.S. Supreme Court's review describes the case:
For over eleven years, a Florida land use agency refused to issue any of the permits necessary for Coy A. Koontz, Sr., to develop his commercial property. The reason was because Koontz would not accede to a permit condition requiring him to dedicate his money and labor to make improvements to 50 acres of government-owned property located miles away from the project—a condition that was determined to be wholly unrelated to any impacts caused by Koontz’s proposed development. A Florida trial court ruled that the agency’s refusal to issue the permits was invalid and effected a temporary taking of Koontz’s property, and awarded just compensation. After the appellate court affirmed, the Florida Supreme Court reversed, holding that, as a matter of federal takings law, a landowner can never state a claim for a taking where (1) permit approval is withheld based on a landowner’s objection to an excessive exaction, and (2) the exaction demands dedication of personal property to the public. 
The questions presented are: 
1. Whether the government can be held liable for a taking when it refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994); and  
2. Whether the nexus and proportionality tests set out in Nollan and Dolan apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use.

I previously described the Florida Supreme Court's legal analysis in the Koontz case:
The Florida Supreme Court held no taking occurred after a detailed survey of takings jurisprudence. It interpreted the Nollan/Dolan test as applicable only to exactions involving real property, and where regulatory entities had actually issued the permits sought with the objected-to exactions imposed. Although a line of cases expand the Nollan/Dolan test beyond real property conditions, the Court declined to give credence to those cases, stating it was constrained by U.S. Supreme Court precedent interpreting the Fifth Amendment takings clause. Consequently, the court held that the Nollan/Dolan doctrine applies only where the condition or exaction sought by the government “involves a dedication of or over the owner’s interest in real property in exchange for permit approval” and only when the regulatory agency actually issues the permit sought.” Id. at *9. Based on the Court’s interpretation, Koontz’s takings claim failed because the District did not condition approval of the permits on the dedication of any interest in real property in any way to public use. Thus, under the Court’s logic, nothing was ever taken from Koontz.

The Florida property owner is represented by the Pacific Legal Foundation, which recently made news for winning a landowner the right to take EPA to court in Sackett v. EPA. Stay tuned. The St. Johns River Water Management District's response is due July 2, 2012.

Sunday, June 3, 2012

Florida Supreme Court Grants Review of Decision Sanctioning Environmental Organizations

The Florida Supreme Court has granted review of a 1st DCA decision sanctioning environmental organizations. See Martin Cnty. Conservation Alliance v. Martin Cnty., 73 So. 3d 856 (Fla. 1st DCA 2011) (original opinion revised on motion for rehearing). This case will be one to watch for anyone interested in environmental, land use, or administrative law in Florida. Any decision will have implications for the costs of doing business in Florida.

I recently summarized the Martin County case in the Florida Bar's Environmental & Land Use Section Reporter, explaining how the main issue was whether the Martin County Conservation Alliance should have asked an appellate court to review the administrative decision below:
[The Alliance] challenged two ordinances amending the Martin County comprehensive plan .... The Administrative Law Judge (“ALJ”) concluded the amendments would not cause environmental harm, and the Department of Community Affairs affirmed via issuance of an “in compliance” final order. The appellants appealed, but the First DCA dismissed the appeal for lack of standing, and it ordered appellants to show cause why sanctions should not be imposed for filing an appeal where appellate standing was lacking. The court, on its own initiative, has since withdrawn that order and replaced it with one holding the appeal to be in violation of section 57.105(1), Florida Statutes, and imposing sanctions .... Consequently, the First DCA imposed sanctions, stating that by advancing legal positions unsupported by material facts or law, appellants were statutorily subject to section 57.105 sanctions.
The arguments the parties will make are foreshadowed in their jurisdictional briefs. The Alliance argued that environmental advocacy will be chilled:
The Decision, over a strong dissent, and with 6 judges voting to rehear the case en banc, sanctioned non-profit organizations for appealing an agency's rulings on the proper legal interpretation of comprehensive plan changes. The Decision is of exceptional importance, as it unduly limits the ability to seek appellate redress of a wide variety of administrative agency and other [stet]. The purpose of deterring baseless litigation must be carefully counter-balanced against protecting all citizens' rights of access to the courts. See Read v. Taylor, 832 So. 2d 219, 222 (Fla. 4th DCA 2002). Here, the Dissent expressed a deep concern over the Decision's chilling effect on good faith efforts to seek appellate redress by parties without deep pockets, and the potential denial of the Florida Constitution's right of access to courts. Decision at 37 -38. (Van Nortwick, J. Dissenting).The Decision may ensure that no citizen will ever again initiate legal remedies that the Legislature has established regarding environmental and land use matters. Such cases often present close issues, as the nuances between the majority and dissenting decisions in this case demonstrate. Few, if any, parties with legitimate claims would dare embark on such an action if the result of not prevailing on the merits is a punitive assessment of attorney's fees. Petitioners urge the Court to accept jurisdiction to reconcile the identified conflicts.
Martin County, however, argued that the decision was well-reasoned and unexceptional:
The district court’s decision imposing sanctions on Petitioners and their attorney does not “expressly and directly” conflict with a prior decision of this Court or another district court “on the same question of law.” Neither of the two “species” of such “holding conflict” jurisdiction is present here .... The district court’s decision simply involves a sound exercise of its discretion, imposing sanctions under section 57.105(1), Florida Statutes, because Petitioners and their attorney knew (or should have known) that the record below clearly showed they had not presented any evidence that their own interests would be “adversely affected” by the challenged amendments to the Martin County comprehensive plan, and thus Petitioners lacked standing to appeal the state agency’s final order approving adoption of the amendments. See 120.68, Fla. Stat.
The online docket reports that the Court accepted jurisdiction and dispensed with oral argument. The Alliance must serve its brief on the merits by June 5, 2012. Afterwards, the respondents get 20 days to respond, and then the Alliance gets 20 days to reply. This means that the case will be fully briefed by mid-July, assuming no extensions are granted. A number of organizations are intending to write amicus curiae briefs, including Disability Rights Florida, Inc., Florida Legal Services, Southern Legal Counsel, Inc., Florida Wildlife Federation, and the Florida Chapter of the American Planning Association.

Stay tuned. I'll be commenting once the briefs are in.