Wednesday, April 24, 2013

First Quarter 2013: Recent Florida Environmental and Land Use Case Law

The Florida Bar's Environmental and Land Use Law Section has posted its column on the environmental and land use cases in Florida that you need to know about for the first quarter of 2013. This is the column that I formerly coauthored. There are a number of interesting cases this quarter:
  • Bischoff v. Walker, No. 5D11-2194, 2012 WL 6213271 (Fla. 5th DCA Dec. 14, 2012). "Where a deed references a property boundary defined by a natural monument, such as a canal or lake, Florida law follows the general rule that a rebuttable presumption exists in favor of finding the boundary at the centerline of the monument, absent evidence of contrary intent."
  • Jass Properties, LLC v. N. Lauderdale, 101 So. 3d 400 (Fla. 4th DCA 2012). "Florida law does not expressly prohibit a municipality from declining to contract with tenants for utility services and instead restricting service agreements to property owners."
  • Clark v. Bluewater Key RV Ownership Park, No. 3D11-884, 2012 WL 6602657 (Fla. 3d DCA Dec. 19, 2012). "An association of property owners at a recreational vehicle park is not subject to regulations of homeowners’ associations under chapter 720, Florida Statutes, where the park prohibits any permanent or semi-permanent structures intended or used as permanent living quarters."
  • Florida Attorney General Opinion 12-32 (2012). "A proposed county ordinance that would condition acceptance of an application for rezoning on the consent of a specified number of property owners may be an illegal delegation of legislative power." 
My archives have about two years' worth of analysis and these summaries on the new environmental and land use cases, for those who are interested.

Water Law and the Dormant Commerce Clause - Is the Tarrant Case Much Ado about Nothing?

I've written previously about this year's water law case before the U.S. Supreme Court. Tarrant Regional Water District v. Herrmann, 11-889 (argued April 23, 2013). I've written about how this case has constitutional law implications, and that those of us in Florida and the Southeast should watch this one.

It may end up being much ado about nothing. (Sound familiar this term?) In today's oral argument, the implications of the dormant commerce clause on water law were barely mentioned. In fact, the dormant commerce clause was only mentioned three times. Suffice it to say the Justices don't seem interested in addressing that issue.

But in addressing what they were interested in, the Justices had a great deal of questions on this complex area of the law. As one report describes it,
Some questions sounded sympathetic to the thirsty Tarrant Regional Water District, which seeks Oklahoma water to serve Fort Worth-area customers. Other questions seemingly supported Oklahoma. Many questions, though, simply underscored the legal and technical complications now confronting justices dealing with what may be the biggest water law case of the year. “You read this brief that you submitted,” Justice Elena Kagan told the Obama administration attorney at one point, “and it gives you a kind of a headache.” 
At another point, Justice Antonin Scalia told a lawyer, “I don’t understand what you just said,” while Justice Sonia Sotomayor acknowledged that she “can’t make rhyme or reason” out of some provisions of a water deal. And following one drawn-out scenario that seemed to reach a dead end, Justice Stephen Breyer offered a simple one-word verbal shrug: “Anyway.” 
While some of the uncertainty may have been professed, in order to make a point, it did make clear what a different world water law can be. “They don’t address a lot of questions like this one,” attorney Charles A. Rothfeld, who represented Tarrant, noted following the seemingly inconclusive hourlong oral argument.
If you're as perplexed about all this as the Justices seemed to be, here is a great backgrounder article, complete with a graphic of exactly what water rights this compact covers. In the end, though, the Supreme Court will be addressing a very basic question: can Oklahoma keep Texas away from its water?

Thursday, April 18, 2013

What Does the U.S. Supreme Court's Decker Decision Mean in Plain Language?

Once again, thanks to the Southeastern Wood Producers Association for inviting me to give its membership an update on the forest roads litigation in the latest edition of its newsletter, Out of the Woods. See Decker v. NEDC, 568 U.S. _ (2013) (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). This short, readable article is excerpted below.

U.S. Supreme Court Decides Forest Roads Case 

In good news for the forestry community, federal permits will not be required anytime soon for logging roads. In Decker v. NEDC, the U.S. Supreme Court decided that the U.S. Environmental Protection Agency’s (EPA) rules properly exempt stormwater runoff from logging roads from permitting under the Clean Water Act.

In the last issue of Out of the Woods, you may recall that I mentioned this case because it addressed two important questions. First, would all forest and logging roads require a time-consuming and expensive permit (permitting costs in the Southeast had been estimated as high as $21.46 per acre per year)? Second, would forest landowners be exposed a greater risk of environmental lawsuits? These questions made the Decker case the most important regulatory decision for forestry professionals and forest landowners in recent memory.

In the 1970s, EPA had developed the Silvicultural Rule, excluding logging roads from Clean Water Act permitting. No one had ever challenged that interpretation until an environmental organization, NEDC, sued Oregon and several timber companies. Although the defendants had acted legally under the EPA’s standards, NEDC argued that they should have had a permit because EPA’s rule was invalid. A federal trial court dismissed the case, but the appellate court invalidated the rule.

By the time the case got to the Supreme Court and was ready for oral arguments in December, the forestry community looked poised to win. EPA, though, complicated things by issuing a new rule on the eve of arguments that was supposed to fix the problem. After these complications, most observers thought it was unlikely that the Supreme Court would address the actual Clean Water Act permitting issues.

In a pleasant surprise for the forestry community, however, the Supreme Court did. It ruled that EPA’s rules exempt “discharges of channeled stormwater runoff from logging roads” from Clean Water Act permitting, reasoning that EPA’s interpretation of its own regulation was reasonable, was longstanding, and complied with the intent of the Clean Water Act. The Supreme Court could have stopped there, but it went on to congratulate Oregon on a job well done in implement its forestry best management practices. The Supreme Court seemed to recognize, as foresters and scientists have pointed out, that a nationwide Clean Water Act permitting regime might actually lead to dirtier water. In doing so, the Supreme Court recognized the importance of allowing landowners and the forestry community to work together voluntarily to address environmental problems, rather than requiring a command-and-control regime.

The Decker decision, however, was not all good news for the forestry community. The Supreme Court said the NEDC could bring its challenge to the Silvicultural Rule, which was over 30 years old. Normally, a rule can only be challenged for a short period of time before it becomes law. The Supreme Court ruled that because the challenge was to whether the landowners had proper permits, they were not actually challenging the rule directly. This will, unfortunately, lead to more litigation by environmental organizations that do not like longstanding rules. Landowners may be subject to these lawsuits, even if they follow all of the agencies’ rules and recommendations. With this risk, and the fact that NEDC has already filed a new lawsuit challenging EPA’s new rule, the Clean Water Act remains an issue that the forestry community must be aware of.

With all environmental law and regulatory problems, the real solution is political. Therefore, congressional action permanently exempting silviculture in all its forms from the Clean Water Act would still be the best solution. Recent election-year politics have not yielded results, but now that the Supreme Court has ruled, this issue may not be as contentious as it once was. You can help by calling your elected representatives.

Jacob T. Cremer is an attorney at Smolker, Bartlett, Schlosser, Loeb & Hinds, P.A., in Tampa. His practice focuses on property rights, environmental, and land use law. He grew up in a family that has been involved in forestry in Florida for many generations. Follow the developments on these cases and others at his blog, The Florida Land Environment,

Thursday, April 4, 2013

Why Citizens are Baffled by Code Enforcement Proceedings

Thirty-three years ago, Mother Teresa of Calcutta came to Miami to put her merciful motto of love into action: “To serve the poorest of the poor.”

Since then, each morning a group of sisters of the congregation of the Missionaries of Charity, donning their distinctive white blue-bordered saris, passes through the gates of their beloved Overtown convent — where they live without air conditioning, washing machines or television — and cross the street to enter the world of the poor: a soup kitchen founded by Mother Teresa. 
On a recent morning, following the Liturgy of the Hours prayer inside a tiny chapel with the image of Our Lady of Fatima, the sisters, accustomed to listening to candid words from grateful men, woman and children, found a notice of violation with a potential property lien from a City of Miami Code Enforcement inspector posted on an electrical pole. 
Apparently the sisters had never obtained a permit for feeding — for free and without using public funds — hundreds of homeless who see in their eyes the universal symbol of compassion and dignity represented by Mother Teresa. 
“What kind of violation are we doing?” asked convent superior Lima Marie. “Taking care of the homeless and feeding them is a violation?” 
The sisters felt intimidated because the notice ends with a threat: operating “a business without all required licenses is illegal under state and city law and is punishable by criminal arrest and/or closing the business.” 
With such aggressive language, it is obvious that city government shows no respect toward these religiously devoted women and lacks the basic sensitivity to differentiate between a business without a license and charity work.
Why not work proactively with citizens who are quite obviously benefiting the community? As with many enforcement actions, here, the power is the only justification for the means. If you're not seeing a theme in my posts here, see the Sackett case. Different context, similar hubris.