Quick Update: Will Congress Act to Fix the Forest Roads Quagmire through the Farm Bill?

I've had some questions lately about the effects of the U.S. Supreme Court's decision in Decker v. NEDC, 568 U.S. _ (2013). As I've discussed, in that case, the Supreme Court held that the U.S. Environmental Protection Agency’s (EPA) rules properly exempt stormwater runoff from logging roads from permitting under the Clean Water Act. Because of complications from the new rule EPA issued just before oral argument in the Decker case, however, the NEDC had an opening to continue the litigation out in the Ninth Circuit. So the litigation and uncertainty for forest landowners continued.

These questions are timely. As my readers well know, I've been saying for years on this blog that the only way out of the forest roads quagmire and its resulting litigation is for Congress to act.

This year's Farm Bill process was a mess. While the bill sailed through the Senate, in the House nobody on either side of the aisle could agree on anything. Ultimately, the House was able to split the farm components of the bill from the food stamp provisions that have been a part of it for years. Into this "farm only" bill went the Forest Roads Amendment. This amendment would preserve EPA's 37-year-old interpretation that forest roads should be regulated as nonpoint sources (and therefore no permit is necessary). This amendment was basically the same as the Silvicultural Regulatory Consistency Act, which various legislators have been working to pass for several years.

This paves the way for a true legislative solution when the Senate and the House discuss the differences in the bills that were passed later this year--presumably before September 30, when the current Farm Bill expires. If you're a forest landowners or in the forestry industry, you'd do well to call your senators and representatives and encourage their support for the Forest Roads Amendment.

What Effect has the Community Planning Act had on Growth Management in Florida?

Robert Rhodes has a thoughtful piece in the Florida Bar's Environmental and Land Use Section Reporter, entitled "The 2011 Community Planning Act: Certain Change, Uncertain Reform." Bob served as the first chair of the section. In his piece, he focuses on the Community Planning Act's effects on the state's oversight role and its defects. Ultimately, he proposes:

[T]he Legislature should statutorily define the operative terms, important state resources and facilities, and adverse impact. This is core legislative policy-making and a legislative prerogative and responsibility. For reference points, the Legislature can review current state planning policies noted below, the statutory definitions of development of regional impact and the general law guidelines for designating an area of critical state concern. Other useful reference points are the SRPPS, which identify regionally significant resources and facilities.

Depending on the specificity of the statutory definitions, they can be further refined by rules developed by the Governor and Cabinet with the assistance of DEO and other review agencies. If the Legislature decides not to statutorily define the operative terms, rules should be developed and could be subject to legislative review and possible action.

Rulemaking is more than a policy choice. Standing alone, the undefined operative terms are vulnerable to constitutional attack because they are broad, vague, variable and delegate unrestrained legislative policy making to the executive branch review agencies.

He also discusses the state agency's burden of persuasion and how to clarify the act's compliance standards. Bob concludes:

The 2011 Act was branded by proponents as significant growth management reform. Reform means to change for the better, to improve. But it may also mean to end. I’m optimistic the recent legislation may be a catalyst in many communities for improvement and not the beginning of the end of the state planning program. But to borrow a phrase from The New York Times columnist Tom Friedman, I’m now a paranoid optimist.

Upcoming Presentation about Sustainability and Property Rights

On Friday, September 13th at 9 am, come out to the Florida Chapter of the American Planning Association's (APA) annual conference. I'm joining a distinguished panel to discuss sustainability and property rights in a presentation entitled "Where do property rights fit into sustainability? Recent developments affecting planners." We'll discuss a number of cases and developments that I've written about here, such as the Koontz, Ponce Inlet, and Hillcrest cases. Here's a brief description of what you'll learn about:

Are private property rights compatible with sustainability? The law is evolving: what do planners need to know? The U.S. Supreme Court is poised to decide a case from Florida that could have serious implications for how governments can use development exactions. At the same time, the legislature is considering exactions legislation. Another case from Florida could lead to bankruptcy for a local government in Florida if its takings and Bert Harris Act judgments are affirmed on appeal. The panelists will discuss the challenges, pitfalls, and even the opportunities that these developments present.

As I mentioned, we have a great lineup besides yours truly, including:

• Nancy E. Stroud, Esq., AICP, of Lewis, Stroud & Deutsch, P.L., who represents local governments in land use and development matters, drafted the Florida Chapter of the APA's amicus  brief in the Ponce Inlet case, and who serves on the APA's national amicus committee (which submitted a brief supporting the government Koontz)
• Linda R. Hudson, Esq., who is Senior Assistant City Attorney for the City of Tallahassee and is experienced in a variety of planning, environmental, growth management, and land use matters
• Seth. C. Behn, AICP, of Lewis, Longman, & Walker, P.A., who works with a law firm to represent developers in the land use entitlement process

The brochure for the conference is attached.

Sackett v. EPA: One Year Later

Now that the Pacific Legal Foundation has won another big property rights victory with the Koontz decision, it seems appropriate to return to last year's Sackett decision, which PLF also argued. Recall that, in Sackett , the U.S. Supreme Court held that landowners could bring a civil action to challenge a compliance order under the Administrative Procedure Act. In doing so, the Court decided that regulatory efficiency doesn't trump everything.

In a timely article, Russell Prugh at Marten Law has taken a look at the decisions decided under Sackett since that case came down. He writes:

What one finds from reviewing these early cases is that:

1. They are fact-specific;
2. They are not limited to the CWA;
3. They turn on the court’s finding of whether the action challenged was “final”; and
4. Whether the agency action is deemed final turns on whether the court sees it “just a step in the deliberative process” or as leaving nothing left to do but to refer the case to a government lawyer to enforce.

And he concludes:

The theme that emerges from the early cases interpreting Sackett is that courts have focused on a case-by-case analysis of whether the agency action challenged subjects the complainant to enforcement, or rather is simply a step in the decision-making process. The answer is often not clear, and different trial courts could go either way, adding uncertainty to the outcome of any challenged action. Courts are most apt to allow pre-enforcement review in cases factually similar to Sackett – cases involving administrative enforcement orders under the CWA. See Hardesty. But the core holding in Sackett could also find a place in challenges to other types of agency action, even outside the environmental context, as it did in Furie. As cases such as Furie demonstrate, the key inquiry continues to be whether the action challenged is “just another step in the deliberative process” or whether the only action left to be taken is government enforcement.

As a matter of fact, as another blogger points out, EPA has recognized that Sackett applies to a wide variety of cases:

EPA has now formally acknowledged that the Sackett decision has implications for other statutes. In a memorandum dated March 21, 2013, EPA’s Office of Enforcement and Compliance Assurance has concluded that it is important to advise recipients of EPA unilateral orders under other programs of their opportunity to seek pre-enforcement judicial review of such orders.

In particular, EPA has directed enforcement staff to immediately begin adding the following language to typical unilateral orders under FIFRA, Clean Air Act, Safe Drinking Water Act and EPCRA: “Respondent may seek federal judicial review of the Order pursuant to [insert applicable statutory provision providing for judicial review of final agency action.]”

The foregoing language applies, inter alia, to stop sale, use or removal orders under FIFRA §13, stop work or compliance orders under Clean Air Act §§113(a) and 167, and emergency and compliance orders under EPCRA §§ 325(a).

With respect to compliance and corrective action orders under RCRA §§3008(a), 3008(h), 9003(h) and 9006(a), EPA’s Memorandum directs enforcement staff to include language advising respondents that they may seek administrative review in accordance with 40 CFR Part 22 or 24 as applicable.

EPA’s March 21, 2013 Memorandum states that EPA believes that the reasoning in Sackett does not lead EPA to believe that similar language is appropriate for unilateral orders issued under statutory authorities other than those discussed in the Memorandum, and it is noteworthy that the EPA Memorandum makes no reference to unilateral orders under CERCLA.

This is good news for landowners facing all sorts of environmental enforcement actions by EPA.

Early Roundup of Koontz Commentary

Earlier today, I wrote about the win for landowners in Koontz v. St. Johns River Water Mgmt. Dist., No. 11-447 (June 25, 2013). On reading the opinion, my favorite line so far:

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. As in other unconstitutional conditions cases in which someone refuses to cede a constitutional right in the face of coercive pressure, the impermissible denial of a governmental benefit is a constitutionally cognizable injury.

Here's a roundup of commentary thus far:

• Paul Beard with the Pacific Legal Foundation (who argued the landowner's case) offers a great plain-language summary of the decision.
• Brian Hodges at the Pacific Legal Foundation offers more musings on the case.
• Robert Thomas, as always, has a good initial analysis of the high points of the case. His take? The Court was "right on the money," and it's "growing weary of silly procedural arguments." 
• Legal Planet writes that while the effects of the decision on governments may not be clear, "[w]hat is clear is that property owners have achieved a clean sweep in the three Takings Clause cases decided by the Supreme Court this Term."
• Eric Giunta, for Sunshine State News, grudgingly reports that Koontz continues to soldier on after 20 long years.
• Daniel Fisher at Forbes points out that the unconstitutional conditions doctrine cuts both ways, since the Court pointed to precedent that most conservatives don't care for.
• Tejinder Singh at SCOTUSblog probably has a good point: "The decision has the potential to significantly expand property-owners’ ability to challenge local land use regulations and fees, though it is not clear that this expansion will result in a significant number of successful challenges.
• Prof. Rick Hills (NYU) doesn't care much for the opinion:

So how will the federal courts eventually exit this quagmire? The answer might be remedial equivocation. Nollan-Dolan has so far mostly been a dead letter in zoning litigation, because the remedy in lower courts has usually (although not universally) been restoration of the pre-exaction status quo in which the developer is unconditionally denied the desired permission to build. (See Goss v. City of Little Rock, (8th Cir. 1996), for an example of how this remedy guts the right, or read Mark Fenster's Failed Exactions). Such a remedy means that developers will rarely sue, and the ones that do sue get nothing for their troubles. Koontz did nothing to disturb this remedial equivocation, declaring that "[b]ecause petitioner brought his claim pursuant to a state law cause of action,the Court has no occasion to discuss what remedies might be available for a Nollan/Dolan unconstitutional conditions violation either here or in other cases" (Slip op. at 11). 

This may be the most important sentence in the opinion -- a hint at the SCOTUS's "exit strategy" when developers start challenging plazas, parks, playgrounds, and the like. San Remo Hotel v. San Francisco severely limits developers' power to bring a federal takings claim in federal court: If state courts can continue to define the Nollan-Dolan remedy as invalidation of the illegal condition and denial of the zoning permission, then Koontz will be a practical dead letter. And a good thing, too, if one cares about federalism and believes, as I do, that Nollan-Dolan was always a quixotic expedition to control land-use decisions far too numerous and fact-specific to be amenable to federal judicial policing.

• But Prof. Ilya Somin (George Mason) begs to disagree: "Overall, Koontz is the most important victory for property rights in the Supreme Court for a long time." That's because "Koontz addresses two major issues that previous Supreme Court cases had not covered: Whether the requirements of Nollan and Dolanapply when the government denies a permit, as opposed to issuing it with attached conditions, and whether those requirements apply to cases where the burden imposed by the government is an obligation to finance off-site “mitigation” as opposed to requiring the property owner to allow a physical invasion of his land. The Supreme Court majority answered “yes” to both questions. I think they got both of them right."

U.S. Supreme Court Says Government Demands for Property Must Satisfy Exactions Law, Even Where Permit is Denied and Where Demands are for Money

In an important win for landowners everywhere, the U.S. Supreme Court has ruled for landowners in the exactions case I've been writing about for quite some time. Koontz v. St. Johns River Water Mgmt. Dist., No. 11-447 (June 25, 2013). Recall that this is the case where Koontz asked the Court to establish (1) that the Nollan-Dolan exactions test applies even where a permit is denied because an applicant rejects an exaction, and (2) that the Nollan-Dolan exactions test applies to exactions other than real property, such as where a permit applicant is required to pay for work. My colleague Dave Smolker and I submitted an amicus brief in support of the property owners in this case.

The Court agreed with Koontz on both points, overturning the decision of the Florida Supreme Court. I'll post some analysis once I've had time to digest the opinion. In the meantime, here are some excerpts. On the first question:

The principles that undergird our decisions in Nollan and Dolan do not change depending on whether the government approves a permit on the condition that the applicant turn over property or denies a permit because the applicant refuses to do so. We have often concluded that denials of governmental benefits were impermissible under the unconstitutional conditions doctrine. See, e.g., Perry, 408 U. S., at 597 (explaining that the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests” (emphasis added)); Memorial Hospital, 415 U. S. 250 (finding unconstitutional condition where government denied healthcare benefits). In so holding, we have recognized that regardless of whether the government ultimately succeeds in pressuring someone into forfeiting a constitutional right,the unconstitutional conditions doctrine forbids burdening the Constitution’s enumerated rights by coercively withholding benefits from those who exercise them. 

A contrary rule would be especially untenable in this case because it would enable the government to evade the limitations of Nollan and Dolan simply by phrasing its demands for property as conditions precedent to permit approval. Under the Florida Supreme Court’s approach, a government order stating that a permit is “approved if ”the owner turns over property would be subject to Nollan and Dolan, but an identical order that uses the words “denied until” would not. Our unconstitutional conditions cases have long refused to attach significance to the distinction between conditions precedent and conditions subsequent. See Frost & Frost Trucking Co. v. Railroad Comm’n of Cal., 271 U. S. 583, 592–593 (1926) (invalidating regulation that required the petitioner to give up a constitutional right “as a condition precedent to the enjoyment of a privilege”); Southern Pacific Co. v. Denton, 146 U. S. 202, 207 (1892) (invalidating statute “requiring the corporation, as a condition precedent to obtaining a per- mit to do business within the State, to surrender a right and privilege secured to it by the Constitution”). See also Flower Mound, 135 S. W. 3d, at 639 (“The government cannot sidestep constitutional protections merely by rephrasing its decision from ‘only if’ to ‘not unless’”). To do so here would effectively render Nollan and Dolan a dead letter.

On the second question:

Respondent’s argument rests on a mistaken premise. Unlike the financial obligation in Eastern Enterprises, the demand for money at issue here did “operate upon . . . an identified property interest” by directing the owner of a particular piece of property to make a monetary payment. Id., at 540 (opinion of KENNEDY, J.). In this case, unlike Eastern Enterprises, the monetary obligation burdened petitioner’s ownership of a specific parcel of land. In that sense, this case bears resemblance to our cases holding that the government must pay just compensation when it takes a lien—a right to receive money that is secured by a particular piece of property. See Armstrong v. United States, 364 U. S. 40, 44–49 (1960); Louisville Joint Stock Land Bank v. Radford, 295 U. S. 555, 601–602 (1935); United States v. Security Industrial Bank, 459 U. S. 70, 77–78 (1982); see also Palm Beach Cty. v. Cove Club Investors Ltd., 734 So. 2d 379, 383–384 (1999) (the right to receive income from land is an interest in real property under Florida law). The fulcrum this case turns on is the specific parcel of real property.2 Because of that direct link, this case implicates the central concern of Nollan and Dolan: the risk that the government may use its substantial power and discretion in land-use permitting to pursue governmental ends that lack an essential nexus and rough proportionality to the effects of the proposed new use of the specific property at issue, thereby diminishing without justification the value of the property. 

In this case, moreover, petitioner does not ask us to hold that the government can commit a regulatory taking by directing someone to spend money. As a result, we need not apply Penn Central’s “essentially ad hoc, factual inquiry],” 438 U. S., at 124, at all, much less extend that“already difficult and uncertain rule” to the “vast category of cases” in which someone believes that a regulation is too costly. Eastern Enterprises, 524 U. S., at 542 (opinion of KENNEDY, J.). Instead, petitioner’s claim rests on the more limited proposition that when the government commands the relinquishment of funds linked to a specific,identifiable property interest such as a bank account or parcel of real property, a “per se [takings] approach” is the proper mode of analysis under the Court’s precedent. Brown v. Legal Foundation of Wash., 538 U. S. 216, 235 (2003).

Second 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 second quarter of 2013. This is the column that I formerly coauthored. Here is what we've got this quarter:

• Clipper Bay Invs., LLC v. Dep’t of Transp., No. 1D11-5496, 2013 WL 425882 (Fla. 1st DCA Feb. 5, 2013). "The Marketable Record Title Act’s exception for easements and right-of-ways is applicable to land held as a fee estate for the purpose of a right-of-way, so long as competent, substantial evidence establishes the land is held for such a purpose."
• Wendler v. St. Augustine, 108 So. 3d 1141 (Fla. 5th DCA 2013). As I pointed out previously, the statute of limitations for filing a Bert Harris Act claim in court is within 4 years of the government’s act. Section 70.001(11), it held, is a pre-suit condition merely requiring that a claim be presented to a local government within 1 year of its act.
• Alachua Land Investors, LLC v. Gainesville, 107 So. 3d 1154 (Fla. 1st DCA 2013). As I discussed, for an inverse condemnation claim to be ripe, the plaintiff should prove (1) the regulation denies substantially all economically beneficial or productive use of the land; (2) alternative uses were applied for and conclusively denied by the regulatory body; and (3) at least one meaningful application has been filed under the existing regulations.
• Nieto v. Mobile Gardens Ass’n of Englewood, Inc., No. 2D11-4958, 2013 WL 1489377 (Fla. 2d DCA Apr. 12, 2013). "A homeowners association lacks standing to enforce restrictive covenants unless it is the direct assignee of the developer’s right to enforce deed restrictions or it is a successor in interest of the developer."
• Martin Cnty. Conservation Alliance v. Martin Cnty., No. SC11-2455, 2013 WL 1908644 (Fla. May 9, 2013). As I've discussed previously, the Florida Supreme Court dismissed review of a case from the 1st DCA sanctioning environmental organizations for advancing legal positions unsupported by material law or fact.

For those interested, there are about two years' worth of analysis and these summaries on new environmental and land use cases in Florida in my archives.

Upcoming Presentation about Ethics for Environmental and Sustainability Reporting

On Thursday, August 8th, come out to the Florida Bar Environmental and Land Use Section's 2013 Annual Update in Ponte Vedra Beach to learn about Ethics for Environmental and Sustainability Reporting. I'll be riding the coattails of my co-presenter, Thea Dunmire, who has taught me much of what I know on this subject. Thea is President of ENLAR Compliance Services, Inc. and has a unique back ground: she has an engineering degree and a law degree, and she is a Certified Safety Professional (CSP), a Certified Industrial Hygienist (CIH), and an RABQSA-certified EMS Lead Auditor. Thea has worked both as an environmental health and safety professional and as an attorney for EPA and a private law firm.

Here's a brief description of the presentation.

More and more companies are engaging in environmental and sustainability reporting. Some companies are required to prepare reports under federal laws, such as EPCRA and OSHA. Others voluntarily report on environmental and sustainability efforts due to customer and shareholder pressure. Companies also comment on their sustainability efforts in press releases and during various environmental permitting processes. 

This presentation will focus on ethical issues related to environmental and sustainability reporting that attorneys and consultants may face. Should ethical standards be different if a reporting program is voluntary than if the program is legally mandatory? What is the role of the attorney and the consultant in ensuring a client’s public statements about its environmental and sustainability reporting are accurate? These questions, and others, will be explored through the use of case studies.

Check out the Annual Update materials--there are a lot of other great presentations!

U.S. Supreme Court Carefully Avoids Commerce Clause Implications of Water Rights Dispute

The U.S. Supreme Court recently decided this this year's water law case, Tarrant Regional Water District v. Herrmann, 569 U. S. _, No. 11-889 (2013). I've written about how those of us in Florida and the Southeast should watch this one since it may have implications if our states enter into water compacts in the future. I've also written about how although this case has constitutional law implications in the dormant commerce clause, the U.S. Supreme Court didn't seem interested in addressing that issue. And indeed, it was not, which is probably why the opinion was unanimous.

Over at SCOTUSblog, Columbia Law Professor Thomas Merrill offers a good one-paragraph summary of the meat of the opinion, which interpreted the water compact between the states:

The Red River Compact allocates water between four states, including Texas and Oklahoma. Among other things, it provides that each of the four states can take twenty-five percent of the excess water in a particular subbasin in the river. Texas argued that, under the compact, it could take twenty-five percent of all of the excess water, and that it had could go into Oklahoma’s part of the subbasin to do that. Oklahoma disagreed, arguing that Texas could only take twenty-five percent of the excess water from its own part of the subbasin. The Court agreed with Oklahoma, ruling that Texas was not authorized to take water from tributaries in Oklahoma without Oklahoma’s consent.

On the question that readers of the blog are likely more interested in--the commerce clause issue--Prof. Merrill writes:

The Court also rejected the Texas water district’s dormant Commerce Clause claim, but did so in a way that deprives this part of the decision of any significance. The Court read the water district to argue that the Commerce Clause was violated because Oklahoma was discriminating against out-of-state users with respect to water that was left “unallocated” under the Compact. The argument failed, according to the Court, because there would be no unallocated water in Oklahoma unless Texas could show that Oklahoma was taking more than twenty-five percent of the excess water, and it had not asked for an accounting to establish this fact. In effect, the Court read the compact as superseding the dormant Commerce Clause with respect to the twenty-five percent share allocated to each state; a constitutional issue would be presented only if it could first be established that water was available in a state above this threshold and the state was discriminating against interstate sources with respect to the excess.

At this point you, like me, are probably asking what the significance of Tarrant will be going forward. Prof Merrill continues:

What then is significant about this decision for those not directly engaged in battles over the Red River Compact? The Court establishes, in a footnote, that a congressionally approved compact, as federal law, preempts state law that conflicts with the compact under the Supremacy Clause. It also establishes, in another footnote, that the presumption against preemption does not apply to interstate compacts, because “the States themselves have drafted and agreed to the terms” of the compact. There is some quotable language in the section about the states’ sovereign prerogative to control water resources within their territories, which will undoubtedly be trotted out in future cases involving apportionment of waters, the public trust doctrine, and the like. And portions of the Court’s opinion provide an excellent example of “pragmatic” interpretation, especially where it talks about the administrative difficulties that would be created by recognizing a cross-border right to divert water without additional guidance from Congress or the affected states.

The Tarrant Regional Water District has now been sent packing and needing to develop new water sources quickly. Its director is already facing some tough questions about whether the $6M+ dollars spent in the battle were worth it.

Defending against Enforcement Actions with the Takings Clause: Good News for Agriculture and Property Owners in U.S. Supreme Court

What's that, you say? The U.S. Supreme Court has just decided a second Takings Clause case this term, unanimously--and in the property owner's favor?

Indeed. In today's opinion by Justice Thomas, the Supreme Court again ruled favorably for property owners. Horne v. U.S. Department of Agriculture, No. 12-236 (June 10, 2013). Recall that this is the case where raisin producers raised the Takings Clause as a defense to the  imposition of fines for a New Deal agricultural marketing law. In response, the government argued that the raisin producers can try their hand at bringing a separate lawsuit but cannot use it as a weapon against government enforcement. The Ninth Circuit bought the government's argument, but the U.S. Supreme Court did not.

While carefully noting that it was not ruling on the merits of the raisin producers' takings claim, the Supreme Court held that a "takings-based defense may be raised by a handler in the context of an enforcement proceeding initiated by the USDA under §608c(14)." Slip Op. at 14. The practical result of this holding is that the raisin producers will get to assert their takings defense below. So, their saga continues, but as in a case decided last year, Sackett v. EPA, the good news is that landowners continue to open the door to judicial review of abusive government processes. That is, the takings clause has been strengthened as a weapon for the property owner to use when the government brings enforcement actions against the property owner.

There's no media coverage of the case yet, but I'll update you when it becomes available. In the meantime, to catch up on the background of this case, see my archives. Stay tuned. We're still waiting on a decision in Koontz v. St Johns River Water Management District, No. 11-1447 (argued Jan. 15, 2012), which has some theoretical similarities to Horne. Here's hoping property owners go three-for-three at the U.S. Supreme Court this term.