Environmental Organization Files Brief in Forest Roads Litigation before U.S. Supreme Court

The Northwest Environmental Defense Center (NEDC), a non-profit environmental organization, has filed its brief in the forest roads case before the U.S. Supreme Court (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). Before I jump into the summary, here's a quick reminder of where we're at. It all started when the Ninth Circuit struck down EPA's longstanding Silvicultural Rule under the Clean Water Act, which meant that many forest landowners would need federal stormwater permits for their forest and logging roads. In response, last December, Congress stayed NPDES permitting through October 1, 2012. EPA worked much of this year to develop revisions to its Clean Water Act rules for logging roads (but it is still working on what to do with the broader category of forest roads).

Meanwhile, courts and legal commentators urged the U.S. Supreme Court to grant certiorari and hear the case, although the U.S. Solicitor General recommended against it. Ultimately, the U.S. Supreme Court agreed to hear the case. Now, the case is being briefed, and the U.S. Solicitor General decided to support petitioners (the landowners). You can read all of my blog posts on this issue here.

NEDC argues that the Ninth Circuit's opinion was correct because:

1. The Court has subject matter jurisdiction because the NEDC's citizen suit seeks to enforce EPA's regulations, rather than challenge them. 
2. This case only involves the active channelization of water into ditches and conveyances that go along with logging roads and are discharges that must be permitted. It doesn't involve non-point sources or natural runoff.
3. The accumulation of sediment into the water is an "acute environmental problem" that the EPA must address.

We'll see the landowners' responses to these points soon enough, but here is some food for thought. NEDC's first point seems to be one of those games we lawyers play with words and semantics. Even though NEDC was seeking to enforce EPA's regulations, it still challenged EPA's interpretation of them. The second point is well taken. But it does not squarely address the landowners' argument, which is not whether there is a discharge, but rather whether that discharge is associated with industrial activity, as required by law.. The third point is not especially compelling, since it basically argues that the Court should ignore out the landowners' policy reasoning but accept its own.

EDIT: 10/31/12 - Originally, I mistakenly used the acronym "NRDC," rather than NEDC. This may have called to mind for my readers familiar with environmental organizations the Natural Resource Defense Counsel. That organization is not a party to the case. Thanks to my readers for pointing out the mistake, which has now been corrected.

Third Quarter 2012: 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 third quarter of 2012. It's a relatively small bunch this time:

• Southern Union Co. v. United States, - S. Ct. -, 2012 WL 2344465 (2012), determined that the Sixth Amendment protection requiring that juries determine any fact, other than a prior conviction, that increases a criminal defendant’s maximum potential sentence applies to the sentencing of criminal environmental fines. The U.S. Supreme Court overturned the $18 million penalty assessed against Southern Union and sent the case back to the appeals court for further consideration.
• FT Investments, Inc. v. Florida Department of Environmental Protection, - So.3d -, 2012 WL 2138110 (Fla. 1st DCa 2012), holding that a third party defense to strict liability for petroleum contamination only applies if the purchaser of the contaminated property had no knowledge of the contamination after a reasonable inquiry. The takeaway here is that liability under the statute is strict - do not assume that just because you did not cause the contamination you cannot be held liable for it.
• Department of Transportation v. Florida Gas Transmission Co., - So.3d -, 2012 WL 2014755 (Fla. 1st DCA 2012), discussing issues related to contractual interpretation of a gas pipeline easement.
• Turkali v. Safety Harbor, Case no. 2D11-3649 (Fla. 2d DCA 2012), explaining, as I have discussed previously, that a "valid, bona fide appraisal" under the Bert J. Harris Private Property Protection Act must provide information about the value of the individual property at issue. As I discussed before, it's important to make sure that you follow the statute precisely to preserve your statutory rights.

As always, if you're interested in previous case law updates, take a look at my past posts for previous cases I've summarized about Florida environmental and land use law.

U.S. Supreme Court to Determine What Governments Can Request in Exchange for Permits

In a case with big implications for landowners and governments of all levels and sizes, the U.S. Supreme Court has just agreed to hear Koontz v. St Johns River Water Management District, No. 11-1447 (cert. granted Oct. 5, 2012). As readers of my blog know, this is an important property rights case dealing with 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. Koontz had been trying to develop his property since 1994, when he had applied to the District for a permit. The District agreed to grant the permit on two conditions. First, the District required that Koontz deed part of his property into a conservation area, which he agreed to do. Second, the District required that Koontz perform offsite mitigation several miles by replacing culverts and plugging drainage canals on District-owned properties seven miles from his property, which Koontz refused. When the District then denied the permit, Koontz sued in state court, arguing that the District’s offsite mitigation condition was an unconstitutional exaction because it violated the Nollan-Dolan test. The trial court found that the District had taken Koontz’s property through an unconstitutional exaction because the condition was not related to the impacts of his project. The intermediate appellate court affirmed.

The Florida Supreme Court reversed, holding there was no taking. The court explained that the Nollan-Dolan test only applied to exactions of real property, where a permit was actually issued imposing the onerous exaction. The court acknowledged a line of cases applying the Nollan-Dolan test beyond real property exactions, but it held that these cases went beyond the U.S. Supreme Court’s holdings. The court also explained that, as a matter of public policy, land use regulation would become prohibitively expensive if agencies were subject to inverse condemnation claims anytime they denied a permit. Consequently, the court held there was no taking because no permit was ever issued.

Before the U.S. Supreme Court, Koontz has asked the Court to establish that:

1. The Nollan-Dolan exactions test applies to exactions other than real property, such as where a permit applicant is required to pay for work; and 
2. The Nollan-Dolan exactions test applies where a permit is denied because an applicant rejects an exaction.

This is excellent news for landowners. The Pacific Legal Organization, which is representing the landowner in this case, has an excellent track record before the Supreme Court: it has won six out of the seven cases it has argued there. It won the seminal case in this area of the law before the Supreme Court, Nollan v. California Coastal Commission, 483 U.S. 825, 837 (1987). And in March of this year, it won Sackett v. EPA, 566 U.S. __ (2012), which gave property owners the right to take EPA to court over a compliance order dealing with wetlands.

This case just may go down in history as the only time my hometown Palatka, Florida is relevant before the Supreme Court. The District is housed there. For those interested in researching further, the Supreme Court's docket for the case is here. I'll have an article in the American Planning Association's Planning & Law Newsletter soon with more analysis.

What If the Government's Power Plant Kills Your Chickens? More on Elevating Public Interest above Private Property Rights

The transcript for today's flood takings case argued before the U.S. Supreme Court is out. Arkansas Game & Fish Commission v. United States, No. 11-597 (cert. granted Apr. 2, 2012). As Lawrence Hurley points in out in his recap of today's oral argument, a majority of the Court seemed sympathetic to the property owner's plight. As always, the justices tossed out some fun, nearly nonsensical hypotheticals that make lawyers recall their worst days in law school.

Earlier this week, I explained that, behind the legal doctrines, is a simple philosophical question: should property rights depend on the importance of the public interest? Today, the federal government said that's exactly the case (represented below by Mr. Kneedler). In fact, Congress had been good enough to help these landowners to begin with, so that the landowners should have known that the government could later decide to flood their lands:

MR. KNEEDLER: I don't believe that that's correct. I mean, that -- that would turn on the happenstance of what a particular landowner had -- had on his property downstream. And I think the government, in operating the general project, cannot be held to do an investigation of every property owner. Again, it's releasing water generally. And if we -- maybe if I could use the levy example here. This -- the release changes that were made here were made to protect farmers so that they could -­ so that they could plant more crops and not -- and be protected during their harvesting.  If you shift back to what the Corps -- to the Corps' regular operating scheme, it affects the farmers. There might be a flood -­ 

MR. KNEEDLER: It is in the nature -­ 

JUSTICE SCALIA: That doesn't seem to me particularly fair. 

MR. KNEEDLER: It is in the nature of living along a river. Riparian ownership carries with it certain risks and uncertainties, from weather, from intervening causes. The government is -- there are a thousand square miles, more square miles of drainage area -- 

JUSTICE SCALIA: I don't think -- one of those risks has to be the Government's going to make you pay for protecting somebody else.  Is that one of the risks? 

MR. KNEEDLER: Well, when -- picking up on what I said about Congress, Congress would not have
gotten into the flood control business without this protection of liability. People -­

JUSTICE SCALIA: I doubt that.

JUSTICE SCALIA: I mean, the issue is who is going to pay for the wonderful benefit to these farmers. Should it be everybody, so that the government pays, and all of us pay through taxes, or should it be this -­ this particular sorry landowner who happens to lose all his trees?

Even Justice Breyer agreed that this position was absurd, since the government undertakes public works in many fields, and in all of them it must compensate a property owners if something goes awry and property is taken:

JUSTICE BREYER: But building a Government project, let's say an electricity plant or high tension wires, you could require the taking of some land to build it. Now, you've got that and you begin to run it. You could run it in such a way that it takes some of the property. I mean, the electricity could, for example, because of some odd thing run around over somebody's land and kill all the chickens. That wasn't expected but it happens, and it happened because of the way the Government runs the plant. Now, I guess there would be a taking in such circumstance if in fact, because of the way it's run, it makes that land which no one thought would happen, as a consequence of the project uninhabitable; wouldn't there be? 

MR. KNEEDLER: Well, again, it depends. If the Government -- if the Government is occupying the land when it happens, yes. But there's -- as you've I think pointed out, there's a critical difference between a tort and a taking. And there -- there can be collateral consequences of what the Government does that -- that cause injury. 

JUSTICE BREYER: The collateral consequence is to make some piece of land 4 miles away quite unexpectedly but totally uninhabitable. Now, what's supposed to happen there? That's not just a trespass because it's permanent. And even if it's once every 2 years, it's permanently once every 2 years.

Hopefully the rest of the Court will agree that it is absurd to elevate the public interest so much that a private landowner must single-handedly bear a burden that results from a benefit given to the public at large. Otherwise, expect to see less private investment in areas near government public works.

Can a Legislature Pass Laws Limiting the Right to Compensation for a Taking?

Over the past week, I've been writing about a case before the U.S. Supreme Court that asks whether a property owner can be compensated for its timber, where the government destroyed the trees. Arkansas Game & Fish Commission v. United States, No. 11-597 (cert. granted Apr. 2, 2012). In Florida, we have a long line of cases dealing with the destruction of trees because the state has the power by statute to destroy citrus trees where they pose a danger to other trees, such as by citrus canker infection. A recent case highlighted the problem of compensation for the trees and answered an interesting property rights question.

What if a legislature decided that private property takings claims were becoming too burdensome? Could the legislature pass a law limiting the right to compensation for inverse condemnation? The 3d DCA recently addressed this question head-on. Florida Dept. of Agric. & Consumer Services v. Brignoni, - So. 3d -, 37 Fla. L. Weekly D2199 (Fla. 3d DCA 2012). According to the 3d DCA, the answer is no:

The provision of the Florida Constitution providing that “[n]o private property shall be taken except for a public purpose and with full compensation,” Art. X, § 6(a), Fla. Const., is self-executing; therefore, “it is immaterial that there is no statute specifically authorizing recovery for loss.” Dep't of Agric. & Consumer Servs. v. Mid–Florida Growers, Inc., 521 So.2d 101, 103 n. 2 (Fla.1988). “[T]he point is that the common law and statutory provisions for inverse condemnation do not displace the constitutional requirement for just compensation....” Dep't of Agric. & Consumer Servs. v. Bogorff, 35 So.3d 84, 90 (Fla. 4th DCA), review denied, 48 So.3d 835 (Fla.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 2874, 179 L.Ed.2d 1188 (2011). 

The relevant compensation portion of Florida's Citrus Canker Law, § 581.1845(4), Fla. Stat. (2006), provides: The specification of a per-tree amount paid for the residential citrus canker compensation program does not limit the amount of any other compensation that may be paid by another entity or pursuant to court order for the removal of citrus trees as part of a citrus canker eradication program. 

As the Florida Supreme Court has stated: [The] Citrus Canker Law sets a compensation floor that is consistent with the established principle that “the determination of what is just compensation ... is a judicial function that cannot be performed by the Legislature.” Haire v. Fla. Dep't of Agric. & Consumer Servs., 870 So.2d 774, 785 (Fla.2004) (quoting State Plant Bd. v. Smith, 110 So.2d 401, 407 (Fla.1959)); see also Patchen, 906 So.2d at 1008 (“[W]e conclude that the schedule established by the Legislature sets a floor but does not determine the amount of compensation. When the State destroys private property, the State is obligated to pay just and fair compensation as determined in a court of law.” (quoting Haire, 870 So.2d at 785)). 

In sum, it is not only beyond legislative purview to displace the constitutional requirement of just compensation upon a taking, but section 581.1845 expressly contemplates the entry of a court order obligating the State to compensate a homeowner for the destruction of his or her residential citrus trees under the CCEP in excess of the statutory per-tree amount. The Florida Supreme Court, finding the statute remedial, gave section 581.1845 its plain meaning, “which is to provide compensation to homeowners who had trees destroyed on or after January 1, 1995.” Patchen, 906 So.2d at 1008. Although the concurring and dissenting opinions in Patchen suggest concern over whether the majority opinion impliedly eliminated the right to pursue an inverse condemnation claim for the destruction of residential citrus trees, the majority opinion limits the scope of its opinion to the certified question posed.³ See Patchen, 906 So.2d at 1005–09. Accordingly, “[i]f the compensation required by the Constitution exceeds a statutory amount, the State will have to pay that amount.” Bogorff, 35 So.3d at 91.

That is, in Florida, the Legislature is welcome to set a minimum for compensation to injured property owners.  It could not, however, arbitrarily cap the amount of compensation that a property owner could receive, or keep the property owners out of court in an effort to recover just compensation. Put simply, the Legislature must respect the rights protected in the federal and state constitutions.