Thursday, December 20, 2012
Wednesday, December 5, 2012
In the opinion, the Supreme Court indicates that periodically from 1993 until 2000, the U. S. Army Corps of Engineers (Corps) authorized flooding that extended into the peak growing season for timber on forest land owned and managed by petitioner, Arkansas Game and Fish Commission (Commission). Cumulative in effect, the repeated flooding damaged or destroyed more than 18 million board feet of timber and disrupted the ordinary use and enjoyment of the Commission's property. The Commission sought compensation from the United States pursuant to the Fifth Amendment's instruction: "[N]or shall private property be taken for public use, without just compensation." The question presented is whether a taking may occur, within the meaning of the Takings Clause, when government-induced flood invasions, although repetitive, are temporary.
The Supreme Court said, "Ordinarily, this Court's decisions confirm, if government action would qualify as a taking when permanently continued, temporary actions of the same character may also qualify as a taking. In the instant case, the parties and the courts below divided on the appropriate classification of temporary flooding. Reversing the judgment of the Court of Federal Claims, which awarded compensation to the Commission, the Federal Circuit held, 2 to 1, that compensation may be sought only when flooding is 'a permanent or inevitably recurring condition, rather than an inherently temporary situation.' 637 F. 3d 1366, 1378 (2011). We disagree and conclude that recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability."
Tuesday, December 4, 2012
EPA indicated that it was "taking this action in response to Northwest Environmental Defense Center v. Brown (9th Circuit), in which the court held that stormwater runoff from certain logging roads is a point source discharge of industrial stormwater that requires an NPDES permit. EPA did not intend for logging roads to be regulated as industrial facilities and has revised its stormwater regulations to clarify the Agency's intent."
On December 3, the U.S. Supreme Court heard oral argument for the forest roads case Decker v. Northwest Environmental Defense Center (NEDC) [See WIMS 11/26/12], which addresses three questions: (1) Is the Silvicultural Rule defining these roads as nonpoint sources a valid interpretation of the Clean Water Act (CWA)? (2) Did the U.S. EPA exclude logging from the industrial activity category which requires stormwater discharge (NPDES) permits? and, (3) Does the CWA allow NEDC to file this case in a Federal district court 30 years after the Silvicultural Rule became final? EPA's final rule now makes most of the arguments moot.
Fifteen briefs support the positions of the state and industry petitioners; eight support NEDC. Thirty-one state attorneys general, associations of governors, state foresters, counties, state governments, state legislators, local governments, affected counties in the Northwest plus the Federal government all supported the petitioners. No states or other government representatives supported NEDC.
In the opening of the oral argument, Chief Justice Roberts said the petitioners, ". . .congratulations to your clients -- getting almost all the relief they're looking for under the new rule issued on Friday." However, the petitioners continued to argue, ". . .there is an additional reason why we don't think that the rule here moots -moots the issue. Let -- let's assume that there is a petition for review. I think that's a fairly safe -safe assumption. That some environmental groups argue that the new rule is impermissible because it's at odds with the language of the -- language of the statute, an argument that I think is -- is near frivolous, but that I think will be -- predictably will be made. The rule is prospective. What we have is a judgment from the Ninth Circuit that says that we were in violation for decades by not having permits. And . . ."
Access the complete oral argument transcript (click here). Access a prepublication copy of the EPA final rule (click here). Access the Supreme Court docket (click here). Access links to all of the Merit and Amicus briefs (click here). Access the complete Ninth Circuit opinion (click here). Access EPA's Stormwater Discharges From Forest Roads website for complete background and information (click here). [#Water, #Land, #SupCt, #CA9]