Archive for the ‘Land Use’ Category

Supreme Court Decision in Sackett v. EPA

Yesterday, 3/21/2012, the Supreme Court handed down a decision in Sackett v. EPA, No. 10-1062, concluding that

“[…] the compliance order in this case is final agency action for which there is no adequate remedy other than APA review, and that the Clean Water Act does not preclude that review. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.”

We first covered this story in June of last year. We’ve assembled a new Spotlight on the decision, compiling relevant news, opinions, blog posts, and law firm memos.

The Sackett Racket: Oral Arguments in the Supreme Court in Sackett v. EPA

Photo by d'n'c. Some rights reserved.

UPDATE:  Supreme Court Renders Decision in Sackett v. EPA

Our previous coverage of Sackett v. United States Environmental Protection Agency generated the most traffic of almost any other post on our blog. The people – including Chantell and Michael Sackett – want to know: “If EPA essentially seizes control of your property by labeling it as ‘wetlands,’ do you have a right to appeal to a court of law?”

In 2007, the Sacketts started construction on a small plot of land in Idaho without first obtaining a Clean Water Act permit. Shortly thereafter, the EPA determined that the parcel of land contained federally recognized wetlands, ordering the Sacketts to halt construction and restore the parcel to its previous condition. When the Sacketts were unsuccessful in petitioning the EPA for a hearing, they filed suit. The case has seen both a District Court and the Ninth Circuit Court of Appeals, and, so far, everyone has ruled in favor of the government. Now the case has landed in the Supreme Court.

Quoted above, unsurprisingly, is Damien M. Schiff, an attorney from conservative law firm and Sackett rights champion, Pacific Legal Foundation. Schiff argued on behalf of the Sacketts in front of the US Supreme court today, January 9th, asking for the Sacketts’ right to challenge the EPA’s decision in a federal court.

As the Huffington Post points out, things weren’t looking great for the EPA in the hearing:

Justice Samuel Alito called EPA’s actions “outrageous.” Justice Antonin Scalia noted the “high-handedness of the agency” in dealing with private property. Chief Justice John Roberts said that the EPA’s contention that the Sacketts’ land is wetlands, something the couple disagrees with, would never be put to a test under current procedure.

According to Huffington, the justices are expected to rule by summer. Keep up with law firm analysis of the case by checking out Knowledge Mosaic’s Law Firm Memo search page. Do a text search for Sackett to bring up relevant memos.

A New Face For Keystone Naysayers: Quiet Farmer Turned Liberal Hero, or Fictional Bruce Springsteen Character?

Photo by listentoreason. Some rights reserved.

Because we’ve spent a fair amount of time here at Green Mien covering developments with the controversial Keystone XL Pipeline, it feels only right to point readers toward an excellent story published in Monday’s New York Times, which examines the effects of the planned 1,700 mile pipeline on a smaller, more human level, by exposing struggles in the American heartland between landowners unwilling to sell access to their land and Transcanada, the Canadian energy giant behind the pipeline. The article highlights Randy Thompson, a cattle farmer in Nebraska who has now received two letters from Transcanada informing him that if he does not “negotiate a voluntary transfer” with the company, Transcanada would “be forced to invoke the power of eminent domain and will initiate condemnation proceedings against this property.”

Like a character plucked from the small-town folk ballads of Bruce Springsteen’s landmark album Nebraska, Thompson has quickly become a sort of quiet hero to those other landowners who feel negatively about Transcanada’s aggression in acquiring land. He even addressed the House Energy and Commerce Committee in May, opposing the pipeline for safety concerns, which based on info in past posts on the pipeline, may well be warranted. “We all have shared concerns that a pipeline of this magnitude and with such inherent risks could endanger our livelihoods and way of life. Most all of these family operations have been built through decades of hard work and love for the land on which we live,” wrote Thompson, of the fellow farmers and ranchers living along the pipeline’s proposed route.

It has nothing to do with money,” he told the New York Times. “To me there are two critical issues. First of all, I am a citizen of the United States and a private citizen, and I don’t think that a foreign company that is putting pipeline for their private use has any business taking land us from us as private issue. The second issue is our water supply. The route they have selected for this thing is the most risky route they could have picked across the state of Nebraska.”

While Thompson has been taking his message to the people at public speaking arrangements, his concerns are being further validated in Congress this week, as two letters, one authored by Democratic Sens. Ron Wyden (Ore.), Patrick Leahy (Ver.), and Bernard Sanders (Ver.) and the other authored by Rep. Earl Blumenauer (D-Ore.) and signed by 32 members of the House, were sent to Secretary of State Hillary Clinton voicing further environmental concerns regarding the pipeline.

Meanwhile, in further related news, the Senate voted unanimously in favor of a bill that enforces higher safety standards on such pipelines, enacted in the wake of last year’s tragic pipeline explosion in San Bruno, CA. The measure would boost fines for violations, require more technologically advanced equipment, and also increase the amount of federal safety oversight over such projects.

Marcellus Minerals: Is Marcellus Shale Gas a “Mineral” for the Purposes of Pennsylvania’s Dunham Rule?

Photo by Images_of_Money. Some rights reserved.

Two recent law firm memos (from Fulbright & Jaworski and Pepper Hamilton) tackled the subject when they covered a September 7th decision from the Pennsylvania Superior Court in Butler v. Powers.

The “Dunham Rule” refers to an assumption in Pennsylvania law, wherein a reservation or exception for “minerals” in a deed or lease that does not specifically mention natural gas or oil creates a “presumption that the grantor did not intend for ‘minerals’ to include natural gas or oil.” The Dunham Rule has been around since its namesake case – Dunham v. Kirkpatrick – was decided in 1882.

In Butler v. Powers, a trial court in Susquehanna County had previously found that, based on the application of the Dunham rule, the disputed deed in the case did not include Marcellus Shale gas. However, the Superior Court – without actually deciding on the Dunham Rule’s applicability – remanded the case back to the trial court for determination of the following three things:

(1) whether Marcellus shale constitutes a “mineral”; (2) whether Marcellus shale gas constitutes the type of conventional natural gas contemplated in Dunham and Highland; and (3) whether Marcellus shale is similar to coal to the extent that whoever owns the shale, owns the shale gas.

“Consequently,” the opinion goes on to say, “the parties should have the opportunity to obtain appropriate experts on whether Marcellus shale constitutes a type of mineral such that the gas in it falls within the deed’s reservation.”

But the decision made Pepper Hamilton nervous:

 “Potentially more troubling is the fact that although the dispute between the parties in Butler does not directly involve a deed that explicitly conveys or reserves natural gas rights (since the deed in question used only the terms “minerals” and “petroleum oils,”), the outcome of the case could establish precedent regarding whether a conveyance or lease of oil and gas rights, reserving all other minerals, reserves the unconventional gas trapped in the Marcellus Shale to the mineral title holder.”

Both Pepper Hamilton and Fulbright & Jaworski have pledged to keep a close eye on the case.

New Developments in Sackett v. EPA Case

Photo by Joel Mann. Some rights reserved.

UPDATE:  Supreme Court Renders Decision in Sackett v. EPA

In the spring of 2007, Chantelle and Michael Sackett began laying dirt and rock as a preliminary step to building a three-story house on their property on idyllic Priest Lake, in Idaho. Priest Lake, which rests snuggly in the Northern portion of the Idaho panhandle, is a federally recognized wetland, and has a burgeoning tourist industry that demands preservation of the flora and fauna of the area.

Personal side note: I have been to Priest Lake, albeit when I was very little. It was breathtaking – one cursory glance at the picture used on its Wikipedia page will confirm as much.

Non-personal, non-pertinent side note: The largest Lake trout ever caught on record in the United States was caught at Priest Lake, and weighed in at over 57 lbs! I can see why this lake is worth protecting – it’s magic!

So, just weeks after the Sacketts began work on their Priest Lake house, they were notified by the EPA that they had violated the Clean Water Act by beginning work on their property, which sits on the federally recognized wetlands, without first obtaining the proper permits. The EPA ordered the Sacketts to cease work immediately and to remove all added dirt, to return the dug-up soil, and to replant the property with vegetation, or face fines of up to $32,500 per day. In addition, the EPA told the Sacketts that they would have to wait three years, to allow for regrowth on the property, before applying for the necessary permits. The Sacketts felt the EPA’s actions to be unjust, and made a formal complaint to the Supreme Court asking for the right to challenge the EPA’s decision in a federal court. In September 2010, the Ninth Circuit Court of Appeals ruled that the Sacketts had no grounds to bring a case against the EPA until federal regulators sought to enforce the threatened fines. The Sacketts were upset – they felt they had no avenue to defend themselves against the government agency. In a youtube video put together by the conservative law firm Pacific Legal Foundation, Chantelle Sackett calls the EPA “ungovernable,” and laments that “what’s right is right, and I get so sick and tired of the government telling us what to do.” Today, however, the Supreme Court announced that it would hear the Sacketts’ argument once their new term begins in October, signaling a new chance for the Sacketts to get their voices heard.

That should bring us up to date. Without speculating on the political beliefs of the Sacketts or drawing up partisan lines, it is clear that this case raises larger questions about the state of the US justice system. With the simultaneous rise of both a “don’t tread on me” attitude and a conservationist awareness in contemporary America, cases such as this one present a grey area – on the one hand, you have property owners who feel they have a right to build on what they own. On the other, you have the EPA defending a territory which clearly has environmental significance, and is federally protected. Do citizens accused by government agencies of violating environmental laws have a right to immediate defense in the federal courts? Whatever the Court’s decision, it’s bound to be an important one.

Update: Read more about the Sackett case and the January 9, 2012, oral hearings here.

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