Category Archives: Environmental Stewardship

The Supreme Court’s Louisiana frog ruling is based on common sense

On Tuesday, the nation’s highest court showed that simple logic in our legal system is not yet dead — or, to use the vernacular, that it hasn’t croaked.

Before Chief Justice John Roberts reached the Supreme Court, his most famous judicial opinion as a lower-court judge declared that a toad species which lives only in one state cannot be regulated as part of interstate commerce. How can it be interstate, he asked, when the question involves “a hapless toad that, for reasons of its own, lives its entire life in California”?

Despite Roberts’ pithy wisdom, he was on the losing side of that 2003 ruling. But yesterday, all eight voting justices (Brett Kavanaugh did not participate) signed on to a Roberts opinion that private land in Louisiana, on which an endangered frog species has not lived for half a century, should not be regulated as if it is “critical habitat” for the species. After all, how can something be habitat for a critter that doesn’t habitate there?

In both cases, regarding both amphibious species, Roberts’ position was not just legally sound but also pure, basic, and obvious common sense. We should be heartened to see that a unanimous high court still can apply common sense amidst a foggy bog of ideologically crusading legal sophistry.

Tuesday’s case, Weyerhaeuser v. U.S. Fish and Wildlife Service, involved the Interior Department’s decision to designate some private land in St. Tammany Parish, La., as “critical habitat” for endangered species known as the “dusky gopher frog.” Today, fewer than 100 of those frogs remain, all around a single pond in neighboring Mississippi. While the Louisiana land in question once featured those frogs, it was 1965 the last time one was seen there. And although the land still features some ponds of the sort favored by this species, its vegetation long ago ceased being conducive to their survival.

Yet because Interior still insisted on designating the St. Tammany land as critical habitat, landowner Edward Poitevent was prohibited from developing his own land, costing him $33.9 million. One can understand why the designation made Poitevent hopping mad.

An outside observer might have thought this case an easy one to judge in Poitevent’s favor. But the 5th Circuit Court of Appeals refused to offer him relief, saying that the applicable law on Interior’s designation of critical habitat made such designation not subject to judicial review.

Granted, sometimes what seems obvious by common-sense analysis is negated by the actual wording of a statute. There are indeed instances in which a particular law explicitly excludes an agency’s actions from being subject to review in the court system.

But as all eight justices agreed, the Supreme Court has “long applied a strong presumption favoring judicial review of administrative action.” Exceptions to that presumption are quite “narrow,” wrote Roberts. And with a convincing explanation, he determined that those exceptions were not in play here.

Once the court determined that Interior’s designation of habitat was indeed reviewable, it managed to apply common sense. The eight justices ruled, in effect, that no amount of bureaucratese could obscure this basic reality: “Only the ‘habitat’ of the endangered species is eligible for designation as critical habitat.”

James Madison, the “Father of the Constitution,” was himself no lawyer, and he firmly believed the Constitution and laws were supposed to be understandable by all, not just by lawyers. “It will be of little avail to the people that the laws are made by men of their own choice,” he wrote, “if the laws be so … incoherent that they cannot be understood.”

The Supreme Court on Tuesday struck a blow for coherence. Thank goodness.

https://www.washingtonexaminer.com/opinion/the-supreme-courts-louisiana-frog-ruling-is-no-bull

 

 

 

 

 

People for the Ethical Treatment of Property Owners

In Utah, the Federal Government Puts Prairie Dogs Over People

The question for the U.S. Supreme Court is whether protecting rodents counts as ‘interstate commerce.’

In southwestern Utah, federal regulations are artificially pitting people against prairie dogs—to neither’s benefit. There are about 80,000 Utah prairie dogs in the region, and the species is listed as threatened. State biologists would like to move the creatures from backyards and playgrounds to public conservation lands, but that’s forbidden under federal rules. The result of the regulations has been conflict but little progress toward lasting recovery for the species.

For years, towns like Cedar City have been stuck in what Greg Sheehan, principal deputy director of the Fish and Wildlife Service, has called “a quagmire of federal bureaucracy.” Washington’s heavyhanded regulations make it a crime for these Utahns to do things that the rest of us take for granted, like building homes in residential neighborhoods or starting small businesses. Cedar City can’t even protect its playgrounds, airport and cemetery from the disruptive, tunneling rodent.

Tired of being ignored, local residents banded together to form People for the Ethical Treatment of Property Owners. The group, represented by the Pacific Legal Foundation, filed a lawsuit in 2013 arguing that the federal regulations were unconstitutional. Where did Congress get the power to pass such intrusive rules? Whenever this kind of question arises, the stock answer is the Constitution’s Commerce Clause, which allows lawmakers to regulate commerce “among the several States.” But this species of prairie dog is found only in Utah, and it has no conceivable connection to interstate commerce. Continue reading

‘Open space’ advocates want to turn working farms into museums

Last summer, as I heard the news of Pierce County’s “disappearing farmland,” I felt mixed emotions. Farmland preservation advocates are clamoring to protect open space in the form of farmland. However, the rezoning classifications which would be implemented devalue farmland and actually hurt farmers.

I love farmland. I enjoy driving a few extra miles through farm country just to enjoy the view, and my best memories are of going on veterinary farm calls with my dad. While fully recognizing the beauty of green fields, peaceful farmhouses and sweeping open spaces, I know firsthand that farmland doesn’t exist just for the benefit of visitors.

Farming is a business. As scenic as the food growing countryside is, farmers are not running a cultural museum. Farms need to be profitable. Farmers need to make money so they can pay for land, crops, equipment, employee salaries, taxes, and earn an income for their families. If laws and regulations establish acreage targets, farmers will cease to exist and communities will be left with “open space” symbolizing once-productive farmland. Continue reading

Things that we don’t like about the Kitsap County Critical Areas Ordinance Update

Kitsap County is in the process of updating its critical areas regulations. These regulations, known as the Critical Areas Ordinance (CAO), are those rules in the County Code (KCC Title 19) that address how various environmental resource and hazard areas are to be managed when using or developing property.

The Ordinance is in the final process of review and is scheduled to be approved by the end of June.

Read the update and make your opinions known. 

Kitsap County Commissioners: Kitsapcommissioners@co.kitsap.wa.us

Edward Wolfe: ewolfe@co.kitsap.wa.us

Robert Gelder: rgelder@co.kitsap.wa.us

Charlotte Garrido: cgarrido@co.kitsap.wa.us

Planning Commission Secretary: dgurnee@co.kitsap.wa.us

Critical Ordinance Update: Kathlene Barnhart: kbarnhar@co.kitsap.wa.us

We should press for the following issues:

  1. All creatures great and small
    1. The ordinance must clearly identify exactly what species are being protected and the source for that listing. If a species not on the national or state list is identified, there must be some scientific reference to justify the listing. We need to know exactly what we are protecting and why. The composite listing should be in a “library” directly available to Kitsap residents.
    2. The Ordinance should have specific habitat and buffer requirements for each species listed. General dimensional buffers should not be considered. The ordinance must identify the minimum protections that are required and those must be appropriate to individual sites. The overall effort for Critical area protections must be based on the minimal impact necessary on a site specific basis.
    3. All critical habitat need to be identified with specificity on County prepared maps that are available to the public.
  1. Assuring effectiveness
    1. A specific set of baselines applicable to each critical area defined by the county must be established for monitoring purposes. The baseline establishes the as existing condition at a date specific and will serve as the benchmark for assessment of effectiveness.
    2. An appropriate set of metrics to be used to measure change in status (against the baseline) must be established. The metrics must provide an objective set of measurable.
    3. A formal program of monitoring to record metric data and analysis of that data to determine protection effectiveness. Incorporate the Health Department Stream and other wildlife monitoring programs in to a single county effort. The outcomes of the monitoring program will serve as the basis for revision to the ordinance.
  1. What is a WETLAND and why are they protected
    1. Wetlands in the county must be identified and located on maps created by the county. The information must be validated by field study. The results of a filed study must be used as the basis for determination of site specific protections including minimal buffer requirements, if any are indicated.
    2. A specific reason(s) for protections to be applied to each identified wetland must be established and documented. The protections, including specific (minimal) buffer requirements must be site specific.
    3. Baseline conditions for each specific wetland must be documented and used as the basis for monitoring and ongoing assessment of protection effectiveness.
  1. Entry on Private property
    1. As was noted in the previous discussion on the proposed title 5 and the 2005 CAO edition, there are but three ways to properly gain entrance onto private property: by invitation (that would include limited inspection agreement associated with a permit), emergency associated with safety of life or property requiring immediate action, and legal warrant. The ordinance should simply state the actual requirements and stop trying to create an “alternate world”.
    2. The provision of RCW 59.18.150 must be complied with and the information must be provided in a user friendly manner.
  1. Practical Basis for current revision not evident
    1. There are at least 12 court and/or GMHB cases and decisions (provided separately) that have not been factored into the update. The cases have significant impact on the draft update. More than a cursory review by the Civil Office is required. An explanation of why a finding is not applicable should be provided.
    2. What is the evidence that the provisions enacted in 2005 have not been effective? If there is no specific evidence why is the update required for any reason other than to incorporate new DOE guidance? If the DOE guidance is the basis, what action has been taken to validate that the guidance is actually applicable to Kitsap?
    3. What study or review has been completed to determine if the 2005 restrictions were excessive and would support reduction in those restrictions? If the answer is none, how can the revision be considered accurate or appropriate for the County?
  1. Application of CAO not consistent with other Titles
    1. Several of the County Titles address uses and requirements similar to CAO however CAO restrictions are much more severe and would limit virtually all normal human activity in the County. Of specific note are restrictions on (but not limited to) grading, movement of soil, and limits on impervious surfaces.
    2. A plain reading of the ordinance (words have meaning) does not reflect the “interpretation” most commonly offered by DCD. Of note even that “interpretation” varies from staff member to staff member and case to case. Plain reading does not reflect intent offered by DCD
    3. The CAO has invented a new language that significantly alters or modifies words found in common usage. To understand the ordinance, mastery of the revised definitions is essential. Common folk cannot understand the document as written.
  1. Actions required for County (or other tax jurisdiction) responsibilities
    1. An effective storm water runoff filtration system for roads, parking lots and similar facilities to limit impact on streams and the sound must be implemented. Use of the Suquamish Salmon studies to identify effective bio filtration methods is recommended.
  1. Creating an appropriate level of professional expertise in DCD, establishing “intent” for the CAO, and establishing responsibilities.
    1. The draft extends significant discretion to the Director and Department for interpretation, application, and enforcement. Without a clear Commissioner intent statement and full clarity of the other issues, this amounts to a license to dictate. A specific “intent” statement must be included in the CAO
    2. Because almost absolute authority for implementation, interpretation and enforcement of the CAO has be delegated to the “department” it is imperative that staff members responsible for such action be properly trained and qualified in the areas of expertise covered by the CAO. An appropriate training program must be established.
    3. The Hearing examiner can only guess intent when hearing appeals
    4. Commissioners have taken themselves “out of the loop” in the appeals process and have no way to address issues of misconstrued application of the ordinance or misunderstanding of intent.
    5. The Commissioners are directly responsible to address and defend the execution of the CAO at the GMHB and the Courts even though they have no say in the actual implementation of the ordinance. That makes no sense.
  1. What is the economic impact considerations of the CAO
    1. The ordinance has direct impact on all development in the county and certainly reduces the amount of land previously considered “available” in development of the Comprehensive plan which in turn restricts allowable growth.
    2. The Notice to Title has direct and permanent impact on the value of land, the ability to develop that land, and the future disposition of that land which probably constitutes a taking or at least the grounds for lengthy litigation.
    3. The various studies required by the ordinance do nothing to add value to a development (actually the opposite is true) thus increasing the cost of development. That is not conducive to economic growth for the County.
  1. No effective “public participation” as required by GMA (and DOC Checklist)
    1. The determination that effective public participation requirements have been met should be based on the “best interests” of the taxpayers of the County and not an opinion from the Prosecutors office. County government exist to protect individual rights and participation is a basic right.
    2. Although a “committee” was formed, that body did little or no work and had effectively no input on the creation of the draft.
    3. The first awareness of the public to the draft revision was a posting on the web site with a short response window. Asking the public to complete the necessary background study, find and read each of the references, and study the elements of the CAO in 30, days is dismissive of public participation.
    4. For some reason DCD determined it had the authority to edit and “summarize” comments provided by the public. That is not a role properly assigned to one side of a contentious discussion. Making matters worse, DCD provided “department responses” to the edited comments making it appear that reasonable debate was conducted. Not true.
  1. The Takings considerations
    1. Because the ordinance imparts restrictions only on application for a development permit, there is a major discriminatory aspect in execution of the law. There is no vehicle to apply the restriction of the ordinance to all properties much less adjacent properties with common presence of a CA.
    2. Under the Ordinance the CA and Buffer establish a priority “highest and best use” above that of the property owner and thus a value that exceeds the assessed value of the property. There is no valid argument that value has not been removed from the owner.
    3. Notice to Title clearly establishes a condition in which the “state:” (County has declared that use of property is prohibited or limited to less than “highest and best “ use and certainly establishes a taking. If the property owner cannot enter into or make any use of that portion of the property, it is no longer under their control, a basic tenant of property rights.(possession and control, use, and exclusion)
    4. The Notice to Title as required by the ordinance is not universal (all properties on which a CA exists)and has exceptional negative impact on both use and disposal of property
    5. The application of Reasonable use is site specific and not universal so a loss of use by one property owner is not reflected in similar losses by all. Similarly, requirements regarding fencing, signage, native vegetation, and similar are not universally applied and the total burden falls upon an individual property owner who is, in reality, penalized for expressing a desire to use his property (a right protected by the Constitutions)

 

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Appeals court: Washington must fix salmon-blocking culverts

SEATTLE (AP) — In a case that could have big implications for dams and other development in the Northwest, a federal appeals court panel said Monday that Native American tribes have a right not only to fish for salmon, but for there to be salmon to catch — a ruling that affirms the duty of the United States to protect the habitat of the prized fish under treaties dating back more than 150 years.

Three judges from the 9th U.S. Circuit Court of Appeals reached their unanimous decision in a case involving culverts, large pipes that allow streams to flow under roads but which also can block migrating fish. They upheld a lower court’s 2013 ruling ordering Washington state to replace hundreds of the pipes with more fish-friendly structures, such as bridges that allow streams to flow naturally underneath them.

“The Indians did not understand the Treaties to promise that they would have access to their usual and accustomed fishing places, but with a qualification that would allow the government to diminish or destroy the fish runs,” Judge William Fletcher wrote for the panel, adding that territorial Gov. Isaac Stevens “did not make … such a cynical and disingenuous promise.”

The ruling, praised by the tribes, was the second major court decision in as many months concerning salmon habitat in the Northwest. In May, a federal judge in Portland, Oregon, ruled that a massive habitat restoration effort by the U.S. government doesn’t do nearly enough to improve Northwest salmon runs — and that federal law may require federal authorities to consider removing four huge dams on the lower Snake River in Eastern Washington. Continue reading

Good news for conservation: Feds abandon lesser prairie chicken appeal

Last week, the U.S. Fish and Wildlife Service announced that it was abandoning its appeal of a federal court ruling overturning its decision to list the lesser prairie chicken under the Endangered Species Act. This is a big win for conservation.

As you may recall, the court struck down the listing because the federal government gave short shrift to state and private conservation efforts. Those efforts have led to a nearly 50% increase in the species’ population since 2013.

The historic state and private effort to recover the species should have been a cause for celebration within the Service. Instead, bureaucrats within the Service decided to inexplicably violate the agency’s own policy by assuming that these conservation efforts would never be implemented. The court rightly recognized that such arbitrary decision making is an affront to law.

Ultimately, this result is not only a win for industry and property owners. It’s also a win for the lesser prairie chicken. Listed species do not have a very good track record. In the 43 years since the Endangered Species Act was enacted, less than 2% of the species listed have recovered to the point that they could be delisted. This is likely due to the dismal incentives property owners face under the statute to maintain habitat or contribute to a species’ recovery. Private, voluntary efforts, on the other hand, get the incentives right and offer the prospect of a win-win.

Pacific Legal Foundation Blog dated May 17, 2016 by Jonathan Wood

 

 

WSJ Opinion: Trying to Get Water to California but Torpedoed by Regulators

Lake_Powell_-_Arizona

The Obama administration and Dianne Feinstein keep blocking a private project to aid the still-parched state.

Although El Niño has increased the snowpack in the Sierra Nevadas, the Golden State’s historic drought isn’t over. Yet the Obama administration has decided to block a privately financed project that could supply water to 400,000 Californians, even though the project has been approved by an alphabet soup of state and local agencies. The result will be to trap vast amounts of a precious resource beneath the Mojave Desert. Is water the new fossil fuel?

This tale of political and regulatory obstructionism begins in 1998, when Cadiz Inc., a Los Angeles-based company, developed plans for a groundwater bank and well-field on 70 square miles of private land overlying the base of the Mojave’s massive Fenner Valley and Orange Blossom Wash watersheds. Over centuries the aquifers there have amassed as much as 34 million acre feet of water, enough to sustain all of California’s households for several years.

However, tens of thousands of acre feet percolate into salty dry lakes and evaporate each year. Cadiz proposed capturing and exporting the groundwater to Southern California residents. The Cadiz Valley Water Conservation, Recovery and Storage Project could also help store occasional excess flows from the Colorado River that would otherwise drain to the Pacific Ocean.

Water experts such as those at the Public Policy Institute of California have recommended using groundwater banks to recharge aquifers during wet years and expand the state’s storage capacity. Relative to dams, storing water underground reduces evaporation and environmental harm.

None of this mattered to various green lobbies and California Sen. Dianne Feinstein, who complained that the water project would deplete mountain springs and harm wildlife. But environmental reviews by hydrogeologists confirm that the nearest spring—located 11 miles away and 1,000 feet above the aquifer—would not be affected. Nor would fauna, which don’t rely on groundwater. After an exhaustive review, the U.S. Interior Department approved the project in 2002, but Sen. Feinstein maintained her opposition.

Continue reading