Category Archives: Trendy Environmentalism

Supreme Court Deals Unanimous, Welcome Blow to Administrative State in Frog Case

Unanimity is elusive in today’s America but the Supreme Court achieved it last week. Although the dusky gopher frog is endangered, so are property rights and accountable governance. Both would have been further jeopardized if the frog’s partisans in the U.S. Fish and Wildlife Service (FWS) had gotten away with designating 1,544 privately owned Louisiana acres as a “critical habitat” for the three-inch amphibian, which currently lives only in Mississippi and could not live in the Louisiana acres as they are now. The eight justices (the case was argued before Brett Kavanaugh joined the court) rejected both the government’s justification for its designation, and the government’s argument that its action should have received judicial deference, not judicial review.
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Supreme Court hears “phantom frog” case

As a child, Edward Poitevent’s family cut down Christmas trees on their lumber-rich land in Louisiana, and one day he’d like to leave the property to his own children. But federal bureaucrats jeopardized his legacy when they declared nearly 1,500 acres of his family’s private land as a critical habitat for the dusky gopher frog—a species not seen in the state for more than 50 years. Neither the Endangered Species Act nor congressional intent justifies such government-sanctioned property theft. Represented by PLF, Edward sued and on October 1st, 2018, he will join another affected property owner, Weyerhaeuser Company, at the U.S. Supreme Court to defend their constitutionally protected property rights. Oral argument held at U.S. Supreme Court on October 1, 2018. Continue reading

Crosscut proposes that Property Owners pay for salmon mitigation

The liberals have come up with a “new” solution to save the orcas and salmon. Rather than identifying the problem and solving it (See attached). They have launched another fund raising campaign.

To save salmon, orcas: Make landowners pay
Too few property owners are choosing to improve habitat. Their alternative should be annual payments.

Mitigation for continuing impacts could be accomplished in the form of periodic compensatory habitat enhancements on site or off site, or annual payment of a fee in lieu of physical mitigation. Calculating required mitigation for the continuing impacts of each land parcel would be a big job, but it’s feasible if done in increments.

For example, the first phase could evaluate the impacts on salmon from bulkheads and buffer clearing identifiable via remote sensing. We could then assess annual mitigation for this harm to salmon while work proceeded to evaluate other impacts. Bank hardening missed by remote sensing but identified by inspection from boats could be the second phase. The third could be evaluation of the degree to which each land parcel controls stormwater runoff as well as the presence of mature forest that controls stormwater. (That is, we would check that the runoff rate does not hurt salmon.) Additional impacts could be added to the records of parcels as the evaluation phases continue. Landowners could request site inspections and corrections of the records if they disagree with the assessments calculated from remote sensing or local property records.

This overall effort could quantify the harm to salmon being caused by each land parcel relative to other land parcels in the Puget Sound watershed, allowing equitable assessment of the annual mitigation needed from each parcel. Fees collected in lieu of physical mitigation could be used to pay for the program’s administration, fund habitat projects, and lower property taxes of land that is achieving adequate biological functions.

Read the full article
Crosscut Article by Doug Hennick dated October 15 2018

 

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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“Critical Habitat”  decree opens the way for limitless federal land grabs

Markle Interests, LLC v. U.S. Fish and Wildlife Service

Status:  Briefing before the Fifth Circuit Court of Appeals was completed on March 9, 2015. Oral argument was held on June 2, 2015. On June 30, 2016, the court held 2-1 that the Service can designate areas that do not currently qualify as critical habitat, and will not foreseeably serve as critical habitat, and are unoccupied by the species, nevertheless may be deemed “essential” to the species’ conservation and therefore eligible for designation as “unoccupied critical habitat.” The joint motion for rehearing en banc filed in the 5th Circuit on July 29, 2016. On February 13, 2017, the Fifth Circuit denied rehearing by the full court. The case will be petitioned to the U.S. Supreme Court.

Summary:

Can federal officials label private property as “critical habitat” for an endangered species, when the land is acknowledged not to be usable for the species, and may never be usable habitat?

This is what the U.S. Fish and Wildlife Service has done in the matter of the Dusky Gopher Frog in the Gulf Coast Region.  In June, 2012, when the agency designated “critical habitat” for the species, regulators stretched the Endangered Species Act beyond any previous interpretation by including 1,544 acres of private property in St. Tammany Parish, Louisiana, that is manifestly not suitable for the frog.

In fact, the Service itself admits as much.  The designation of this forested area is based on pure speculation.  The Service hopes the land might someday be managed by private parties for the species’ conservation.  However, the only way to make this area suitable for habitat is through controlled burns and revegetation, which the Service admits it cannot mandate on private land.

PLF is representing the property’s owners in challenging this unjustified federal targeting of their land.  Under the ESA, critical habitat must actually contain the physical and biological features essential to the conservation of the species.  If property can be designated even though it isn’t usable as habitat, there are no limits on the amount or location of private land that can be roped off by federal decree.  Regulators can impose restrictions on anyone’s property, anywhere — merely by claiming it could someday, in some speculative way, be used for species recovery.

Pacific Legal Foundation Blog by M. Reed Hopper

 

 

Krauthammer on Scott Pruit at EPA

Private property’s right vs administrative law

Charles Krauthammer: “The most incendiary nomination … is Scott Pruitt to head the Environmental Protection Agency. Pruitt has been deemed unfit to serve because he fails liberalism’s modern-day religious test: belief in anthropogenic climate change.
It doesn’t matter whether the man believes the moon is made of green cheese. The challenges to EPA actions are based not on meteorology or theology, but on the Constitution.
Pruitt’s is the most important nomination because it is a direct attack on the insidious growth of the administrative state. We have reached the point where EPA bureaucrats interpret the Waters of the United States rule — meant to protect American waterways — to mean that when a hard rain leaves behind a pond on your property, the feds may take over and tell you what you can and cannot do with it.
Pruitt’s nomination is a dramatic test of the proposition that agencies administer the law, they don’t create it. That the legislative power resides exclusively with Congress and not with a metastasizing administrative bureaucracy. For some, this reassertion of basic constitutionalism seems extreme. If so, the Obama administration has only itself to blame. Such are the wages of eight years of liberal overreach.”

Senate Report: EPA’s New Regulations defining Waters of the US will be carried to extremes

UNITED STATES SENATE REPORT:From Preventing Pollution of Navigable and Interstate Waters to Regulating Farm Fields, Puddles and Dry Land:

A Senate Report on the Expansion of Jurisdiction Claimed by the Army Corps of Engineers and the U.S. Environmental Protection Agency under the Clean Water Act

United States Senate Committee on Environment and Public Works Majority Staff Released: September 20, 2016

Case studies presented to the Senate Environment and Public Works Committee demonstrate that the U.S. Environmental Protection Agency’s (EPA) and the U.S. Army Corps of Engineers’ (Corps) new regulation defining “waters of the United States” (WOTUS), promulgated on June 29, 2015, will codify many of the most extreme overreaches of federal authority asserted by these agencies.

Although the new regulation is currently stayed, pending the outcome of litigation challenging the rule, these case studies demonstrate that assurances given by EPA and the Corps regarding the scope of the WOTUS rule and its exemptions to the positions taken by these agencies in jurisdictional determinations and in litigation are factually false. Continue reading