Property rights disputes might dominate docket

By Robin Bravender | 07/22/2016 01:16 PM EDT

Battles between landowners and government regulators could be the center of environmental action in the Supreme Court’s next term.

Battles between landowners and government regulators could be the center of environmental action in the Supreme Court’s next term.

One closely watched case with major environmental implications, Murr v. Wisconsin, is already slated for arguments before the high court this fall, and attorneys are waiting to hear whether the justices will agree to take on several other major property rights appeals.

"The Murr case itself is significant enough to make this an important term," said Todd Gaziano, an attorney at the Pacific Legal Foundation, a property rights advocacy group. "But I think there is a potential for several other important property rights cases."


The justices haven’t yet taken on any blockbuster cases challenging major Obama administration environmental rules for the term that kicks off in October. It’s possible they’ll accept some high-profile environmental cases after they return from their summer recess, although legal experts say the eight-member court has seemed reluctant to take on potentially divisive cases where it could deadlock.

But property rights cases often are significant to environmental interests since they can affect the reach of air and water regulators.

Takings cases don’t necessarily "catch people’s attention who are thinking about federal regulatory laws all the time," Vermont Law School professor Pat Parenteau said. "But in terms of day-to-day land-use decisions that have cumulatively really big implications … it ripples."

First up: Murr. It pits several siblings against government regulators in a squabble over whether the family has suffered from a government "taking" of waterfront property in Wisconsin (Greenwire, June 15).

The high court is also likely to decide this fall whether to hear several other property cases it’s been asked to referee.

In one, Lost Tree Village Corp. v. United States, the Obama administration has asked the justices to hear its appeal after the U.S. Court of Appeals for the Federal Circuit found the government liable for $4.2 million after it denied a real estate company permits to fill wetlands.

The government is asking the court to hear the case along with Murr because similar legal issues are in play (Greenwire, May 24).

Tim Bishop, an attorney at Mayer Brown who often represents businesses in environmental cases, called both the Murr and the Lost Tree Village cases "extremely important," because they both deal with how courts determine when the government must compensate landowners for "taking" their property by imposing regulations.

"The more courts are willing to break down property interests when they look at what has been taken by regulators and what remains, the more likely compensation will be required," Bishop said.

Another property rights case, Common Sense Alliance v. San Juan County, could also get the court’s attention next term.

The Common Sense Alliance — a group of property owners based in northwestern Washington — has petitioned the justices to hear its case challenging a San Juan County environmental ordinance it argues is unconstitutional (E&ENews PM, May 11).

And lawyers representing the estate of a dead Nevada rancher are also hoping to draw the justices’ attention to a long-standing case over grazing rights.

In Estate of E. Wayne Hage and Wayne N. Hage v. United States, lawyers representing the deceased rancher claim he didn’t need grazing permits to take his cattle to water on the neighboring public lands (Greenwire, April 28).

Cases on presidential appointees, rig seizures

Other cases with environmental and energy implications that the justices have already agreed to hear include a case over the authority of acting government officials and a case over oil rigs seized by Venezuela.

National Labor Relations Board v. SW General Inc. surrounds whether some nominees for federal agency jobs have been improperly "acting" in those roles.

While it’s not directly an environmental law issue, the outcome could have major ramifications for employees across government agencies working temporarily in posts that require Senate confirmation (Greenwire, June 20).

And Venezuela v. Helmerich & Payne International involves an appeal by Venezuela in a lawsuit over oil rigs seized by Venezuela from a U.S. drilling company. The South American nation is challenging a lower court’s ruling that the drilling company could pursue its lawsuit accusing the country of a "taking" of its drilling rigs (Greenwire, June 28).

Fights over species protection

Endangered Species Act fights may also emerge as central environmental issues in the court’s next term.

The justices have been asked to hear Building Industry Association of the Bay Area v. Department of Commerce, in which West Coast property owners are challenging habitat protections for the threatened green sturgeon.

A lower court unanimously sided with the government, upholding the National Marine Fisheries Service’s designation of critical habitat for the threatened fish on the West Coast. But California developers and property owners argue that the government failed to properly consider the economic impacts of that designation, and that the lower court’s opinion could allow the government to impose significant costs while achieving limited environmental benefits (Greenwire, May 5).

Another case the justices could take, Cottonwood Environmental Law Center v. U.S. Forest Service, involves habitat protections for the threatened Canada lynx. The outcome could have big implications for when environmental groups can sue the government.

The Obama administration asked the Supreme Court to hear its appeal after a lower court sided with environmentalists, ruling the Forest Service failed to properly consult with the Fish and Wildlife Service on whether its management projects in the northern Rocky Mountains would affect the Canada lynx.

The government argues conservationists lacked the standing to sue because the group didn’t challenge a specific project that posed an imminent threat to its members (Greenwire, May 24).

One case that hasn’t yet been appealed to the Supreme Court, but is likely to be, is a pending case over prairie dogs.

Lawyers on both sides of the issue are awaiting a ruling from the Denver-based 10th U.S. Circuit Court of Appeals in People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service.

Landowners in southern Utah are arguing that prohibitions on killing or disturbing Utah prairie dogs — listed as a threatened species — exceed the government’s constitutional authority. Landowners are backed by states, industry groups, free-market champions and Republican lawmakers in the case, which could broadly affect how the government manages other species that live within a single state. The Utah prairie dogs reside only inside that state’s borders (E&ENews PM, June 27).

Power plant, water rules

Big-ticket fights surrounding two major Obama administration climate change and water rules are still pending in lower courts and aren’t expected to reach the high court next term.

The many challenges to U.S. EPA’s Clean Power Plan — targeting greenhouse gas emissions from power plants — are slated for oral argument this September before the full roster of judges on the U.S. Court of Appeals for the District of Columbia Circuit. Legal experts say it’s possible an appeal to that decision could go to the Supreme Court before it wraps up in April 2017, but some expect it’s more likely to be argued to the high court the following term.

States and industry groups are also challenging the Clean Water Rule from EPA and the Army Corps of Engineers over the Clean Water Act’s reach over wetlands and isolated waterways, but those lawsuits are expected to take a while, as parties are still fighting in lower courts about the proper venue to hear the lawsuits.

The Cincinnati-based 6th U.S. Circuit Court of Appeals ruled earlier this year that it’s the correct place for a case against the rule, but that split decision on jurisdiction is likely to be challenged to the Supreme Court. Groups have until Sept. 2 to file a petition asking the justices to weigh in on that jurisdictional question (Greenwire, Feb. 22).