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July 15, 2013

Did the Supreme Court Just Make it Harder for Sportsmen to Protect Wetlands…Again?

On June 25th the Supreme Court handed down a little-noticed but important opinion that may hurt sportsmen and prized wildlife habitat. Lost in the focus on decisions related to same-sex marriage and the Voting Rights Act, the Court’s 5-4 ruling in Koontz v. St. Johns River Water Management District  will make it harder for land-use permitting agencies to develop strategies that mitigate the impacts of development on fish and wildlife habitat. This comes on the heels of Supreme Court decisions in 2001 and 2006 that obscured the criteria for determining which water bodies receive protection under the Clean Water Act. (Check out EPA’s waters of the United States website for a description of the definitional challenges in the Clean Water Act caused by these two Supreme Court decisions)

Photo Courtesy of the U.S. National Park Service.

I will leave it to others to argue whether the Court’s decision in Koontz is wise or unwise. Here’s the take home for sportsmen: the ruling increases the threat of litigation looming over land-use permitting agencies. Instead of negotiating appropriate mitigation in good faith, they now have an incentive to deny permits up front or approve permits without pursuing creative ways to protect hunting and fishing opportunities.

As this decision ripples through future permitting cases, sportsmen must engage with land use planners to protect the hunting and fishing lands they cherish, and to ensure the ruling doesn’t stand in the way of conservation efforts.

It’s important to note that the Supreme Court did not rule on the merits of Mr. Koontz’s suit; it only ruled on process. Therefore, we don’t know whether Mr. Koontz or similar plaintiffs will be successful in their lawsuits, but the expanded opportunities for litigation may have a chilling effect on permitting agencies nonetheless.

Photo Courtesy of the U.S. Supreme Court.

Read on for a full summary of the Koontz decision.

The case involved Coy Koontz, a man who owned property in Florida wetlands that he wanted to develop for commercial purposes. Florida law requires applicants to mitigate the environmental impact of any development, and Mr. Koontz offered to do so by giving the local district a “conservation easement” (essentially an agreement to limit future development) on nearly three quarters of his property.

The local district determined his offer did not comply with Florida law since it would result in a net loss of wetlands. The district countered and suggested Mr. Koontz do one of two things: (1) reduce the size of this development and increase the size of the conservation easement or (2) pay for improvements to wetlands owned by the district several miles away. When Mr. Koontz refused to take either action or offer an alternative, the district denied his permit and Mr. Koontz sued the district. Mr. Koontz argued that forcing him to take either of these actions in order to secure a development permit violated his Constitutional right to “just compensation” for property taken by the government.

Lower courts found in favor of Mr. Koontz, ruling that the District did not comply with two tests laid out in Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994) that set limits on what conditions the government can place on the approval of land use permits. The Nollan and Dolan tests ensure that government demands for property must have a link to the development’s substantive impact on the public and be proportional to that impact. In other words, the government’s demands cannot be arbitrary or excessive.

The Florida Supreme Court overturned the lower courts’ rulings because (1) the District denied Mr. Koontz’s permit (rather than demanding property as part of permit approval) and (2) the request for money to improve district-owned wetlands does not count as a taking. In other words, Nollan and Dolan do not apply because Mr. Koontz never gave up any property and money wouldn’t count as property even if he had paid for additional wetlands improvements.

However, the U.S. Supreme Court reversed on both counts. It ruled:

  1. The Nollan and Dolan tests must apply even when a permit is denied, as it was in this case, to ensure that the government cannot coerce a permit applicant to give up their Fifth Amendment right to just compensation for property taken. This part of the decision was unanimous, with all nine justices in agreement.
  2. The Nollan and Dolan tests apply even when the government demand is for money. This is where the liberal wing of the Court differed in the 5-4 ruling. 

With the extension of the Nollan and Dolan tests, land-use planning will likely become more litigious and local permitting agencies may have less flexibility to require mitigation. Local permitting agencies now have an incentive to avoid the threat of litigation by either denying a permit without negotiating with the applicant or approve a permit without effective mitigation plans. One result stifles responsible development; the other impedes protection of wildlife and habitat. Neither is desirable.

As Justice Kagan said in her dissent, “If a local government risked a lawsuit every time it made a suggestion to an applicant about how to meet permitting criteria, it would cease to do so; indeed, the government might desist altogether from communicating with applicants.” (Emphasis added.)

If there is a silver lining in the decision, it’s that the Court recognized the value of mitigation. The Court held that “Insisting that landowners internalize the negative externalities of their conduct is a hallmark of responsible land-use policy, and we have long sustained such regulations against constitutional attack.” Such an affirmative statement bodes well for conservation cases that may come before the Court in the future, and the TRCP’s efforts to promote water conservation.

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July 11, 2013

DON’T MISS: Senate Tackles Colorado River Management

The U.S. Senate Committee on Energy and Natural Resources is holding a hearing on Tuesday, July 16, at 2:30 p.m. ET to receive testimony on the Bureau of Reclamation’s Colorado River Basin Water Supply and Demand Study. This study is a landmark analysis of water supplies in the basin over the next 50 years that will be a critical tool for water managers at all levels as they plan for future water use.

Sportsmen need to be aware of this important planning activity and what it means for hunting and fishing. You will be able to watch a live webcast of the hearing on the committee’s website.

In the first season of “TRCP’s Conservation Field Notes,” our friend Steven Rinella discussed the importance of managing water in the western United States, including in the Colorado River basin, and what it means for fish and wildlife. Check it out, and stay tuned for more updates on the Colorado River study.

 

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June 27, 2013

Only 3 More Days to Speak up for Bristol Bay

Join the TRCP and the sporting community in protecting the abundant fish and wildlife resources in Bristol Bay, Alaska. Speak up today and be entered to win a trip for two in Alaska’s Crystal Creek Lodge.

The time is now to tell the EPA to act upon its scientifically sound watershed assessment showing Bristol Bay salmon are at grave risk if Pebble Mine is allowed to proceed.

Pebble would be the largest open pit mine in North America and would create up to 10.8 billion tons of waste containing heavy metal toxins known to destroy salmon spawning and rearing habitat.

Southwest Alaska’s remarkable web of abundant wildlife, including salmon, bears, moose, wolves and migratory waterfowl, is in serious jeopardy – along with one of the nation’s foremost sporting destinations.

Take a stand for Alaska’s greatest fish and wildlife habitat and you’ll be entered to win a trip for two to Crystal Creek Lodge in Bristol Bay.


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June 18, 2013

Can Crowd-Sourced Funding Save Conservation?

When times are tough, people get creative. One TRCP partner in particular has developed an out-of-the-box strategy to cure the conservation-funding blues.

National habitat and conservation organization, National Wild Turkey Federation, has recruited the help of an online crowd-sourced funding platform called CrowdTilt to fulfill their organizational goals.

Crowd-sourced funding, or crowdfunding, is a fundraising approach that allows many individuals to make small online donations toward a common project – in this case, conserving the Black Hills of Wyoming and South Dakota.

Unable to standby and watch as a mountain pine beetle epidemic devastated the area, NWTF decided to take action. The obvious solution to hire a dedicated forester for the area was shot down due to a lack of funding for such a position.

NWTF  has turned to crowdfunding to raise money for the position. The hiring of a forest manager is a crucial first step toward ensuring the long-term health of the Black Hills and the wildlife that calls its forests home.

From the CrowdTilt page:

By helping to secure this professional forester, you can support wildlife habitat enhancement, reducing the risk of catastrophic wildfire, forest management planning and mountain pine beetle prevention and treatment. These improvements will cover more than 2,000 acres and be funded by cost share dollars, possibly as much as $800,000, available through the Natural Resource Conservation Service and a previously acquired federal grant.

NWTF’s CrowdTilt campaign already has raised $440 of the $10,000 needed to make am impact on the pine beetle epidemic in the Black Hills. Stay tuned to find out whether NWTF reaches their goal.

Do you think the idea will catch on?

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May 28, 2013

How Much Is a Fish Worth?

From supporting American jobs to providing a healthy protein source for our food supply, commercial fishing is enormously important to the United States. Although our overall take is obviously much lower than commercial sectors, saltwater recreational fishing also provides great value to the nation.

Saltwater recreational fishing benefits the U.S. in that it:

-brings economic activity,
-connects people to the outdoors and
-provides funding for conservation.

All these benefits aside, recreational fishing often is treated as an afterthought in federal saltwater fisheries management.

Tarpon by Dusan Smetana.
Photo by Dusan Smetana.

A first-of-its-kind report recently released by the American Sportfishing Association, Comparing NOAA’s Recreational and Commercial Fishing Economic Data, makes a strong case for elevating the attention policy makers and resource managers pay to recreational fishing.

Did you know that for every 100,000 pounds of fish landed there were 210 recreational fishing jobs but only 4.5 jobs in the commercial sector? Or that saltwater landings used by recreational anglers contribute three times more to the national gross domestic product (GDP, or value-added) than commercial landings?

Figures in the report highlight the importance of saltwater recreational fishing from an economic perspective. We at the American Sportfishing Association long have argued that anglers deserve equal footing in the fisheries management process. Now we have the numbers to prove it.

Mike Nussman is president and CEO of the American Sportfishing Association and a TRCP board member.

HOW YOU CAN HELP

WHAT WILL FEWER HUNTERS MEAN FOR CONSERVATION?

The precipitous drop in hunter participation should be a call to action for all sportsmen and women, because it will have a significant ripple effect on key conservation funding models.

Learn More
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