On June 25^th 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)

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.

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.