by:

posted in: General

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.

Do you have any thoughts on this post?

XHTML: You can use these tags: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

Comments must be under 1000 characters.

by:

posted in: General

July 12, 2013

by:

posted in: General

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.

 

by:

posted in: General

July 10, 2013

T.R.ivia: Bull Terrier Bite

How well do you know T.R.? Give our Wednesday Win trivia challenge a try.  Roosevelt’s Bull Terrier, Peter, caused international drama when he________

Image courtesy of dogbreedinfo.com

 

 

 

 

 

 

 

 

 

 

Leave us a comment below or email your answers to info@trcp.org by Friday for your chance to win a season one DVD of “MeatEater.

by:

posted in: General

July 9, 2013

Sage Grouse Saga a Wake-Up Call for Sportsmen

These days, there’s a lot of talk out West about a game bird called the greater sage grouse. This chicken-sized bird lives in the sagebrush country in places like Wyoming, southern Idaho, southeastern Oregon and Nevada.

Western sportsmen have enjoyed hunting sage grouse in open sagebrush country for generations. Unfortunately this great tradition is in jeopardy. Populations have been declining for years, so much so that the U.S. Fish and Wildlife Service is considering the bird for possible listing as threatened and endangered – a decision that would end sage grouse hunting for the foreseeable future.

As sportsmen, maintaining robust populations of all kinds of wildlife should be one of our top priorities. That we could lose the opportunity to hunt such an iconic game bird should be a wake-up call.

Photo courtesy of the Oregon Department of Fish and Wildlife.

The story of the sage grouse is a sadly familiar one; the loss of crucial habitat throughout the range has led to steadily declining populations. While there are places throughout the West where robust populations exist, the Fish and Wildlife Service is mostly concerned with the overall trend – not just in population numbers but also the continuing loss of quality habitat throughout the range.

Like another Western icon, the mule deer, sage grouse need a variety of habitat types, including summer and winter range and breeding areas, all of which are highly dependent on the West’s fickle – and often extreme – weather patterns. The decline of the sage grouse closely correlates with decreasing mule deer populations in the West. Each is highly dependent on healthy sage brush ecosystems, and as the health of the sagebrush ecosystem declines, so too do the populations of wildlife that rely on them.

One of the biggest threats to the sagebrush ecosystem is wildfire. Dramatic changes in the wildfire ecology in sagebrush country, has largely been driven by the proliferation of cheatgrass. Once this invasive exotic grass gets established, in and among sagebrush, it causes wildfires to burn hotter and faster. Instead of less intense, slow moving “cool fires” that tend to be beneficial, cheatgrass causes very hot, fast moving fires that completely destroy many hundreds of thousands of acres of prime sagebrush habitat. Then after the fires, cheatgrass outcompetes other native plants making it difficult for the beneficial natives to reestablish. The result is millions of acres converted from healthy sagebrush plant communities to cheatgrass monocultures, leading to more frequent and hotter-burning wildfires that are harder to contain – and often spread to other areas of healthy sagebrush, continuing the cycle.

Energy development such as oil, gas and wind energy is another major threat to sage grouse. Both traditional and renewable projects and their associated infrastructure like roads and pipelines reduce the quantity and quality of sagebrush habitat, translating into lost hunting opportunities down the road. While most sportsmen agree that we need domestic energy, the real challenge is going to be balancing this need with the need to protect high quality habitat here in the West.

The TRCP is working with sportsman’s groups and state fish and game agencies across the West to identify valuable public lands fish and wildlife habitat and develop strategies to conserve them. Here in Nevada, local sportsman’s organizations and the Nevada Department of Wildlife are partnering in this effort. We’re discovering that much of the high value habitat for animals like mule deer, pronghorn antelope and elk overlaps with areas of core sage grouse habitat. The lesson is clear: quality hunting and fishing relies on quality habitat and sage grouse conservation in sagebrush habitats will benefit multiple species of wildlife including those pursued by sportsmen.

An endangered listing for the sage grouse would have far reaching consequences here in the West – and not just for sportsmen. Ranching, mining, energy production and the economies of many small towns and rural areas all would feel the effects.

Photo courtesy of the USDA.

Sportsmen need to be aware of what’s going on and get involved. It’s not enough to avoid listing the sage grouse; we need to make sure that habitat conditions in the West are improving so that fish and wildlife populations remain healthy and so that sustainable harvest will continue to be part of our wildlife conservation heritage. The TRCP is working directly with our elected representatives in Washington, D.C., as well as with local and state governments to focus efforts on protecting existing habitat and developing new strategies to tackle this challenge. Sign up as a TRCP Western Sportsman Advocate to stay informed and take action on issues that affect our Western hunting and fishing heritage.

HOW YOU CAN HELP

CONSERVATION WORKS FOR AMERICA

As our nation rebounds from the COVID pandemic, policymakers are considering significant investments in infrastructure. Hunters and anglers see this as an opportunity to create conservation jobs, restore habitat, and boost fish and wildlife populations.

Learn More
Subscribe

You have Successfully Subscribed!

You have Successfully Subscribed!

You have Successfully Subscribed!

You have Successfully Subscribed!

You have Successfully Subscribed!