Feds sued over halting Tahoe National Forest access for off-road recreationists

[Bebe]

Originally Posted by LYIN' KING

Ok, we all have a right to our own points of view last time I checked.

Let's get to suing over the trails in question with our eyes wide open!!!

Eyes wide open???

WTF do you think PLF has been doing for the last 8 months? Every Principle and Partner voted to take the case.

Del and Don always say to "Trust the Experts". Even my Dad always said..."Pay the Professional"...well Bob???


Image added for emphasis



Link added for background

http://www.pacificlegal.org/page.aspx?pid=1730

[LYIN' KING]

Originally Posted by Bebe

Eyes wide open???

WTF do you think PLF has been doing for the last 8 months? Every Principle and Partner voted to take the case.

Del and Don always say to "Trust the Experts". Even my Dad always said..."Pay the Professional"...well Bob???

I'm all for it, so let's do it and see what comes of it!!!

[Bebe]

Senator Gaines Reats to Continued Access Restrictions for Off-Road Recreationalists

Sacramento, CA...Senator Ted Gaines (R-Rocklin) today expressed disappointment in the continued reduction in access for motorized off-road recreationalists in California following the closure by the federal government of more than 800 miles of roads and trails in the Tahoe National Forest. “This is yet another example of decisions that are not made in the best interests of the people and threaten rural economies,” said Gaines. “Thousands of outdoor enthusiasts flock to these roads each year. Protecting the environment is a big concern for us all, but I am certain there are ways we can address the necessary issues without closing hundreds of miles of trails.”.....

Article in the Calaveras Pine Tree

The Pacific Legal Foundation of Sacramento filed a lawsuit on Tuesday against the federal government on behalf of off-road organizations and individuals over the 800 mile closure, which leaves less than 50 miles of formerly accessible trails open for use. The lawsuit targets the Forest Service’s 2005 Tahoe National Forest Motorized Travel Management Project claiming that it violates the National Environmental Policy Act and the Administrative Procedure Act.

This comes on the heels of the U.S. District Court’s decision to close 42 off-highway-vehicle routes that cross meadows in the Eldorado National Forest to motor vehicle travel this recreation season until the Forest Service completes an environmental analysis.

These travel prohibitions are the result of a February 2012 court order by U.S. District Court. The order said the Forest Service failed to comply with the National Forest Management Act in 2008 when it designated “open for public motor vehicle use” portions of 42 routes that cross meadows.

A final court order with further direction to the Forest Service is pending. In the interim, the court ordered the 42 routes remain closed to motorized public use.

“Closing the Eldorado National Forest trails for a solid year or more is absolutely the wrong approach,” said Gaines. “Off-roading is a major hobby enjoyed by people from across the country and is a contributor to our state and regional economy. I don’t see why these trails, which have been used for decades, can’t remain open until the environmental study is complete.”

To add insult to injury, the off-highway vehicle community has been further marginalized by the Democrats recent decision in Senate Budget Subcommittee #2 (Resources, Environmental Protection and Transportation) to strip up to $21 million a year, for three years, from California’s Off-Highway Vehicle (OHV) Trust Fund.

These funds are specifically designated for the OHV program, reflecting years of negotiated formulas and fees between lawmakers and the OHV community. But now, the Democrats are simply taking money for other uses.

In the last four budget years, a total of $133 million has been raided from the OHV trust funds for other uses. In fact, in a 2011-12 budget trailer bill, an additional $10 million of dedicated OHV trust funds were taken for the state’s general fund.

“Enough is enough. It is time for the government to stop denying public access to public lands. Off-road recreationists have long enjoyed the forests in an environmentally responsible manner and there is no reason this long-standing tradition should be prohibited.” said Gaines. “I plan to follow these issues closely and will remain working to make sure that OHV users get the access they deserve and that rural economies are protected.”

Senator Ted Gaines represents the 1st Senate District, which includes all or parts of Alpine, Amador, Calaveras, El Dorado, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento and Sierra counties.


Sweet!

[RockMolester]

Originally Posted by LYIN' KING

I'm all for it, so let's do it and see what comes of it!!!

Okay, Bob's OFFICIALLY on board finally! Jesus Tapdancing Christ that took a long time! Now we can stop our damn bickering amongst ourselves and redirect our frustration at the REAL source of the problem.

[atvobsession]

Originally Posted by Bebe

[B]said Gaines. “Thousands of outdoor enthusiasts flock to these roads each year. Protecting the environment is a big concern for us all, but I am certain there are ways we can address the necessary issues without closing hundreds of miles of trails.”.....

I love Ted....in a representative kind of way.

[LYIN' KING]

Originally Posted by Teryx

[fermentor]

Originally Posted by atvobsession

I love Ted....in a representative kind of way.

.

[Bebe]

http://www.theoutdoorwire.com/features/226216

Taking Aim At November

Thursday, July 19, 2012

Our friend Bill Karr at Western Outdoor News tells us the battle between the United States Forest Service and motor sports enthusiasts is officially "on". The Eldorado National Forest is the battleground, and Karr says the Forest Service has already closed off more than 800 miles of "public lands". "Old camping sites used for decades blocked by tons of rock; roads closed with gates and downed trees and draconian enforcement by the Forest Service rangers" is how Karr described the situation.

Apparently a group of seven motor sports groups have had enough of these closures. The Pacific Legal Foundation filed a lawsuit on Tuesday on behalf of six organizations and two individuals over the whole closure idea.

The U.S. Forest Service, US Department of Agriculture, Ag Secretary Tom Vilsack, Forest Service Chief Tom Tidwell and Pacific Southwest Regional Forester Randy Moore and Tahoe National Forest Supervisor Tom Quinn are all named in the suit.

The lawsuit is seeking to have the conclusions of the Forest Service's 2005 Tahoe National Forest Motorized Travel Management Project struck down on grounds that it violates both the National Environmental Policy and the Administrative Policy Acts.

That project was ostensibly designed to be a collaborative effort between officials and riding enthusiasts wanting to help with the selection of trails to remain open for riders.

Instead, the suit alleges, there are now only about 50 miles of trails open and more than 800 miles scheduled to be blocked for riders. The lawsuit asks that the Forest Service be required to restart the process of implementing the Tahoe National Forest Motorized Travel Management Project and all trails remain open in the meantime.

As of this morning's edition, the Forest Service has not responded.

[fermentor]

More gription

[randii]

Originally Posted by atvobsession

I love Ted....in a representative kind of way.

Originally Posted by fermentor

.

I appreciate Ted.
I *APPRECIATE* Mila.
I fawkin' LOVE giving USFS what they asked for.

Many of us worked hard to help TNF craft a reasonable Travel Management Plan. Many of us commented and appealed the FEIS when it was a stinker. Many of us commented the SDEIS... and some kept their appeals going when the SDEIS, too, was a disappointment. Kudos to this coalition for keeping it going when everyone else had faded away.

TNF had the chance to craft a reasonable TM plan collaboratively. Here's hoping they do better after judicial review. I went to the mat on the Eldorado, believing it to be the precedent to fight for... but I'd love for TNF to set that precedent, since we're just not doing that well on the Eldorado.

Randii

[rockwrangler]

Donated $100

Step up!!!

[Bebe]

Originally Posted by rockwrangler

Donated $100

Step up!!!

thanks!

[Broncrick]

Btt :d

[MNtal]

To those fighting this, thank you.

http://www.mn-jeep.com/forum/showthr...904#post237904

This will spread like wildfire...

[chicago]

THAAAAAAANK YOU!!!

THANKS A TON to the groups spearheading this and the PLF for taking the ball!!
Ive been HOPING for a PROACTIVE move on behalf of the OHV in lieu of just sitting back and WAITING for word of the next trail to get closed, starting a letter campaign which the officials involved dont get right anyway and having them closed!

Me personally...Its become more the POINT than the outcome.
I confess that I havent been active in land use for very long (I havent actually been AWARE of scope of the issues for very long either) but as an American who loves the hobby it KILLS ME that we just get KICKED and keep taking it.
Im TIRED of waiting for things to happen in the political arena because by the time that happens...MORE TRAILS GET CLOSED and no progress has been made!!

You all are my HEROES!!!

Keith

[VERTIGO]

Btt

[Bebe]

Reno Gazette posts a 4 page article 8/17

http://www.rgj.com/article/20120819/...ss-public-land

Lawsuits fly over access to public land
Off-road group claims restrictions are illegal

To Reno’s Carl Adams, “a battle wages” as he and others who cherish motorized recreation in the backcountry strive to protect access they insist is increasingly threatened.

Environmentalists counter that a crackdown on dirt bikes, Jeeps and all-terrain vehicles they say have profoundly damaged public land is long overdue.

Federal land managers such as the U.S. Forest Service and Bureau of Land Management insist they’re trying to strike a balance between recreation and resource protection, a touchy endeavor drawing fire from both sides.

It’s a debate that’s been ramping up for years and that shows little sign of diminishing in its passion, with the forests of the Sierra and rangeland of western Nevada squarely in the cross hairs.

“People care about this,” said Leo Drumm, travel and transportation coordinator for the Nevada BLM office. “As soon as you mention there could be a (road) closure, people get angry because they are used to being able to go where they want to go. When you mention opening new areas, people get angry because they think we’re trashing the environment.”

The latest salvo was fired July 17 when the Pacific Legal Foundation, representing off-highway recreationists, sued the U.S. Forest Service over its travel management plan for Tahoe National Forest, an 800,000-acre swath of public land west of Reno widely used by western Nevada residents.

The plan, adopted in 2010 as part of a national policy direction, illegally closed more than 800 miles of roads and trails enjoyed by the public for decades, the lawsuit contends.

“We are filing this lawsuit to stop the U.S. Forest Service from illegally padlocking vast areas of the Tahoe National Forest and blocking the public from enjoying responsible recreational use of public lands,” Brandon Middleton, foundation attorney, said in a statement.

Middleton claims the Forest Service misled the public by promising a plan that would maintain adequate access into the forest but instead imposed a policy of sweeping closures, an act he described as a “bait and switch game.”

Tahoe National Forest officials said they could not comment on the lawsuit.

The plan is associated with policy announced by then-Forest Service Chief Dale Bosworth in 2005. Bosworth at the time described unrestricted use of off-highway vehicles as one of the four biggest threats to national forest land along with wildfire, loss of open space and invasive species. He said off-highway vehicles, or OHVs, should be restricted to designated roads and trails across nearly 193 million acres of national forests and grasslands.

National forests were directed to prepare plans determining roads and trails where motorized recreation should continue to be allowed and which ones should be closed to the activity. The BLM, which manages some 48 million acres across Nevada, has embarked on a similar direction but is far behind the Forest Service in implementation.

Conservation groups sue

The latest legal tussle over motorized recreation in California’s Tahoe National Forest follows another over the same issue in Eldorado National Forest, located on the west flank of the Sierra just to the south. In that case, the shot was fired by the other side.

A coalition of environmental groups sued the Forest Service in 2009 over a travel management plan released for the Eldorado the previous year. The suit accused the Forest Service of approving a strategy that “illegally prioritizes off-road vehicle use at the expense of traditional recreation and forest health,” according to a statement released at the time by the Center for Biological Diversity, one of the plaintiffs.

In May of 2011, a federal judge ruled in favor of the conservation groups, concluding the plan favored motorized recreation over protection of sensitive forest resources in violation of federal law. On Tuesday, Judge Lawrence Karlton ordered the Forest Service to close 89 miles of popular off-highway vehicle routes that traverse meadows in a ruling associated with the case.

The two lawsuits are characteristic of a dispute over motorized recreation on public land that has both sides operating aggressively, said Karen Schambach, president of the Center for Sierra Nevada Conservation, a party in the Eldorado forest litigation.

The Pacific Legal Foundation’s suit, Schambach said, attacks a plan that from her perspective doesn’t go far enough in protecting Tahoe National Forest.

“They want unlimited use,” Schambach said of motorized recreationists. “I think this lawsuit is based on a philosophic position that nobody should tell people they can’t drive wherever they want. They had decades of going anywhere they wanted. That might have been OK in the 1950s. It’s not now.”

The Forest Service’s approach to closing some roads and restricting motorized recreation to others is a logical and needed step in addressing a mounting problem that had OHVs damaging meadows and streams, hillsides and sensitive wildlife habitat, Schambach said.

“It had to stop. It was the rational thing to do,” Schambach said. “It flies in the face of why we have national forests.”
'Access Denied'

Adams, a Reno resident who regularly rides dirt bikes and Jeeps on national forest land, begs to differ. He accuses federal land managers of a preservation bias when it comes to motorized recreation, an emphasis he said violates a cornerstone mission of managing public land for multiple uses.

Many roads and trails that aren’t closed outright are being shut down seasonally, said Adams, who recently produced a video entitled “Access Denied: Closing our Forests.” Some roads left open are difficult to access because connecting routes are closed, while travel maps prepared by the government can be difficult or impossible to interpret, Adams said.

Regulations proposed for Tahoe National Forest, Adams said, are a case in point.

“Basically, the Forest Service is deviating from its congressional mandate for multiple use. They’re substituting a self-defined agenda of preservationism,” Adams said. “The entire process is a farce. It’s clear the Forest Service doesn’t want the public in the forest.”

Where the Forest Service leads, the BLM will follow, Adams predicts. As the bureau updates resource management plans for vast tracts of land it manages across Nevada, roads will close and access to much public land will be lost in the years ahead, Adams said. Impacts to the Silver State’s economy could be severe, he said.

“It’s going to happen with BLM and it’s going to have a tremendous impact on our state,” Adams said. “This preservationist agenda, which the greens love, is going to sweep through Nevada.”

Representatives of the Forest Service and BLM insist they’re doing the best they can to protect the natural resources they manage in a sustainable manner while offering a full range of alternative uses of the land. An aim of all decisions made is that they be legally defensible.

Nevada’s Humboldt-Toiyabe National Forest, at 6.3 million acres the largest national forest in the lower 48 states, should have travel plans and vehicle maps prepared for all of its districts by the end of the year, said Forest Supervisor Jeanne Higgins. A designated route system for the 48 million acres of Nevada managed by the BLM should be in place within a decade, Drumm said.

The notion the government wants to block the public’s access to national forest is off-base, Higgins said.

“We’re not doing that,” Higgins said. “They can still access many parts of the forest by motorized means. We’re trying to balance the need to protect certain resources and provide for access for all uses, and that’s not just motorized recreation.”

Impacts to public land by a growing population and the steadily increasing popularity of off-highway recreation make policy changes necessary, Drumm said. According to a government report released when the Forest Service adopted its new motorized vehicle strategy in 2005, the number of dirt bikes and all-terrain vehicles rose from about 2.9 million in 1993 to about 8 million in 2003, an increase of 174 percent.

OHV sales more than tripled between 1995 and and 2003 to more than 1.1 million, the report said.

The impact on BLM land has been clear, as is the need to update land management plans, Drumm said.

“Twenty or 25 years ago, when most of these plans were done, we didn’t have the population and we didn’t have the motorized use. People just didn’t use the land,” Drumm said.

There’s no way to make needed changes and keep everyone happy, he said.

“What we’re actually striving for is to manage our resources for multiple use and we have all these different uses,” Drumm said. “We know that with every one of our decisions, somebody is going to be unhappy and somebody is going to be rejoicing.”

[LYIN' KING]

By RYAN ABBOTT


WASHINGTON (CN) - The timber, beef and off-road vehicle industries claim in court that the U.S. Forest Service is illegally regulating the National Forests and giving scientists "improper influence," by seeking ecological sustainability above industry profits.

Lead plaintiff Federal Forest Resource Coalition, and 13 other industry groups, claim, Secretary of Agriculture Thomas Vilsack and the Forest Service are violating the National Forest Management Act, the Multiple-Use Sustained-Yield Act, the Organic Administration Act, and the Administrative Procedure Act.

The trade groups - which include the National Cattlemen's Beef Association and the California Association of 4 Wheel Drive Clubs - claim Vilsack "is causing current and threatened injury to the plaintiffs" by promoting ecological sustainability before economic interests.

The objectionable "Planning Rule is codified at 36 C.F.R. Part 219 (2012)," according to the complaint.

The complaint states: "The Organic Administration Act (OAA) of 1897, 16 U.S.C § 475, as interpreted by the Supreme Court, directs that national forests are to be 'as far as practicable controlled and administered' for only two purposes - to conserve water flows, and to furnish a continuous supply of timber for the American people - and not for aesthetic, environmental, recreational, or wildlife-preservation purposes. As the Supreme Court also found, Congress' intent in OAA was that national forests were not to be set aside for non-use. MUSYA [the Multiple-Use Sustained-Yield Act] recognized certain additional purposes of the national forests, but provided that the additional purposes are supplemental to, but not in derogation of, the two purposes for which the national forests were to be established and administered under the OAA. 16 U.S.C. § 528."

The industry groups claim Vilsack announced his vision for the National Forests in 2009, with revised planning rules focusing on conservation, management and restoration. The culmination of the rulemaking process "is causing current and threatened injury to the plaintiffs" by focusing too much on ecological sustainability, the groups say.

The new planning rule, in a departure from the 1897 federal law, "requires unconditionally that for the purpose of achieving 'ecological sustainability' all plans must 'maintain or restore the ecological integrity of terrestrial and aquatic ecosystems and watersheds in the plan area, including plan components to maintain or restore structure, function, composition, and connectivity ...' All plans must also 'maintain or restore: (i) Air quality. (ii) Soils and soil productivity, including guidance to reduce soil erosion and sedimentation. (iii) Water quality. (iv) Water resources in the plan area, including lakes, streams, and wetlands; ground water; public water supplies; sole source aquifers; source water protection areas; and other sources of drinking water (including guidance to prevent or mitigate detrimental changes in quantity, quality, and availability),' must 'maintain or restore the ecological integrity of riparian areas in the plan area,' and must 'establish width(s) for riparian management zones around all lakes, perennial and intermittent streams, and open water wetlands,'" the plaintiffs complain.

They say that maintaining ecological integrity and ecosystem diversity is not what Congress had in mind when it passed the National Forest Management Act National Forest Management Act.

Neither was giving scientists "improper influence" over natural resource management decisions, the trade groups say.

"The Planning Rule unlawfully limits the information on which forest planning decisions can be based by requiring all decisionmakers to 'use' the best available scientific information for every forest management decision," the complaint states.

The groups add: "The rule effectively trivializes public participation by forbidding decisions based on non-scientific information, which is what the great majority of public comments will contain. Field professionals such as foresters, range conservationists, and biologists often make management decisions using professional judgment based on experience gained from the results of on-the-ground implementation of resource management practices. The rule gives 'scientists' improper influence on natural resource management decisions, and skews multiple-use management by improperly elevating scientific information as the centerpiece of forest management ..."

The groups also claim that the rule's mandate to prohibit timber harvesting of lands not suited for timber production, its definition of "sustainable recreation," and its assurances to keep harvesting levels at a sustainable rate violate federal laws.

The plaintiffs are the Federal Forest Resource Coalition, the American Forest Resource Council, the Blueribbon Coalition, the California Association of 4 Wheel Drive Clubs, the Public Lands Council, the National Cattlemen's Beef Association, the American Sheep Industry Association, the Alaska Forest Association, the Resource Development Council for Alaska, the Minnesota Forest Industries Inc., the Minnesota Timber Producers Association, the California Forestry Association and the Montana Wood Products Association.

They want the court to declare that Secretary Vilsack violated federal law with the planning rule, and an order vacating it.

The groups are represented by Mark Rutzick.

Source: http://www.cnsenvironmentallaw.com/2012/08/15/1171.htm

More: http://www.sharetrails.org/news/2012...ng-regulations

[Bebe]

Bummer on the title of that article:

Money Should Come Before Trees in National Forests, Industries Say

[LYIN' KING]

Originally Posted by Bebe

Bummer on the title of that article:

Money Should Come Before Trees in National Forests, Industries Say

It's the GREENIES perspective!

[Bebe]

Thanks Bob, I may have never figured that out all by myself

[LYIN' KING]

Originally Posted by Bebe

Thanks Bob, I may have never figured that out all by myself

Hey, I'm equal opportunity . . . their perspective needs to be seen too so some might better understand what we face . . . if nothing else.

[Bebe]

A great article about the Pacific Legal Foundation
http://www.eenews.net/public/Greenwire/2012/08/17/2

LAW:
Fresh off Supreme Court win, legal group girds for more battles with EPA

Lawrence Hurley, E&E reporter

Greenwire: Friday, August 17, 2012

resize text Resize Text
email email
print print

SACRAMENTO, Calif. -- Alongside the replica London taxicab and a jar of candy on attorney Damien Schiff's desk, a blue trucker cap has a place of honor.

The cap -- advertising "Sackett Contracting & Excavating" -- was a gift from clients Mike and Chantell Sackett after Schiff successfully argued on their behalf in a recent Supreme Court case. The resulting decision, Sackett v. EPA, was a crushing loss for U.S. EPA in the 32-year-old lawyer's first appearance before the high court (Greenwire, March 31).

Since the March ruling, Schiff's star has risen. He's become a sought-after speaker at legal events. Potential clients are calling with their own tales of EPA-generated angst.
Damien Schiff

Pacific Legal Foundation attorney Damien Schiff in his Sacramento, Calif., office. Photo by Lawrence Hurley.

The unanimous Supreme Court ruling also served to burnish the reputation of Schiff's employer, the Pacific Legal Foundation, which is based here in a modest two-story office building just a few blocks from the state Capitol.

The conservative nonprofit legal group has been a thorn in EPA's side for almost the entire life of the agency.

In fact, PLF, as it's known, celebrates its 40th birthday next year, just three years after EPA reached the same landmark.

The Supreme Court win -- not the group's first -- has served to keep it in the public eye at a time when Republicans in Congress have been lambasting EPA for what they perceive as its overreach when it comes to regulation.

Sitting behind the desk in his comfortable office, Schiff conceded that PLF and EPA aren't on best terms.

"They certainly aren't inviting us to any cocktail parties," he said.

PLF's founding in 1973 had a lot to do with the man who occupied the governor's mansion down the street here: Ronald Reagan.

At a time when a conservative backlash against perceived liberal dominance in politics, policy and the law was just beginning, several aides to the Republican governor saw the need for a legal organization that could help lead the charge.

Ron Zumbrun, who worked on California welfare reform in the Reagan administration, became the first president of the fledgling group.

The current president, Robin Rivett, who joined two years later, said there was a sense at the time that liberal groups had a head start when it came to setting up public interest law firms.

"There were a number of folks who thought there was an imbalance," he said.

PLF was part of the first wave of conservative legal groups that emerged at that time. Others include the Mountain States Legal Foundation in Colorado and the Washington Legal Foundation in Washington, D.C.

The Federalist Society, a group aimed at fostering a new generation of conservative lawyers and judges, followed in 1982.

PLF quickly gained a reputation for focusing on property rights, often in the context of environmental regulation, according to Jefferson Decker, an assistant professor at Rutgers University who has studied the rise of the conservative legal movement.

With its focus mainly on the West then, the principal opponent was not U.S. EPA but rather the California Coastal Commission.

That struggle culminated in a major victory for PLF before the Supreme Court in 1987. In a case called Nollan v. California Coastal Commission, the court held the agency could not force property owners to provide a pathway to the beach as a condition for seeking a building permit.

As Decker noted, it's quite possible the property owners, James and Marilyn Nollan, would never have pursued the case if they hadn't had the pro bono legal assistance of PLF.

In that instance, PLF was already benefiting from its reputation as "the place to go if you had a gripe with the California Coastal Commission," Decker said.

A quarter-century later, it was the same reason why Mike and Chantell Sackett sought PLF's assistance, only this time in relation to EPA.
Wading into wetlands

The Sacketts, who own a small lot in Priest Lake, Idaho, came calling over another issue with which PLF has become synonymous: wetlands jurisdiction under the Clean Water Act.

That's largely due to the 2006 Supreme Court case Rapanos v. U.S., which concerned the efforts of Michigan landowner John Rapanos to develop a property that, much to his dismay, was designated a wetland. He hadn't applied for a permit and was subsequently the target of EPA civil and criminal enforcement actions.

PLF won that case, but it came at a cost: The court was so fractured that the whole issue of wetlands jurisdiction remains a mess (Greenwire, Feb. 7, 2011). It's one that Congress would need to resolve, but hasn't.

In 2007, the Sacketts had started building on their lot without a wetlands permit. When EPA paid a visit and issued a compliance order requiring them to stop work or face a daily fine, they decided they needed a lawyer. A local attorney referred them to PLF.

Once the case got to the Supreme Court, the issue wasn't quite what PLF would want to argue. Ideally, the group would like to tackle head on the extent of EPA's jurisdiction over wetlands. Instead, the court wrestled with the narrower issue of whether the Sacketts had a right to contest the issuance of the compliance order in court. The justices held that they did have such a right.

Schiff concedes that the question before the court was an easier one for him to win.

"The so-called liberal wing of the court is generally open to expanding judicial review," he said.

But he insisted that the case still fits PLF's mission.

"Our primary focus is that one has a fundamental right to use and enjoy one's own property subject to reasonable regulation to prevent injury to others," he said. "The Sacketts were certainly precluded from reasonable use of their property, but we couldn't even get a court to adjudicate on whether that restriction on the use of their property was legitimate or not."

Others might not agree with PLF on its wider aims, Schiff added, "but the Sackett case avoided that issue by saying, 'At least give us our day in court.'"

Schiff's -- and PLF's -- performance in the case won widespread praise.

"They did an excellent job and outlawyered the government," said Richard Frank, director of the California Environmental Law and Policy Center down the road from Sacramento at the University of California, Davis, School of Law.

PLF President Rivett was delighted with the work Schiff and his colleagues did on the case.

"Being there as a young attorney for the very first time, you are going to be extremely nervous," he said. "I know he was, but he didn't show it."


'Laserlike focus'

PLF, after years of court fights with EPA, has met with a grudging respect from both those within the agency and its lawyers at the Justice Department.

Adam Kushner, a former enforcement official at EPA, now a lawyer at Hogan Lovells, said the group has made effective use of the courts in order to advance its conservative goals.

"They have a serious agenda," he said. "They seem to have some ability to advance that in the courts."

Within government, its filings are given careful attention, Kushner added. PLF is "not like some of those other groups where you see a claim and you roll your eyes," he said.

UC Davis' Frank concedes that it sometimes "drives my environmentalist friends nuts" that he is so complimentary about PLF's effectiveness.

"They have hired some good lawyers. They have a laserlike focus on the issues. They have been very influential over the last 25 years," he said.

At one point, Frank, who for a long time served in the California Attorney General's Office, even unsuccessfully tried to hire one of PLF's attorneys.

Environmentalists are less keen on PLF.

Patti Goldman, an attorney at Earthjustice, has had contact with the group mostly via Endangered Species Act litigation. PLF is not a fan of the law, which it believes should take more account of individuals' property rights.

PLF has been behind "wholesale attacks" on the act that have been "universally unsuccessful," she said.

Goldman doesn't have much time for PLF's complaints about the statute, noting that the law has withstood court scrutiny in large part because it provides for public notice and comment.

Listings "can't be done without public participation," she said. "What they are seeking is special rights for certain interests."


Fundraising

Evironmentalists' complaints are unlikely to deter PLF, which has big plans.

Despite their relative success in the courts, PLF lawyers continue to rage against government power.

Rivett stakes out the position of a true believer, maintaining that not only has the overall picture not improved since PLF was founded, but it's gotten worse.

"I think government has done what government does," he said. "It grows and it can become more oppressive, and I think it has become more oppressive over the years."

Where PLF has been successful has been "in making governmental agencies think twice before they do certain things because they know they are going to be in our cross hairs," he added.

It's a theme Schiff picks up on in describing the group's relationship with EPA.

"I can't think they feel we threaten their existence. When we win, the change is going to be incremental," he said. "I don't think EPA necessarily quakes in its boots when it sees us, but at the same time I hope they would take us seriously."

The group has about 50 employees, including just more than 20 lawyers. In 2010, it raised slightly more than $14 million and spent just over $7 million, according to tax records for that year.

PLF says 49 percent of donations came from individuals, with 27 percent raised through foundations and 24 percent coming from businesses and what the group calls "other organizations."

Rivett said he plans to hire more attorneys and is considering opening an office in Washington so the group can be more responsive to media inquiries and invitations to testify at congressional hearings.

Schiff plans to continue with challenges to the Endangered Species Act, even though he admitted the group is running out of circuit courts where it can press its claims that the law is unconstitutional. Separately, PLF recently filed a petition asking that orcas -- more commonly known as killer whales -- in the Pacific Northwest be removed from the list of endangered species (E&ENews PM, Aug. 2).

PLF also plans to keep pressing its efforts to limit wetlands jurisdiction. That will take the form of a legal challenge to the latest administration guidance on the issue, which is yet to be finalized.

The group has been keen to engage on climate change, too.

PLF lawyers see climate rules in the same light as they do other any other government regulations that they believe stifle the economy. The group steers clear of what Schiff describes as "affirming or denying climate change."

PLF joined an industry- and state-led coalition that unsucessfully sought to invalidate the Obama administration's greenhouse gas regulations in litigation before the U.S. Court of Appeals for the District of Columbia Circuit (Greenwire, June 26).

It is one of the groups that has filed a petition seeking rehearing in the case.

Closer to home, PLF plans to challenge California's carbon cap-and-trade program, known as A.B. 32.

As for the question of the science behind climate change and how much of a threat it might be, Rivett insisted that when the group gets involved in climate litigation, it's looking only "at the way regulations are enacted ... especially if they have a significant effect on the economy."

Mankind may well have contributed to climate change, he added, but "the level of contribution, I don't know."

Sackett reprised

The success in Sackett looks as if it could open up a new front in PLF's battle against the government.

Many of the potential clients who have called seeking advice since the ruling complain of similar treatment, not just at the hands of EPA but also other agencies, including the Army Corps of Engineers.

Schiff hopes Sackett will help him challenge Army Corps decisions on wetlands jurisdiction. But first, he has a case in New Mexico involving property owners who had a "Sackett-like experience" with the corps.

PLF might also file briefs in cases that were already under way before the Supreme Court issued its ruling. One involves a chicken farm in West Virginia; another concerns Gasco Energy Inc. in Colorado. In both cases, EPA issued a compliance order and the companies involved were not able to challenge it in court first.

That both of those cases involve businesses challenging EPA action highlights the not-so-hidden secret about PLF: While it likes to see itself as a group that represents put-upon homeowners like the Sacketts, business interests also tend to benefit from the cases it wins.

The chairman of PLF's board of trustees is John Harris, the chairman and CEO of Harris Farms Inc., which describes itself on its website as "one of the nation's largest, vertically integrated family-owned agribusinesses." Other members of the board of trustees include several former or current executives of construction companies and various lawyers who represent companies in land use and real estate issues.

In Washington, legal experts thought it particularly notable that the Supreme Court took up Sackett instead of a petition filed by General Electric Co. that raised similar issues (Greenwire, July 11, 2011).

Paul Clement, a leading Supreme Court advocate at the Bancroft law firm, said at a U.S. Chamber of Commerce event in June that the "plight of the Sacketts ... is probably a little more sympathetic than the plight of GE."

Whether or not PLF acts as a stalking horse for the business community, it won't stop the group from embracing the more compelling narrative of sympathetic homeowners just trying to do what they want on their own land.

"It's the little guy," Rivett said in describing how Sackett fits in with PLF's mission. "A property owner who can't afford to represent himself when it comes to trying to protect his own interests against large governmental entities that have unlimited resources."

[Mad Machinist]

Just wondering if anyone here has realized the signifigance of the list of plaintiffs involved in this case?


Loggers, ranchers, and OHVers on the same page about anything? Never thought I'd see it in my lifetime.

[chicago]

Originally Posted by Mad Machinist

Just wondering if anyone here has realized the signifigance of the list of plaintiffs involved in this case?


Loggers, ranchers, and OHVers on the same page about anything? Never thought I'd see it in my lifetime.

That is a good point as when I think of the people these closures impact...I think more RECREATIONS and not businesses.