Another quarter of thrills, chills, and adventures from our state and federal courts.

Interstate Commerce—Taking of Endangered Species. In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC), the Supreme Court barred the Army Corps of Engineers from regulating isolated wetlands under the federal Clean Water Act. It found that Army Corps regulation of such wetlands might potentially exceed the scope of federal power under the Commerce Clause. Thus, a narrowing construction of the Army Corps’ authority over wetlands was necessary to avoid a constitutional question and to limit potential conflict with legitimate state and local authority over land use.

Following this decision, several enterprising developers have attempted to apply the same theory to limit federal protection of endangered species under the Endangered Species Act (ESA). In one case, a California developer sought a declaration that the Commerce Clause prevented the Fish and Wildlife Service from protecting the habitat of the arroyo toad, an intrastate species found only in California. The developer argued that federal protection of habitat for such a species exceeded federal authority under the Commerce Clause. In an April 1, 2003 decision, the District of Columbia Circuit emphatically rejected that argument. Rancho Viejo v. Norton, 323 F.3d 1062 (D.C. Cir. 2003).

At the same time, a Texas developer sought to construct a Wal-Mart on property in which dwelt six species of cave-dwelling arachnoids and beetles found only in two counties in Texas. For the record, these species were the Beecreek Cave Harvestman, the Bonecreek Harvestman, the Toothcave Pseudo-Scorpion, the Toothcave Spider, the Toothcave Ground Beetle, and the Kretschmarr Cave mold beetle. This attack, too, was rejected, in this case by the Fifth Circuit. GDF Realty Investments Ltd. v. Norton, 71 U.S.L.W. 1624 (5th Cir. 3/26/03).

To reach these results, both courts more or less ignored the hints in SWANCC that federal regulation of the environment might be unconstitutional if applied to ecological features that were purely local in character. The Rancho Viejo court found that the object of the regulation was not specifically the toad, but rather the economic activity of development. It cited a host of long-standing federal cases going back to the venerable Heart of Atlanta Motel case involving the public accommodation section of the Civil Rights Act of 1964. There the Supreme Court had held that the Heart of Atlanta Motel was an economic entity that made purchases from and attracted customers in interstate commerce. These facts had justified congressional regulation of racial discrimination by that entity. The Ranch Viejo court further noted that many other federal statutes were aimed at various social ills; all of these would be undermined if the plaintiff succeeded. For example, statutes prohibiting the use or possession of drugs or explosives, of weapons of mass destruction, or the murder of public safety officers also have a non-economic rationale even though they affect activities which channels of interstate commerce. The court distinguished United States v. Morrison, 529 U.S. 598 (2000), on the ground that the Violence Against Women Act struck down in Morrison solely regulated non-economic conduct, namely violence against women, as contrasted with the Endangered Species Act, which regulated economic activities like development. Accordingly, such federal land use regulation was justified.

A somewhat different take on species "takes" was employed by the Fifth Circuit in GDF Realty. There the court specifically disclaimed the district court’s holding that interstate commerce was involved because a Wal-Mart, clearly a multi-state business, was to be constructed on the site. Thus, basically the Fifth Circuit rejected the rationale of the D.C. Circuit.

Rather, the Fifth Circuit held that the entire enterprise of protecting endangered species is "economic in nature." There was incalculable value to the genetic heritage that might be lost in addition to the fact that the majority of takes would result from economic activity. The court found that the interdependence of species compelled the conclusion that species loss affected interstate commerce. Thus, the regulation of the endangered species was an essential part of a national economic regulatory scheme. The court’s comments about the "interdependence" of species and the incalculable effect of species loss on "the chain of life on this planet" reflect a sensitivity to wildlife values that seemed to be absent in the SWANCC opinion.

There was one thing on which both courts seemed to agree—regulation of endangered species was an area of traditional federal activity and thus did not entrench upon some reserved state power over land use to which the Supreme Court adverted in the SWANCC opinion.

These two opinions will make interesting reading if Congress ever decides to overrule SWANCC and make it clear that it intends the Army Corps to regulate isolated wetlands. In fact, such a bill has been introduced as the Clean Water Act Authority Restoration Act of 2003 (S-2780 by Senator Feingold (D-Wis.) and HR-1594 by Representative James Oberstraw (D-Minn.). For a summary of these bills, see 31 Land Use L.Rep. 47 (3/12/2003)). The reasonable duck rule, under which the Corps regulated isolated wetlands if a duck flying across interstate boundaries might use them, may yet fly again if Congress does overrule SWANCC and either the wildlife-sensitive rationale of GDF or the economic activity rationale of Rancho Viejo are sustained by the Supreme Court.

Takings—Removal—Ripeness. This conundrum is a favorite of mine. In Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985), the Supreme Court required a landowner to exhaust state traditional court compensation remedies before going to federal court. However, in City of Chicago v. International College of Surgeons, 522 U.S. 156 (1997), the very same Supreme Court said that a municipal defendant in a takings claim which had been brought in state court pursuant to Williamson could remove that case to federal court.

An enterprising landowner claimed that the decision in City of Chicago in effect modified or partly overruled Williamson. He argued that the Supreme Court could not have intended to require a plaintiff to sue in a state forum, but to give the defendants the option of either continuing in state court or removing to federal court. He objected to entitling the defendant, although not the plaintiff, to determine that the case should be heard in federal court.

This seemingly clever argument was rejected by the Circuit on February 13, 2003. Kottschade v. City of Rochester, 319 F.3d 1038 (8th Cir.2003). While the situation may be anomalous, the Eighth Circuit said, there is no indication that the Supreme Court intended to overrule Williamson when it allowed removal of takings claims by defendants to federal courts in the City of Chicago case.

In addition, the court declined the plaintiff’s request to determine that he could come back to federal court, and relitigate all his factual claims, after ripening his case in state court. The court felt it premature to determine what res judicata or collateral estoppel effects might flow from a state court adjudication.

Moratoria—Settlements—Damages. In Tahoe-Sierra Regional Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002), the U.S. Supreme Court held, in a ruling lauded by local government, that moratoria were not automatically takings which required payment of damages. This ruling did not ward off a suit brought by North Key Largo, Florida landowners against Monroe County for a temporary taking based on an eight year hold on development. On July 17, 2001, the trial court, having found a 98 percent diminution in value under the moratorium—from $5,887,700 to $145,000—held that a taking had occurred. A jury trial was then scheduled to determine damages. On May 4, on the eve of the trial, the case settled for $5.9 million, believed to be the largest temporary takings recovery in U.S. history, according to Land Use Law Report. This amount, coincidentally, equals the $5.9 million the county paid for the land when it purchased it in 1990. Shadek v. Monroe County Board of County Commissioners, (C.A.P. 95–398, settlement announced March 4, 2003), reported in 31 Land Use L.Rep. 43 (3/12/2003).

This is an extreme case. However, it demonstrates that jubilant predictions by either landowners or governments concerning Supreme Court land use decisions tend to give way to more nuanced results when cases are actually fought out in the trenches. Clearly the trial judge in this case did not find in the Tahoe-Sierra decision grounds for vacating his prior ruling that the moratorium had constituted a taking even if moratoria are not a per se taking.

Elementary Schools—Free Speech—Cruelty to Animals. And finally, on April 15 the Third Circuit held that a school could prevent a nine year old third grader from circulating a petition opposing a class field trip to the circus. The petition had stated, "we third grade kids don’t want to go to the circus because they hurt animals." The youngster had obtained more than thirty signatures. When she continued her efforts at a class recess, the teacher told her to put the petition away.

Although she was never punished, the student sued. An issue in the case was whether Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969), even applied in elementary schools. The majority held that Tinker, which said the First Amendment did apply in high schools, had more limited applicability to elementary schools, stating that "if third graders enjoy rights under Tinker, those rights would necessarily be very limited." Because the student had not even been disciplined, and there was no punishment for her expression, the court found no First Amendment violation. One concurring judge, however, reached the same result on a different basis—he was willing to assume there was a right to petition, but that the school had not materially interfered with it because it had on several occasions allowed her to obtain signatures. Walker-Serrano v. Leonard, 71 U.S.L.W. 1659 (3d Cir. 4/15/03).

And so it goes.