Administrative Agency Zoning, Planning & Land Use Civil Procedure

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CEQA Lead Agencies Do Not Waive Defense that CEQA Did Not Apply Despite Proceeding under CEQA

Recently, the court in Rominger v. County of Colusa found that a lead agency which approved a mitigated negative declaration for a project, can take the seemingly inconsistent position that the proposed project was not a...more

Real Estate and Land Use - November 2014

Change of Heart – Court of Appeal Reverses Opinion in Bowman v. California Coastal Commission - Why it matters: The court in Bowman originally held that a permit condition could not be modified or deleted by a second...more

Illinois Supreme Court Agrees to Decide Remedy for Unserved Notices of Violation

What happens when the City doesn’t properly serve a notice of building code violations? In the closing days of its September term, the Illinois Supreme Court agreed to decide that issue in Stone Street Partners, LLC v. City...more

Supreme Court Asked to Allow Immediate Judicial Review of Clean Water Act Jurisdictional Determinations

A landfill developer has asked the Supreme Court to review a decision of the Fifth Circuit holding that a jurisdictional determination by the U.S. Army Corps of Engineers is not final agency action subject to judicial review....more

Transportation Projects Get A Lot Of Deference in Demonstrating Compliance With Air Quality Standards

In a decision late last month, the 9th Circuit Court of Appeals made clear just how much deference agencies can get under the Supreme Court decisions in Chevron and Auer. The question in NRDC v. USDOT was whether, in...more

Numerous Parties Line Up in Support of Petition in Delta Smelt Case

As we reported here, on October 6, 2014, a number of public water agencies and other entities that represent agricultural and municipal water users in California filed a petition for writ of certiorari with the U.S. Supreme...more

Supreme Court Finally Schedules Oral Argument In CEQA Categorical Exemption Case

At long last, the California Supreme Court has scheduled oral argument in the case of Berkeley Hillside Preservation, et al. v. City of Berkeley, Supreme Court Case No. S201116. By its long-awaited order issued October 31,...more

Maine Supreme Court Affirms Broad Review Powers for BEP in Clearing Way for Wind Project

The Maine Supreme Judicial Court (the Law Court) recently issued an important decision that confirms the broad authority of the Maine Board of Environmental Protection (BEP) to review decisions of the Commissioner of the...more

Court Affirms FEMA’s Efforts to Implement Actions to Avoid Jeopardizing Listed Species

On October 23rd the Federal District Court for the Western District of Washington upheld the Federal Emergency Management Agency’s (FEMA) National Flood Insurance Program’s (NFIP) compliance with a 2008 reasonable and prudent...more

Maine Supreme Court Backs Passadumkeag Windpark LLC

The Maine Supreme Judicial Court issued a decision this week that upholds a decision by the Board of Environmental Protection that approved a wind energy project proposed by Passadumkeag Windpark, LLC....more

Uncertainty Prevails as Illinois Delays a Decision on Fracing Regulations

Last week, Illinois’s Joint Committee on Administrative Rules voted to push back its decision about whether to approve proposed rules governing horizontal fracturing operations until November 6. The delay promises to fuel...more

EPA Really Does Have Authority To Withdraw Specifications Under Section 404 of the Clean Water Act

Last year, the D.C. Circuit Court of Appeals ruled that EPA has authority to withdraw its approval for the specification of sites for the disposal of fill material, even after the Army Corps has issued a permit for the...more

Tribe’s Gamble That Casino Land Transfer Approval Not Subject to CEQA Pays Off

Picayune Rancheria of Chukchansi Indians v. Brown, C074506 (9/24/2014) - In a recent Third District Court of Appeal published opinion, the court in Picayune Rancheria of Chukchansi Indians v. Edmund G. Brown, Jr. (3rd....more

Attorney Labor For Preparing CEQA Administrative Record Is Recoverable Cost Where Specialized Knowledge Required, Holds Fourth...

In a partially-published opinion filed September 29, 2014, the Fourth District Court of Appeal affirmed an order and judgment permitting the County of San Diego to recover actual labor costs incurred for an attorney and...more

District Court Rules that Claims Challenging Forest Management Are Ripe and Final

Last week, the United States District Court for the Middle District of Florida determined that a group of plaintiffs could bring a claim against the U.S. National Park Service challenging actions that were characterized by...more

CEQA Reform in the Courts – Public Agency Can Recover Costs Despite Petitioner's Election

After Governor Brown took office for the second time, CEQA reform through the Legislature seemed like a distinct possibility. While that possibility has all but evaporated, recent rulings suggest that courts are taking a...more

CEQA Administrative Record Preparation Costs – Who Pays and When? First District Provides Guidance In Coalition For Adequate...

In a published decision filed September 15, 2014, the First District Court of Appeal reversed and remanded a trial court’s post-judgment order granting an unsuccessful CEQA petitioner’s motion to tax the entire $64,144 cost...more

California Federal District Court Grants Partial Dismissal to Suit Alleging Violations of the Endangered Species Act

Earlier this month, a federal district court in California partially granted motions to dismiss a second amended complaint filed by the Center for Biological Diversity and the Pesticide Action Network alleging that the...more

Court Reluctantly Upholds Designation of Critial Habitat for Frog

Last week, the United States District Court for the Eastern District of Louisiana upheld the designation of approximately 1,544 acres of privately-owned timber land located in Louisiana as critical habitat for the dusky...more

Pennsylvania Public Utilities Commission Appeals Act 13 Ruling to State Supreme Court

The Pennsylvania Public Utilities Commission (PPUC) is asking the state Supreme Court to review a July ruling by the Pennsylvania Commonwealth Court that strips PPUC of its authority to review and approve local drilling...more

California Coastal Commission Further Solidifies Enforcement Powers

An informal Attorney General advice letter and recent legislation attempt to clarify the Coastal Commission’s powers in carrying out its enforcement authority. The extent of the California Coastal Commission’s legal...more

Court of Appeal Clarifies Requirements for Public Input on Development Agreements

Due process rights to notice and a public hearing for those who may be affected do not apply to a public agency’s consideration of approval of a development agreement, an appellate court has ruled. In addition, the First...more

California District Court Dismisses ESA Section 7 Case for Failure to Allege that Agency Action Took Place on the "High Seas"

On August 12, a judge for the Northern District of California granted a motion to dismiss claims alleging that a federal agency violated section 7 of the Endangered Species Act (ESA) by failing to consult with federal...more

Fifth Circuit Holds that the Army Corps of Engineers' Jurisdictional Determination Does Not Constitute a Reviewable "Final Agency...

On July 30, 2014, the United States Court of Appeals for the Fifth Circuit held that the issuance of a jurisdictional determination (JD) by the U.S. Army Corps of Engineers (Corps) is not a final agency action subject to...more

It’s Really Difficult to Site a Highway in a Refuge

In an important decision last week, the 4th Circuit Court of Appeals made clear just how high the hurdles are in the way of building highways in wildlife refuges. The decision in Defenders of Wildlife v. North Carolina DOT...more

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