Two Oregon ranchers file a lawsuit against Fish and Wildlife Service (FWS) over the agency's decision to stop the flow of water from a local reservoir, an action that kills their crops and livestock - but their case is dismissed by two federal judges, who say that people cannot sue the FWS for doing too much to protect endangered species.
When the cases made their way up to the Supreme Court last year, one Maryland law firm was a natural to serve as the voice of business on environmental and land use disputes - Linowes and Blocher L.L.P.
The firm found itself on the winning side in each of these lawsuits in friend-of-the-court briefs - a fact that strengthens the boutique law firm's reputation as one of the nation's experts on the business end of environmental law. Complex maze
The 46-attorney law firm, headquartered in Silver Spring, specializes in land use, real estate and environmental law, a concentration that has made it much sought-after by companies and others wrangling with the complex maze of environmental laws and regulations.
Lawrence Liebesman and James B. Witkin, co-chairs of the firm's Environmental Practice Group, said the firm prepares developers, builders, water authorities and municipalities for the environmental implications of real estate transactions.
They said the practice has done everything from advising clients on how to proceed when purchasing property with environmental liabilities, to ensuring that builders comply with laws protection wetlands and endangered species while constructing their projects.
And, to further the rights of property owners in disputes beyond the scope of individual case representation, the firm often files friend-of-the-court briefs, so that the views of trade groups Linowes and Blocher represents are heard.
The firm filed such briefs in support of the 82-year-old widow, the National Association of Home Builders and the Building Industry Legal Defense Foundation.
The two ranchers who suffered at the hands of the FWS also benefited from a Linowes and Blocher brief filed on behalf of the Nationwide Public Projects Coalition.
"The results of these two cases are significant for property owners and municipalities as to when they can get into court to challenge decisions that affect property interests," Liebesman said. "The Supreme Court recognized that there has to be fairness to property owners." Ripe for adjudication?
In May, the U.S. Supreme Court handed down a favorable ruling for the elderly landowner in Suitum v. Tahoe Regional Planning Agency.
It held that Bernadine Suitum must get her day in court to seek compensation for being barred from building on her land near Lake Tahoe, Nev.
"The sole question here is whether the claim is ripe for adjudication," Justice David H. Souter wrote for the court. "We hold that it is."
The justices' decision clarified what hurdles landowners must clear before being allowed to claim in court that government regulation amounted to a taking of their property.
Suitum owned an 18,300-square-foot plot of land in an area in which development is controlled by the Tahoe Regional Planning Agency.
When she sought permission to build on her undeveloped land in 1989, the planning agency decided her property was in a "stream environment zone," where all private building is barred.
"Suitum's lot was on a public street and surrounded by three similar lots, all of which are developed with houses," Liebesman said.
Suitum sued, arguing that the agency's denial of a building permit amounted to a taking of her property under the U.S. Constitution's Fifth Amendment.
But two federal courts ruled against her. They noted that the Tahoe agency had created a system in which Suitum could sell various types of development credits to other property owners.
Agency officials said Suitum never tried to sell her land development credits in an effort to be compensated for not building on her property.
Suitum's property was worth more than $100,000, and the planning agency estimated that the development credits were worth as much as $35,000.
Suitum's lawyers contended, however, that the credits were worthless. Getting to court
The lower courts ruled that Suitum's development credits must be sold so the economic effect of the planning agency's regulations could be determined. In essence, the Ninth Circuit Court of Appeals said her lawsuit against the agency was premature.
But the high court disagreed, and ordered the federal district court to hold a trial on the merits of Suitum's complaint.
"The Supreme Court said that there comes a point when [a landowner] ought to be able to get into court and challenge the government's action," Liebesman said. "It doesn't mean that they're going to win, but that they at least can get into court."
Getting into court was made even easier for landowners and others challenging decisions by the U.S. Fish and Wildlife Service as too intrusive in Bennett v. Plenert.
In that case, the U.S. Supreme Court held that Oregon ranchers Brad Bennett and Mario Giordan and two water authorities had standing to sue the FWS over its decision to cut off irrigation water to farms and water ranches near Oregon's Lost River during a 1992 drought.
Officials determined that the U.S. Bureau of Reclamation's operations at the Klamath project reservoirs in southern Oregon and northern California might jeopardize the continued existence of two species of fish, the Lost River sucker and the short-nose sucker.
Both have been listed as endangered since 1988. Those officials, exercising their power under the Endangered Species act (ESA), cut off the water flow to protect the fish.
Without water, ranchers downstream had to sell off cattle they couldn't feed, and farmers saw crops die in their fields, said Gregory Wilkinsin, the plaintiffs' attorney. Economic interests
The ranchers and farmers suffered an estimated $75 million worth of damages, he said.
To remedy their losses, the two ranchers, along with the Horesefly and Langell Valley irrigation districts, sued the FWS over its enforcement of the ESA.
But a federal judge, later upheld by a federal appellate court, ruled that the lawsuit had to be thrown out for lack of legal standing.
The plaintiffs appealed to the U.S. Supreme Court, and argued that the ESA authorized "any person" to sue the government over an alleged violation, including those whose property rights and commercial interests are adversely affected by environmental regulation.
In making its case, the plaintiffs found backing in a friend-of-the-court brief written by Liebesman for the Nationwide Public Projects Coalition, a national organization of water supply and flood control agencies and municipalities.
Ultimately, the high court sided with economic interests, noting that while "[i]t is true that the plaintiffs here are seeking to prevent application of environmental restrictions rather than to implement them . . . the 'any person' formulation applies."
The unanimous decision allowed people, who contend they have suffered economic harm from the act's enforcement, to invoke the same law in accusing the federal government of doing too much to protect some species.
"This has been a tremendous sticking point in dealing with people who have resources on their land," said Henson Moore, president of the American Forest and Paper Association.
"This decision amounts to a major victory for property owners and public resource agencies that have been stymied in their efforts to challenge decisions by the Fish and Wildlife Service," said Liebesman.
"The Court was very strong on the point that property owners have just as much right to go to court as environmental groups," he added.