Landowners can sue when property values are lowered by
regulations
By Paul Rovella
Lombardo
&
amp; Gilles
One of the first questions an attorney considers when meeting
with a potential litigation client is whether or not the potential
client has the right to sue. This is what lawyers call,
”
standing.
”
The standing requirements differ depending on the type of
dispute and desired venue. Federal Courts may only hear
”
cases
”
and
”
controversies.
”
The Supreme Court of the United States has determined that in
order to establish standing under the Federal Constitution, a
litigant must prove three things: 1) an injury-in-fact or
”
concrete and particularized
”
and
”
actual or imminent
”
hard to a legally protected right; 2) a causal connection
between the injury and the conduct of defendant; and 3) the
likelihood that a favorable decision will redress the injury. Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).
Landowners can sue when property values are lowered by regulations
By Paul Rovella
Lombardo & Gilles
One of the first questions an attorney considers when meeting with a potential litigation client is whether or not the potential client has the right to sue. This is what lawyers call, “standing.” The standing requirements differ depending on the type of dispute and desired venue. Federal Courts may only hear “cases” and “controversies.” The Supreme Court of the United States has determined that in order to establish standing under the Federal Constitution, a litigant must prove three things: 1) an injury-in-fact or “concrete and particularized” and “actual or imminent” hard to a legally protected right; 2) a causal connection between the injury and the conduct of defendant; and 3) the likelihood that a favorable decision will redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).
In the 2011 case of Barnum Timber Co. v. U.S. E.P.A. et al. (2011) 2011 WL 383012, the Ninth Circuit Court of Appeals rendered an important decision that could have far reaching impacts on local environmentally-based claims. At the trial level, the court dismissed the Barnum Timber claims because the trial court felt that a decrease in property value attributable to the EPA’s listing of Redwood Creek as an impaired water body under Section 303(d) of the Clean Water Act, 33 U.S.C. §1313(d) was not sufficient to satisfy federal standing requirements and dismissed the case. Barnum Timber appealed the dismissal and the Ninth Circuit disagreed and reversed the trial court’s decision.
To meet the injury and causal connection requirements, Barnum Timber submitted two opinions from forestry experts concluding that the value of the property in question, which was in the Redwood Creek watershed, was diminished as a result of the 303(d) listing. The Ninth Circuit Court concluded that the expert opinions were sufficient to meet the first two standing requirements. The Ninth Circuit also concluded that a declaratory judgment and injunctive relieve (to stop or reverse the listing) would redress the injury of the 303(d) listing and repair the diminished property value, thereby satisfying the third standing requirement.
It is important to note that the appellate court merely addressed the standing issue, it did not decide on the merits of Barnum’s claims. However, this decision could prove important to Central Coast farmers, ranchers, and landowners who face a multitude of regulatory changes in 2011 that could negatively impact the value of their property. For example, the Central Coast Regional Water Quality Control Board is considering adopting an ag waiver program for the monitoring and treatment of surface and groundwater on and under lands that are in commercial agricultural production. Among other mandates, the staff’s proposal would require landowners and/or tenants with commercial agricultural operations on land in the vicinity of impaired waterways (e.g., the Pajaro and Salinas Rivers) to monitor and treat surface water and groundwater on or under their land to better than naturally occurring standards. Compliance would likely be cost prohibitive resulting in the fallowing of large tracts of otherwise productive farmland. This would most certainly have a negative impact on land values.
It will be interesting to track the trial court’s resolution of the Barnum Timber case. Depending on the outcome, the Barnum Timber case will have an impact on how Central Coast agricultural landowners and tenants will react to these new environmental regulations.
This column is the work product of Lombardo & Gilles, LLP, which has offices in Hollister, Chowchilla, and Salinas. Paul Rovella is an attorney with Lombardo & Gilles, LLP. You may contact the author at (831) 630-1722 or pa**@lo****.com. Mail your questions to Paul Rovella, It’s the Law, c/o The Pinnacle, 350 Sixth St., Ste. 102, Hollister, CA 95023.
