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On July 7, the U.S. District Court for Alaska decided the case of Castle Mountain Coalition, et al., v. Office of Surface Mining Reclamation and Enforcement, alaskaholding that a mining permit issued under the Surface Mining Control and Reclamation Act (SMCRA) is terminated by operation of law if the mining activities authorized by the permit have not commenced within three years of the date of issuance, unless an authorized extension has been granted pursuant to the SMCRA. In this case, since no extension was granted after the first extension, the Court concluded that mining operations on the Wishbone Hill Coal Project that finally commenced many years later are not permitted. In so ruling, the Court rejected the argument of Office of Surface Mining Reclamation and Enforcement (OSM), an agency of the Department of the Interior, that SMCRA does not require the permit to be terminated if no special termination proceedings have been initiated, and vacated the OSM determination.

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On July 8, the Illinois Supreme Court, in Hampton, et al., v. Metropolitan Water Reclamation District of Greater Chicago, floodheld that temporary flooding of the plaintiffs’ residential properties located in the Chicago area can be the subject of a “taking” for which they may be entitled to just compensation under the Illinois Constitution. Following very heavy rains in July 2010, the Metropolitan Water Reclamation District of Greater Chicago allegedly diverted storm water to nearby creeks and took other actions which exacerbated local flooding conditions. The lower court, relying on Illinois case law, held that Illinois does not recognize a takings claim based on temporary flooding. However, the plaintiffs argued that the United States Supreme Court’s 2012 decision in Arkansas Game and Fish Commission v. United States, which held that temporary flooding can constitute a “taking” under the federal constitution must be acknowledged.

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Anyone doing international construction work knows that the U.S. Securities and Exchange Commission’s (SEC) has been continually increasing its Foreign Corrupt Practices Act (FCPA) focus on U.S. companies doing business overseas. Here’s the latest: Recently my colleagues William Sullivan and Reza Zarghamee  wrote an interesting pieceenergy, New SEC Payment Disclosure Rules Raise FCPA Concerns for Energy Companies, on the SEC June 27, 2016 announcement that it had adopted final rules requiring public disclosure, among other things, of certain payments made to foreign governments by resource extraction issuers in connection with the commercial development of oil, gas and mineral rights. These disclosure requirements are expected to raise FCPA enforcement concerns for energy companies, as both the SEC and the U.S. Department of Justice will scrutinize this information for cause to open parallel investigations and potentially pursue issuers for alleged FCPA violations.

Photo:  Sean MacEntee, energy, Taken May 19, 2010 – Creative Commons

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The issue of the relentless growth and penetration of administrative law remains a compelling topic for those operating in heavily regulated industries like the construction industry. Chris DeMuth, a Fellow at the Hudson Institute, recently wrote Can the Administrative State be Tamed?, an interesting essay in which Demuth provides his perspective on this topic. The administrative state has continued its inexorable growth regardless of whether the President is a Democrat or a Republican. Demuth’s essay was recently published in the Journal of Legal Analysis. It does not address last year’s King v. Burwell decision of the U.S. Supreme Court, which held that some legislation is too fundamentally important to give an agency “Chevron Deference” when it interprets the law it is implementing, but it does mention a Department of Agriculture regulation requiring magicians using rabbits in their acts to prepare and submit to the appropriate authorities a disaster response and contingency plan.

Additional Source: Complexities of Administrative State Lead to Win for Regulated Community

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offshoreOn July 5, the U.S. Court of Appeals for the DC Circuit, in Public Employees for Environmental Responsibility v. Hopper, Acting Director of the U.S. Bureau of Ocean Energy Management, reviewed the District Court’s dismissal of a lawsuit alleging that the Government’s approval of a Cape Cod offshore wind energy project violated several environmental statutes. The Court of Appeals held that the National Environmental Policy Act (NEPA) finding made by the primary permitting agency, the U.S. Bureau of Ocean Energy Management (Bureau), did not take a sufficiently “hard look” at the proffered geophysical evidence, and that an Endangered Species Act (ESA) “incidental take” determination must be set aside because the U.S. Fish and Wildlife Service should have considered the submissions of the plaintiffs. Otherwise, the Court of Appeals was satisfied with the project’s compliance with the other permitting and development requirements. The Court of Appeals notes that “[o]ffshore energy providers like Cape Wind must comply with a slew of federal statutes designed to protect the environment, promote public safety, and preserve historic and archeological resources on the outer continental shelf.”

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On July 5, the U.S. Court of Appeals for the District of Columbia Circuit issued an important ruling interpreting the reach ofemail. the federal Freedom of Information Act (FOIA) in the case of Competitive Enterprise Institute v. Office of Science and Technology Policy. The Office is located in the Executive Branch, and it has been engaged in a long-running dispute with the Competitive Enterprise Institute (CEI) with respect to a short, two-minute video released by the Director of the Office, John Holdren. In the instant action, the Court of Appeals reviewed the CEI’s attempts to obtain the records of the Director found in emails sent to or from the Director’s private, non-governmental email account.

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My colleague Mark Elliott, in Open Wide: FOIA Reform Expands Public Access to U.S. Government Information, discusses the bipartisan Freedom of Information Improvement Act of 2016 (S. 337) foiasigned into law by President Obama’s on June 30. The bill’s most notably requirement is that the government operate under a “presumption of openness” and help protect the public from government secrecy. Its goal otherwise is to make it more difficult for agency officials to withhold government records sought under the Freedom of Information Act (aka FOIA).

Photo: J. Albert Bowden II, Keep Calm and Use FOIA, Taken April 1, 2014 – Creative Commons

 

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This decision is reminiscent of a fairytale about a princess and her frog prince and the croaking chorus of the Frogs of Aristophane. frogOn June 30, the U.S. Court of Appeals for the Fifth Circuit issued a significant ruling involving critical habitat designations on private land. The case was decided on a 2 to 1 vote, with Judge Owen providing a strong dissent. The majority was at pains to state that “critical habitat designations do not transform private land into wildlife refuges.” Nevertheless, the extension of the Endangered Species Act (ESA) to this private land may conceivably have federal permitting consequences later if the future development of the land triggers Clean water Act considerations.

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Volume One of the U.S. Code Annotated publishes the Organic Laws of the United States of America, and this collection declaration-300x197begins with the Declaration of Independence. On the 4th of July, 1776, the Declaration of Independence was agreed to, engrossed on paper, signed by John Hancock as president of the Continental Congress, and the Declaration was circulated and directed to be proclaimed in each of the United States. Today, the United States is the oldest constitutional democracy, and the form of government we enjoy is still vigorous, practical, argumentative, and the envy of the world. Self- governance has always been difficult, and there is no reason to think that the future will make any fewer demands on the citizens of our Great Country than it did in the past. Happy 4th of July weekend everyone!

Photo: conservativemajority, Declaration of Independence by John Trumbull, Taken on April 26, 2010 – Creative commons

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Recent  Department of Labor (DOL) rulemaking proceedings and compliance letters have been successfully challenged in the federal courts. These cases are important because the work of the DOL, in enforcing and interpreting the law, is of fundamental importance to both employers and employees and their counsel. A few days ago, the U.S. Court of Appeals for the DC Circuit, in Rhea Lana, Inc., et al., v. Department of Labor, held that a “DOL “warning letter” was a final agency action that could be reviewed by the federal courts, and the U.S. Supreme Court, in Encino Motorcars, LLC v. Navarro, held that a Fair Labor Standards Act interpretive rule was not entitled to Chevron deference. Now, the new “persuader rule” subjecting the advice that attorneys provide employers to new reporting requirements appears to be inconsistent with the basic statutory framework according to two new rulings by federal district courts.

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