9th Circuit Court Surprise

[zyqwert]

The 9th Circuit Court of Appeals has a reputation as the most liberal federal appeals court and is regularly overturned. Environmental regulation is cited by libertarians as an attack on property rights from the left. So I was surprised by this ruling reported in today's San Jose Mercury News. The court said the Clean Water Act does not apply to some salt ponds around San Francisco Bay because they are not "navigable waters" (the constititional justification for the federal law).

I have used a recreation trail that goes through this land and I can say these waters are navigable only by seagulls. Somehow the court was able to recognize this obvious fact, even though it meant reducing the power of the federal government.

By undoing the government taking, this is quite a windfall for the Cargill corporation:

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In the government sale, an appraisal said Cargill's ponds were worth about $20,000 an acre because they couldn't be filled and developed under the Clean Water Act. But if its remaining lands can be developed, they could be worth $1 million an acre or more.

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Being a fan of property rights and a limited federal government, I consider this an excellent result. I imagine environmentalists hate this result since it reduces the land subject to the Clean Water Act.

links:
The Mercury News article
A 2005 libertarian critique of the Clean Water Act

[iron81]

The thing you have to recognize is that just because a court is identified as liberal doesn't mean all or even most of its rulings are bent in that direction. In this case, there is clear Supreme Court precedent on the matter: wetlands and other bodies of water that do not affect or feed to navigable (i.e. interstate) waters are not subject to federal wetlands laws. The judiciary is frankly not very partisan and usually judges only fall on their personal or political beliefs for very close cases.

[pokerbobo]

[ QUOTE ]
The thing you have to recognize is that just because a court is identified as liberal doesn't mean all or even most of its rulings are bent in that direction. In this case, there is clear Supreme Court precedent on the matter: wetlands and other bodies of water that do not affect or feed to navigable (i.e. interstate) waters are not subject to federal wetlands laws. The judiciary is frankly not very partisan and usually judges only fall on their personal or political beliefs for very close cases.

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Keep tellin yourself that.

[kniper]

[ QUOTE ]
[ QUOTE ]
The thing you have to recognize is that just because a court is identified as liberal doesn't mean all or even most of its rulings are bent in that direction. In this case, there is clear Supreme Court precedent on the matter: wetlands and other bodies of water that do not affect or feed to navigable (i.e. interstate) waters are not subject to federal wetlands laws. The judiciary is frankly not very partisan and usually judges only fall on their personal or political beliefs for very close cases.

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Keep tellin yourself that.

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I think that is right. It's a pretty big nono to fly in the face of obvious Supreme Court precedent. Cite a case where the 9th circuit directly went against a Supreme Court ruling?

[AngusThermopyle]

Now 'wetlands' are not navigable, but the 9th did not strike down the fact that the CWA applied to 'wetlands'. Or the fact that the EPA or Corps of Engineers could issue regulations adding further to the 'waters of the United States', beyond 'navigable' to non-navigable tributaries and wetlands.

The only thing the 3-judge panel said was that the pond in question was not a 'wetland'.

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Because we conclude that mere adjacency provides a basis for CWA coverage only when the relevant body is a "wetland," and no other reason for CWA coverage of Cargill's Pond is supported by evidence or is properly before us, we reverse the district court's summary judgement.


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And the "liberal" 9th sent the case back once already, saying the Migratory Bird Rule did not protect the Pond.

[zyqwert]

[ QUOTE ]
The thing you have to recognize is that just because a court is identified as liberal doesn't mean all or even most of its rulings are bent in that direction. In this case, there is clear Supreme Court precedent on the matter: wetlands and other bodies of water that do not affect or feed to navigable (i.e. interstate) waters are not subject to federal wetlands laws. The judiciary is frankly not very partisan and usually judges only fall on their personal or political beliefs for very close cases.

[/ QUOTE ][ QUOTE ]
The thing you have to recognize is that just because a court is identified as liberal doesn't mean all or even most of its rulings are bent in that direction. In this case, there is clear Supreme Court precedent on the matter: wetlands and other bodies of water that do not affect or feed to navigable (i.e. interstate) waters are not subject to federal wetlands laws.

[/ QUOTE ]

You've exposed my ignorance. I knew regulatory expansion of the definition of navigable waters had been an issue in the past, I did not know the supreme court had ruled against this in 2006. When I read the article, the result was a surprise to me. Now that I know the supreme court ruled recently, the 9th circuit respecting the precedent is not at all surprising.

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The judiciary is frankly not very partisan and usually judges only fall on their personal or political beliefs for very close cases.

[/ QUOTE ]

I'm naive enough to believe most federal judges attempt to follow the law and precedent.

However, today's supreme court justices start with the result they desire and work backwards to find the necessary "correct" legal interpretation. At least, that's what I took from the fascinating book "Closed Chambers".