The Key Deer Habitat Conservation Plan (HCP) is Invalid for Non-compliance with the Information Quality Act.

The Florida Key deer were listed as an endangered species in 1967. Since then, the herd has increased in numbers and the individual deer have become heavier and healthier today than they were in 1970. See Harveson, et al., "Impacts of urbanization on Florida Key deer behavior and population dynamics," 134 Biological Conservation 321-331 (2007), available at http://www.sciencedirect.com. Harveson, et al., concluded Key deer prefer urbanized habitat on Big Pine Key, and that, in 2003, they were 10% heavier than those living in 1973.

On July 9, 2006, the State of Florida and Monroe County, which includes the Florida Keys, obtained an "incidental take permit" (ITP) from the U.S. Fish & Wildlife Service (USF&WS), ostensibly to protect the Key deer and the Playboy bunny (Sylvilagus palustris hefneri) from the ravages of human civilization. The only "scientific" basis for the ITP is an April 2006 Habitat Conservation Plan (HCP), prepared by Monroe County and the State of Florida.

The HCP relies solely on a chapter on population viability analysis (PVA), that the HCP's authors apparently lifted directly from Dr. Roel Lopez's 2001 Ph.D. dissertation, "Population Ecology of Florida Key Deer," Texas A&M University 2001. PVA calculations have become popular with conservation biologists, in part because there are at least five "canned" computer programs that will spit out apparent "results" without any regard for their accuracy -- or lack thereof.

The consensus amongst the mathematically capable is that one cannot obtain reliable extinction probabilities unless one has collected 5 to 10 years of data for every year to be projected; i.e., to project survival probabilities 50 years in the future, one would need 250 to 500 years of field data on the species in question. (The answer is "no," he did not have adequate data to calculate a PVA.) Dr. Lopez's 50- and 100-year PVA projections are subject to such huge error ranges that the means (or medians, as in the dissertation) are meaningless. Ergo, we have a classic nonsensical theory, "garbage in, garbage out," and a herd of bureaucrats depriving thousands of humans of their land and fortune (though the Key deer thrive in a developed environment).

Fortunately, an obscure federal statute prohibits the use of "garbage in, garbage out" theories in federal programs. Sec. 515(a) of Pub. L. 106-554 (2001), requires all Federal agencies to develop policies and procedures for "ensuring and maximizing the quality, objectivity, utility, and integrity of information" produced by said agencies.

Sec. 515(a) is known as the "Information Quality Act (IQA)," or by some agencies, the "Data Quality Act (DQA)." As OMB stated in its Federal Register Notice on the IQA regulations, 67 Fed. Reg. 8452-60 (Feb 22, 2002), when scientific information (data and analytical results) is relied on by a federal agency, "the original and supporting data shall be generated, and the analytical results shall be developed, using sound statistical and research methods."

Data and analytical results must be subjected to "peer review." In the scientific community, peer review involves submitting one's research to a respected scientific journal, where a scientist-editor will select (usually three) reviewers who regularly publish papers in the same field as the paper to be reviewed, to critically review and comment on the submission. Comments flow back and forth among the author, the editor, and the reviewers, and the paper is ultimately either published, published as modified, or rejected.

By now you have figured out that Ph.D. dissertations (including mine, in 1969) are not "peer reviewed," and do not qualify as "good science" under the 2001 Information Quality Act. Dr. Lopez purposely broke his dissertation into discrete chapters, each of which could stand on its own. He submitted individual chapters to scientific journals for peer review and, hopefully, publication. From 2002 through 2006, according to his curriculum vitae, Dr. Lopez was the senior author on five peer reviewed papers on Key deer, and a co-author on eight more. To his credit, NOT ONE of these 13 peer-reviewed papers (that's a lot!) mentions the PVA in his dissertation. I assume Dr. Lopez recognized the weaknesses in his computer-driven PVA, and published his strength, rather than canned PVA numbers.

So what's next? A reasonable move would be a petition to the USF&WS to rescind the 2006 Incidental Take Permit. The Service's IQA rules require it to respond to such a petition within 90 days after receipt of a petition from an "affected person." The rules also provide for an internal appeal, submitted within 21 days of the initial decision, if petitioner is not satisfied with the Service's response. The appeal must be completed within 60 days. If a petitioner is not satisfied with that decision, he or she may bring an action, against the Service, in federal court.

Casitas Municipal Water District Revisited

On May 10, 2009, I wrote about the Federal Circuit's decision in Casitas Municipal Water District v. United States, where a local water district has successfully litigated a 5th Amendment taking claim against the United States for diverting water to provide a better life for endangered steelhead trout (and their human and wild predators, one may assume). I noted that the time to file a certiorari petition with the Supreme Court had not run. Well, that time has come and gone, and no petition was filed. The Solicitor General obtained two extensions of time to file the petition. The second extension expired July 17, 2009, and no petition was filed by the United States.

It should come as no surprise that endangered species litigation usually goes to the critters (although sometimes the plaintiffs' motives are suspect, and the public wins). I cannot recollect a taking case where the critters' keepers had to pay just compensation, but I can tick off many where the landowner had to grin and bear it. (Casitas is a physical taking case, so watch out.)

Casitas widens the open door for our class action on Big Pine and No Name Keys, where the Key deer and the Lower Keys marsh rabbits have been handed the keys to more than 1,000 vacant properties by none other than Monroe County, Florida. This confiscatory behavior extends to the rest of the Florida Keys, albeit with a less Draconian flair.

The Federal Circuit's 2-to-1 decision rests on a "physical taking" theory (water, of course), and former Chief Judge Mayer hammered on that point in his "dissent-in-part." Casitas will probably be most helpful in those situations where landowners cannot use any of their property -- thus establishing a Lucas-style categorical (or per-se) taking. What Casitas adds to landowners' quivers is the ability to strip away the mystique that some see when they hear the words "endangered species."

Reverse Endangered Species Act Claim

In a comedic regulatory taking "defense," government counsel opposing our client's regulatory taking claim in Galleon Bay Corp. v. Monroe County & the State of Florida, are attempting to pin the tail on the federal government donkey, arguing "the US Fish & Wildlife Service made us do it."

Most land use attorneys know the USF&WS abhors "regulatory taking" issues because it doesn't have the money to buy "regulatory condemned" property and, if it were to do so, the F&WS would pay for the property out of the agency's regular budget. That means salaries and overhead suffer if a taking claim occurred. So ... what is going on here?

Apparently, the Monroe County Attorney, Suzanne Hutton, and Florida's Attorney General (and gubernatorial candidate), Bill McCollum, never got it. We have been served with a motion to dismiss, based on those politicians' nonsensical theory that the USF&WS "took" the subject property (on No Name Key) by "requiring" the County and State to apply for an Incidental Take Permit ("ITP") for the widening and fencing of US-1 on Big Pine Key, in Monroe County, Florida (the Florida Keys).

Just to bring everyone up to speed, the Endangered Species Act (ESA, adopted in Richard Nixon's administration) places burdens on government, not private sector, activities that affect listed species. Private development activities are not subject to the ESA, but landowners can apply for an ITP if they are concerned about the survival of an endangered species after their project has been completed.

As no landowner is required to apply for an Incidental Take Permit (ITP), no ITP is required for a private developer to build homes on No Name Key -- which already has nearly 60 homes -- or anywhere else, for that matter. Thus, there is no federal law or regulation that requires owners of Galleon Bay lots to obtain an ITP. Monroe County and the State took it upon themselves to obtain an ITP for the hundreds of vacant lot owners on Big Pine and No Name Keys, for the sole purpose of acquiring those parcels at fire-sale prices.

Government Denied Review by Florida Supreme Court in Collins v Monroe County

Yesterday, the Florida Supreme Court denied the governments' petition for discretionary review in Collins, et al v. Monroe County & the State of Florida, 999 So. 2d 709 (2008), rev. denied (Fla. 7/16/2009). The governments' argument -- that Monroe County's Beneficial Use Determination administrative procedure did not trump prior Florida ripeness decisions of the 1st and 4th DCAs -- was without merit. The supreme court saw no conflict between the 3rd DCA's decision in Collins (BUD ripens) and the ripeness decisions in jurisdictions with no BUD (or similar) administrative process.

As Florida's "discretionary review" process is not an "appeal," the 90-day clock for appealing to the United States Supreme Court ran out on May 20, 2009.

The denial of review was rendered only 66 days after the last brief was filed -- which is 26 days quicker that the 92-day average for all review denials in the past 12 months. The result was hardly in doubt. Only 11% of 9,874 petitions for discretionary review were granted by the Florida Supreme Court in the 10 year period 1990-99, and there is no reason to believe anything has changed since the 1990's. If a horse in the Kentucky Derby had an 89% probability of success, a lot of people would bet on it. (Or maybe not, because the payout would be so low.)

As an aside, we note that the supreme court also awarded attorneys' fees to the plaintiffs (landowners).

They're Taking our Kodachrome Away

After a 74-year run, Kodak has decided to stop producing Kodachrome film. The only remaining processor of Kodachrome has announced it will process the film until the end of 2010. For me, Kodachrome is the benchmark upon which all color film -- and digital -- images will be measured. (Click here for a more detailed analysis of the Kodachrome phenomenon.)

Kodachromes, as the song goes, do not fade (or at least do not fade after 74 years), as do the other (E-6) "chromes." I have Kodachrome aerial photos of my oil spill adventures in the 1970's, as well as hundreds of Kodachromes that refuse to fade while their E-6 counterparts have faded into pastels of their former selves.

I have been stashing rolls of Kodachrome for the past year, anticipating this day, and hope to shoot some more photographs in our National Parks before time runs out. So, if you begin to see gaps in my blog coverages, they are most likely related to the December 2010 end of Kodachrome.

Oral argument in Condemnation Blight case

Oral argument was had Monday, June 22nd, in Key West, before Florida's Third District Court of Appeal, in the Condemnation Blight case of Florida DEP v. West, et al., that resulted in a $6.9 million judgment for two parcels that the state "quick-took" for $630,000 in 2004. (Details on MattsonLaw.com) The panel included Chief Judge Gersten and District Judges Suarez and Rothenberg. Judges Gersten and Suarez were on the panels in Collins v. Monroe County and Shands v City of Marathon one year ago (June 30, 2008). The Landowners prevailed in both Collins and Shands, and Judge Suarez signed both opinions.

It was obvious that Judge Rothenberg had read the briefs. She came out of the box at the State's attorney (for whom this was the first appeal he had ever briefed or argued) when he presented his theory that "this is not 'condemnation blight,' but was a regulatory taking in 1982." Judge Rothenberg punctured the State's balloon when she referred to the holding in Tahoe-Sierra -- that moratoria are "temporary takings," and that temporary takings do not accrue until they end. So much for the State's statute of limitations theory.

The West case is a superb example of condemnation blight. We thank Gideon Kanner for his life's work in this area. Most Florida Keys condemnation cases have been "lightly defended" by mainland Florida eminent domain lawyers (with one major exception, Doug Halsey), who had no clue what happened from 1982 forward. However, as Senior District Judge Alan Schwartz said in one of our oral arguments several years ago, "the courts don't exist to protect people from the use of their pens." We realize most owners of condemned Florida Keys properties could have used the condemnation blight strategy we used in this case, but their attorneys were unfamiliar with the facts on the ground.

Chief Judge Gersten asked both sides if they considered the State's theory of the case "fair." My response is obvious. The State's response was "I will not say this is fair, but we are governed by laws."

One of those laws is the Fifth Amendment to the United States Constitution, and that "law" requires the government to act in a fair and equitable manner when it condemns property (or does anything else). Keep checking back to learn how this comes out. The Third District Court of Appeal releases its decisions on Wednesdays, at about 10:30 AM.