![]() 1975) (“As a general rule, the use of a disjunctive … indicates alternatives and requires that they be treated separately.”). Under proper legal standards, however, these two inquiries must instead be undertaken separately. In other words, the BLM conflated two inquiries-merging together into one analysis its consideration of both the “derives from” question and the “furthers” question. construction thus effectively reads or to mean including, a definition foreign to any dictionary we know of. And in doing so, his interpretation would make § 1344’s second clause a mere subset of its first…. Yet would have us construe the two entirely distinct statutory phrases that the word or joins as containing an identical element. ![]() As we have recognized, that term’s ordinary use is almost always disjunctive, that is, the words it connects are to be given separate meanings. To read the next clause, following the word or, as somehow repeating that requirement, even while using different words, is to disregard what or customarily means. The BLM’s reasoning thus transmuted the word “or” (in the derived from or furthers test) into “including.” By doing so, the BLM elevated the disjunctive “derives from” consideration to the status of be all and end all, and exercised unsound reasoning of the same type that the Supreme Court of the United States castigated in Loughrin v. Rather than considering each of two alternatives disjunctively (i.e., looking first at whether the activity derived from railroad purposes and then separately at whether it furthers railroad purposes), the BLM created a new test-something akin to the federal courts’ sliding scale test for providing injunctive relief-in which the question of whether the proposed use “furthers” railroad operations was considered only conjunctively with consideration of whether the activity is “derived from” the railroad’s operations (which it was not). The BLM mishandled its application of this legal test. If the BLM were to revisit its determination with a proper grasp of the applicable legal principles, then the BLM’s decision will be reversed, and the Cadiz proposal may proceed without any need for the BLM’s approval.Ĭoncerning “conflating the disjunctive,” the basic legal test that governs whether the proposed use of the railroad right of way requires the BLM’s permission is whether the proposed project “derives from or furthers” the railroad’s purposes and-if it does, then no permission from the BLM is needed. They are: First, the BLM “conflated the disjunctive.” Second, the BLM failed to apply properly the “incidental use doctrine.” Third, the BLM failed to “construe liberally” the congressional purpose of railroad rights of way, which is to accommodate any and all activities that are in whole or in part for the utility or convenience of railroad operations. The BLM’s unfavorable conclusion is based on a series of legal errors explained below. The BLM, in the October 2nd Letter, concluded that the project’s proponents must secure the BLM’s formal permission to proceed, which would impose a significant delay for the agency study and decide the matter. The question is whether Cadiz and/or its railroad partner need to obtain the BLM’s permission before proceeding with their plans use of the railroad right of way. In doing so, the BLM mishandled the legal test that applies to the Cadiz project’s proposed use of the railroad right of way.īy way of background, Cadiz proposes to build a pipeline within a federally-granted railroad right of way to transport much-needed groundwater from its Mojave Desert source to the nearby Colorado Aqueduct for use elsewhere in Southern California. In it, the BLM opined that the proposed Cadiz Water Project in San Bernardino County (“Cadiz”) may not locate a water conveyance within a willing railroad’s 200′ wide federally-granted right of way unless the proponents first apply to the BLM for further study and federal permission. Department of Interior, Bureau of Land Management (the “BLM”), issued an “administrative determination” letter (the “ October 2 nd Letter”). ![]() On October 2, 2015, the California State Office of the U.S.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |