June 28, 2013 Weekly Round Up

**This article is not a substitute for the advice of an attorney.**

At the end of each week, I will provide you with a weekly round up detailing various news stories and court decisions that may be of interest.  This week, I have included a few of United States Supreme Court opinions that you have no doubt seen in the news (and one you may not have seen) and a couple of news stories that caught my attention.

This week, the United States Supreme Court released several opinions that will impact Texas or are related (at least tangentially) to agricultural issues.  Here are brief summaries of the major opinions from the week, along with a short synopsis of each.

supreme court

  • In Shelby County v. Holder, the Supreme Court held a portion of the 1965 Voting Rights Act was unconstitutional.  [Read the opinion here.]  Specifically, the Court found that Section 4 of the Act, which requires certain states–including Texas–to seek federal preclearance before modifying any voting practices was no longer necessary to remedy past discrimination.  Although the Court realized that the Voting Rights Act was necessary in the past, and that it helped to close the gap between white and minority voter registration, it noted that while times have changed, but the application of this law to 15 states has not.  Chief Justice John Roberts explained that, “[o]ur country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions[.]”  What does this mean for Texas?  That remains to be seen.  The Court invalidated Section 4, meaning that the preclearance requirement is not applicable to any state at this point.  The Court, however, indicated that Congress could re-evaluate and revise Section 4 to apply to necessary states based upon current conditions.  So, for now, the preclearance requirement cannot be applied to Texas (or any other state), but the potential for Congress to revise and reinstate the requirement still exists.


  • In Koontz v. St. Johns River Water Management, a local zoning authority denied Mr. Koontz’s permit application to develop a portion of his wetlands property in Florida, unless he agreed to spend money in order to improve public lands elsewhere.  The litigation concerned not whether the zoning authority could legally impose these conditions (a question that will be left to the trial court), but instead whether the so-called Nollan/Dolan nexis test applied to this case.  The Nollan/Dolan test requires that in order for a zoning board to impose conditions on the use of a person’s property, there must be a nexus and rough proportionality between the condition and the proposed use.  Normally, the conditions relate not to requiring payment of monies to improve other lands, but granting an easement on the land at issue.  In this case, the Supreme Court found that the Nollan/Dolan analysis applied to these circumstances, even though the permit was denied and the condition was monetary.  Essentially, this decision extended the reach of the Nollan/Dolan requirements.  So what does this mean for landowners?  When a zoning authority seeks to place conditions on a development permit, the Nollan/Dolan test applies to determine whether these conditions go too far, regardless of whether the permit was granted or denied, and regardless of the type of conditions sought by the zoning authority.  [Read the opinion here.]


  • In United States v. Windsor, the Court held that the federal Defense of Marriage Act (“DOMA”), which excluded same-sex couples from being considered married under federal law, was unconstitutional under the equal protection clause.  Interestingly, the facts of this opinion involved the federal estate tax, which is often an issue for farmers and ranchers.  Edith Windsor and Thea Spyer were married in Canada in 2007.  The marriage was recognized by their home state of New York, which allows same-sex marriages.  When Ms. Spyer died in 2009, she left her entire estate to Ms. Windsor.  Ms. Windsor sought to avoid paying federal estate taxes, arguing that the spousal exemption applied and such taxes were not applicable to Ms. Spyer’s estate.  This exemption provides that no estate taxes are owed when one spouse leaves assets to another.  The IRS refused to apply the exemption based on DOMA, and Ms. Windsor paid $636,053 in estate taxes.  She then filed this suit, challenging the constitutionality of DOMA.  The Court sided with Ms. Windsor, finding that where the State of New York recognized the marriage as legal, the federal DOMA statute, which did not allow the marriage to be considered valid under federal law, was unconstitutional.  The take-away?  The decision does not require states to recognize same-sex marriage as that issue was not before the Court.  The decision does, however, prohibit a federal statute from defining marriage as a man and a woman, in contradiction to a state law allowing same-sex unions.  As for the estate tax angle?  Ms. Windsor will be refunded the taxes that she paid, as the spousal exemption is now applicable.  [Read the opinion here.]


A couple of interesting news articles caught my eye this week.

  • A Duke University study claims that fracking has contaminated water in Pennsylvania.  Specifically, scientists claim that there are high levels of natural gas found in drinking water near drilling operations in the Marcellus Shale region.  The study claims that levels of methane in water near drilling sites were up to six times higher than levels in other areas.   [Full story here.]


  • Blue Mound residents claim that water bills have only increased since Governor Perry vetoed a bill that would have allowed the city to have control over its water system.   Currently, water for Blue Mound is owned by a private company, Monarch Energy.  Residents claim that water costs are excessive, in some instances three times the cost of water in nearby Ft. Worth.    [Full story here.]


  • Texas has the largest population of feral hogs in the United States, with hogs reported in all except for one county.  The Texas Department of Agriculture is seeking grant applications from counties seeking to control the feral hog population.     The deadline to apply for the TDA grants is July 1.  [Full story here.]

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