What interest would an environmental group have in battlefied preservation?

The obvious answer is none.

Unless you’re a judge on the D.C. Circuit. Then it has a legally protected interest in having land listed as a historic battlefield in order to shut down any visible productive use of that private property.

As Judge Sentelle explained in dissent, this radically expands access to the courts.

It is true, as the majority states, that [cases] may support a generalization that “injury in fact can be found when a defendant adversely affects a plaintiff’s enjoyment of flora or fauna.” Nonetheless, none of these cases would lead me to suppose that my neighbor has a legally protected right that I have invaded when I trim the grass and behead the clovers, which he enjoys viewing. As the the majority recognizes, “the [environmental group] puts forward no evidence that its members … possess any legal entitlement to set foot on the privately owned property.”

We should call the rule announced by the majority “if you can see it, you can sue it.”

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Labor day and the right to earn a living

Most everyone who sees suffering wishes they could do something about it, but often times this sympathetic impulse leads people to jump to quick fix policies without thinking about the consequences.

Take for example, the minimum wage.

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President’s weekly report — August 29, 2014

Property Rights — double-secret easements in Hobe Sound

Like the fictional Delta House double secret probation, the Flash Beach Grill in Hobe Sound, Florida, finds itself subject to a secret unrecorded conservation easement.  Unbeknownst to Robert and Anita Breinig, when they purchased land for their restaurant that land was allegedly burdened by a secret unrecorded conservation easement that a prior owner, two owners back, had supposedly agreed to and which the county never bothered to record.  No title search could have discovered the easement.  There were no signs on the property noticing the easement.  It was a secret from the public, absent from the recorder’s office, and known, apparently, only to the keeper of some obscure maps in the planning department. But now the County is threatening to enforce the easement with huge fines (up to $1000 per day) solely because the Breinigs are trying to use their own property for their restaurant.  As explained in more detail in our blog here, Martin County should have recorded the easement so subsequent buyers of the property would be on notice of its existence. That’s the law in Florida: easements must be recorded.    And without that recorded notice, the easement cannot be enforced.  The restaurant isn’t breaking the rules, the county is. We filed this complaint in Breinig v. Martin County seeking to put an end to such Animal House worthy double-secret easements.  You can also listen to our podcast on the case here.

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More Endangered Species Act problems …

Over at the Reason Foundation website, Brian Seasholes has an interesting post underscoring conflicting environmental policies under the Endangered Species Act and highlighting our gopher frog case. The article is entitled The Endangered Species Act Hits Affluent Maryland Suburb of the Nation’s Capitol and People are Furious. It starts with this provocative intro:

Newsflash! The Endangered Species Act is very powerful law used by special interests to stop development projects and use of natural resources they don’t like. Actually, that’s old news to large portions of America that have suffered under the Act for decades, such as the Pacific Northwest, California’s Central Valley, much of Texas, and huge swaths of the South and Southwest.

But it’s new news for one of the unlikeliest places imaginable: Chevy Chase, Maryland—the wealthy and ostentatiously “green” town that abuts Washington, D.C …

Debate about the Endangered Species Act is heating up nationwide and this is an example of why. You can read the full post here.

New Hampshire school choice victory

This morning, the New Hampshire Supreme Court upheld the state’s landmark Education Tax Credit Program. The Program allows businesses to claim a tax credit on their tax bill for donations to tuition scholarship organizations approved by the state. Those organizations, in turn, provide scholarships to low-income students to attend public or private schools of their choice.  The private tuition organizations can award scholarships to either secular or sectarian schools. Plaintiffs, represented by the ACLU and Americans United for Separation of Church and State, argued that the Program violated the New Hampshire Constitution, because private organizations could give scholarships to religious schools. The trial court agreed, and struck down the Program. As a result of the trial court’s ruling, businesses were forced to take back money that they had donated to give kids education scholarships. Continue reading

Florida county ignores entrepreneurs’ property rights and hundreds of years of law


Robert and Anita Breinig

If you’ve ever bought a house or piece of land, you probably paid for a title search and title insurance.  A title search makes sure that the seller actually owns the property, free from any undisclosed liens or other third-party interests. Title insurance protects you from the financial loss that could accompany any interests that the title search overlooks.  You are only able to afford title insurance, because the law has long protected innocent buyers from unrecorded interests that would not show up in a site inspection.  The basic rules are simple and accepted across the country: if you record your property interest with the county clerk, then it is still good against a subsequent buyer.  If you don’t record your property interest, then you can lose it to an innocent buyer.

The rule is the same in Florida.  But one Florida county thinks that it is above the law.  In the process, it has threatened the dream and livelihood of entrepreneurs Robert and Anita Breinig.
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Siskiyou County seeks high court review of groundwater decision

Last month, the Sacramento Superior Court issued a decision in Environmental Law Foundation v. State Water Resources Control Board, holding among other things that Siskiyou County cannot issue any new well permits unless it assesses the impacts of new groundwater withdrawals on the Scott River.  The decision is the first of a California court holding that the common law public trust doctrine extends, under any circumstance, to groundwater extraction.

This week, the County filed an original writ in the California Supreme Court asking for immediate review of the trial court’s decision.  Although such direct review is generally not granted, the California Supreme Court has often agreed to such review of cases presenting issues concerning water rights and the public trust doctrine (for example, such review was granted in the Court’s leading public trust doctrine decision, National Audubon Society v. Superior Court).  For the high court to address and definitively resolve the public trust doctrine’s relationship to groundwater would undoubtedly have a significant impact on the Legislature’s debate over whether to enact a new regulatory regime for groundwater extraction.

PLF’s Timothy Sandefur talks with Armstrong & Getty about property rights and the right to earn a living

I’ll be joining Armstrong & Getty in studio today at 7 am to talk about PLF’s lawsuit against San Francisco’s ransom demand for property owners, and Nebraska’s effort to force “for sale by owner” advertisers to get real estate broker licenses.

Update: If you missed it, you can listen to the podcast here.

Illinois politicians impose a “corruption tax”

It has been said that Illinois is plagued by unbridled corruption.  Almost 90 percent of Illinois voters agree.  After all, four of the past seven Illinois governors have been convicted and sentenced to prison.  So who pays for the numerous criminal dealings of crooked politicians?  Taxpayers.  One recent study estimates that the cost of unnecessary government projects and programs translates into a “corruption tax” of $1,308 per person in Illinois.

Most corruption occurs where big money is at stake, such as on large construction projects with multi-million dollar price tags.  One state agency that oversees large construction projects is the Illinois Department of Transportation, or IDOT.  Last month the head of IDOT resigned.  Why?  Recently, a report by the state’s Executive Inspector General concluded that IDOT has been hiring employees based on their political affiliations.  While it may be acceptable for an administration to make cabinet and other key staff appointments on the basis of political affiliation in the interest of loyalty, all other public employees must be selected fairly on the basis of merit.  In fact, the Supreme Court holds that filling non-political positions based on party affiliation violates an individual’s First Amendment rights.

IDOT’s problems go beyond alleged hiring misconduct.  It is also accused of enforcing a race-based contracting program in a discriminatory manner to gain popularity for the governor, rather than as a narrowly tailored remedy for discrimination.

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