Last week a federal court in Kentucky held the attempt of the Kentucky Board of Examiners of Psychology to stop a North Carolina psychologist from publishing a newspaper column on parenting, something he has done for nearly forty years, to be unconstitutional.
According to the Kentucky bureaucrats, John Rosemond’s column placed the public at risk by offering parenting advice and mislead the public. How could a simple advice column be so problematic? The Board claimed that the advice was akin to practicing psychology, and the tagline to the column noted that Mr. Rosemond was a “family psychologist” when he was only licensed in North Carolina, not Kentucky. In response to the Board’s attempt to silence Mr. Rosemond, he sued, claiming his First Amendment free speech rights were violated.
This week marks the start of another exciting Supreme Court term. One of the biggest cases this year is Fisher v. University of Texas at Austin, now at the Court for the second time. Two years ago, the Supreme Court held that the Fifth Circuit’s review of the University’s race-based admissions policy was too deferential, and gave the circuit court a second chance to evaluate the policy under strict scrutiny, the most stringent standard in constitutional law. But the lower court just upheld the program a second time, and the Supreme Court once again took the case up for review.
Many believe that the Court will do now what it should have done two years ago: invalidate the University’s racial preferences on equal protection grounds. As you might expect, the prospect that Universities will no longer be allowed to use racial preferences has rattled the nerves of many who believe that Universities must be permitted to take race into account. A Huffington Post article yesterday accused the Roberts Court of playing the long game. The article suggests that the Court is using this case as part of a masterful plan to invalidate affirmative action programs at Harvard University and the University of North Carolina down the road.
In about a half an hour I’ll be talking with Armstong & Getty about lawsuit abuse, including the five class-action lawsuits now before the U.S. Supreme Court. You can listen online here.
Update: If you missed it earlier, you can listen to it here.
Last Friday I spoke at the Take Back Our Water rally in Mendota, California. The theme of almost every speaker on the dais was that the use of the Endangered Species Act to cut off water to Central Valley farms was an act of government that subordinated the good of thousands of individuals, families, and their communities to the putative benefit of a population of three inch fish that university biologists can and do grow by the thousands in a hatchery anyway.
My emphasis was on the fact that the federal courts have sanctioned the tragic events that have beset these communities by insisting that money-no-object wildlife protection is superior to every other government responsibility. I put it this way:
Almost from the beginning the ESA has been distorted by the decision in Tennessee Valley Authority v. Hill, which was the showdown between completion of the Tellico Dam and protections for a population of snail darters. In that case, the Supreme Court of the United States made the remarkable statement that through the ESA, Congress had made protection of wildlife the highest federal priority, no matter the cost.
Congress actually amended the ESA in response to TVA v. Hill, requiring the federal government to consider costs when it imposes limits on federal projects to protect endangered wildlife. But despite this, lower federal courts have continued to insist that wildlife protection trumps all other federal responsibilities, and that the human cost of protecting species like the delta smelt is not even to be looked into.
PLF will continue to challenge this revisionist reading of the ESA, until we are able to convince the Supreme Court to reverse TVA v. Hill, to restore balance and rationality to our nation’s wildlife protections, and return the proper protection of human needs to the top of government’s natural resource priorities. This fight takes time, expertise, and determination, but we are in it for the long haul. With the help of PLF’s supporters, we will win when the time comes.
When water is scarce, why does the federal government insist that food production is the last priority for it?
Several weeks ago, the New York Times ran a front page article about the Andy Johnson’s stock pond and the EPA compliance order threatening him with more than $16 million in fines. Here’s a taste:
The sun was sinking and the brook trout were biting, so Andy Johnson and his daughter Aspen, 6, stepped onto their sun-bleached pier, hooked some mealworms and cast their lines into the most infamous pond in the West.
It is just a splotch of placid water amid endless ripples of grazing land here in western Wyoming. But in the two years since Mr. Johnson dammed a small creek running through his front yard to create the pond, it has become an emblem for conservative groups and local governments that are fighting what Senator Michael B. Enzi called a “regulatory war” with the Obama administration over environmental issues ranging from water quality to gas drilling, coal power plants to sage grouse.
“It makes no sense whatsoever,” Mr. Johnson said, pointing at the waving grasses and birds pinwheeling around the water. “We have wetlands now. I really think the E.P.A. should be coming in and saying, ‘Good job.’”
You can read the rest here.
As you may recall, PLF has filed a lawsuit on Andy’s behalf challenging the compliance order. We argue that this heavy-handed compliance order, with its threat of ruinous fines, is illegal because Congress expressly exempted “stock ponds” from the reach of the Clean Water Act. EPA didn’t let that stop it from intruding thin this family’s life. This bullying makes even less sense when you take account of the fact that the pond is an environmental boon. It’s created wetlands, habitat for fish and wildlife, and cleans the water that passes through it.
Endangered species — Utah prairie dog
Oral argument was held this week in People for Ethical Treatment of Property Owners v. United States Fish & Wildlife Service, the case where we are challenging the right of the federal government to regulate the Utah prairie dog, a rodent that lives only in the State of Utah and which has no discernible impact on interstate commerce. You can listen to the full argument here or read more about the case on our blog here.
Endangered species — strict liability?
On behalf of a consortium of New Mexico ranchers and landowners, PLF attorneys moved to intervene in WildEarth Guardians v. United States Department of Justice. Traditionally, to be guilty of a crime, one must have knowingly committed the crime. For a number of years the Department of Justice has had the sensible policy not to prosecute folks who may have innocently taken an endangered species by accident. WildEarth Guardians thinks otherwise, it wants everybody prosecuted — even if there is a credible innocent mistake defense. We’ve intervened to protect the rights of citizens everywhere who might otherwise get caught up in a prosecution arising out innocently taking one of around 1500 species currently listed under the Endangered Species Act. This can be especially problematic when an endangered species resembles one that is not endangered. See our blog post for more.
Meaningful review of regulations in Florida
PLF attorneys filed this amicus brief in Halsnik v. Hillsborough County Public Transportation Commission in support of meaningful judicial review of the county’s restrictions on limousine businesses. Here, the County forbids limo drivers to negotiate Continue reading
Maybe the tragedy of Macbeth would have had a happier ending if the witches had opened their meetings to the public
The tragic figure Macbeth said, “Stars, hide your fires; Let not light see my black and deep desires.” Enlightened decisions don’t flourish in shadow. Likewise, good government means open government. As James Madison wrote, “a popular government, without popular information, or the means of acquiring it, is but a prologue to a Farce or a Tragedy or, perhaps, both.”
Sadly, the Supreme Court of Washington yesterday opted for tragedy by dealing a blow to transparency in government. Continue reading
Today, PLF urged the Florida’s Second District Court of Appeal to take up its duty to protect individual rights, and to enforce the state constitution’s protections for economic liberty.
Occupational licensing has run amok. As a White House Report recently detailed, nearly a third of Americans need a license to do their job legally. Though licensing laws are often explained as consumer health and safety measures—in reality, there is little evidence tying licensing to improved quality. Instead, by limiting competition, these laws drive up prices, and drive down the normal competitive pressures that lead businesses to innovate, to improve, or to otherwise respond to consumer demand. Not surprisingly, the White House Report found that the biggest factor in whether licensing exists in a given industry is not the degree of danger, or consumer demand for licensing laws, but instead the degree of influence of existing businesses. Incumbent businesses reap the benefits of depressed competition—and are therefore likely to lobby for licensing laws, at the expense of would-be entrepreneurs and the public at large.
PLF challenges restrictions on economic liberty—like anti-competitive licensing laws—in courts across the country. But as PLF knows all too well, it’s an uphill battle. Federal courts have become increasingly deferential to the legislature under what’s called the “rational basis” test, such that they will uphold restrictions on the right to earn a living if they can invent any possible reason why the legislature might have passed the law—even if such a guess is contradicted by evidence in the record.
The results can be ridiculous.
There’s an interesting issue lurking in PLF’s petition for review in Common Sense Alliance v. Growth Management Hearings Board: Is a conservation buffer an interest in real property?
Briefly about the case: Common Sense Alliance involves a challenge to San Juan County’s newly updated critical areas ordinance, which conditions the issuance of new land-use permits on shoreline properties upon the owners’ dedication of a significant portions of their land as conservation areas designed to mitigate for all pollution entering and crossing over the shoreline properties, including pollution/storm water caused by neighboring land uses (including public roads). Continue reading
Washington’s “growth management” approach to regulating land-use adjacent to environmentally sensitive areas relies almost exclusively on presumptions and generalizations—demanding that landowners dedicate oversized buffers based on assumed impacts rather than any actual determination that a proposed development will or will not result in negative impacts. That approach results in a conflict between a landowner’s right to the continued use of his or her property as a traditional shoreline residence (e.g., lawn, home, deck, access to beach) and the government’s desire to put their private property to use as an undisturbed natural vegetation area designed to enhance and restore the environment.
Over the years, PLF has championed the constitutional principal that government cannot compel land dedications as a mandatory condition on permit approvals without first demonstrating that the dedication is necessary to mitigate for some negative impact caused by the proposed development. PLF began writing the latest chapter in this ongoing struggle today, filing a petition for review with Washington’s Supreme Court in Common Sense Alliance v. Growth Management Hearings Board. Continue reading