PLF files amicus brief in the Oswego Lake public access lawsuit

Today, PLF attorneys filed an amicus brief with the Oregon Court of Appeals in Kramer v. City of Lake Oswego—a case in which two public access activists argue that the “public trust doctrine” should be extended to create easements across dry, upland property so that the public can gain access “to . . . navigable waters throughout the State or Oregon, including the Lake, . . . regardless of ownership.”

The public trust doctrine is an ancient legal doctrine that recognizes that certain waters must remain open to the public for commerce, navigation, fishing, and related activities. Historically, the doctrine operated as a limitation on the sovereign’s authority to transfer its interest in submerged or submersible lands into exclusive private ownership—while the property could be sold, the sovereign was required to retain the right to use the waters in trust for the public.

Over the past several decades, activists have convinced courts to expanded the doctrine to include recreational and environmental rights in trust waters. But, even though the purposes of the trust have been enlarged, its scope has largely remained fixed. A vast majority of courts have held that any public rights established by the doctrine end at the water’s edge—the doctrine does not give the public a right to use private, upland properties. However, a pair of public access activists—supported by a cabal of progressive law school professors—are asking the Oregon Court of Appeals to change that time-honored rule. The activists and law professors are not only arguing that the public trust requires the government to provide the public with recreational rights in Oswego Lake, a private, man-made lake, but they are also arguing that the doctrine establishes a right to cross over private property to access the private lake.

But, as argued in PLF’s amicus curiae brief, the rule proposed by the activists would effect a radical expansion of the public trust doctrine, and would rewrite the State’s common law system of property ownership. Indeed, over a century ago, the Oregon Supreme Court held that the public trust doctrine provides no right of access across upland properties—such a right can only be secured by the exercise of the State’s eminent domain powers and payment of just compensation.


Appeals court rejects Coastal Commission plea to reconsider case

On November 12, we reported that the California Coastal Commission had asked the Court of Appeal to reconsider (for a third time!) its decision and rule in the Commission’s favor.  Last week, we filed an answer to the Commission’s petition for rehearing, explaining why the Court need not rehear the appeal.  We are pleased to report that, today, the Court of Appeal denied the Commission’s petition and allowed its decision striking down the Commission’s extortionate easement exaction to stand and become final.

The Commission may try to petition the California Supreme Court for review.  But the odds of review of the Court of Appeal’s decision are remote.  This is especially true, given how the decision simply applies well-established principles and existing precedents.


Can courts dismiss “rational basis” cases without hearing evidence?

My latest law review article is available in the new issue of the George Mason U. Civil Rights Law Journal. Entitled “Rational Basis and The 12(b)(6) Motion: An Unnecessary ‘Perplexity,’” the article tries to resolve the confusion that some courts have expressed about how to resolve a motion to dismiss when the lawsuit alleges a constitutional claim subject to the “rational basis” test. That test says that the plaintiff must disprove every plausible justification for the law—yet courts aren’t supposed to dismiss a case unless the plaintiff can’t possibly prove facts that would plausibly entitle him or her to relief. How do you reconcile the pro-plaintiff 12(b)(6) standard and the pro-defendant rational basis standard?

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Who can prevent wildfires?

Smokey the Bear isn’t telling the whole story — you’re not the only one who can prevent wildfires. The National Forest Service can help, too. But if environmentalists have their way, the Service’s fire prevention efforts will suffer. Continue reading


President’s weekly report — November 21, 2014

Economic Liberty Project

The State of Florida moved to dismiss our lawsuit on behalf of The Crafted Keg, which seeks to overturn Florida’s irrational ban on 64-ounce beer growlers.  The motion argues, among other things, that the law does not violate our client’s due-process or equal-protection rights.  You can read more about the case at this blog post. Continue reading


Tort law remains a mess in Pennsylvania

Pity the Pennsylvania lawyers who practice tort law.  Or, pity their clients, who will be billed for their attorneys’ time spent reading the Pennsylvania Supreme Court’s 136-page magnum opus on strict liability law, issued yesterday in the form of a 4-2 opinion deciding Tincher v. Omega Flex, Inc.  A bloated law review article masquerading as a judicial opinion, Tincher covers the entire history of tort law in Pennsylvania, an exhaustive review of the history of this particular case, including what each side argued at every level of litigation, general musings about the functions of the American Law Institute, which publishes the Restatement of Products Liability, and, eventually, a decision of sorts.

After the longest possible wind-up, the pitch itself only just grazes the strike zone.  The court refuses to announce a categorical rule.  After cataloguing its previous decisions that failed to provide clarity or justice in the law, the court is, perhaps, understandably gun-shy in trying anew to establish a clear rule for strict liability:

[C]ourts do not try the “typical” products case exclusively and a principle of the common law must permit just application to myriad factual circumstances that are beyond our power to conceive.  Circumstances like product diversity, general uncertainties inherent in the creative process, difficulties in recreating the design process, difficulties in the discovery process, to name just a few, may contribute to whether cases other than the typical case will generate a dispute and resulting decisional precedent. 

In a nutshell, tort law is hard.  Agreed.  But as Pacific Legal Foundation argued in its amicus brief, the court should have simply adopted Section 2 of the Third Restatement of Products Liability, which defines a “design defect”  such that a manufacturer is liable for harm caused by its product only if the product’s risk of harm could have been reduced by use of a reasonable alternative design.  Fearing a bright-line rule of any sort, the court declined to adopt Section 2.  However, it did overrule an earlier case, Azzarello v. Black Bros. Co., that had resulted in strict liability in name, negligence in theory, and absolute liability in practice, recognizing that it was “impracticable and inconsistent.”

Two justices concurred in the “long overdue overruling” of Azzarello, and dissented as to the rest of the opinion, arguing instead that the court should have adopted Section 2.  All in two succinct, straightforward paragraphs.

How all this will play out in future cases in Pennsylvania is anyone’s guess.  As the court notes at the end, “This Opinion does not purport to either approve or disapprove prior decisional law, or available alternatives suggested by commentators or the Restatements, relating to foundational or subsidiary considerations and consequences of our explicit holdings.”   Such a decision does lasting harm to certainty in the law, to the detriment not only to lawyers who must attempt to counsel clients, and lower courts that must decide cases, but also to the state’s economy.  Certainty promotes business innovation and development by letting companies know what they can and cannot do  Certainty avoids the costs of lawyers and consultants who must interpret, clarify, explain, and advise manufacturers about the potential liabilities that follow every business decision.  Without predictable liability costs, Pennsylvania business are rendered less competitive.  Having failed to bring clarity and coherence to design defect liability in Pennsylvania, the state’s supreme court failed its individual and business citizens as well as the legal community that serves them.

Many thanks to Mark Jakubik, our local counsel who assisted with the filing our PLF’s brief.


Amicus support for PLF’s Delta smelt cert petition

PLF’s cert petition in Stewart & Jasper Orchards v. Jewell, which seeks review of the Ninth Circuit’s decision upholding the Delta-smelt-inspired water cutbacks to Southern California and the San Joaquin Valley, has received significant amicus curiae support.  Our thanks to the American Farm Bureau Federation, the California Farm Bureau Federation, Farm Credit West, the National Federation of Independent Business, the Cato Institute, Mountain States Legal Foundation, and the American Civil Rights Union for their briefs filed earlier this month.  The government’s response to our petition is due December 3.


Florida growls back at PLF

Yesterday, the State of Florida filed its response to Pacific Legal Foundation‘s lawsuit IMG_2171on behalf of the Crafted Keg. In that suit, PLF seeks to overturn Florida’s irrational ban on 64-ounce beer growlers. Not surprisingly, the government has moved to dismiss the case, once again reflecting that governments rarely meet a PLF case that they like.

That’s okay. Like most Americans, we don’t like governments when they overreach their constitutional authority, either.

We look forward to arguing to the district court that the state’s growler prohibition is unconstitutional. We will premise our argument in part on a point we made in the pages of the Orlando Sentinel earlier this week:

Economic freedom—the right to earn a living by running a business free from unreasonable interference by the government—is one of the central elements of the American dream. From the very founding of the country, Americans have cherished the opportunity to start a business, provide for themselves and their families, and make their customers happy and their communities strong.

Arbitrary restrictions on economic freedom, like Florida’s senseless growler ban, deprive entrepreneurs of the freedom of choice guaranteed by the Constitution.

Or, as our clients explained in that same op-ed:

“We want to give everyone great service, but the growler restrictions are a barrier,” Piasecki says. He adds that the case isn’t just about their own business. “It’s for the principle of the thing. It’s about freedom and free enterprise.”

Thanks to the Orlando Sentinel for publishing our op-ed. And thanks to radio host Zeb Bell, who asked PLF to discuss its growler lawsuit on his popular radio show this past Monday. You can hear (and watch) that interview at this link.

Update: Please look for PLF and Guy Piasecki of The Crafted Keg discussing the case later today at about 8:30 a.m. on the CBS This Morning program. Check your CBS affiliates.

Second Update: Because of late-breaking news this morning, the story was bumped “at the last minute.” When we have a new run-date, we will share.


Elite universities sued over race-based admissions

Yesterday, Harvard University and the University of North Carolina were sued over their race-based admissions practices. The complaints (here and here) describe, in detail, the divisive use of race at both universities.

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“Tim the Lawyer” talks with A&G about PLF’s victories for property rights & constitutional liberty

I joined our friends on the Armstrong & Getty Show this morning to talk about PLF’s recent victories in the Utah prairie dog case and the SDS Family Trust case against the Coastal Commission, as well as our ongoing challenges to Obamacare. If you missed it, you can listen to the podcast here.