Weekly litigation report — April 29, 2017

  • Supreme Court requests further briefing in affordable housing case
  • Victory in Anaheim parent-trigger case
  • Brief opposing EPA regulatory overkill
  • Senate hearing addresses PLF wetlands case
  • WOTUS at SCOTUS
  • Wolf Releases Revived

Supreme Court requests further briefing in affordable housing case

At least some of the justices at the Supreme Court are interested enough in our challenge to West Hollywood’s affordable housing mandate (aka “inclusionary zoning” exaction) to ask the City to file a brief. This is the case, 616 Croft Avenue v. City of West Hollywood, where the City is demanding a couple to pay $540,000 in exchange for a permit to replace two homes with an 11-unit condominium project. Because building a net of nine new housing units should serve to increase supply, we think the City’s demand has nothing to do remedying any impacts caused by the development and everything to do with the city’s attempt to treat development permits like ATM machines. We received quite a bit of amicus support and are heartened that the Court has taken enough interest to ask for more briefing. For more, see our blog post here.

Victory in Anaheim parent-trigger case Continue reading

Concerns over Duarte case remain for US Senators

On Wednesday of this week, the Senate Committee on Environment and Public Works held a hearing on the legal and technical flaws in the Obama Administration’s 2015 WOTUS definition.* During the hearing, Sen. Ernst (R – IA) asked panelist and Wisconsin Solicitor General Misha Tseytlin about the Duarte Nursery case. Tseytlin agreed that he was familiar with the case, and that a farmer being prosecuted under the Clean Water Act merely for plowing a field was a large reason that both the Wisconsin and American Farm Bureaus oppose the 2015 WOTUS definition. Senator Ernst focused on the Army Corps’ absurd argument that plowing causes “mini mountain ranges” and quipped that under that view, Iowa may be the most mountainous stated in the Union. You can watch Senator Ernst’s exchange with the panelists here:

*”Waters of the United States.” The 2015 regulation expanding this definition to vast areas of dry land, including farm land, is currently stayed by the Sixth Circuit of appeal in litigation brought by Pacific Legal Foundation and others.

Victory in Anaheim parent trigger law case

A little over a year ago we wrote about a maddening case in Anaheim, California. In 2015, a group of elementary school parents sought to take advantage of California’s Parent Empowerment Act (the “parent trigger”) to force the Anaheim City School District to convert their children’s continually failing school into an independently operated charter school. After the parents gathered the necessary signatures for a petition and submitted the documents to the school district, the district claimed that the law didn’t apply that year due to a temporary one-year waiver that California schools had received from reporting the relevant performance (or lack thereof) measures to the federal Department of Education. In other words, according to the school, it was only a failing school (and subject to the parent trigger) if it reported it was a failing school, so if it didn’t have to report it was a failure for one year, then it must not have been. Continue reading

Supreme Court directs West Hollywood to respond to PLF’s legislative exactions challenge

Earlier this week, the U.S. Supreme Court ordered the City of West Hollywood to respond to PLF’s certiorari petition in the legislative exactions case, 616 Croft Ave, LLC v. City of West Hollywood.

As you may recall, the 616 Croft Ave. petition asks the U.S. Supreme Court to review a California Court of Appeal decision holding that a city or county can enact regulations forcing landowners to dedicate private property to public use as a permit condition, without providing just compensation, so long as the government can show that its use of the land will enhance the public welfare.  That decision marks a stunning departure from the U.S. Supreme Court precedents Nollan v. California Coastal Commission (1987), Dolan v. City of Tigard (1994), and Koontz v. St. Johns River Water Management District (2013), which hold that permit conditions seeking a dedication of property to the public must be sufficiently related to the proposed development (such as mitigating for traffic or storm water impacts). Without this essential connection, the condition will violate the Takings Clause and be invalid. Continue reading

Short-term home rentals and safe neighborhoods can coexist

Goldwater Institute’s Executive Vice-President Christina Sandefur

This week in the South Florida Sun-Sentinel, Goldwater Institute‘s Executive Vice-President Christina Sandefur and I encourage Florida cities to stop punishing responsible home owners who share their homes with tourists on a short-term basis. Floridians have rented homes out to vacationers and ‘snowbirds’ for decades, but in the last few years city officials have begun making that illegal because a few bad apples shared their homes with individuals who made a nuisance of themselves.

We don’t make it illegal to drive because a few people drive recklessly; similarly, we should not make it illegal to rent a home out because a few home owners rent their homes out to people who don’t obey the law, either. As we explain in the piece:

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There’s no longer a union walk-around rule

Today, we’re happy to announce that the union walk-around rule is no more. This rule was promulgated by OSHA back in 2013 and it permitted non-employee union operatives to accompany governmental workplace inspections — even when the workforce was not unionized. This made two fundamental changes to the walk-around rule as it had existed for four decades. First, it allowed non-employees to be designated as the walk around representative.  Second, it significantly lowered the bar for when union operatives could accompany worksite inspections as third party reps.

As to the latter, OSHA argued that this rule was consistent with the OSH Act, because union operatives could make a “positive contribution” to the government inspections. What the regulation actually says, though is that someone who accompanies a workplace walk-around must be “reasonably necessary.”  By changing the standard to one that only requires a “positive contribution,” OSHA under the Obama Administration significantly lowered the standard for when non-employees — including unions reps — are permitted on these inspections. For example, if the union rep brought a pot of coffee to the walk-around it could be seen as a “positive contribution,” but that’s a far cry from being “reasonably necessary” as the regulation requires. Continue reading

Briefing on WOTUS Rule begins in Supreme Court

On behalf of landowners, we filed our initial challenge to the Army Corps and EPA  “waters of the United States” or “WOTUS” rule in the Federal District Court of Minnesota in 2015. That case was dismissed for lack of jurisdiction. We filed a parallel challenge to the WOTUS rule in the 8th Circuit Court of Appeals that was consolidated with numerous other challenges to the rule in the 6th Circuit Court of Appeals. On Jan 13, 2017, the Supreme Court granted our request to resolve confusion over which court has jurisdiction to consider challenges to the WOTUS rule—the district courts or the circuit courts of appeals. The plain text of the Clean Water Act states such challenges should be brought in the district courts, but the 6th Circuit Court of Appeals ignored the plain text in favor of a “pragmatic approach” to the Act requiring the appellate courts to hear such challenges. On Feb 28, 2017, the President of the United States signed an Executive Order directing EPA and the DOJ to reconsider the WOTUS rule and trim back its excesses. At the signing, the President mentioned our Johnson stock pond case as justification for the order. The Executive Order was not unexpected as the rule is clearly illegal, as two courts have already suggested. The Executive Order may moot all substantive challenges to the WOTUS rule (including our own) but the Supreme Court must still resolve the question of where such challenges may be brought in future cases. Today, PLF filed its opening brief in the Supreme Court along with the States, the Petitioner, and other industry representatives. The government has 30 days to respond. A date for oral argument has not been set. You can track the case here at our website (with access to the pleadings) or here at the Supreme Court website.

PLF asks Supreme Court to hear massive beach land grab case

This week, Pacific Legal Foundation attorneys filed a Petition for Certiorari asking the United States Supreme Court to review the case of Nies v. Town of Emerald Isle, discussed more here.  The Petition presents the important question of “whether the Takings Clause permits a state to statutorily redefine an entire coastline of privately owned dry beach parcels as a “public trust” area open for public use, without just compensation?”

As this blog explained here, and here, this case arising from the Town of Emerald Isle’s enactment of ordinances allowing the public and town officials to use the Nies’ privately owned dry beach land, without any compensation.

The state courts held the Town’s actions did not amount to an unconstitutional taking because they believed  a 1998 state law changed all private dry sand beaches from private land into a “public trust” area open for public driving and access, again with no compensation. Although the Nies argued that this reading of the 1998  state law turned it into an unconstitutional taking, the state courts rejected this position. The state courts’ decision allows North Carolina to re-make an entire coastline of separately divided and owned dry beach parcels into a uniform public trust beach which the public and the government can use and drive on without owner consent or compensation.

The Nies are now asking the Supreme Court to take their case and to confirm that the Constitution does not permit states to use legislation to convert massive areas of private beach land into a public beach area, without just compensation.

President Trump orders review of 21 years of Antiquities Act abuse

This morning, President Trump issued an executive order requiring the Department of Interior to review 21 years of national monument designations. That review is long overdue. For decades, Presidents have treated the Antiquities Act as a blank check to shut down productive activity over vast areas, in the belief that doing so will establish their legacy with powerful environmental groups. The statute has become so notorious for this abuse that The West Wing built an episode around it.

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Pushing back (again) against EPA overreach

This week, Pacific Legal Foundation, along with the Competitive Enterprise Institute (CEI), and the NFIB Small Business Legal Center, filed an amicus brief at the Supreme Court of the United States asking the Court to grant review of another example of federal regulators run amok. In American Municipal Power, Inc. v. U.S. EPA, we ask the High Court to require the EPA to follow the plain language of the Clean Air Act (CAA) when regulating industry, institutions, and commerce, rather than make up rules that do nothing to protect the air but a great deal to hurt private enterprise.

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