PLF’s petition to downlist species successful!

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In 2005, PLF entered into a settlement agreement with the U.S. Fish and Wildlife Service on behalf of the California State Grange, the California Forestry Association, and the California Cattlemen’s Association, whereby the Service agreed to undertake belated 5-year status reviews of nearly 100 listed species in the State of California.  In 2008, the agency completed reviews for 58 listed species and recommended status changes for many, including three plant species found on an island off the coast of southern California:

San Clemente Island broom (Lotus dendroideus)
San Clemente Island bushmallow (Malacothamnus)
San Clemente Island paintbrush (Castilleja grisea)

Notwithstanding these recommendations, the Service never took action.  In 2010, PLF filed a petition to reclassify these species, and others.  After some foot dragging and a threat of litigation, the Service issued its finding today that the Island paintbrush and Island broom (lotus) have substantially recovered and will be down listed from endangered to threatened status.  Because of ongoing threats to habitat, the Service decided to retain the endangered listing for the Island bushmallow.

Are the courts diminishing the role of science in land use planning with the “bibliography rule”?

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On June 5, the Supreme Court of Washington will decide whether to take on PLF’s Olympic Stewardship Foundation case.  The Court’s decision could have major ramifications for the applicability of science in the land use planning process.

The OSF case asks whether Jefferson County adopted illegal “channel migration zone” rules that require property owners to retain 100% of the vegetation on their riparian property as a condition on any new development permit.  The county’s decision to impose the retention standard was not fully explained, and extremely suspect in light of the county’s science, which concluded that vegetation retention would be the least effective method for protecting property from the risk of migrating river channels.  Nevertheless, the Court of Appeals held that nothing in the law requires the county to document its reasons for departing from the recommendations of its scientific studies.  The county only needed to demonstrate that it consulted the studies during the regulatory process by providing citations.

That can’t be right.  Unless the government is required to explain how the science relates to its chosen regulations—and why the government may have departed from that science—any rule mandating that scientific data be included in the planning process is reduced to an instruction that merely requires the government to produce a “bibliography” of the studies it says it referenced.  As we argue in the OSF petition for review, this adulterated view of the role of science in planning cannot be what the legislature intended when it directed counties to consider “best available science” in developing critical areas regulations.

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A win for economic liberty in Pennsylvania

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A federal judge in Pennsylvania today issued a decision striking down several provisions of that state’s anti-competitive laws regarding funeral homes—specifically, ones that limit the ownership of funeral homes to licensed funeral directors, regardless of whether the owner ever actually directs funerals. Judge John Jones—who made headlines some years ago for striking down the Dover school board’s effort to teach creationism in classrooms—ruled that the law lacked any reasonable connection to protecting public health and safety, and that it instead only protected the interests of established funeral directors.

“The limitation of ownership to licensees appears particularly arbitrary given the exception allowing untrained and unlicensed widows, widowers, and heirs of licensed funeral directors to continue operating a funeral home for up to three years,” wrote Jones, “or in the case of widows and widowers, for an unlimited duration provided they remain unmarried, while at the same time otherwise limiting ownership to licensed funeral directors. The reality that the [law] permits such individuals to operate a funeral establishment by employing a full-time licensed funeral director to act as a supervisor, but prohibits other individuals or entities from doing the same, demonstrates that the restriction on ownership to licensees is not rationally related to the legitimate state interest of ensuring competency and accountability in the funeral industry.”

The court also found that the limitations on ownership violated the interstate commerce clause, infringed on freedom of speech, and violated the Constitution in other ways. The court even ruled that the state’s prohibition on serving food in funeral homes violated the Constitution—because even the state admitted that there was no reasonable justification for this restriction.

The decision is a powerful, well-thought out, long decision that shows Judge Jones thought very carefully about this law and the constitutional issues involved. Congratulations to attorneys Barbara Zemlock, James Kutz, and Gary James on an important victory for freedom of economic choice!

Does originalism really lead to an all-powerful Supreme Court?

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In his latest contribution to our exchange about the courts’ obligation to follow precedent, Prof. Michael Rappaport answers a question that I posed in the comments section of the Liberty Law Blog. He had argued that “the judicial power” conferred on courts by Article III of the Constitution obliges courts to follow precedent even where that precedent conflicts with the actual meaning of the Constitution, and that this rule is what the framers of the Constitution meant. I think this is not just wrong, but fallacious, since an originalist is committed to the Constitution’s original meaning as an overriding rule, so that whatever power the courts might have according to an originalist interpretation, they cannot have the power to disregard that overriding rule, even if instructed to do so. But I brought up a different question: how does Rappaport’s view comport with the principle that the people’s servants cannot give away the people’s sovereignty? Continue reading →

20 years of Pacific Northwest victories: the enduring impact of the HEAL decision

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One way that PLF can assure that its property rights victories have a long-lasting impact is to “connect the dots” between past cases and current controversies.  A good example is the Washington Court of Appeals’ 1999 decision in Honesty In Environmental Analysis and Legislation v. Seattle, which stands out as the first Washington case to clarify the important constitutional limitations on how far governments can go in trying to preserve critical areas on private property. Continue reading →

Local government autonomy wins the day in Coastal Commission case

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Last week in City of Malibu v. California Coastal Commission, the California Second District Court of Appeal struck down an expansive interpretation of the Coastal Act that would have undermined local governments’ ability to make local land use decisions.  This case arose over a dispute between the City of Malibu, the Commission and another state agency called the Santa Monica Mountains Conservancy, over plans to develop four Malibu properties into parks with adjacent trails, campsites and recreational facilities.  The Conservancy, which owns the proposed parkland, had asked the City of Malibu to amend its Local Coastal Program (LCP) to pave the way for these development plans.  Under the Coastal Act, any local government located within the Coastal Zone must have a Commission-approved LCP in place to guide development in conformance with Coastal Act policies.  The City agreed to amend its LCP in order to allow development of these park properties, but the Conservancy disagreed with exactly how the City proposed to allow the development.  And so when the City submitted its amendments to the Commission for approval (as required by the Coastal Act), the Conservancy submitted its own, competing amendments.

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PLF secures important property rights victory in the Fifth Circuit

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Today, the Fifth Circuit decided Bowlby v. City of Aberdeen.  In this case, Debra Bowlby sought and received a permit to operate a small sno-cone hut in the City of Aberdeen, Mississippi.  Then, a month after the City granted her the permit (and she began operating her business), the City simply revoked her permit.  Ms. Bowlby brought suit, arguing that the City’s revocation of her permit deprived her of her property in violation of due process under the Fourteenth Amendment. Continue reading →

Rosen: pay no attention to the Constitution behind the curtain!

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In an article for The New Republic, Jeffrey Rosen writes that the recent decision in the Hettinga case has “unmasked” the continuing machinations of Rosen’s “Constitution in Exile” conspiracy. I say his conspiracy because in Rosen’s eyes, the widening circle of lawyers, judges, and law professors who are drawing attention to the many shortcomings of the dominant Progressivist school of constitutional law can’t just be a group of people who think the courts have got certain things wrong—no, they’re a cabal of “conservative judges,” secretly plotting to take over the world and undermine Social Security…or something like that. After all, nowhere in Rosen’s article does he even try to address what people like Judge Brown or Professor Barnett believe, or why. Instead, it’s all portrayed as a camouflaged political power play, without any intrinsic merit at all. “Pro-business conservatives,” Rosen writes, are “interested in embracing constitutional doctrines that could ‘discipline a wayward politics’—even if that means rule by judges…. [W]e can expect future constitutional challenges to financial regulations, such as the Dodd-Frank law, and to the rest of the post–New Deal regulatory state.”

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