Pacific Legal Foundation in the news in Florida defending property rights

stuart news image Earlier this week, the Stuart News published Pacific Legal Foundation‘s op-ed explaining why our clients Bob and Anita Breinig had no choice but to sue Martin County, Florida for ignoring state law and violating the Breinigs’ property rights.  We described why we are representing the Breinigs and their Flash Beach Grille, and in doing so we set out why Pacific Legal does what it does in nearly all the cases it takes on: Continue reading

Service withdraws proposed beetle listing

Earlier this week, the Fish & Wildlife Service officially withdrew its 2012 proposal to delist the Valley Elderberry Longhorn Beetle.  That proposal was the direct result of a petition and two lawsuits filed by PLF attorneys on behalf of a coalition of property owners, levee districts, and farming organizations who strongly object to the significant land-use restrictions imposed on account of the beetle’s listing under the Endangered Species Act.

In the withdrawal decision, the Service contends that information submitted since the 2012 delisting proposal demonstrates that the proposal had overestimated the beetle’s population and range, and consequently underestimated the impacts of threats such as habitat loss and predation by the Argentine ant.

The Service has stated, however, that it wants to work cooperatively with the regulated public to ensure that levee projects and other productive activity can go forward.  Let’s hope that the Service lives up to that promise.

Race-based redistricting heads back to the Supreme Court

On November 12, the Supreme Court will hear oral arguments in a pair of legislative reapportionment cases: Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama.  Plaintiffs in these cases contend that the Alabama legislature violated the Equal Protection Clause by “packing” African-American voters into majority-minority districts and generally using racial quotas to draw district lines.  The three-judge district court rejected their argument because the plaintiffs could not prove that race was the “predominant factor” in the redistricting decisions.  Because race was not the “predominant factor,” the district lines would not be subjected to the most exacting form of judicial scrutiny.

PLF has not yet decided whether to get involved in these cases, but they do provide the Court with yet another opportunity to revisit the requirement that race be the “predominant factor” in redistricting before strict scrutiny will apply.  In recent years it has become increasingly apparent that race-based redistricting cases are an exception to the Court’s general Equal Protection jurisprudence.  Just last year in Fisher v. University of Texas at Austin, a case PLF participated in as amicus curiae, the Court reaffirmed that any race based action by government officials must satisfy the demanding strict scrutiny test.  Redistricting cases should be analyzed under the same standard.  Racial balancing, whether in legislative reapportionment, government contracting, or college admissions, reinforces demeaning stereotypes; it should not be tolerated in any form.

A day to celebrate the Constitution

Delegates sign the Constitution at the Philadelphia Convention in 1787.

Delegates sign the Constitution at the Philadelphia Convention in 1787.

You won’t find a Hallmark card about it, but today, September 17, is the day to celebrate our nation’s Founding Fathers and our fundamental freedoms. It’s Constitution Day, which commemorates the formation and signing of the U.S. Constitution by thirty-nine men on September 17, 1787.

At Pacific Legal Foundation, we consider every day to be Constitution Day, but on this day we honor the delegates to the Constitutional Convention who met for the last time to sign the document they had created.

Check out PLF Principal Attorney Tim Sandefur’s video tribute to the Constitution.

Happy Constitution Day 2014

Today Americans celebrate the 227th anniversary of the signing of the United States Constitution by the delegates of the Philadelphia Convention in 1787. Only three delegates who stayed to the end declined to sign the document and two of those, George Mason and Elbridge Gerry, later supported it with the promise that a bill of rights would be added.

Convention President, George Washington, was greatly impressed with the result. Most Americans and foreigners have revered it ever since. In 1878, for example, the once and future Prime Minister of the United Kingdom, William Gladstone, wrote that the U.S. Constitution was “the most wonderful work ever struck off at a given time by the brain and purpose of man,” and that was after our Civil War had shown the need to amend it to prohibit slavery and ensure greater protections for individual liberty and equal treatment under law.

In an op-ed published on today, I describe the sustained attacks on the structure of our Constitution by progressive theorists who were openly hostile to the separation of, and limitations on, the national government’s powers that prevented a concentration of authority in a centralized, national bureaucracy. I also mention the textualist/originalist revival in recent decades that is helping to restore the Constitution’s original protections.

At the Pacific Legal Foundation, we litigate every day to restore the liberty guaranteed in the real Constitution. That was even harder when PLF was founded in 1973, when there were fewer courtroom allies for limited government and a dominant legal culture that was dismissive of the Constitution’s original public meaning. But the intellectual climate has improved, due in part to PLF’s work and a growing awareness among citizens concerning the need to fight for our liberties and challenge the natural tendency of government elites to take and abuse more power than we have granted them.

And for interested citizens and scholars today, I am also happy to relate that Heritage Foundation has just published a revised version of The Heritage Guide to the Constitution, which has over 200 essays on each clause or amendment of the Constitution by 114 leading originalist scholars. The more citizens educate themselves about their liberties the harder it will be for government to take them away.

Can governments rely on outdated rationales to justify onerous regulation?

In 1952, Emmett Ashford became the first African American umpire in organized baseball and Dwight Eisenhower was elected President of the United States. That same year, the Pennsylvania legislature decided that funeral homes needed to be heavily regulated. Under a 1952 regulation, funeral directors must obtain a license and build expensive “preparation rooms.” Further, they cannot have more than two locations, and they cannot serve food to funeral attendees. While the regulation may have made sense in 1952 America, technology and funeral practices have changed in the past 62 years. For example, advances in embalming have scrapped the need for preparation rooms in every facility. Despite changed circumstances, the legislature of 1952 still fusses with funeral homes across Pennsylvania.

In Heffner v. Murphy, funeral directors of the twenty-first century are asking the Supreme Court to hear their challenge to the Pennsylvania licensing scheme.  The plaintiffs argue that the regulations violate their constitutional right to due process under the 14th Amendment. A law hampering economic liberty is only constitutional if it has a rational relationship to a legitimate government purpose. The funeral directors argue that when the circumstances justifying a law no longer exist, the law no longer has a rational basis. Nevertheless, the Third Circuit upheld the law. According to the Court, “there is a fundamental difference between [laws] that may be archaic and those that are irrational for the purposes of our substantive due process inquiry.” Courts are split as to whether rational basis review only looks to the time of enactment or also includes the continuing rationality of the law’s enforcement.

Antiquated laws shouldn’t continue to badger small businesses. The Supreme Court should grant the petition and hold a proper funeral for regulations that no longer make sense.

You can learn about Pacific Legal Foundation’s work on rational basis review here, here, and here.

Freedom of contract takes a hit in New Mexico

The First Baptist Church of Roswell and others own mineral rights in the Runnin’ AZH oil well near Roswell, New Mexico.  Yates Petroleum operates the well pursuant to standard contracts with all of the mineral right owners.  These contracts, called division orders, require owners to provide proof of title of ownership and state that Yates need not pay any interest on payments due to the owners until the owners provide satisfactory proof of ownership.   The contract explicitly states, “In the event of failure to furnish such evidence of marketable title, [Yates] is authorized to withhold payments without payment of interest until the claim is settled.”

However, a state statute says that interest accrues on funds held in suspense during the time title questions prevent disbursement, and once title is resolved, both principal and accrued interest are payable to the owners.  The question before the New Mexico Supreme Court was whether the mineral owners could contract around the default rule established by the statute.  PLF filed an amicus brief arguing that the public policies supporting freedom of contract would allow parties to negotiate around default rules, thereby increasing efficiency by ensuring that parties are not required to purchase costly overprotection, or be deprived of protections that they desire.

Unfortunately, today the court invalidated the contract.  It declared that the statute furthered a “strong public policy…in favor of royalty interest owners.”  The court found that the “disparity in bargaining power” between Yates and the mineral rights owners was severe and that the statute served  to “equalize” that power.  The court distinguished an earlier case that had permitted waiver on payment of interest because that case involved general commercial transactions and this case involved specialized oil and gas contracts.  This is another unfortunate aspect of the decision, because even specialized contracts should be interpreted according to basic contract law principles, which would allow changing default rules.  Moreover, specialized contracts, if they must be considered in their unique context, are well suited to customization by the parties who best understand the context of their contract.  As a result of this decision, parties to contracts in New Mexico have fewer options to write their own preferences into their contracts.  The court decided that the legislature will choose for them.

Thanks to A. Blair Dunn, our local counsel in this case.

President’s weekly report — September 12, 2014

Environment — When is a wetland not federally controlled?

We filed this complaint this week in Universal Welding v. United States Army Corps of Engineers.  The Corps is asserting jurisdiction over some of Universal’s low-value wetlands in North Pole, Alaska, just outside of Fairbanks.  The problem is that under the Corps’ own regulations, wetlands that are only adjacent to other wetlands (here separated by a road) do not come within the Corps’ control.  As noted on our blog, we won a nearly identical case a few years ago dealing with some similar wetlands in Fairbanks, but the Corps seems not to have taken our victory to heart.

Environment — Endangered Species Act and Prairie Dogs

We argued a motion for summary judgment this week in People for the Ethical Treatment of Property Owners v. United States Fish & Wildlife Service,Utah Prairie Dog in natural habitat of high desert dirt and grass our challenge to the federal government’s assertion of jurisdiction over the Utah Prairie Dog.  While the rodent, which is 40,000 strong, is wreaking havoc on everything from a cemetery to a small airport in Utah, it remains listed as “threatened” under the Endangered Species Act.  But because the critter is not used in interstate commerce, we think the federal government lacks constitutional authority to regulate it.  For more information and a video, see our blog here.

Medium Speed Rail Appeal — California’s Train to Who Knows Where Continue reading