This morning I spoke with Armstrong & Getty about yesterday’s Supreme Court arguments in the Obamacare “exchanges” case. If you missed it, you can listen here.
I’m in Jacksonville today, speaking at noon with the Florida Coastal School of Law‘s Federalist Society chapter about Pacific Legal Foundation‘s work on behalf of liberty throughout the nation. Contrary to what you may have heard elsewhere recently, this event, like all other Federalist Society events, is not a secret!
To the contrary: if you are in the area, please join us!
Tomorrow morning is Ninth Circuit day at PLF. Immediately following Ted Hadzi-Antich’s oral argument in the Green Sturgeon critical habitat listing case, the same panel will hear another very important Endangered Species Act case. Bear Valley Mutual Water Co. v. Jewell, in which Pacific Legal Foundation filed this amicus brief, addresses whether the federal government can designate critical habitat for a species after it has agreed not to.
Habitat conservation plans are a tool under the Endangered Species Act that local governments and private parties can use to voluntarily conserve species and thereby avoid the inflexible regulatory restrictions that result from critical habitat designation. When it approves a plan, the only important commitment the federal government makes is that it will not designate critical habitat in the plan area. That is the only significant value of the plan to the non-federal parties who enter into it. Habitat conservation plans usually take several years and millions of dollars in consulting fees to complete, and then require the non-federal parties to engage in costly and extensive conservation actions for the benefit of the covered species. The only reason anyone agrees to these plans is to avoid the even more costly and restrictive result when critical habitat is designated.
But in this case, the federal government claims that it can ignore a habitat conservation plan and designate critical habitat, even after it has legally obligated itself not to. If the federal government wins this case, then every habitat conservation plan throughout the Ninth Circuit will be worse than worthless. They will still presumably oblige the non-federal parties to carry out the agreed-upon conservation actions, and then live with additional restrictions from the designation of critical habitat.
Those interested can follow the live video stream of both oral arguments at the Ninth Circuit’s website starting at 9:00 am Pacific.
Tomorrow morning I will be arguing in Contra Costa Superior Court against an illegal tax levied against new homeowners by the City of San Ramon, California. San Ramon used California’s Mello-Roos Act, the purpose of which is to fund new public facilities and new public services, to impose a parcel tax of more than $500 on select homeowners (above and beyond the usual property tax that these homeowners also pay) who will only get the same old public services that un-taxed homeowners receive.
This parcel tax is illegal. It is does not pay for any municipal services that are additional to those every other homeowner in the city gets for their property tax. So the homeowners singled out by the City will pay extra property taxes, but will get the same municipal services already provided to existing homeowners who do not pay the parcel tax.
This arrangement might be legal if the double-taxed homeowners were given an opportunity to vote on the parcel tax, and approved it. But that did not happened here. The City misused a special provision of the Mello-Roos Act to impose the new parcel tax on up to 2,500 undeveloped properties throughout the City, based on the single vote of one landowner. The City violated state law and the California constitution by imposing this special tax, as we will argue in court tomorrow.
Update: the Court has postponed tomorrow’s hearing until March 19, 2015.
On Thursday, March 5, 2015, at 9 a.m., I’ll be arguing at the 9th Circuit in support of our challenge under the Endangered Species Act to the critical habitat designation for a marine species known as the green sturgeon. The critical habitat designation encompasses virtually the entire West Coast of the United States, making any development activity in that vast area a nightmare. The legal problem is that the government missed a step. It did not weigh the conservation benefits against the economic impacts of designating critical habitat in so-called “high value” areas, thereby violating a key requirement of the Act. When government agencies violate the law, we go after them. That’s a job worth doing. More detail here: http://www.washingtontimes.com/news/2013/oct/31/hadzi-antich-fishy-friends-in-high-places/
The Supreme Court of Alabama, in a lengthy and largely unanimous opinion, upheld the state’s school choice reform program. The Alabama Accountability Act created a system of tax credits to aid parents who transfer their kids from failing public schools to better public or private schools. The teachers’ union promptly challenged the law, arguing that the reform initiative is unconstitutional. In addition to some technical procedural arguments, the union’s main substantive objections were (a) the school choice aspects of the program violate the Alabama Constitution’s “single purpose” requirement for legislative enactments; and (b) the state constitution forbids any public funds from being used to support private schools—funds can only be used to support public schools and public school teachers (an argument which would obviously increase the union’s largesse).
This morning the California Supreme Court issued its decision in Berkeley Hillside Preservation v. City of Berkeley, announcing that projects which are categorically exempt from review under the California Environmental Quality Act are exempt even if they might have negative environmental impacts. The Court’s decision is consistent with Pacific Legal Foundation’s amicus brief in support of property owners who are trying to build a home without endless environmental review.
CEQA requires extensive review of a project’s potential impacts, analysis of alternatives to the project, and mitigation of unavoidable project impacts, unless the project is exempt. The statute establishes several exemptions, and requires the California Resources Secretary to establish others by regulation. A limitation, or exception, to the exemption applies where otherwise exempt projects may have adverse environmental impacts “due to unusual circumstances.”
Overcriminalization and the fishy abuse of Sarbanes-Oxley
The United States Supreme Court issued a good decision in Yates v. United States, in favor of fisherman John Yates. As described in our blog, because Yates threw some undersized fish overboard after an inspection, Yates was charged with violating the Sarbanes-Oxley Act, a post-Enron statute that prohibits the destruction of items like computer files and financial data. Yates was subject to 20 years in prison for throwing the fish overboard. PLF filed an amicus brief on behalf of Mr. Yates suggesting that Sarbanes-Oxley does not encompass fishing violations and that overcharging defendants with extraordinary crimes and sentences, is manifestly unfair to defendants — including innocent ones. There was a dissent, notable if for nothing else its citation to that eminent legal authority Dr. Seuss. We guess sometimes you have to go with the best you have.
Equality Under the Law Project — Victory in Buffalo
In Margerum v. City of Buffalo, the New York Court of Appeals issued this favorable decision. As described previously in our blog, the City of Buffalo prevented top-scoring firefighters from receiving Continue reading
The Sacramento Bee‘s Dale Kasler has an in-depth article about our latest Competitor’s Veto lawsuit, challenging Nevada’s laws that bar people from starting moving businesses, limo companies, or taxi businesses, if they would compete with existing companies. As he points out, Nevada has tried hard to persuade California business owners to cross the state line and do business in the Silver State. But it’s hard to say that Nevada’s business friendly when its state laws say that you can’t start a new company without permission from your own competitors:
According to the lawsuit, filed last week in U.S. District Court in Las Vegas, the state denies licenses to companies that would pose a competitive threat to existing businesses. The law says licenses won’t be granted to companies that will “unreasonably and adversely affect other carriers.”
[PLF client Steve] Saxon says the law protects “the good old boys” who are already doing business in Nevada. “It’s basically protecting the ones that are already in place, and preventing new ones from coming in,” Saxon said in an interview at his office in south Sacramento, where he runs a fleet of 10 trucks. “There’s a very few companies in Reno; they’ve got a monopoly….”
The lawsuit comes as states such as California struggle to devise regulatory schemes for new ridesharing services such as Uber and Lyft. Uber shut down in Nevada in November, two months after beginning operations, after a Washoe County judge issued a preliminary injunction preventing the service from operating statewide. The San Francisco company, which connects customers with drivers using their personal cars, declined to seek a Nevada business license, arguing that it’s a technology company, not a transportation operator. State authorities impounded more than a dozen cars operated by Uber drivers.
Incidentally, Nevada bureaucrats claim in the article that they’ve licensed tons of new businesses, so that there’s no problem. Of course, we’ll learn the real facts once we get to discovery in our lawsuit. But the state’s website lists only 45 licensed limo companies in the entire state of Nevada, which has a population of 2.8 million people. That’s one limo company for every 62,000 residents. By comparison, there are over 2,300 licensed limo companies in Georgia, which is one for every 4,200 people.
Fortunately, it does look like change might be on the horizon. Nevada State Senator Don Gustavson has introduced a bill, SB 183, which would repeal the anti-competitive portions of the Nevada law, while leaving in place all the protections for public safety. We’ll keep an eye on that bill as it goes forward.