The California Department of State Contrivances . . .

. . . sounds like it could be a real thing, but it is not. Recently, in Friends of Oceano Dunes v. San Luis Obispo County Air Pollution Control District, the California Court of Appeal held that a California state park is not a “contrivance” within the meaning of the California Clean Air Act. Perhaps some other aspect of the Golden State’s wacky government complex could properly be considered a contrivance, but not a state park.*

The case arises from one local air pollution district’s effort to shut down vehicle recreation at the Oceano Dunes State Vehicular Recreational Area, which is a very popular coastal venue for dune buggy riding and related off-roadery. The air district is concerned that off-road vehicles make sand more likely to be blown on the ocean breezes inland, adding to particulate air pollution. But, local air districts may not regulate air pollution from vehicles; only the mighty California Air Resources Board can do that. Undaunted, the local district decided that it would regulate the state park itself, for its operation of the dune buggy area. The air district relied on a statute allowing it to regulate non-vehicular direct emissions from “any article, machine, equipment, or other contrivance,” theorizing that a state park is a “contrivance” because it has fences with gates, roads and paths, parking lots, restrooms, and posted signs, all of which are man-made improvements and fall within a dictionary definition of “contrivance.”

The court of appeal found this interpretation to be contrived, holding that the proper meaning of “contrivance” in the statute was limited to things similar to the specific items in the list: articles, machines, and equipment that are capable of producing air pollution, none of which can reasonably be understood to include a state park (or apparently, any other similar recreational property or facility).

One of California's many beautiful contrivances

One of California’s many beautiful state contrivances parks

 

*Fans (or not) of California government might consider the entire Department of State Parks to at least engage in “contrivances” under another meaning of that word. In 2013 the California State Auditor reported that the State Parks Department had maintained a multi-million dollar accumulated surplus unreported in its annual budget filings, and had left these funds unreported even as it moved to close 70 state parks for lack of budget funds.

PLF files Petition for Rehearing at the Supreme Court

Although the Supreme Court rarely grants a petition for rehearing, it does happen. With that in mind, Pacific Legal Foundation filed its Petition for Rehearing in the Kent Recycling Services LLC v. Army Corps of Engineers case now pending at the Court.  You can read more about Kent Recycling at this link.

Generally, PLF recognizes the unlikelihood of the Court agreeing to re-hear a case, and thus does not pursue further relief at the Court once it denies a petition for writ of certiorari.  But here, we had good reason to pursue rehearing: the win the Eighth Circuit Court of Appeals handed us in the Hawkes Inc., Co. v. U.S. Army Corps of Engineers case last week.   That court held that a Corps of Engineers’ Jurisdictional Determination (i.e.  wetlands delineation) is immediately reviewable in court and subject to challenge. In Kent Recycling, the Fifth Circuit addressed this same issue and came out the opposite way. That court held that JDs are not immediately reviewable in court. Now, the Supreme Court has a circuit split on an issue that means hundreds of thousands of dollars to landowners across the nation.  With that in mind, we filed our petition.

As my colleague Reed Hopper wrote last week about the Hawkes case:

For the first time since the inception of the Clean Water Act (1972), overzealous government bureaucrats can be held immediately accountable in court for their erroneous assertions of federal control over private wetlands and other waters.  This levels the playing field for landowners who have been at the mercy of overreaching government for far too long.

PLF believes this leveling of the playing field for landowners should apply across the nation.  For this reason, we think we have given the Supreme Court ample reason to rehear Kent Recycling, hear the dispute on the merits, and then issue a decision that makes the rule of Hawkes applicable from sea to shining sea.

Hope for the future

Deedee Goldstein of FIU Law (photo courtesy FIU)

Deedee Goldstein of FIU Law (photo courtesy FIU)

This week the staff of the PLF Atlantic Center in Florida and the leadership of PLF nationally took time to celebrate a few of our recent east coast success stories. We celebrated local wins, like the Flash Beach Grille case, and wins further up the Atlantic seaboard, like attorney Christina Martin‘s McLean v. City of Alexandria commercial free speech case in Virginia. We celebrated and said a toast to greater success in the future with clients, with our many supporters and donors at a reception in Palm Beach, and with private attorneys and their guests at a reception in Tampa.

At both of these events, I was struck by the young people who joined us because they love our country and want to see it maintain and re-develop the principles that make our country the greatest on Earth. I wanted to share two of their stories so that you could share a little of that hope for the future that I experienced.

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The end of innocents

An 11-year old girl saved a woodpecker from a cat and nursed it back to health. A father and son searched for arrowheads while camping. A middle schooler ate some french fries on the subway. A snowmobiler got lost for two days in a blizzard and almost died. These stories have one thing in common–they all constitute crimes. And in each case, government agents pursued these criminals with zeal. Continue reading

The Atlanta cheating scandal: How students were harmed

By now, most everyone has heard of the Atlanta Public School cheating scandal.  Thirty-five educators were indicted, twenty-one pleaded guilty, thirteen went to trial, eleven were convicted, and eight are going to prison.  Some of those convicted received severe prison sentences.  For instance, three former school administrators were given 20-year sentences with seven years to be served in prison.

The judge handing out the harsh sentences showed no mercy, and suggested the former educators deserved no sympathy because their actions victimized children.  Examining how students suffered as a result of having inflated test scores provides an example of  academic mismatch.

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Upcoming talks

I’ll be speaking on Wednesday morning to the Silicon Valley Association of Republican Women. Then on May 19, I’ll be speaking at the Republican Club of Rossmoor. Both of those talks will be about The Conscience of The Constitution, and how we can restore a sound constitutional structure. On May 30, I’ll be at LPEX in Las Vegas.

You can keep track of PLF speakers and local events by checking our online calendar, and you can request a PLF speaker for your event here.

How Anne Brontë violated Nevada law by speaking without permission

Last week, we filed the final papers asking a federal judge in Las Vegas to stop the state from enforcing its “private investigator” licensing law—that’s the law that says that if you “furnish…information” about a “person,” and get paid for it, you’re a “private investigator” and must get a license. If you don’t, you risk fines and even jail time. Not only that, but to have a license, you must keep your “principal place of business” inside state lines—a significant burden on professionals in other states, like our client, Troy Castillo, who’s located in Palm Springs, California.

State bureaucrats have opposed our motion by saying that they don’t intend to enforce the law against people who have no Nevada-based employees. They’re wrong: state law clearly says that any person, whether or not he or she has employees, must have a license, and to keep an office in the state. State officials don’t have any authority to disregard these requirements.

Amusingly, the state’s brief includes literary quotations from the authors Anne Brontë and Irene Hunt, and claims (quoting Brontë) that we’re taking “affronts where none are intended.” But as Shakespeare might have replied, there is offense, and much offense, too.

Nevada law plainly forbids any person from “furnish[ing]…information” about “[t]he identity, habits, conduct…honesty, integrity, credibility, knowledge, trustworthiness…loyalty…acts, [or] reputation…of any person,” the “location…of lost or stolen property,” or “[a] crime or tort that has been committed” without first getting permission from the state. This means that it is a crime in Nevada to write, say, a biography of Anne Brontë or Irene Hunt, without having a PI license, since doing so would be “investigating” to “obtain” “information” about the “reputation” of “persons” for money. It is against the law to do that without having a license.

It is illegal to give a public lecture about, say, the killing of Tupac Shakur (crimes which have been committed) or to present a television series speculating about where Bill Brennan took the money he stole in the famous 1992 Stardust Casino heist (the location of stolen property), or to teach a class of students about Mark Twain’s days in Virginia City (the conduct or acts of a person), give a tour of the Governor’s Mansion and talk about past Nevada governors (the habits of a person), or even to publish a newspaper column criticizing a political candidate’s “honesty, integrity, credibility, knowledge, trustworthiness,” or “loyalty,” unless one gets the government’s permission first. Brontë would be required to get a license to publish her poem “To Cowper,” since it’s about the “identity,” “habits,” and “conduct” of a person, whereas her poem “The Captive Dove” could be published without a license, since it’s not about “a person.”

That’s what we in the biz call a prior restraint and a content-based speech restriction. The government can’t require you to get its permission before you “furnish…information” and it can’t impose different burdens on speech based on the content of that speech. Nor are these First Amendment concerns exaggerated, since the Nevada Private Investigator Licensing Board recently prosecuted someone for testifying as an expert witness in a criminal trial, because it said that made the person a “private investigator.” (The state later passed a law exempting expert witnesses—and only expert witnesses—from the law.) Remarkably, state officials make no effort to respond to our First Amendment arguments.

The judge has not yet scheduled a hearing on our motion. We’ll blog it if and when she does. In the meantime, you can read our opening brief here, the government’s brief here, and our response here.

President’s weekly report — April 10, 2015

Wetlands — Major victory in the 8th Circuit

The 8th Circuit handed us this major victory today in Hawkes v. United States.  The decision is a wonder to read because the court “got it.”  It understood that requiring a landowner to seek a wetlands permit when the landowner doesn’t think there are any jurisdictional wetlands has legal effect and should be appealable (these “wetlands” are a peat bog 120 miles from the nearest navigable waterway.)  It understood that because it can take years and hundreds of thousands of dollars to obtain a wetlands  permit, a wetlands jurisdictional determination should be appealable.  And it understood that when the Corps tells a landowner’s employees to “start looking for another job” (meaning no permit is forthcoming), when it asks for detailed information requests that would cost more than $100,000 to fulfill, and when it ignores the advice of its own administrative appellate process and continues to maintain a property is a wetland, then it is time to allow the landowner to appeal to a court of law.  As the court put it,

The prohibitive costs, risk, and delay of these alternatives to immediate judicial review evidence a transparently obvious litigation strategy: by leaving appellants with no immediate judicial review and no adequate alternative remedy, the Corps will achieve the result its local officers desire, abandonment of the peat mining project, without having to test whether its expansive assertion of jurisdiction — rejected by one of their own commanding officers on administrative appeal — is consistent with the Supreme Court’s limiting decision in Rapanos.

Amen.  For more detail on this case, read about it on our blog here.

Victory for our children — Charter schools victory in California

The California Supreme Court ruled in favor of California’s charter schools in its long-awaited decision in California Charter Schools Association v. Los Angeles Unified School District. California voters adopted the charter school program in order to provide students and their parents alternatives to California’s failing schools.  Charter schools are designed to compete, and make better, traditional school programs that are now burdened by hidebound bureaucracies, coddled incompetents, and union-dominated boards. While they do not provide the same degree of competitive choice as found in other states that have more robust private-school voucher programs, California’s charter schools provide alternative public school programs within existing school district infrastructure. And therein lies the rub.  State law mandates that school districts free up some of their resources to accommodate the charter schools.  But some districts, like the defendant Los Angeles district here, have tried to limit the competition by limiting the resources available to the charter schools.  As our blog post explains in more detail here, the Supreme Court said “no,” the school district cannot violate state law by making up its own rules on the sharing of resources with its charter schools.  You can find our amicus brief in support of the charter schools here. Continue reading

Clean Water Act victory for landowners!

The 8th Cir Court of Appeals gave Pacific Legal Foundation a resounding victory today in Hawkes v Corps.  A unanimous three-judge panel held a Corps of Engineers’ Jurisdictional Determination (i.e.  wetlands delineation) is immediately reviewable in court and subject to challenge.

For decades, the courts have used a legal fiction to deny citizens the right to challenge certain determinations by the Corps and EPA under the Clean Water Act, like the onerous compliance order in Sackett. In that case, the EPA tried to compel the Sacketts to “restore” alleged wetlands on their half acre home lot (at a cost in excess of the lot’s value) or face penalties of $75,000 a day. The EPA compliance order was based on unproven allegations that the Sacketts’ property contained “navigable waters” subject to federal jurisdiction. When the Sacketts tried to challenge the jurisdiction of the government in court, the Ninth Circuit Court of Appeals refused to allow it, relying on the fiction that the compliance order did not impose any legal obligations on the Sacketts but was just advisory. Fortunately, all nine Justices on the U.S. Supreme Court saw through the fiction and held the Sacketts could seek judicial review of the agency’s claim of jurisdiction. However, the High Court’s unanimous decision in Sackett has yet to be applied to Jurisdictional Determinations issued by the Corps…until now! Continue reading

Protecting your home v. letting it crash into the sea (part 2)

In a post last month, I described my trip to the northern coast of Massachusetts to meet with municipal officials and neighborhood association leaders who would be affected by some potential new coastal regulations that present serious concerns for property owners. I also offered oral remarks at a hearing of the Massachusetts Coastal Erosion Commission regarding its preliminary report on these issues in January.

The Newburyport, MA Daily News later published this PLF guest commentary on the matters at issue for Massachusetts coastal landowners. As we explained to the coastal residents:

The future stakes for your communities are great, including whether part of them (and others along the Massachusetts coast) will be consumed by the sea or whether measures may be taken to protect them, both physically and economically.… Will [landowners] along the Massachusetts coast be able to protect their homes, businesses and city property, or will the commission and other commonwealth agencies try to justify regulations that make it harder for them to defend their property? The [Department of Environmental Protection’s] attempt to ban private protections is worrisome, especially since DEP officials occupy prominent seats on the commission and its working groups. Many of the recommendations in the draft report raise additional concerns.

This week we sent more detailed written comments to the Massachusetts Coastal Erosion Commission, which included analysis of the Commission’s draft report and some PLUM Island shoresuggestions for its improvement. We told the Commission it needed to acknowledge at least the most obvious protections for private landowners in both the Massachusetts and United States Constitutions. (Naturally, we provided some helpful citations to the constitutional provisions and federal and state court decisions that were most on point.) Continue reading