President’s weekly report — February 12, 2016

Defending private property rights on the farm

PLF attorneys filed this lawsuit this week in Cedar Point Nurseries v. California Agricultural Labor Relations Board over that agency’s rule that purports to allow union organizers access onto private property for organizing purposes. But this doesn’t simply mean going onto farm sites to speak with workers. Last October, the United Farm Workers used their access “rights” to disrupt the work of over 500 employees by using bullhorns and intimidation. The union uses such tactics during some of the busiest — and most crucial — times of the harvesting season. These tactics violate the constitutional rights of the landowners. While a union may have a right to contact and speak to workers, it shouldn’t have the right to violate private property rights and disrupt an ongoing business to do so. For more, see our blog post and video here.


Ted Hadzi-Antich’s oral argument: Friends of Tahoe v. U.S.D.A.

On Monday of this week, I presented at oral argument at the 9th Circuit in our challenge to the Forest Service’s closure of over 90% of the historical user-created motorized routes in Tahoe National Forest.  The Forest Service closed the routes without complying with the requirements for alternatives analysis, which is the heart of the environmental impact statement process under the National Environmental Policy Act.  The panel was composed of Judges Hawkins, Murguia, and Breyer.  I argued for the Plaintiffs/Appellants, a group of individuals and organizations that have enjoyed Tahoe National Forest for decades.  They have been effectively shut out of the forest because the trails they had used for decades may no longer be used lawfully.  The judges raised numerous questions for both sides, and the argument was thorough and grueling.  Here is a link to the video, courtesy of the 9th Circuit.  A more detailed description of the case background can be found here.

Commission Creep: Under rule of dysfunctional coastal agency, every act is illegal “development”

So this is where the California Coastal Commission experiment ends:  if you put a lock on a gate, paint a billboard, say mean things at a surf break, try to keep trespassers off your coastal land, or move a cow into a new pasture, you are engaging in unpermitted “development” and violating the Coastal Act. Ordinary people would assume that “development” means something involving significant building.  But the officials who run the Commission  march to a different tune, one that becomes more Hobbesian with each refrain, and so they consider almost any human activity as “development.”  Under this view, the Commission often asserts that property owners must obtain a state development permit before carrying out the most routine property activities, and it threatens hefty fines if such activities have already occurred without a permit. Continue reading

Feds’ systemic stalling violates law

Yesterday, a popular Florida newspaper published my commentary about the federal government’s bad habit of ignoring the Endangered Species Act.  In the case of the manatee, the US Fish and Wildlife Service has delayed changing its status from “endangered” to “threatened” for more than eight years since the agency’s own experts first said it was no longer in danger of extinction.  During that time, the number of manatees in Florida alone nearly doubled.  As I say in the op-ed:

By 2007, the government’s scientific experts came back with a positive report about the West Indian manatee. It had recovered from the threat of extinction that had led to its listing 30 years earlier.

In other words, the beloved sea cow no longer needed to be labeled “endangered.”

One would think federal officials would toast this happy news. But instead of popping corks, they buried their heads and proposed even heavier manatee-related restrictions on people using the state’s waters.

In response to lawsuits and a petition filed by PLF on behalf of a local community group, the Fish and Wildlife Service finally proposed a rule that would downlist the species.  Read the whole article.

PLF files federal challenge to agricultural union trespass regulation

In 1975, California enacted the Agricultural Labor Relations Act principally to govern relations between the United Farm Workers union and agricultural employers. While the Union and their interests had lobbied for a provision in the Act allowing labor organizers to access private employer property to solicit worker support, the legislature did not include one. But the Act also created the Agricultural Labor Relations Board and gave the Board authority to pass regulations affecting agricultural employers. The Board did what the state legislature could not accomplish and decreed an access regulation immediately.

Because that regulation infringed their right to exclude trespassers from private property, two groups of growers in Fresno and Tulare Counties challenged it in state court as a violation of the Constitution’s Takings and Due Process Clauses. But a divided California Supreme Court upheld the regulation. In one of its most anti-property rights decisions, that court held that the right to exclude trespassers must give way in every case to the Union’s supposed right to organize on private property. The dissent rightly criticized that blanket holding and argued that “the regulation constitutes an unwarranted infringement on constitutionally protected property rights.”

As a result of that outcome, the United Farm Workers have been permitted to legally trespass on agricultural private property for the past 40 years, so long as they first file a Notice of Intent to Take Access with the Board. But recent events have encouraged our clients – Cedar Point Nursery in the small town of Dorris near the Oregon border and Fowler Packing Co. in Fresno – to renew the challenge against the access rule. This time, PLF will challenge the rule in federal court.

Cedar Point is a family-owned nursery that raises strawberry plants for sale to growers nationwide. It was in the midst of its busy harvest season this past October when the United Farm Workers staged a protest on its property, disrupting the work of over 500 employees using bullhorns and intimidation tactics. The Union was so emboldened by the access rule that it did not even serve its Notice of Intent to Take Access on Cedar Point until it had already been trespassing for several hours. And the Union accused Fowler, a packing company that handles the popular Mandarin brand “Halos,” of blocking its access rights during a three-day period in July 2015 in an unfair labor practice charge filed with the Board.

Both companies decided to seek out PLF’s help in defending their property rights from Union intrusions. PLF is mounting the first federal challenge of the access regulation. In our complaint and motion for preliminary injunction, we argue that by enforcing the regulation, the Board has committed a taking and an unreasonable seizure of our clients’ property. Government cannot grant an easement across private property for the benefit of members of the public without compensating the property owner. Nor can it permit Union activists to seize a possessory interest in property without violating the Fourth Amendment.

As the Supreme Court has repeatedly said, “[t]he power to exclude has traditionally been considered one of the most treasured strands in an owner’s bundle of property rights.” Unlike in 1975, unions now have many alternative means to reach agricultural workers – such as through social media – and do not need to trespass on private property to exercise their right to organize. Therefore, we have asked the federal courts to uphold our clients’ rights to keep union trespassers off their property.

Supreme Court stays EPA Clean Power Plan

In a 5-4 decision, the United States Supreme Court today granted applications to stay EPA’s Clean Power Plan, pending resolution of multiple challenges filed by about half of the states and dozens of private parties in the D.C. Circuit, where the court of appeals has authorized an expedited briefing schedule, with oral argument to be held on June 2, 2016.  This means that EPA’s effort to transform the energy industry of the United States under the guise of regulating carbon dioxide has come to a standstill, at least for now.  The stay decision will allow for a full airing of the issues in court before the draconian EPA rule can be enforced.  Pacific Legal Foundation has filed a motion for leave to participate as amicus curiae in the case.

Controversy over the Coastal Commission’s executive director

Tomorrow, the California Coastal Commission will consider whether to dismiss Charles Lester as the agency’s executive director.  Not surprisingly, the environmental community has come out strongly in favor of Dr. Lester’s retention.  Its defense has consisted principally in the contention that the move by four Commissioners to seek his ouster is part of a pro-developer agency coup.  In these two San Francisco and Los Angeles NPR programs, I explain why that characterization is a very red herring.

Hawkes set for oral argument at SCOTUS on March 30th

The Supreme Court of the United States recently scheduled oral argument in United States Army Corps of Engineers v. Hawkes Co., Inc.supreme_court_building, for Wednesday, March 30, 2016. M.Reed Hopper, our lead environmental attorney at Pacific Legal Foundation, will argue the case, and I will serve as his co-counsel. Reed is no stranger to the Supreme Court, having previously argued and won at the Court in the key wetlands decision known as Rapanos v. United States.

Earlier today, The Blaze published my op-ed about the case.  In the piece, I explain why the case should matter to all Americans:

Continue reading

RIP Andrew Coulson

Liberty lost one of her staunchest defenders yesterday morning, when Andrew Coulson passed away after a 15-month battle with brain cancer. Andrew was a Senior Fellow in education policy at the Cato Institute. In that position, Andrew researched, published,and advocated for school choice.

I have long been an admirer of Andrew Coulson’s work — even before I began my career at Pacific Legal Foundation. His book, Market Education, has long been a staple on my bookshelf. Andrew and I first crossed paths professionally when I posted this critique of an op-ed he wrote in the Philadelphia Inquirer. His response led to a very a interesting back and forth, which is summarized here. Despite our minor disagreement, that conversation led us to more closely follow the other’s work.  We’d exchange emails now and then, usually when one of us had something interesting to say about school choice. For National School Choice Week last year, Andrew Coulson appeared with me on this PLF podcast. The podcast remains one of our most popular ever. Andrew and I discuss a lot of the contemporary issues facing advocates of educational freedom today.

It was during the preparation for that podcast last year that I first learned about Andrew’s diagnosis. He was undergoing treatment at the time, and had to schedule the taping around his doctor visits. I, of course, volunteered to postpone the podcast to a more convenient time, but Andrew insisted.  He wasn’t going to let his treatment get in the way of advocating for freedom.

RIP Andrew Coulson.  “Thankfully, his ideas remain, and they will always illuminate the pathway forward.”

Poll: Residents of Chesapeake Bay watershed don’t trust federal micro-management

According to a Morning Consult poll sponsored by the American Farm Bureau Federation, Chesapeake Bay residents prefer state and local governments to federal regulators when it comes to protecting local water resources and regulating land use.

The poll sought opinions from Chesapeake Bay watershed voters on a range of issues related to the EPA’s Chesapeake Bay Total Maximum Daily Load (TMDL), a first-of-its-kind federal water pollution “diet” for the Bay watershed that claims more federal regulatory power over local water and land use than ever before. Continue reading