PLF petitions US Supreme Court to hear broadcasters out

For years, FCC has prohibited public broadcasters from showing paid advertisements by for-profit entities or political candidates.  So when Minority TV—a non-profit channel out of San Francisco—aired advertisements for Korean Air, Gingko Biloba Tea, and the like, FCC scrambled to silence them (and fine them $10,000.)  Minority TV sought refuge under the First Amendment, but the Ninth Circuit upheld the advertising bans after applying intermediate scrutiny.  Minority TV is now asking the United States Supreme Court to take up this case and subject the infringements on speech to strict scrutiny.

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Media coverage on yesterday’s smelt decision

As noted yesterday, the Ninth Circuit Court of Appeals has ruled that the Bureau of Reclamation must consult with the Fish and Wildlife Service when it chooses to renew various contracts for water from the Central Valley Project.  Media articles quote one water-user lawyer describing the decision as merely “procedural,” and another water-user attorney as “destabilizing.”

I would say that they’re both right.  The ruling is procedural in the sense that the Bureau technically just has to consult but doesn’t necessarily have to reduce water deliveries to these contractors, but the ruling is also destabilizing because it’s certainly possible (perhaps even likely) that water deliveries will be affected, even though these particular contracts had been thought largely immune from Delta smelt regulation.

George Will column features PLF author’s book

George Will’s latest column focuses on my new book:

The fundamental division in American politics is between those who take their bearings from the individual’s right to a capacious, indeed indefinite, realm of freedom, and those whose fundamental value is the right of the majority to have its way in making rules about which specified liberties shall be respected.

Now, the nation no longer lacks what it has long needed, a slender book that lucidly explains the intensity of conservatism’s disagreements with progressivism. For the many Americans who are puzzled and dismayed by the heatedness of political argument today, the message of Timothy Sandefur’s The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty is this: The temperature of today’s politics is commensurate to the stakes of today’s argument.

You can read the rest here…

Pacific Legal Foundation case to be featured on Stossel program

Tomorrow evening I will be joining PLF client John Duarte in appearing on the Stossel Show with John Stossel on Fox Business Network, at 9pm Eastern/6pm Pacific.  We will be talking about Duarte Nursery v. Corps of Engineers, our case challenging the government’s order shutting down a family farm in violation of due process protections.

Check out our case video to learn more about the case:

and listen to our new podcast for an update.


Another win for the Delta smelt

Just minutes ago, the Ninth Circuit Court of Appeals issued its en banc unanimous decision in NRDC v. Jewell holding that the Bureau of Reclamation violated the Endangered Species Act in renewing several dozen water contracts in connection with the Central Valley Project.  The Court, in an opinion authored by conservative GOP-appointed Judge Milan Smith, ruled that (1) the environmentalist plaintiffs had standing to sue the Bureau, (2) the challenge was not moot, and (3) on the merits that, “in renewing the Settlement Contracts, the Bureau retained ‘some discretion’ to act in a manner that would benefit the delta smelt.”  (Pacific Legal Foundation had filed an amicus brief arguing that the Bureau did not retain sufficient discretion to trigger the obligation to consult with the Fish & Wildlife Service on the impacts to the Delta smelt of the water contract renewals.).  The Court reasoned that the Bureau still has discretion to dictate price and timing, factors which could be used to help the smelt, e.g., pricier water means less will be used means more for the smelt, or water made available only at certain times of the year when the smelt’s needs are less pressing.

Bottom line is that this decision will simply spread the pain of Delta smelt mitigation to more farmers and others dependent on Central Valley Project water.

It’s a “failure” to be white

The latest episode of Idiotic College Administrators, brings us this disgrace from the President of Western Washington University“[I]f in decades ahead, we are as white as we are today, we will have failed as university.” It seems the President of WWU, Bruce Shepard, bases the success of the university not on graduation rates, job opportunities for graduates, or academic excellence. No.  President Bruce will base success on its ability to get less “white.” 

Will Arkansas Game & Fish fix temporary takings?

Yesterday, the Boston College Environmental Affairs Law Review made my article, Will Arkansas Game & Fish Commission v. United States Provide a Permanent Fix for Temporary Takings?, available online. Here is the abstract:

The U.S. Supreme Court’s decision in Arkansas Game & Fish Commission v. United States recognized that any government action that interferes with the enjoyment and use of private property-whether permanent or temporary in duration-can give rise to a claim under the Takings Clause of the Fifth Amendment. Yet dicta in the decision left many pondering whether significantly different tests will apply depending on the duration of the government invasion. This Article reviews the state of the law regarding temporary physical takings both before and after Arkansas Game & Fish with particular regard to the test applicable to physical invasions of limited duration, and to what degree the duration of the government invasion should influence the court’s resolution of a takings claim. The Article concludes that drawing a distinction between so-called “permanent” and “temporary” invasions, based solely on the duration of the government occupation, is meaningless when determining liability under the Takings Clause.

Nature Conservancy reminds us that there doesn’t have to be conflict between environmentalists and property owners

The New York Times reports on the Nature Conservancy’s innovative program to provide “pop-up” habitats for migrating birds. The plan is pretty simple: The Nature Conservancy’s supporters provide information about bird sitings so that it can develop a map of when and where birds migrate through California’s central valley. With this information, the group pays rice farmers to keep their fields flooded during the time that birds are expected to be migrating over them. This provides key habitats to the migrating birds.

This effort is notable and encouraging because it’s all done privately and voluntarily. Rather than coercing a few private property owners to bear the costs of providing a general benefit to society — which the Constitution’s Takings Clause is designed to protect against — a private conservation group is paying for the environmental protection that it wants. The resulting environmental benefits are achieved at the lowest possible costs, because the conservation group internalizes them. And the compensated property owners don’t suffer an unfair loss.

Compare this to the approach generally taken under environmental statutes. The Endangered Species Act, for example, protects the delta smelt without regard to cost, which it imposes on a relatively small group of property owners. Neither the government bureaucrats nor the environmental groups that push these regulations have good incentives to consider the cost because they’re not going to bear them. As a result, half a million acres are fallowed.

Interestingly, to the extent that the water used to provide bird habitat is pumped from the delta, the water cutbacks for the delta smelt may actually frustrate this voluntarily effort.

Drakes Bay Oyster Company seeks review in US Supreme Court

Today, Drakes Bay Oyster Company filed its petition for certiorari in the United States Supreme Court, after the Ninth Circuit Court of Appeals decided that the federal government’s decision to shut down the oyster farm is immune from judicial review.

The petition raises a fundamental question that strikes at the heart of the administrative state: exactly how often are federal agencies immune from judicial review of their decisions?  The Administrative Procedure Act authorizes review in federal courts of federal agency decisions when they are arbitrary, capricious, abusive of the agency’s discretion, or otherwise not in accordance with law.  But many courts across the nation have held that they have no jurisdiction to review agency decisions unless Congress specifically provides statutory guidelines for the exercise of agency discretion.  This legal perspective boils down to the proposition that Congress can (and frequently does) delegate unlimited power to executive agencies to make permitting and other regulatory decisions for any reason or no reason, subject to no substantive or even procedural safeguards for citizens and their liberty and property.

Fortunately, many other federal courts have ruled the opposite: that courts can and must review whether discretionary agency actions are arbitrary, capricious, abusive, or otherwise contrary to law.  The oyster farm’s petition to the Supreme Court clearly identifies the scope of this ongoing conflict within the federal courts of appeals, making this a very good opportunity for the Supreme Court to resolve this fundamental question of executive accountability and availability of judicial review.

You can learn more about the oyster farm’s fight for justice from our video

Or listen to our January 15 podcast.

Unequal pay?

There’s been a lot of high-profile talk about equality lately.  President Barack Obama has been trying to make political hay by railing against unequal pay between the sexes, and former President Jimmy Carter recently expressed similar sentiment in a speech.

Of course, inequality is a problem.  So, too, is the recent political rhetoric about inequality because it assumes that a pay disparity is unequal pay.  “Equal” does not mean “the same,” and “unequal” does not mean “different.”  Every policy treats people differently in one way or another.  For example, consider how income taxation affects two people who earn different amounts of income.  If the two people pay the same income-tax rate (e.g., 20%), the wealthier person will pay a greater total dollar amount to the government.  If they pay the same total dollar amount, the wealthier person will pay a smaller percentage of his income to the government.  They cannot pay both the same tax rate and same total dollar amount.  If “different” means “unequal,” then every policy would be unequal in some way.  Equality would be an impossible goal, so criticizing a policy for being unequal would be pointless.

Instead, “equality” means that things should be treated alike if they are alike in ways relevant to their treatment.  This view has been a hallmark of Western civilization for thousands of years.  Aristotle wrote about this view of equality around 350 B.C.  The U.S. Supreme Court has always interpreted the Constitution’s right to “equal protection of the laws” according to this view of equality. Continue reading