President’s weekly report — October 5, 2012

It’s been another amazing week here at PLF.  Here are a few of the highlights.

Property Rights — Back to the United States Supreme Court!

The Supreme Court granted certiorari today in Koontz v. St. John’s River Management District.  This is the case where the district is demanding a Florida landowner (actually now his heirs because the case has dragged on for 18 years) to spend money (between $90,000 and $150,000)  to improve 50 acres of property miles away from his own property in order to get a permit — after he had already agreed to dedicate 80% of his own lot to conservation purposes.  This case is a very big deal.

In 1987, The Supreme Court handed us a great victory in our Nollan v. California Coastal Commission case.  There it held that government could not demand a condition on development that is unrelated to any severe impacts caused by the development.  Otherwise it would be an “out-an-out-plan of extortion.”  A few years later the Court clarified the test by noting in Dolan v. City of Tigard, that the condition must be “roughly proportional” to the impact.  But since then, the local governments and the lower courts have been doing their darndest to limit the force of these decisions –saying that they apply only when government demands land — as opposed to money — as a condition for development.  Or saying that if a property owner doesn’t agree to a permit condition, and that as a result the government doesn’t give the permit, then there is no permit condition to challenge.  To us this is nonsense and more nonsense.  We trust that the Supreme Court will agree.  For more see our blog post below or our website or a copy of our petition.   The questions presented in Koontz are:

1.         Whether the government can be held liable for a taking when it refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994); and

2.         Whether the nexus and proportionality tests set out in Nollan and Dolan apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use.

Property Rights — Right to compensation for physical damages

Oral argument was heard today in Arkansas Game & Fish Commission v. United States.  This was the case, as described on our blog, that was filed after the Corps of Engineers caused unprecedented summer-long flooding, destroying millions in timber.  PLF filed this amicus brief on its behalf and for the Cato Institute.  You can read the oral argument transcript here.

Property Rights — Vested Rights Under Measure 37

The United States Supreme Court denied cert this week in Bruner v. Whitman, a case that asked whether the Oregon state legislation that retroactively destroyed vested rights to develop property violates the Takings Clause or substantive due process.   For more, see our blog here or our amicus brief here.

Economic Liberty Project — Right to Earn a Living

This week we filed this complaint in Underwood v. Mackay.  The State of Nevada will not permit new moving companies to operate if they “might increase or create competition.”  For more on this see our blog post here.

Individual Rights — Equality Under the Law

PLF attorneys argued today in Sacramento Superior Court that a California statute requiring discriminatory preferences in highway contracting violates Proposition 209 — California’s constitutional amendment that prohibits all racial and sex-based discrimination.  We are representing Ward Connerly in challenging this statute in Connerly v. State of California.  For more, see our website here.

Individual Rights — Equality Under the Law in College Admissions

PLF attorney Joshua Thompson will be traveling to Washington D.C., next week to observe the oral argument in Fisher v. University of Texas.  After Abigail Fisher was denied admission to the University of Texas, she sued alleging that the University’s admission’s policies were a violation of her rights under the Equal Protection Clause.  Many of us are hoping that the Court will take up Justice Robert’s admonition that the best way to end discrimination is by ending discrimination.  Stay tuned to our blog for post-argument updates.

Individual Rights — Equality and Disparate Impact

Not all news from the Court has been good news.  On Monday the Court denied cert in  Merrill Lynch, Pierce, Fenner & Smith, Inc. v. McReynolds This is the case where brokers are pursuing a class action suit against Merrill Lynch, alleging discrimination based only on statistical evidence that the team approach used in Merrill offices resulted in a disparate impact.  For more information on our arguments see our blog here.

Free Enterprise Project — Tort Reform

In Whirlpool v. Glazer we filed an amicus brief asking that the United States Supreme Court to review a decision by the Sixth Circuit granting class certification in a case filed on behalf of 200,000 owners of front loading washing machines alleging mold problems in some of the washers.  The problem is that very few of the purported class plaintiffs actually suffered any mold problems.  For more, see our blog post here and our amicus brief here.

Environment — Endangered Species Act

Finally, as reported here, the Fish and Wildlife Service has begun the delisting process for the Valley Elderberry Longhorn Beetle, the bane of existence for many landowners, irrigation districts, and flood control districts in the central valley of California.  According to the Service’s own information, the beetle doesn’t deserve to be listed.  But we had to sue them, more than once, to get this process to where it is now.