The case dealt with the FCC’s interpretation of a provision of the Federal Communications Act concerning permitting of cell phone towers, but the decision will apply much more broadly.  For example, in providing examples as to how difficult it would be for a court to distinguish between jurisdictional and nonjurisdictional provisions, Justice Scalia cited the Clean Water Act’s definition of “waters of the United States.”  The implication is, I believe, that EPA and Corps interpretations of what constitutes a water of the United States are eligible for deference, even if one might label the provisional “jurisdictional.”

An interesting facet of today’s decision is its breadth.  Arguably, the only issue the Court needed to decide to dispose of the case was:  should courts defer to an agency’s view that it has been delegated authority from Congress to interpret a statute (or a provision thereunder)?  The petitioners in City of Arlington argued that the FCC did not have authority to interpret the cell phone tower provision, whereas FCC argued that it did have such authority.  But resolving that question doesn’t require the Court to address whether certain provisions of a statute that it concededly has authority to administer are not eligible for deference because they are “jurisdictional.”  And yet, Justice Scalia’s opinion addresses both issues:  yes, FCC has authority to interpret the provision at issue; and, FCC’s interpretation is eligible for deference, because the jurisdictional/nonjurisdictional distinction is gossamer.

Now, one might argue that Justice Scalia’s decision doesn’t really address the narrower issue of whether deference applies to an agency’s determination that it has authority to interpret a statute or one of its provisions.  His opinion seems simply to conclude that this issue here is not even close—of course the FCC has such authority.  In other words, where a statute provides a “general conferral of rulemaking authority,” a court must dispense with any Chevron eligibility analysis (so-called Chevron step zero) and proceed directly to an application of the Chevron test.  Hence, I would argue that it remains an open question whether an interpretation is eligible for deference, if the agency lacks general rulemaking authority.

A final point on my blog post title.  Justice Scalia’s opinion cites The Hound of the Baskervilles to make the charge that the anti-deference forces (including the dissenters) are really after bigger prey than the “jurisdictional” interpretation; that, in fact, they want to dispense with Chevron itself.  Of course, the dissenters disavow any desire, while noting that the growth and reach of the modern administrative state if anything would argue for less rather than more deference.  But Justice Scalia seems content to protect individual liberty from an administrative leviathan simply by allowing the agencies no more authority than what Congress has already granted.

The post Deference and the Hound of the Baskervilles appeared first on PLF Liberty Blog.

The Massachusetts’ Endangered Species Act (MESA) gives the Division considerable power.  It can police activities that harm protected species and regulate “significant habitat,” but each power is subject to statutory limits.  The rapacious bureaucrats were not satisfied.  They adopted regulations for a new category of habitat – “priority habitat” – which allow them to regulate private property free of the statute’s limitations.  You ignore these regulations at your peril; violators face fines of up to $10,000 and imprisonment.

At first blush, you might think that the “priority habitat” regulations relate to the “significant habitat” provisions in the statute.  They don’t.  Perhaps the legislature realized that regulating habitat risks infringing due process and constitutional property rights.  Because it allows the designation of habitat for only the most threatened species.  It also ensured that property owners would be given notice and an opportunity to be heard and seek compensation if their property was taken.  The Division excluded all of these property rights protections from its regulations.  Instead, the Division created a designation process that can happen largely in secret.  A property owner doesn’t find out that her land is being regulated until after it is too late.

PLF filed an amicus brief in support of the Pepins in Massachusetts’ highest court.  The brief argues that – in addition to being plainly inconsistent with MESA – the agency’s actions raise a host of other serious constitutional problems.  First, the regulations increase the risk that people are going to have their property taken.  The regulations’ permitting process imposes an expressly disproportionate mitigation requirement.  This unfair permit demand makes it very likely that property owners will have their constitutional rights violated under Nollan and Dolan.  As regular readers will recall, these cases prohibit government from making unrelated or disproportional demands on property owners in the permit process.  Second, the Massachusetts’ Constitution prohibits the unlimited delegation of power to administrative agencies.  The legislature created the Division and imposed specific limits on its power in MESA.  If the agency is free to ignore those limitations, the legislature has created an agency that simply has too much power.

The post Mess-achusetts: state agency attempts to circumvent limits on its power, ignores property rights appeared first on PLF Liberty Blog.

For decades, the Forest Service has coveted the water rights of private parties that hold permits to work on national forests.  The campaign to take water rights from cattle ranchers in the forests is well known to Liberty Blog readers.  In the past few years, the Service has added ski area water rights to its list of ‘must-take’ private property.

One of the Forest Service’s bogus legal theories is that when a permit holder uses water rights in the forest, the Service is entitled to the water right.  US and state law flatly refute this nonsense, but being wrong has not stopped the Forest Service from making the claim.  After landmark losses in court, the Forest Service started taking a more sinister approach: threats to revoke permits if ski areas do not hand over their water rights.

Last December, the National Ski Areas Association won a lawsuit against the Forest Service in federal district court in Colorado.  The court ruled that the Forest Service illegally adopted the water rights permit term it was forcing on ski areas to exact their water rights from them.  Since the permit term was illegally adopted, the court did not address the merits of whether the permit term itself violates the Takings Clause of the U.S. Constitition.

So the Forest Service has gone back to the drawing board, to cure the process errors in drafting a water rights seizure policy.  PLF recently submitted a comment letter laying out the basic problem with the Forest Service’s view of water rights.  The Forest Service will be taking private property without compensation if it exacts ski area water rights as a condition of holding or renewing their permits.  The Forest Service should avail itself of state water law forums to protect any real interests it may have in ski area water rights, and otherwise leave the ski areas’ privatge property in peace.

The post PLF warns forest service not to take water rights appeared first on PLF Liberty Blog.

To enjoy the wilds, you need to be able to get to the wilds. Before the government’s prohibition, over 800 miles of routes in Tahoe National Forest took people into the majesty of the deep woods by motor vehicle. Now, 90 percent of those roads and trails are closed, thereby setting insurmountable barriers for many who wish to enjoy Mother Nature at her wildest.

Representing eight clients who for years have enjoyed the pleasures of the forest via motorized access, PLF filed its legal brief in the case of Friends of Tahoe Access v. United States Department of Agriculture, explaining that the National Environmental Policy Act (NEPA) protects the human environment and was enacted by Congress to preserve the environment for people. NEPA was never meant to keep people out of the environment. But that is the result under the wrong-headed government decision to close hundreds of miles of access routes in Tahoe National Forest.

The hearing on PLF’s legal challenge is scheduled for September 25, 2013, in the United States District Court for the Eastern District of California.

The post Is the environment made for humans or vice versa? appeared first on PLF Liberty Blog.

The home and property of Scott and Lynn Powell

As reported, PLF represents Humboldt County residents Scott and Lynn Powell in their fight against government extortion.  The County of Humboldt demands that the Powells obtain a building permit to bring some covered porches on their mobile home up to code.  (The prior owner never bothered to get a permit).  But the County won’t issue the permit unless and until the Powells deed to the County an overflight easement allowing airplanes to fly over their house—along with the attendant noise, vibrations and other disturbances.

The state and federal constitutions prohibit government from taking private property without paying “just compensation.”  Here, the Powells’ are being forced to surrender their constitutional right to receive just compensation for the taking of the easement, in exchange for a building permit.  This, according to the U.S. Supreme Court, is an “unconstitutional condition” and illegal:

Under the well-settled doctrine of “unconstitutional conditions,”  the government may not require a person to give up a  constitutional right—here the right to receive just compensation  when property is taken for a public use—in exchange for a  discretionary benefit conferred by the government where the  benefit sought [here, a building permit] has little or no  relationship to the property [the easement].

After PLF filed its Opening Brief in the California Court of Appeal in February, the County filed its Brief, and we responded in a Reply Brief this week.  Our brief explains why Nollan v. California Coastal Commission, a case which PLF won at the U.S. Supreme Court in 1987, mandates invalidating the easement condition here.

In Nollan, the Court struck down a requirement that Pat and Marilyn Nollan deed an easement to the Coastal Commission in exchange for a building permit.  The Court held there was no close connection, or “essential nexus” between the impacts of the house the Nollans wanted to build, and the requirement that they dedicate an easement.  Hence, the condition was unconstitutional; it was simply an excuse for government to take private property without paying for it.  After Nollan, permit conditions are only constitutional when they mitigate for harm caused by proposed development.

Under Nollan, the Powells win this case.  There is no connection between the Powells’ update to their porch covers and the dedication of an overflight easement.  In fact, the County has admitted that the Powells’ project poses no threat to airport safety, neither has the County identified any other harmful impact of the Powells’ project.  As a result, the condition is unconstitutional.

Further, under the County’s reading of Nollan and other relevant cases, there is no limit to what government can demand in exchange for building permits.  The County asserts in its brief, that “the government’s benefit given to the property owner, [i.e. the permit] is the just compensation for the taking imposed as a condition for the benefit.”  Hence, as long as government gives property owners building permits, it never has to pay for violating their 5th Amendment rights.  Fortunately, the Supreme Court has never affirmed such an idiosyncratic reading of the Constitution.  And in fact, it has continuously held that Nollan applies to government demands for property in exchange for building permits.  Hopefully, the appellate court will reject the County’s bogus legal theories and strike down the easement condition as unconstitutional.  With briefing in this case now complete, we now look forward to the court setting a date for oral argument.

The post Continuing the fight in Humboldt County appeared first on PLF Liberty Blog.

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Now a recent opinion from the D.C. Circuit Court of Appeals could change everything.  Well, not quite everything.  Section 404 permits will still be expensive and take a lot of time to acquire.  They will just provide less assurance that the permit holder’s project will actually comply with the Clean Water Act.

The source of the uncertainty is the D.C. Circuit’s opinion in Mingo Logan Coal Co. v. EPA.  Mingo Logan operates a coal mine in West Virginia that the Army Corps of Engineers permitted under Section 404 in 2007.  Mingo Logan’s permit governs disposal of materials at the mine, and specifies which water bodies are available for use as discharge sites.  Years after the Corps issued the permit and the mine began operations, EPA “revoked” the permit by pronouncing that Mingo Logan was barred from discharging into some of the streams that the Corps had designated as disposal sites.  Mingo Logan challenged the EPA and prevailed in federal district court, but the Court of Appeals issued a sweeping opinion that allows EPA to withdraw Corps-designated disposal sites “whenever” EPA determines it is necessary.

So what is a Section 404 permit worth if EPA can take it away at any time?

It remains to be seen whether the plaintiffs in Mingo Logan will seek Supreme Court review.  In the meantime, the opinion is attracting the attention of legal practitioners, the mining industry, and even Congress.

The post Got a permit? EPA doesn’t care appeared first on PLF Liberty Blog.