“Tim the Lawyer” joins Armstrong & Getty tomorrow to discuss Supreme Court arguments

I’ll be on air with our friends Armstrong & Getty tomorrow at 7 Pacific to discuss some interesting Supreme Court arguments this week (none of which PLF is involved in). These include the case about whether the states can restrict what organizations may put their symbols on license plates, which raises some very interesting First Amendment questions.

You can listen online here.

Update: If you missed it, you can listen here.

New Jersey takes a step back from protecting property rights

Unfortunately, the New Jersey Supreme Court just significantly cut back on that state’s constitutional protections for private property. New Jersey’s Constitution provides that private property cannot be taken for economic redevelopment except in the case of blight. In the wake of the U.S. Supreme Court’s disastrous Kelo decision, which removed any check the U.S. Constitution has on these takings, the New Jersey Supreme Court breathed new life into its state constitution’s protections. It held that the state must prove that property satisfies the constitutional requirements for blight before it could exercise the awesome power of eminent domain. Mere speculation or conclusory government statements were not enough. This week, that changed. Now, the Constitution’s protections only apply to a subset of cases.

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Real property, personal property, and the Takings Clause

The government must pay you if it takes your house. Should that rule be any different if it takes your furniture?

The Supreme Court will hear oral argument next month in Horne v. U.S. Department of Agriculture, a case involving a Depression-era regulation that, as Justice Kagan put it, might just be the world’s most outdated law. The law requires California raisin producers to turn over a portion of their crop to a Raisin Administrative Committee before they are allowed to sell the remainder on the open market. PLF filed an amicus brief supporting petitioners Melvin and Laura Horne, farmers from Fresno who have been asked to turn over as much as 47 percent of their harvest. We have also written about the case on our blog (here, here, and here) and at the Daily Journal.

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State “Competitor’s Veto” laws and the right to earn a living

The Mercatus Center has published my paper on Competitor’s Veto laws—laws that force you to get permission from your own competition before you’re allowed to start a business—and how the federal government could protect people from such violations of their constitutional right to earn a living. My paper describes in detail the evidence unearthed in our recent lawsuits against Kentucky and Missouri on behalf of entrepreneurs who were unfairly denied their right to start businesses, because government officials thought there was no need for more competition.

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U.S. Supreme Court denies review in Kent Recycling

Once again, the U.S. Supreme Court missed an opportunity to address a matter of great national importance.  The Corps of Engineers can subject private property to strict federal regulation without any meaningful judicial review.  This emboldens the agency to exceed its power at will and federalize local ditches, ponds and streams as “waters of the United States” under the expansive Clean Water Act.  Even when the agency blatantly misapplies the law, as in Kent Recycling, landowners have no practical recourse but to acquiesce to federal regulatory demands.

In Kent Recycling, the Corps issued the landowners (Belle Company) an erroneous Jurisdictional Determination claiming the subject property contained jurisdictional wetlands.  A reviewing officer concluded the determination was improper because it applied the wrong legal standard and was lacking in evidence.  But the Corps issued the determination anyway. The trial and appellate courts refused to review the determination leaving the landowner with only three options: (1) abandon the proposed use of the land, at great cost; (2) get a permit that may not be legally required at a cost of over $270,000; or (3), proceed with the proposed project and incur fines of $37,500 a day and possible criminal sanctions.

PLF petitioned the Supreme Court arguing that those with an interest in the property were denied due process and should have been allowed an opportunity in court to challenge the accuracy and validity of the Corps’ Jurisdictional Determination.  This was important not only for the petitioners, but for the tens of thousands of landowners across the Country who are illegally subjected to heavy-handed federal regulation of their property without a fair judicial remedy.  Unfortunately, the High Court denied review of the case today leaving landowners across the country a the mercy of agency overreaching.

Although the court did not address this issue in this case, there are other cases now pending in the appellate courts that raise the same issue, including our case in the 8th Circuit; Hawkes v. Corps.  We will continue to press the Supreme Court until it determines whether Jurisdictional Determinations are subject to judicial review just like the compliance orders in our landmark Sackett case.

President’s weekly report — March 20, 2015

SKR --Photographer: Cheryl Brehme

USGS photo

Environment & Endangered Species Act — 60-day notice filed for the Kangaroo Rat

As required by the Endangered Species Act, we filed a sixty-day notice on intent to sue with the United States Fish & Wildlife Service over the Service’s failure to act on our petition to delist the Stephens Kangaroo Rat. Ad described here, our petition is based on new scientific studies that show the rat is not endangered because its populations are not as isolated as once believed.  If the Service doesn’t act in sixty days, we’ll sue.

Free Speech — Commercial speech vindicated in Virginia

In response to our lawsuit in McLean v. City of Alexandria, the City has repealed its ordinance that banned “for sale” signs on cars parked on city streets.  The sort of restriction on commercial speech violates the First Amendment and rather than defend the unconstitutional law in court, the City made the wise decision to repeal it.  For more on the case view a news video here or  see our blog here.

Property Rights — Settlement in secret easement case

Martin County agreed to settle our lawsuit in Breinig v. Martin County where we’ve been representing the Flash Beach Grill.  When the Robert and Anita Breinig sought to expand their operations, they were told that they couldn’t use a substantial amount of their property because there was an unrecorded secret conservation easement on it.  What’s more, because they were already using part of that property for their restaurant, they were told they were subject to fines of $1000 per day.  This is flatly illegal because to be effective easements must be recorded so people like the Breinigs will know about the restrictions before they buy property in the county.  This week the County settled, and will now allow the Breinig’s to use their property for their restaurant. For more, see our blog post here. Continue reading

EPA rule would hurt manatees

The EPA is preparing to adopt carbon emissions rules this summer that would likely shutter coal-powered plants in Florida and cost billions of dollars in compliance requirements.  The rules would also hurt manatees, which are currently listed as “endangered” by the U.S. Fish and Wildlife Service.

West_Indian_manateeAs our readers know, the USFWS may soon reclassify the manatee as “threatened,” because the species has made excellent gains in recent years. Just last month, the Florida Fish and Wildlife Commission counted more than 6,000 manatees in Florida waters.  That’s the most manatees the Commission has ever found in its aerial surveys of the species.  Power plants rank among the most popular places for manatees to congregate in the chilly winter months.

According to a recent article by the Miami Herald, about two-thirds of Florida’s manatees survive the colder months by swimming in the warm waters that flow from power plants. If the EPA forces some of those plants to shut down, it would most likely hurt manatees, potentially undermining their recovery.  The U.S. Fish and Wildlife Service’s last status review of the manatee specifically identified the “the potential loss of warm water at power plants” as “a significant habitat threat to the Florida manatee.”  That report said, “the loss of major power plant outfalls could result in a substantial decline in manatee abundance along the Atlantic Coast and in southwestern Florida.”  The EPA would do well to consider the unintended, but predictable, consequences that its regulations may have on the future of the manatee.

Attention law students: incredible opportunity for you!

let-freedom-ringLaw students and young lawyers who care about liberty, and believe in the principles that make our country a shining city upon a hill, take note: Pacific Legal Foundation wants you!

Pacific Legal Foundation’s College of Public Interest Law offers two-year litigation fellowships to graduates interested in rapidly gaining experience in major constitutional cases. The fellowships are open to all graduating individuals of demonstrated high achievement and offer an exceptional opportunity as a stepping stone to private practice, public agency law, an academic career, or a permanent place with Pacific Legal Foundation.

Applicants accepted for the College of Public Interest Law Fellowship will begin September, 2016. Fellows work in the Sacramento, California, headquarters of Pacific Legal Foundation, the largest and oldest national public interest law foundation litigating in support of private property rights, environmental balance, individual liberties, limited government, and the free enterprise system. Guided by experienced attorneys, each Fellow will take part in hands-on litigation, including lead attorney responsibilities in both trial level and appellate cases; and write publishable legal scholarship.

So what are you waiting for? Get busy applying. For more information, like where to send your application, click here.

PLF files opening brief in critical, new NC beach takings case Nies v. Town of Emerald Isle

Pacific Legal Foundation (PLF) attorneys have filed an Opening Brief in the North Carolina Court of Appeals in Nies v. Town of Emerald Isle, a case involving a potentially far-reaching beach property rights battle.  The dispute pits Greg and Diane Nies — a beachfront property owning couple — against a North Carolina beach town and its attempt to classify the Nies’ dry sandy backyard as an expressway for Town service vehicles and a road and parking lot for the public. The case is now at the center of a larger, ongoing controversy within North Carolina, and the country as a whole, about the scope of private property rights on the beach.

Emerald Isle is on a barrier island on North Carolina’s Atlantic shore.  It is a popular summer vacation spot, and Greg and Diane Nies began vacationing there in the 1980’s. Twenty years later, they bought a beachfront home and began to live In Emerald Isle.  According to the Nies’ deed and state law, their property line runs down to the mean high water mark and thus includes the dry sand lying between the first line of dunes near their home and the mean high water mark.   The tidelands (wet beach) seaward of the mean high water mark (and of the Nies’ dry sandy property) are State-owned beaches.

For many years after buying their property in 2001, the Nies enjoyed walking from their home, across the dunes and their dry sand property and down to the water where other people mingled and strolled.view

But in recent years, the Town of Emerald Isle has radically diminished the Nies’ property — and their experience.  The first inkling of trouble came in 2003-2005 when the Town embarked on a beach renourishment project on Emerald Isle beaches. In connection with that effort, it tried to secure easements from beachfront property owners that would have opened up all privately owned dry sand areas to perpetual Town and public use. The Nies resisted, however, and the Town was never able to secure such an easement from them.

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Workers’ comp, bulk suppliers, and expanded tort liability

Flavio Ramos worked as a mold maker, machine operator, and laborer for Supreme Casting & Pattern, Inc., which manufactured metal parts through “a foundry and fabrication process,” from 1972 to 2009. During this time, the industrial processing of raw materials created fumes from molten metal and dust from the plaster, sand, limestone, and marble. In 2010, he sued ten suppliers of all the raw materials to which he was exposed, alleging that his exposure caused his lung disease. The trial court rejected his claim, but the court of appeal held that suppliers of raw materials or component parts owe a duty to workers in plaintiff’s position where it is foreseeable that the raw material will be used in processes that may pose health hazards, even where the raw material posed no health hazard when transferred from the supplier to the manufacturer. The California Supreme Court granted review in Ramos v. Brenntag Specialties, and PLF today filed an amicus brief in support of the raw material suppliers.

Although Ramos alleged that the raw materials were “inherently dangerous,” the danger he describes is not inherent at all, but arises only “when [the materials] melted during the casting process.” To “inhere” means “to exist in and inseparable from something else.” If the danger arises only when the material is melted, then the danger cannot be inherent—the material itself presents no risk of injury. Acknowledging this fact, Ramos and the appellate court focus on the manufacturing process that created the fumes that allegedly caused Ramos’s illness. PLF therefore argues that if it is the manufacturing process that caused the employee’s injury, then this case presents nothing more or less than a typical workers’ compensation claim and Ramos should seek compensation through that exclusive remedy.

PLF further argues that, should the California Supreme Court nonetheless find that this case presents an exception to the exclusive remedy of workers’ compensation, then the suppliers of raw materials should be held to have no duty to warn an employee who should have received safety information and instruction from the party in the best position to provide it: his employer. The employers’ knowledge is particularly important when compared to suppliers of commodities that have multiple uses. When the end product could be anything that incorporates the industrial material, the product packaging, labels, or inserts cannot reasonably be expected to effectively address all the possibilities with a “one size fits all” warning.

Each potential use has its own manufacturing process, the details and potential hazards of which are best—and perhaps only—known by the manufacturer who purchased the raw material. For example, there does not exist a meaningful single warning that an aluminum supplier could offer to the multiplicity of foundries and other metalworking businesses, all with different products and clients in mind. And if a single warning does not suffice—if the supplier must append unique warnings specifically designed for the purchaser’s business, the cost of the raw materials and component parts would skyrocket as the suppliers could not absorb all the additional costs of researching and designing warnings for each individual client. This would have dire consequences on California’s already-suffering manufacturing base, which has already lost 613,000 jobs between 2001 and 2011.  PLF therefore urges the court to adopt the majority view nationwide, and reject bulk supplier liability in this case.