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

Should a city be able to use legislative tricks to acquire land cheaply?

The Constitution requires the government to pay just imagecompensation when it seizes private property for public use. However, if the City of Perris has its way, cities will be allowed to pay less than fair market value for private property they seize merely by amending their general plans. The California Supreme Court is set to consider the legality of that maneuver in City of Perris v. Stamper. PLF, joined by the National Federation of Independent Business, filed an amicus brief in the case supporting the property owners.

In this case, Richard Stamper and Donald Robinson own 9 acres of land zoned light industrial that the City of Perris wants for a road extension. In order to attract a Lowe’s distribution center, the City decided it needed to take 20% out of the middle of the Stamper/Robinson property for a new road. The City argued that because it was going to require the owners to dedicate the land before they could build, the City only had to pay for the land valued at its current, agricultural use. The city also left open the possibility that in the future, the Owners might have to dedicate even more land to the City if they want to develop the rest of their property.

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FWS dismisses state and local protections of gopher as too flexible

Mazama_pocket_gopherYesterday, the U.S. Fish and Wildlife Service listed four subspecies of Mazama pocket gopher as threatened under the Endangered Species Act. As PLF explained in a comment letter last year, this listing is inappropriate and unnecessary because it doesn’t recognize the extent to which state and local regulations already protect the gophers. As a result of this listing, more than 1500 acres of land in Washington state will be subject to yet more regulation.

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EEOC: disparate impact for thee, but not for me

Yesterday the Sixth Circuit shut down the Equal Employment Opportunity Commission’s suit against Kaplan University in EEOC v. Kaplan.  EEOC had alleged that Kaplan’s policy of conducting credit checks on job applicants had a disparate impact on minorities.  Perhaps EEOC is unaware of the saying, “when you point one finger at others, you point three at yourself,” because the Commission also uses background checks when hiring—a fact that did not go unnoticed by the Sixth Circuit.  Worse, in order to prove that Kaplan’s policy had a disparate impact on minorities, EEOC hired a panel of “race raters” and tasked them with “eyeballing”—as the Sixth Circuit put it—the rejected applicants’ DMV photos, taking a crack at their race, and categorizing the applicants into one of five races according to their best guess.  Today’s opinion focused on the reliability, or as the Court noted, “the lack thereof” of that process.

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Knee-jerk reaction to endangered species legislation

It’s amazing how predictable the “green lobby” is.  One can predict with absolute certainty that when conservative lawmakers propose legislative changes to the Endangered Species Act, no matter how benign, they will be met with the tired old accusation that the changes will “gut the Act.”  This canard has become obligatory among activists who are in the lucrative business of selling outrage.

Therefore, when I heard that the U.S. House Committee on Natural Resources would be considering four new ESA bills, I knew we would be hearing “their gutting the Act” alarm bells from the usual bell ringers.  I wasn’t disappointed.  The Defenders of Wildlife, Earth Justice, Sierra Club, NRDC, and the Center for Biological Diversity led the attack.

In the true spirit of their calling, they did not mince words.   As summarized at eNews Park Forest we were treated to these breathless claims:

Don’t be fooled by this piecemeal approach—this is just the tip of the iceberg. These bills are drawn directly from Representative Hastings’ recent report containing proposals that essentially gut the Endangered Species Act, making species extinction more likely and recovery of many of our most endangered species almost impossible. –  Defenders of Wildlife

These attacks undermine the Act’s essential protections for species on the brink of extinction.  — Earth Justice

The cost of weakening [ESA] protections in order to benefit special interests will be extinction for a number of plants and animals. – Sierra Club

Folks supporting these bills are trying to undermine the Endangered Species Act. Period.  — NRDC

And last, but not least:

There isn’t a single provision—or even single word—in any of these bills that would help any species anywhere in the country move toward recovery.  — CBD

Wow! This is scary stuff.  If these bills will dismantle the ESA, they must be drastic. Well, let’s take a look:

H.R. 4315 – This bill would require the Secretary of Interior to publish to the internet the best scientific and commercial data available that forms the basis for any listing decision.

H.R. 4316 – This bill would require certain federal agencies to file an annual report with Congress showing the nature and cost of any civil suits brought against the federal government arising under the Endangered Species Act.

H.R. 4317 – This bill would require the federal government to disclose to affected states all data used prior to any ESA listing decisions and require that the “best available scientific and commercial data” used by the federal government include data provided by affected states, tribes, and local governments.

H.R. 4318 — This bill would limit attorney fees to $125 per hour for citizen suits filed under the ESA to match the Equal Access to Justice Act.

So, what do you think?  Does increasing transparency and reducing the cost of ESA litigation really “gut the Act?”  You be the judge.

“An egregious example of scientific dishonesty”

Back in August I reported on a case out of the federal district court in Maryland, where the EEOC was trying to stop a business from undertaking criminal background checks on job-applicants.  In EEOC v. Freeman, the district court rejected the EEOC’s disparate impact lawsuit, because the data it collected was woefully insufficient.  In a very strongly worded opinion, the court explained how EEOC’s statistical evidence was “laughable”; “based on unreliable data”; “rife with analytical error”; “distorted”; “cherry-picked”; “worthless”; and “an egregious example of scientific dishonesty.” Continue reading

Moving company licensing in Missouri: a case study in rent-seeking

the newest issue of the GMU Civil Rights Law Journal includes my article on licensing laws for moving companies in Missouri, prior to our lawsuit challenging them. I believe this is the first empirical survey of a Certificate of a Public Convenience and Necessity law in a normal, competitive market. Most economic research on these laws has been in public utility industries or have been entirely theoretical. This article, however, shows how existing firms resolutely used the licensing rules to block potential competition–without any concern for public safety– just as public choice theory would predict.

Of course, the same pattern surfaced in Kentucky, where we successfully challenged the constitutionality of the Certificate requirement for moving companies.