Secure property rights are the key to conservation

Too often, property rights and conservation are treated as if they are in tension. But, in reality, property rights are a proven means to encourage responsible stewardship, resolve conflicts over limited resources, and empower environmentalists to protect resources they value.

line2879_-_flickr_-_noaa_photo_libraryTo achieve these positive environmental ends, however, property rights must be secure. If courts do not protect them, or the law makes who has what rights fuzzy, they will be less effective and there will be more conflict. That’s why PLF joined with the Property and Environment Research Center (PERC) to file this amicus brief in the Maine Supreme Court asking it to side with property owners in a dispute over rockweed harvesting.

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Licensed out: occupational licensing hurts, not helps

When Arty Vogt purchased a moving business with his wife Stephanie, he never thought that running it would be easy.  But he certainly didn’t think that he’d be shut down simply because the existing businesses didn’t want to compete with him.

Unfortunately, Arty operated in West Virginia, which required movers to obtain a “Certificate of Need.”  The way Certificate of Need laws (the acronym, “CON law,” is apt) work is that not only must you apply for permission to run your business, you also have to prove to the government’s satisfaction that there’s a public “need” for your business.  Worse, the government allows existing businesses to testify that they can serve any existing demand.  That amounts to asking a kid whether she wants to share her cookie or have it all to herself.  Almost without fail, businesses say that new competition is unnecessary, and the government then denies the application.  That’s why CON laws are sometimes called the “Competitor’s Veto.”

Although Competitor’s Veto laws mostly exist in the transportation industry, and are an egregious example of occupational licensing laws, absurd restrictions on the right to earn a living are not uncommon.  Nearly a third of Americans need a license to do their job.  Getting a license often entails investing serious resources in satisfying educational requirements, putting in time gaining experience under a licensee, taking exams, and paying large fees—even to go into innocuous occupations like moving, floristry, or make-up artistry.  The sad result is that people are shut out of work not because they are unqualified or present a threat to the public, but because they cannot afford the start up costs to break into an entry level job.

Many times the government’s justifications for licensing laws are so ridiculous that they can’t pass the laugh test.  A court upheld Louisiana’s florists license law on the theory that florists need to undergo training and pass exams so that consumers won’t prick their fingers on the wiring used to tie arrangements together.  (FWIW, in all my years as a flower aficionado, I’ve never seen this happen).  In a case PLF brought challenging an anti-competitive growler ban meant to protect commercial breweries from competition with small breweries, the government argued that growlers should be outlawed because, otherwise, drunk drivers “could honestly say, if asked by a spouse, friend, or police officer about their drinking, that they had only had ‘one beer.’”

But there’s hope for economic liberty, yet.  A growing consensus is emerging that occupational licensing is anti-competitive, overly burdensome, and often times outrageous.  In a 2015 report, the Obama White House acknowledged the need to address abusive licensing laws, and the FTC recently established an Economic Liberty Task Force dedicated to the same goal. PLF’s Economic Liberty Project is devoted to challenging these laws in court, but due to the public’s support for reform, we’ve also been able to secure victories in the legislature.  After we filed a lawsuit on behalf of Arty Vogt, the West Virginia legislature repealed it’s anti-competitive Competitor’s Veto law in the moving industry.

In this video, PLF attorney Jonathan Wood and I discuss occupational licensing and the potential for restoring economic opportunity to would-be entrepreneurs across the country.

PLF files brief reiterating need to dismiss lawsuit challenging use of the Congressional Review Act

As reported on, last week a federal court in Alaska granted PLF’s motion to intervene in a lawsuit over the use of the Congressional Review Act. PLF and its clients Kurt WhiteheadJoe Letarte, the Alaska Outdoor Council, and Big Game Forever, asked to participate in a case brought by the Center for Biological Diversity in order to defend Congress’ and the President’s authority to invalidate agency regulations.

In the order granting intervention, the court asked PLF to file a brief in support of the federal government’s motion to dismiss. Yesterday, PLF filed the brief, and explained that a resolution that passes both houses of Congress and is signed by the President is constitutional, despite CBD’s arguments to the contrary.

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Michigan turns foreclosure into a government self-enrichment machine

Today, National Review published my article discussing, Wayside Church v. Van Buren County, PLF’s case challenging legalized theft in Michigan. Michigan’s unjust property tax law allows local governments to steal from people who fall behind on their property taxes. As I explain in the article,

Can the government take your home and all your equity in it if you fall behind on your property taxes or — like many people in Flint, Mich. — refuse to pay your water bill? The state of Michigan and a handful of other states think so. These states’ odd tax laws allow counties to take and sell tax-delinquent properties and keep all the profits from the sale — no matter how small the tax debt or how valuable the property.

We filed a petition earlier this month asking the Supreme Court to hear this case and bring justice to our clients. If the Court grants review, it will have the opportunity to halt this unjust practice in Michigan and elsewhere.

Read more at National Review.

PLF sues U.S Fish and Wildlife to protect small businesses

There appears to be a universal recognition that small business is the lifeblood of our economy and a necessary component of our way of life:

Economic freedom is the foundation for individual success and prosperity. This freedom is evident in the entrepreneurial small business sector, which creates most of the new jobs and a large share of the innovations in the American economy. When government takes small businesses into consideration in developing regulations, it saves time and money and supports the growth of the nation’s most productive sector.

-Small Business Administration, Office of Advocacy

This recognition has precipitated a number of presidential executive orders calling for regulatory reduction on small businesses and produced a little-known law called the Regulatory Flexibility Act (RFA). Its purpose is to protect small entities (i.e. small businesses, small organizations, and small governmental jurisdictions) from undue regulatory burdens. The RFA seeks to accomplished this lofty goal by directing federal agencies to take into account the economic impacts of their myriad regulations on small entities and to consider alternatives that will lessen their regulatory burdens, including the reduction of red tape for such entities and outright exemptions, when feasible.

However, the U.S. Fish and Wildlife Service refuses to comply with the RFA, claiming its implementation of the Endangered Species Act is exempt from this law. This claim is groundless. Continue reading

Palm Lane Elementary will finally convert to a charter school

In April, the California Court of Appeal affirmed a victory won by parents of students at Anaheim’s Palm Lane Elementary School. The parents had used California’s “parent trigger” law to petition to have the perpetually failing school converted into a charter school, but the school district sued the parents to stop the petition and conversion. Earlier this month, the California Supreme Court declined to take up the case, so the parents’ victory is final and the school district must allow the conversion to proceed.

Well, good news travels fast. On July 26, the Anaheim Elementary School District finally voted to accept the Palm Lane parents’ petition to convert the school into a charter, and the district will immediately begin accepting proposals from charter school operators.

Congratulations to Cecilia Ochoa and the other Palm Lane parents for their courage and persistence to see their childrens’ education improved, and to Gloria Romero and others who helped the parents along the way.

Weekly litigation report — July 29, 2017

Did the government err in going after John Duarte?

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Can you spot the mini-mountains here? Hint: they’re in the foreground, not off in the distance.

In Duarte Nursery v. Army Corps of Engineers, we filed a motion to dismiss the Army Corps’ Clean Water Act counterclaim against Duarte Nursery and its president, John Duarte, for lack of federal court subject matter jurisdiction. This is the case where the government is accusing a farmer of creating “mini-mountains” out of wetlands when he used a plow to plant wheat — despite the farming exception to the Clean Water Act’s permitting requirements. The government relies, for federal court jurisdiction, on a federal statute that only applies to claims brought by or on behalf of the EPA Administrator. But the Corps never even referred this case to the EPA, and the current Administrator takes a decidedly dim view of it. Since the court lacks jurisdiction over Army Corps claims like this (alleged unpermitted discharges into navigable waters), the case must be dismissed.

Short term rentals in Music City

This week we filed another amicus brief in Anderson v. Metropolitan Gov. of Nashville and Davidson Cty. If you’ll recall, Nashville enacted a restrictive cap on non-owner-occupied short-term rentals that limits available permits to 3% of the properties in a given census tract. With the help of our friends at the Beacon Center, the Anderson family challenged this restriction when they discovered that all of the permits in their neighborhood were taken, preventing them from renting out their home on Airbnb. The trial court struck down the cap last year, and the government has now appealed to the Tennessee Court of Appeals. Our brief clarifies the application of the rational basis test, and shows the court that it is a meaningful standard of review that provides a check on government overreach. For more, see our blog post.

Duarte Nursery moves to dismiss federal Clean Water Act suit

Earlier this week, PLF clients Duarte Nursery, Inc., and its president John Duarte, moved to dismiss the federal government’s Clean Water Act prosecution against them, on the ground that the Court lacks subject matter jurisdiction over the claim.

The government bases the court’s jurisdiction over the Clean Water Act claim on 33 U.S.C. section 1319(b), which authorizes the EPA Administrator to bring actions for injunctive and other relief for violations of the Clean Water Act, in all cases other than those dealing with violations of an Army Corps issued permit. Small problem, though: the government concedes in this case that the case is not brought by or on behalf of the EPA Administrator, and indeed the Army Corps never referred the matter to the EPA for enforcement. In fact, the current EPA Administrator takes a dim view of this case:

Since it is a statutory prerequisite to jurisdiction that the EPA be the agency bringing the claim, Duarte has asked the court to dismiss the case.


Nashville Airbnb case continues

Courtesy, Beacon Center

Back in October we reported that Nashville homeowners Rachel and P.J. Anderson had prevailed in their challenge to Nashville’s restrictive and unconstitutional limitation on short-term rentals. Unfortunately, instead of doing the right thing and amending its law to respect the rights of all Nashville property owners, the city appealed that loss. Today, PLF filed yet another amicus brief supporting the rights of Nashvillians to use their property to support their family.

As we previously discussed, in response to the growing popularity of websites like Airbnb and VRBO, and at the behest of the hotel industry and a few disgruntled neighbors, Nashville capped the number of available permits for non-owner-occupied short-term rental properties at 3% of properties within a census tract. Nashville did not cap the number of permits available for owner-occupied properties. Continue reading

Federal legislation takes aim at cronyism

PLF’s Economic Liberty Project sues to protect individuals’ right to earn a living free of needlessly burdensome occupational licensing requirements. As Liberty Blog readers may recall, for instance, our client Arty Vogt was recently freed to compete in West Virginia as a household-goods mover when that state repealed its law requiring a government permission slip to expand his business from Virginia into West Virginia. We had brought a federal lawsuit challenging the constitutionality of the law.

Too often, occupational licensing laws are mere cronyism: they arise when professional groups lobby states to impose daunting, often irrelevant, training, education, or apprenticeship requirements for new workers—thereby protecting their own profits from honest competition. The problem is now out of control with more than one out of four workers in America required to have a government license to do their job. In California, that includes such ordinary occupations as tree trimmers and custom upholsterers.

It is therefore welcome news that federal legislation was introduced today that could reduce the abuse of licensing laws for protectionist purposes by state agencies—and make it easier for individuals to vindicate their economic liberty in court when they are abused. Continue reading