Drakes Bay Oyster Company reaches settlement

Earlier this year the U.S. Supreme Court declined to hear Drakes Bay Oyster Company’s appeal of whether it could challenge the Interior Department’s refusal to renew its permit in federal court.  Since that decision, the oyster farm has ceased retail sales on site, and recently completed a settlement agreement that allows it to continue harvesting shellfish from Drakes Estero until the end of 2014.  One of the benefits of the settlement for the oyster farm is that the federal government has taken responsibility for removal of structures and improvements at the site, including removal of the oyster racks in Drakes Estero.  The federal government also committed efforts to assist farm workers who will be displaced by termination of the permit, including allowing those who live on site with their families to remain in place at least 90 days after the farm shuts down at the end of this year.

The owners have announced that they will be opening a restaurant in the town of Inverness, near Point Reyes.  The Lunny family has earned the appreciation of all from the prosecution of their case: they stood up to a nasty campaign of disinformation against them; stood up to arbitrary and unjust treatment by the Park Service and Interior Department; and pursued their cause all the way to the Supreme Court.  They are now taking the path of all great Americans: recovering from the set back and moving on.  We are disappointed for their loss, but our hats are off to them.

PLF petitions Cal Supremes in seawall case

Today, we asked the California Supreme Court to review Lynch v. California Coastal Commission.

The case involves a challenge to conditions imposed by the Commission on two families’ seawall permit.  The families reside in adjacent bluff-top homes in the City of Encinitas (San Diego County).  A series of storms and years of erosion destabilized their bluffs and existing protective devices, and destroyed the lower portion of their shared stairway to the beach.  The City approved a permit to install a new state-of-the-art seawall that would have a projected life of 75 years.  But given the location of the property, the families also had to obtain a separate permit from the Commission.  That’s where the families’ nightmare began.

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President’s weekly report — October 17, 2014

Equality Under the Law Project — Alabama redistricting

We filed this amicus brief at the United States Supreme Court in Alabama Legislative Black Caucus v. Alabama, a consolidated case where plaintiffs are challenging that state’s most recent redistricting as “racial gerrymandering.”  It gets complicated, but part of the reason why race was a factor was because the state had to comply with the since-overturned section V of the Voting Rights Act, which required preclearance of restricting plans and forbade “retrogression” of minority representation.  As our brief puts it:

These cases concern the interplay between this Court’s racial gerrymandering cases, Section 5 of the Voting Rights Act, and the Equal Protection Clause. The first permits consideration of race in redistricting, the second requires it, and the third forbids it.

Our amicus brief explains that the Equal Protect Clause requires that courts should strictly construe the use of race, whenever it is a factor.  For more on this, see our blog.

California’s Cap and Trade tax at the Court of Appeal

We filed our opening brief in Morning Star Packing Company v. California Air Resources Board, our challenge to the billions upon billions of dollars in cap and trade taxes being imposed on Californians.  The bottom line is that while the legislature may have called for the use of market-based mechanisms to reduce greenhouse gasses, it did not intend for its law to become a defacto tax, taking many billions of dollars out of the pockets of Californians.  But that’s exactly what the Board did — it has adopted an auction system that is raising billions for general revenues.  The trouble is, this tax was adopted after Proposition 13 was enacted.  And since “A.B. 32″ passed with only a simple majority, and since it is for all practical purposes a massive tax measure, it violates Prop. 13.  For a bit more see our video and blog post.

Obamacare:  Government opposes request for rehearing

In Sissel v. United States Department of Health & Human Services, our Origination Clause challenge to Obamacare, the Federal Government filed its opposition brief to our petition for rehearing en banc today—one week early.  You can read more about it on our blog post here.  We’re also happy to report that Texas and twelve other states filed an  amicus brief in support of our petition for rehearing.  As that brief put it:

Given that federal courts are obligated [by Supreme Court precedent] to adjudicate claims under the Origination Clause, federal courts must give meaningful effect to the constitutional provision—rather than reading it, as defendants would, to be a “meaningless and formalistic rule.” If the Origination Clause means anything, it must mean that the [Affordable Care Act] is unconstitutional.

California Supreme Court:  Full Steam Ahead on the California Choo-Choondoggle. Continue reading

California’s cap and trade tax at the Court of Appeal

We filed our opening brief in Morning Star Packing Company v. California Air Resources Board, our challenge to the billions upon billions of dollars in cap and trade taxes being imposed on Californians. The bottom line is that while the legislature may have called for the use of market-based mechanisms to reduce greenhouse gasses, it did not intend for its law to become a defacto tax, taking many billions of dollars out of the pockets of Californians. But that’s exactly what the Board did — it has adopted an auction system that is raising billions for general revenues. The trouble is, this tax was adopted after Proposition 13 was enacted. And since “A.B. 32″ passed with only a simple majority, and since it is for all practical purposes a massive tax measure, it violates Prop. 13.

In response to the State’s arguments that the auction proceeds are just “fees” and not taxes, our brief points out that the California Supreme Court set out specific criteria for determining whether a levy is a fee or a tax: and that these criteria are simply not met here.  The moneys raised are proportionate to neither to the benefits received by the taxed entitles nor the burdens imposed.  Moreover, these moneys are being used for all manner of things well beyond the costs to run the program — everything from general fund borrowing to low-income neighborhood assistance.

Lastly, more recent statutory amendments to A.B. 32 don’t help either.  Even if these enactments converted some of the moneys from taxes into fees, they were adopted well after the voters amended Prop 13 with Prop 26 — the initiative that requires fees to be voted on by two-thirds of the legislature.

For a bit more see our video.

PLF files brief in the Supreme Court opposing race-based redistricting

We have previously blogged about the latest redistricting controversy to reach the Supreme Court. In these two combined cases, styled Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama, the plaintiffs contend that the redistricting plan for the Alabama Senate and House of Representatives is an unconstitutional racial gerrymander and unlawfully dilutes black voting strength in violation of Section 2 of the Voting Rights Act. The three-judge district court rejected both claims. As to the racial gerrymandering claim, the majority held that the plaintiffs had failed to prove that race was the “predominant factor” in the redistricting decision. Alternatively, the court found that even if race was the predominant factor, Alabama’s use of race satisfied strict scrutiny because it was narrowly tailored to comply with Section 5 of the Voting Rights Act.

Today, PLF filed an amicus curiae brief arguing that the Court should discard the requirement that plaintiffs prove race was the “predominant factor” in redistricting. We argue that the predominant factor standard is inconsistent with the Supreme Court’s repeated holdings that race may not be a factor in any official decisionmaking. Unfortunately, the prevailing law has permitted consideration of race to become legitimate in redistricting debates, so long as it is coupled with “traditional” districting criteria such as contiguity and incumbency protection. This is directly contrary to the Equal Protection Clause’s mandate that government must treat people without respect to race.  Because it is undisputed that Alabama used race at least to comply with Section 5, we argue that the Court should apply strict scrutiny to the redistricting acts.

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PLF’s Timothy Sandefur joins John Stossel to answer: “Does anyone care about the Constitution?”

Fox Business Network’s John Stossel devotes his program tonight (at 9pm Eastern) to the question, “Does anyone care about the Constitution anymore?” I join Stossel to argue the yes side of that question. Here’s a little preview, and I’ll have some further thoughts here on the PLF Liberty Blog after the show airs.

Is PLF’s Obamacare challenge headed to the High Court?

“Developments in the last ten days make it more likely that the entire U.S. Court of Appeals for the D.C. Circuit will agree to hear the leading challenge by the Pacific Legal Foundation (PLF) to the Obamacare individual-mandate penalty — and whoever does not prevail at this level will have a compelling case to take to the Supreme Court.” So begins my op-ed that National Review Online just posted on its homepage.

In it, I link to posts by Paul Beard, Professor Randy Barnett, and Tim Sandefur on the recent developments in our case on behalf of Matt Sissel, challenging the constitutionality of the individual-mandate penalty as a violation of the Constitution’s Origination Clause. Among those developments was an order from the D.C. Circuit last week, instructing the Obama Administration to respond to PLF’s petition for rehearing, and an impressive set of amicus briefs supporting PLF’s petition for rehearing filed yesterday, which help confirm that this is no ordinary litigation. Continue reading

Cal. Supreme Court denies bullet-train bonds appeal

The California Supreme Court today declined to hear several petitions for review relating to the High Speed Rail project, including Pacific Legal Foundation’s (PLF’s) petition opposing the sale of $8.6 billion in California High-Speed Rail bonds. PLF represents, free of charge, the First Free Will Baptist Church of Bakersfield in this litigation.

PLF issued this statement in response to today’s announcement:

“This is a disappointing development for the interests of California taxpayers and for the cause of integrity and common sense in government,” said PLF attorney Harold Johnson. “The appellate court said that the High Speed Rail project is still in ‘flux’ so it’s too soon to judge whether it conforms with what voters authorized when they passed Proposition 1A in 2008. But the appellate court also ordered that $8.6 billion in bonds for the project be approved by the judiciary, so the bonds can be sold. That’s a self-contradictory ruling, and it now stands, because the Supreme Court has declined to review it. This means that billions of dollars in bonds can be sold, right now, even before we know what the money will be spent on, and even before we know if the final shape of the High Speed Rail project is true to the voters’ will and the state Constitution’s requirements. In other words, more than $8 billion will be borrowed on the taxpayers’ credit card, for what amounts to a pig in the poke. That’s bad public policy, and I believe it’s wrong as a matter of constitutional law.”