The “six degrees of Kevin Bacon”-ing of the Constitution

In PLF’s ongoing challenge to the constitutionality of the federal government’s burdensome Utah prairie dog regulation, the federal government has articulated an interpretation of the Constitution that bears a striking similarity to the parlor game “six degrees of Kevin Bacon.” For those unfamiliar, this game is based on the concept that any two humans on earth are at most six acquaintance links apart.

As you may recall, the question in the Utah prairie dog case is how far the government’s Commerce Clause power reaches. This power has been interpreted to authorize federal regulation of economic activity that has a substantial effect on interstate commerce. According to the government’s theory of the prairie dog case, it can regulate any activity that affects any Utah prairie dog because (1) affecting a single Utah prairie dog is related to the extermination of the entire species, (2) the extermination of the entire species could affect other species above and below it in the food chain, (3) the loss of multiple species could change the Utah prairie dog’s ecosystem, (4) changes to an ecosystem is related to degradation of the environment, (5) the environment — i.e. all living and nonliving things on earth — substantially affects interstate commerce. The other briefs supporting the government take a similar tact — they connect the Utah prairie dog to some exceedingly broad category, like “the environment,” “species” (i.e. all living things), or “biodiversity,” then rely on the obvious fact that the broad category has a substantial effect on interstate commerce.

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Supreme Court orders Solicitor General to respond to PLF rehearing petition

Last month, Pacific Legal Foundation asked the Supreme Court to reconsider its order denying the petition for writ of certiorari we filed in an important wetlands case known as Kent Recycling Services LLC v. Army Corps of Engineers. You can read our petition for rehearing at this link.

Although the Supreme Court rarely grants a petition for rehearing, it does happen. Here, we had good reason to pursue rehearing: the win the Eighth Circuit Court of Appeals handed us in the Hawkes Inc., Co. v. U.S. Army Corps of Engineers case back in early April. That court held that a Corps of Engineers’ Jurisdictional Determination (i.e.  wetlands delineation) is immediately reviewable in court and subject to challenge. In Kent Recycling, the Fifth Circuit addressed this same issue and came out the opposite way. That court held that JDs are not immediately reviewable in court. Now, the Supreme Court has a circuit split on an issue that means hundreds of thousands of dollars to landowners across the nation.  With that in mind, we filed our petition.

This morning we received some good news about that petition: the Supreme Court asked the Government to file a response to the petition for rehearing within 30 days.

As my colleague Reed Hopper wrote about the Hawkes case:

For the first time since the inception of the Clean Water Act (1972), overzealous government bureaucrats can be held immediately accountable in court for their erroneous assertions of federal control over private wetlands and other waters. This levels the playing field for landowners who have been at the mercy of overreaching government for far too long.

PLF believes this leveling of the playing field for landowners should apply across the nation. For this reason, we think we have given the Supreme Court ample reason to rehear Kent Recycling, hear the dispute on the merits, and then issue a decision that makes the rule of Hawkes applicable from sea to shining sea. We appreciate that the Court recognizes the important issue the case presents and look forward to reading the Government’s response to our petition.


Endangered Species Day is for protecting species, not federal control

May 15 was Endangered Species Day. For some farmers, ranchers, and other property owners who can’t develop or use their land in a productive manner because of federal dictates, every day is devoted, unwillingly or not, to endangered species.

Kretschmarr Cave Mold Beetle

As Brian Seasholes explains here, concern for endangered species is inconsistent with reverence for the Endangered Species Act (ESA). The ESA’s focus on criminal threats, fines, and national control that unreasonably lock up land without compensation is counterproductive to protecting threatened species. If the ESA were reformed, states and private parties would be willing and able to do a lot more to protect species. As Seasholes but it: “America’s landowners have a strong conservation ethic, are patriotic, and would be willing and proud to conserve their country’s most vulnerable species so long as they are not punished for doing so, their property values and livelihoods are not jeopardized, and if they receive some compensation.” Continue reading

President’s weekly report — May 15, 2015

Competitor’s veto law — One down, one on its way down

The notion that existing players in a transportation business (taxis, movers and limo companies) should be able to veto new entrants into a market in order to reduce competition is absurd and opposite the economic liberty that is a hallmark of America.  Thus we have sued to throw out such progressive-era laws in Montana in Pabst v. Fox (taxis) and in Nevada with Perlman v. MacKay (limousines).  But before the lawsuits have been finally decided, the legislatures of these states have woken up and said it’s time to get rid of these protectionist dinosaurs.  This week, legislation was passed and signed by Governor Bullock in Montana to toss out of that state’s competitor’s veto law, and we testified before a Nevada legislative committee which is considering doing the same.  These victories follow on the heels of similar legislative repeals in Oregon and Missouri and a court ruling in Kentucky — all in response to PLF filed litigation. Lastly, we had oral argument this week before the Ninth Circuit in Underwood v. MacKay on the issue of whether a mover must submit to an unconstitutional competitor’s veto scheme in order to challenge it.

Property rights — Mining claims are property rights

We filed this amicus brief in People v. Rinehart before the California Supreme Court.  Under federal law mining for gold is a lawful activity — and one that is even encouraged under the mining laws.  But California has banned all gold mining using suction dredges.  But as the United States Supreme Court held almost three decades ago in Granite Rock v. California Coastal Commission (a case where PLF filed an amicus brief) while it is perfectly acceptable for a state to regulate mining on federal land, it may not ban mining.  For more, see our blog here.

Property rights — Public trust doctrine

We filed this amicus brief in Friends of Martin’s Beach v. Martins Beach 1 & 2.  Here, for Continue reading

Watch Ted Hadzi-Antich’s Testimony on EPA Accountability

UPDATE: View Ted Hadzi-Antich’s testimony on EPA accountabiliy during a hearing entitled, “Oversight of Scientific Advisory Panels and Processes at the Environmental Protection Agency.” The panel discussion begins on May 20th, at 9:30 AM EDT.

I’ve been invited to testify next week before the United States Senate Committee on Environment and Public Works (Subcommittee on Superfund, Waste Management, and Regulatory Oversight) regarding ways in which EPA is violating the statutory requirement to obtain peer review of regulatory proposals from the Science Advisory Board.

In 2009, when EPA issued its first regulation governing greenhouse gas emissions, it failed to submit the regulatory proposal to the Board.  Several subsequent greenhouse gas emissions standards went down the same wrong path.  Those EPA failures to obtain peer review of the science underlying the greenhouse gas regulations were bald statutory violations, so PLF sued EPA to enforce the peer review requirements.  Look here for more information regarding our challenge to the greenhouse gas emissions standards for cars, and here for trucks,  It looks like Congress is paying attention to these case.

PLF and The Crafted Keg work together and free the growler!

Today Pacific Legal Foundation and The Crafted Keg received long-awaited news:

Pass the beer nuts, Woody. The Governor freed the growler!

Governor Rick Scott signed the bill freeing the 64 ounce beer growler in the State of Florida!

For years, Florida law prohibited craft beer brewers and sellers from offering their beverage in the standard-size container used throughout the country. The restriction amounted to crony capitalism at its worst, helping the big beer industry while holding down the types of small businesses that drive the nation’s economy. PLF teamed up last year with The Crafted Keg and sued the State of Florida for this irrational restriction on economic liberty. After we filed the suit and CBS News broadcast a national story about our case, the Legislature finally got its act together and passed a bill unanimously to fix one of the dumbest laws in the nation. And today, the Governor signed the bill into law. Governor Scott explained why he signed the law:

“By making the sale of 64 ounce growlers legal in Florida, we are eliminating another burdensome regulation and allowing more Florida businesses to succeed. We are pleased to continue to create a world class business environment where all businesses, including breweries, can succeed.”

Kudos to Governor Scott for signing the bill; since this week is American Craft Beer Week, his timing is impeccable.

Sometimes you can fight city hall and win.  Pacific Legal Foundation’s track record on that score speaks for itself. Other legal organizations and craft beer sellers considered this lawsuit but passed because they were afraid to lose. The Crafted Keg and PLF, on the other hand, took on the State of Florida and made a difference. I’ll drink to that.

California can’t arbitrarily ban mining

The California Supreme Court is considering an important case concerning whether a state can frustrate federal law and deprive people of their livelihoods for no good reason. PLF filed this amicus brief in the case, joined by the Western Mining Alliance and Siskiyou County. If you’re a regular reader, you can probably guess which side we took. Of course the government can’t act so arbitrarily and lawlessly!

California bans miners from using “suction dredges” — which I gather are like mining vacuums — in any stream in the state. California has a problem, however. Federal law expressly encourages this mining. Under the Constitution’s Supremacy Clause, state law that frustrates a federal law must yield. Since numerous federal mining claims are located in stream beds that can only be worked with a dredge, the state has set up a clear conflict with federal law.

The state’s ban is surprising because the federal law goes out of its way to accommodate state interests. The state may require a permit for mining and regulate its environmental impacts. Thus federal law balances its encouragement of mining with state interests.

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Fighting to protect San Juan property owners from land grab

On June 2, 2015, Division I of the Washington State Court of Appeals is set to hear oral argument in the first state case seeking to limit government’s ability to coerce property from land use applicants since PLF’s landmark victory in Koontz v. St. Johns River Water Mgmt. Dist. (2013).

The case, Common Sense Alliance v. Growth Management Hearings Board, involves a challenge to San Juan County’s newly updated critical areas ordinance. That ordinance conditions approval of any new development of a shoreline property upon the dedication of a water quality buffer designed to mitigate for all pollution entering and crossing over the shoreline properties, including pollution/storm water caused by neighboring land uses (including public roads). Continue reading

The Supreme Court should grant certiorari in Fisher

A few months back, PLF filed this brief in Fisher v. University of Texas at Austin urging the Supreme Court to take the case. Our friends at the Center for Equal Opportunity, the American Civil Rights Institute, Project 21, and the National Association of Scholars joined us on the brief. Next week the Court will meet to discuss whether to hear the case. Accordingly, Roger Clegg, President of the Center for Equal Opportunity, and I penned this op-ed for National Review asking the justices to take the case. Here’s a snippet:

Accordingly, the Supreme Court should grant review again in Fisher, and try again to write an opinion that universities will take seriously. Perhaps this time the Court will conclude that it is futile to expect schools to do anything other than try to drive a truck through a door it has left ajar. The Court should shut that door — by holding that there is no compelling interest in the use of racially discriminatory admissions in the first place.

Read the rest.

PLF enters Martins Beach access controversy

Should the public have the right to cross private property simply because it is next to a navigable water body? The California Court of Appeal may decide just that when it takes up the ongoing controversy over access to Martins Beach. As we have blogged about before, for decades the owners of the coastal property in San Mateo County south of Half Moon Bay allowed the public to park on their land for a fee in order to access Martins Beach. The owners had even installed a convenience store and public restrooms and advertised access to the beach. But eventually the cost of maintaining the operation was too much. Rather than continue losing money, the owners sold it to Vinod Khosla, a wealthy venture capitalist.

Mr. Khosla initially intended to carry on the parking operation, but wanted to raise the price to pay for some much-needed improvements. San Mateo County balked at his plan; the County told him that he had to charge the same for access as the prior owners had in 1973. With no other alternative other than to run a money-losing operation, Mr. Khosla decided to end the program. Since the public has no right to park on Mr. Khosla’s private property, that should have been the end of the story.

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