Ninth circuit hears argument on whether interior secretary is above the law

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Today, in the Ninth Circuit Court of Appeals, Drakes Bay Oyster Company presents its case for enjoining the Secretary of the Interior and the National Park Service from destroying its business before its legal claims can even be heard in court.  You can follow my live tweet from today’s oral argument on twitter @TonyFrancoisEsq, #SaveDBOC, starting at 9:00 AM Pacific.

At the heart of this case is the rule of law.  Do we have a government of laws which every one of us, the government as well as the governed, must observe?  Or do we have a government of elites, who get to make it up as they go and cannot be held accountable?

In Drakes Bay Oyster Company v. Jewell, United States Secretary of the Interior Sally Jewell is arguing that she is exempt from every law Congress ever passed.  Seriously.

In 2009 Congress enacted a straightforward authority for the Secretary to issue Drake’s Bay Oyster Company a new permit for its shellfish farm in Point Reyes National Seashore.  It includes the phrase “notwithstanding any other provision of law” to prevent the Secretary from denying the permit based on a prior congressional designation of “potential wilderness” surrounding the oyster farm.  Simple, yes?

When former Secretary Salazar denied the oyster farm a new permit last November, he claimed that actually this statute “expressly exempts my decision from any substantive and legal requirements.”

claimed

Former Secretary of the Interior Ken Salazar writes that Congress has exempted him from every other law it ever enacted.

Read that again.  That is a member of the President’s cabinet, asserting that Congress has licensed him to do, well, whatever he wants.  Everyone who cherishes liberty should be alarmed by the federal government’s interpretation of this law.

Pacific Legal Foundation defends liberty through the rule of law.  Without the rule of law, our property and freedom mean nothing.  As it hears Drake’s Bay Oyster Company’s appeal today, and when it decides it, the Ninth Circuit needs to remember the importance of the rule of law, and needs to reject the tyrannical assertion that Congress is, or can be, in the business of exempting members of the President’s cabinet from every law that every president ever signed.

Massachusetts court prescribes limits on physicians’ duty to third parties

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Today the Massachusetts Supreme Judicial Court put a limit on the duty owed by physicians to third parties injured by their patients.  In Medina v. Hochberg, a patient suffered a seizure caused by a rare, inoperable brain tumor, while driving home from work.  The episode caused the patient to lose control of his car, striking and injuring the plaintiff.  A doctor had treated the driver for over a year before the accident occurred.

The injured man sued the driver’s doctor for negligence, claiming the doctor owed him a duty to control his patient or a duty to warn his patient against driving.  But in today’s opinion, the court declined to extend liability to the physician, rightly concluding that the doctor did not have a “special relationship” with the patient nor did the doctor  owe a duty of care to the injured party under ordinary negligence principles.

PLF, with help from  Gregory Broderick (a former PLF attorney) and Katie Konz of Downey Brand in Sacramento, participated as amicus in that case.  PLF argued that a physician’s sole motivation in recommending medical care must be for the well-being of his patient, and courts must avoid interfering in the doctor-patient relationship.  Imposing duties to unknown third parties would warp that relationship, pressuring the doctor to keep one eye on his own potential liability and creating an incentive for doctors to overly restrict patient conduct.  Fortunately, the Bay State’s highest court agreed, allowing area doctors to focus on what they do best: caring for their patients.

Is Congress going to clear up the Clean Water Act morass?

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Over at the Cato at Liberty blog, Ilya Shapiro reports on an effort to rein in the EPA’s abuse of property rights under the Clean Water Act.  PLF has long been involved in the fight against the abuse of the Clean Water Act.  Most recently, we challenged the Army Corps of Engineers’ bizarre assertion that a dry arroyo in the New Mexico desert is a “water of the United States.”  We’ve also litigated two cases challenging federal bureaucrats’ use of the Clean Water Act to abuse property owner all the way to the Supreme Court: Sackett and Rapanos.

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Former PLF attorney scores remarkable regulatory takings victory in Lockaway Storage v. County of Alameda

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Tim Kassouni, a former PLF attorney, scored a remarkable victory this week in the California First District Court of Appeal in Lockaway Storage v. County of Alameda.  Kassouni’s client, Lockaway Storage, purchased property in Alameda County in 2000, relying on an existing Conditional Use Permit that would allow it to build a boat and RV self-storage facility.  Lockaway worked with County planning officials over the next two years who assured it that the project could move forward.  But then in 2002, the County decided that Lockaway needed to apply for a new permit which the County Zoning Board and Board of Supervisors denied.  These officials claimed that a voter initiative, which limited new growth in the County, prohibited Lockaway from moving forward with its project.  The problem, was that the initiative specifically authorized projects which had already obtained all necessary discretionary permit approvals.  And Lockaway had!

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President’s weekly report — May 10, 2013

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Property Rights — Regulatory Taking Victory

The California First District Court of Appeal issued a huge victory for landowners in this opinion in Lockaway Storage v. County of Alameda. Acting on assurances from county planners that a boat and r.v. storage yard could be built, Lockaway purchased property and spent hundreds of thousands of dollars for that purpose — only to be told “oops, we missed something.” What the county claimed to have missed were the words in an local anti-growth initiative, Measure D. That was despite the fact that Measure D had an exception for projects — like Lockaway’s — that had already obtained all necessary discretionary permits. Nevertheless, the County would not relent and forbade the development to continue. Lockaway sued. And won. The trial court ordered the County to allow the development to be completed. After some foot-dragging, it did. And then the court awarded $989,641 in temporary damages and $728,015 in attorneys fees. Yesterday, the court of Appeal affirmed. The court was not at all impressed with the county’s arguments — repeatedly calling them “convoluted.” Especially heartening was the court’s recognition that an old California case, Landgate v. California Coastal Commission, does not apply when the takings claim is based on the multi-factored Penn Central test for regulatory takings. Kudos in this case for the fine lawyering done for Lockaway by former PLF attorney Tim Kassouni. PLF’s amicus brief can be read here.
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I left my speech rights when I entered San Francisco

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San Francisco city attorney Dennis Herrera has decided that Monster energy drinks are bad for you.  He’s also decided that Monster has to broadcast that message to its consumers.

Mere months after ending its battle with cell phone purveyors, the City of San Francisco is embroiled in another commercial speech fight.  This week, the Office of the City Attorney filed a complaint against Monster for allegedly failing to warn consumers about the risks of caffeine, and for associating its product with extreme sports, music, and scantily-clad Monster girls—purportedly meant to attract kids. Continue reading →

California agency appeals from order barring it from regulating water rights

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Last December we reported on Siskiyou County Farm Bureau’s court victory against the California Department of Fish and Wildlife.  The Department was demanding that farmers and ranchers seek a permit under the Fish and Game Code simply to exercise their valid existing water rights, and the Farm Bureau sued to protect its members’ water rights.  The court agreed with the Farm Bureau that the state legislature did not grant the Department of Fish and Wildlife any authority to regulate water rights, and issued an order enjoining the Department from demanding permit applications from water right holders statewide.

The Department has now appealed that order to the California Court of Appeal, where PLF will be supporting the Farm Bureau as amicus curiae.

One interesting question in the case is whether the injunction against the Department’s interference with water rights will remain in effect pending appeal.  Since it is a prohibitory injunction (forbids the agency from doing something), the rule is that it remains in effect pending appeal unless the enjoined party obtains a stay from either the trial court or the court of appeal.  The Department has not yet sought a stay, but we will update if it does.