What next for President Trump’s reconsideration of national monuments?

Yesterday was the deadline for public comments on the Department of Interior’s recommendation to the President about what to do about the 27 large national monuments established since the Clinton administration. Reflecting the significant impacts of monument designations, there are sure to have been 10s of thousands of comments submitted. Now the Administration’s hard work begins—deciding just what to do.

The primary question is what, if anything, the President can do about existing monuments. PLF got that debate started months ago with an AEI paper coauthored by our colleague Todd Gaziano and PLF Board Member, Professor John Yoo. That paper explains that there is a strong presumption that a government official can reconsider a prior action, unless a statute explicitly indicates otherwise. There is no such indication in the Antiquities Act, so President’s are free to revoke existing monuments or substantially change their boundaries—as numerous Presidents have done since the early days after the statute.

Several law professors responded with a law review article making the bold claim that the Antiquities Act silently forbids the President from reconsidering past monuments, which would make this statute unique among federal laws. The article claims that limitation is implied by several other statutes and a snippet of legislative history written 60 years after the Antiquities Act was enacted.

Continuing the debate, we responded to the article on this blog and in PLF’s comment on Bear’s Ears (which painstakingly responded to the article’s argument). The problems with the argument are legion: the other laws don’t say what the article claims they do, the legislative history is ambiguous, it is directly contradicted by the Federal Land Policy Management Act (the statute it discusses), and it sheds no light on what congressmen were thinking 60 years earlier when they enacted the Antiquities Act. Suffice it to say, the law is heavily against this interpretation, absent very powerful evidence to support it.

Last week, the article’s authors, joined by 117 of their friends in the environmental law professoriate, filed their own comment. The law professors’ comment does not acknowledge the substantial criticisms of the article, much less attempt to answer them. Content to merely regurgitate the debunked arguments, the comment appears to concede that the debate is over.

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PLF asks Ninth Circuit to delay Duarte Nursery trial

Late last Friday, PLF, on behalf of clients John Duarte and Duarte Nursery, filed a Petition in the Ninth Circuit requesting that it stay the upcoming trial in the Duarte Nursery case. As we have previously reported, Mr. Duarte and Duarte Nursery are facing millions of dollars in fines based on the government’s contention that small and isolated vernal pools and swales on the company’s property are protected wetlands under the Clean Water Act (CWA).

Critical to the outcome of the case is the question of what waters the government can regulate under the CWA. The answer is not straight-forward under existing case law, as the most recent Supreme Court case to address the issue, Rapanos v. United States, was a split opinion with Justice Scalia (and three justices) and Justice Kennedy disagreeing on the appropriate test. Lower courts disagree on how to interpret split Supreme Court decisions, like Rapanos.

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Weekly litigation report — July 8, 2017

  • California Supreme Court tells landowners to watch homes fall into the sea
  • Land use in Florida: If you can’t dazzle them with brilliance ….
  • PLF, other organizations, ask Arizona Supreme Court to properly define “tax”
  • Can government condemn a business operation and hand it over to a competitor?
  • Washington court limits reach of public trust doctrine
  • Property rights are a grave matter in the 3rd Circuit

California Supreme Court tells landowners to watch home fall into the sea

Image result for lynch v california coastal commission

California Supreme Court to homeowners: Accept Coastal Commission extortion or lose your home.

The California Supreme Court ruled against landowners in Lynch v. California Coastal Commission. The court held that two homeowners, Thomas Frick and Barbara Lynch, could not sue over the Coastal Commission’s onerous restrictions on a new seawall to protect their property, because they had gone ahead and built the seawall to replace the earlier one that was destroyed by a devastating 2010 storm. Of course, they were anxious to rebuild the seawall because the next big storm could totally destroy their homes. The commission proposed to issue only a 20-year permit, which the homeowners argued violated its statutory duty to allow property owners to protect their property.

The court said that perhaps the homeowners should have applied for an emergency permit, and then a regular permit. Only then could they sue over any unlawful conditions. Ironically, the Commission had already told the homeowners not to get an emergency permit because a regular permit would be forthcoming.

As our blog post notes, this decision makes it harder for property owners to fight when the Coastal Commission imposes unlawful conditions on permits. It is particularly bad for small property owners. The Court has shrunk their right to move forward with projects under protest while litigation proceeds. Instead, they will be forced to put their lives and projects on hold for years while a court battle over an unlawful condition proceeds. The result is predictable: many property owners will be forced to accept unlawful, even unconstitutional restrictions on their property simply because they can’t afford to fight.

Land use in Florida: If you can’t dazzle them with brilliance …. Continue reading

Occupational de-licensing in Connecticut

Earlier this week Connecticut removed occupational licensing, registration, and certificate requirements for several professions. The de-licensing of an occupation is especially notable because of its rarity. A 2015 study authored by Dr. Robert J. Thornton and Dr. Edward J. Timmons, and published by the U.S. Bureau of Labor Statistics, found that there were only eight instances of occupational de-licensing in the previous 40 years. So, kudos to Connecticut lawmakers for accomplishing a feat rarely seen. And if you’re an above-ground swimming pool installer, uniform student athlete agent, licensed shorthand reporter, residential flat glass or automotive glazier, or real estate intern in Connecticut, congratulations; your ability to exercise your right to earn a living just got a whole lot easier.

Government evades property rights by stalling

For an example of how impossible it can be for property owners to ripen (i.e., get a court to hear) a takings claim, look no further than the decision today in GolfRock, LLC v. Lee County.  Even when the government regulates away the use of your land, it can sometimes be very difficult to get courts to hear your claim for just compensation under the Fifth Amendment’s Takings Clause or any state equivalent.

GolfRock sought a permit to mine its land in Lee County in 2005. Several years of government stalling and five application supplements later, the County changed the rules—the local comprehensive plan—to preclude mining on GolfRock’s land. Even after banning mining on the property, the County refused to reach a final decision on GolfRock’s pending application.  This unfair response suggests the County knows government can often evade constitutional challenges when it just stalls and refuses to issue a “final decision” on a permit application. Continue reading

Courts should look to voters’ intent when interpreting constitutional limitations on taxation

Yesterday, Pacific Legal Foundation, along with the Howard Jarvis Taxpayers Association and the Green Valley Hospital, filed an amicus brief in support of a group of Arizona legislators who are challenging the imposition of a hospital tax to pay for state Medicaid expansion. The charge at issue, which was passed by a simple majority of the Arizona legislature, requires hospitals to pay an “assessment” on hospital revenues, discharges, and bed days.

In some cases, like with Green Valley Hospital, a hospital will be required to pay hundreds of thousands of dollars to the state while receiving nothing in exchange for the payment. That fact indicates that the charge is a tax, rather than an assessment or a fee. The legislators recognized this and challenged the hospital assessment as violating Article IX Section 22 of the Arizona Constitution, which requires a 2/3 vote before the state legislature can impose any new taxes.

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California Legislature to consider two bills that repeal the unconstitutional autograph law

Back in May, Pacific Legal Foundation filed a lawsuit on behalf of Book Passage and Bill Petrocelli. The lawsuit challenged a newly-enacted law that made the sale of autographed books unconscionably difficult . As we explained at the time, the statute was ostensibly adopted to protect individuals from fraud when they purchase sports or entertainment memorabilia.  But the statute cut way too far, and threatened individuals like Mr. Petrocelli with ruinous fines if he continued to hold book signing events. As a result, the law plainly violated the First Amendment, and we sought to get it declared unconstitutional. Continue reading

PLF asks Louisiana Supreme Court to enforce constitutional limits on the exercise of eminent domain

The government’s authority to take private property without the owner’s consent is a terrible and awesome power. Aware of this, the nation’s founders placed two key restrictions on its exercise: that government shall not take property unless it is for a valid public use and just compensation is paid.

But those limits are only as protective as the courts are willing to meaningfully enforce them.  Take, for example, the public use requirement. That restriction is supposed to police against powerful private interests using the government’s power to circumvent the private market to take private property for their own private uses. But often, courts allow private parties to direct or influence eminent domain decisions in the name of economic development. The best example of such abuse is the recent decision Kelo v. City of New London, 545 U.S. 469 (2005), in which the United States Supreme Court held that the city could lawfully condemn 115 privately-owned properties and homes in the hopes that private interests would redevelop the neighborhood into an office park with hotels and restaurants, resulting in more property taxes and jobs for the community.

Hoping to avoid another Kelo, PLF filed an amicus brief asking the Louisiana Supreme Court to enforce the public use restriction in the case, St. Bernard Port, Harbor & Terminal District v. Violet Dock Port, Inc., LLC. There, an appellate court upheld the port district’s decision to condemn Violet Dock Port’s property and on-going business in order to hand it over to a competitor business—in the name of economic development. However, PLF’s brief argues that the economic development rationale is frequently used to circumvent the constitutional prohibition against private takings.

Mark Hamill vs. Autographed Memorabilia: The Revenge of the Dark Side

Our friends at Reason have posted this excellent video on Mark Hamill’s effort to destroy small booksellers save kids from the menace that is fake Mark Hamill autographs.  Hamill’s legislative efforts resulted in a law so burdensome that it threatens to shut down bookstores across California.  We’re representing Bill Petrocelli and Bay Area bookstore Book Passage in a constitutional lawsuit against the law, as featured in this video.  Enjoy!

California Supreme Court deals blow to coastal property owners

In a disappointing blow to property rights this morning, the California Supreme Court ruled against Encinitas, California homeowners who had raised a constitutional challenge to conditions imposed on their seawall-construction permit by the California Coastal Commission.

PLF represented Thomas Frick and the heirs of Barbara Lynch pro bono, in Lynch v. California Coastal Commission. Continue reading