Opening salvo in permafrost litigation

Last week, we filed our summary judgment brief in Tin Cup, LLC v. United States Army Corps of Engineers. At its most particular, the case challenges the Corps’ assertion of Clean Water Act authority over permafrost on our client’s property outside of Fairbanks, Alaska. But on a larger plane, the case contests the Corps’ practice of expanding its wetlands jurisdiction through the issuance of so-called regional “supplements” to the congressionally mandated 1987 Wetlands Delineation Manual. In Tin Cup’s case, the Corps asserted authority over some 200 acres of permafrost on Tin Cup’s property. The Corps contends that permafrost qualifies as a wetland. But the Corps can make that assertion only by relying on the 2007 Alaska Supplement to the agency’s nationally applicable 1987 Manual. Had the Corps instead used the standards for wetland delineation contained within the 1987 Manual, the agency would have concluded that permafrost cannot be regulated under the Clean Water Act.  Our brief argues that the Corps’ habit of expanding its jurisdiction through superseding “local rules” violates Congress’ direction that the agency operate under nationally applicable guidelines.

Weekly litigation report

Individual Rights – Equal Protection. In the long-running saga of Rothe Development, Inc. v. Department of Defense and Small Business, a small business is challenging the racial classifications in Section 8(a) of the Small Business Act as a violation of the Fourteenth Amendment guarantee of Equal Protection. That section sets a goal for the federal government to award construction contracts to historically disadvantaged individuals. The D.C. Circuit Court of Appeals rejected Rothe’s claim that the challenged statute creates racial classifications and that the court must apply a strict scrutiny analysis. On Wednesday of this week, October 19, Rothe filed a Petition for Rehearing and for Rehearing En Banc.  As Meriem Hubbard explains, PLF assisted Rothe’s attorney on the petition, and will continue to support Rothe as amicus if the a petition for certiorari is filed in the U.S. Supreme Court.

Individual Rights – Education Reform. The California Court of Appeal issued a disappointing decision on Monday in Anderson Union High School District v. Shasta Secondary Home School. The case concerns the extent to which non-classroom based charter schools may open resource centers in the county where they are located. Joshua Thompson explains that the court interpreted the California Charter Schools Act in a manner that results in an awkward distribution of permissible locations for these resource centers. As a result of the court’s decision, many home schooled children in the rural areas of California will not have the same opportunities to use public educational resources as students in more urban areas.

Victory for Nashville property owners and guests

In an important victory for economic liberty and champagneproperty rights, today, a judge in Nashville, Tennessee agreed that the Nashville Metro Council’s regulations of short-term rentals are unconstitutional.

Among other things, the ordinance banned any form of advertising short-term rentals with signage on the property, and capped the number of non-owner-occupied short-term rentals to three percent of the properties in each census tract. Last year, our friends at the Beacon Center sued Nashville on behalf of the Andersons—a family that periodically rents out their home via Airbnb—claiming the regulations violated the Anderson’s constitutional rights. In July of this year, PLF filed a brief in support of the Andersons’ First Amendment right to advertise their home and their Fourteenth Amendment right to equal protection. In August, Nashville saw the writing on the wall, and repealed the advertising ban.    Continue reading

Presentation at the Peace Palace

Peace Palace

The Peace Palace in The Hague

I gave a presentation earlier today at the Peace Palace in The Hague in the Netherlands. This was part of the 13th Annual Brigham-Kanner Property Rights Conference, sponsored by the William & Mary Law School and the University of Leiden. Each year practitioners and scholars gather to discuss trends in property rights and to honor a preeminent scholar in property law. This year’s honoree was Hernando de Soto, a Peruvian economist who has electrified the world with his research and books on how property rights and economic freedom are the best antidotes for poverty in the Third World. I was on a panel discussing the use of eminent domain and expropriation as a means of wealth transfer. In particular, I discussed the unfortunate fact that eminent domain in the United States often results in the taking of the homes of the poor and politically powerless for the benefit of the wealthy and politically connected. Kelo is the most notorious example of this trend, but there are many others.

This day 25 years ago . . .

Twenty-five years ago today, Pacific Legal Foundation submitted testimony to the House of Representatives on proposed revisions to the Army Corps of Engineers’ notorious “1989 Wetlands Delineation Manual.” At that time, the House Subcommittee on Water Resources was holding hearings on the re-authorization of the Clean Water Act. There was much controversy over how to delineate wetlands (plus ça change . . . ). Continue reading

Confusing and disappointing decision in lawsuit against charter school

10-18-16-shasta-secondary-home-schoolThis morning we received a disappointing decision in Anderson Union High School District v. Shasta Secondary Home School. The court of appeal held that non-classroom based charter schools may not operate a “resource center” in the county where the charter school is authorized, unless it is within the geographic boundaries of its authorizing school district. In so ruling, the court of appeal reversed the lower court’s opinion. The court purported to apply a strict reading of the statutory text, but, as explained below, the decision makes little sense and leads to absurd results.  Continue reading

Concentrated power imperils liberty

Last week’s decision in PHH Corp. v. Consumer Financial Protection Bureau brought into fine focus the fact that one of the greatest threats to individual liberty is the unchecked growth of the administrative state. Because the enactment and enforcement of laws will often intrude upon an individual’s exercise of his or her rights, our founding fathers wisely envisioned a system of government that held each of the three co-equal branches in check to one another and ultimately in check to the public. Thus, if Congress enacts an unlawful law, it can be restrained by the judicial or executive branches. If the law is unpopular, then congressmen can find themselves voted out of office.

That system works, however, only when government bodies are subject to checks and balances. The growth of administrative agencies—particularly those that are made unaccountable to the President or Congress—is a direct affront to that system of and must be stopped; otherwise, we risk allowing the very type of tyranny that our founding fathers fought against.

Last week, the San Francisco Daily Journal published an op-ed from PLF attorneys Brian T. Hodges and Tony Francois commenting on the PHH Corp. decision and its implications.

Weekly litigation report — October 14, 2016

Victory in free speech case

The City of San Juan Capistrano agreed this week to stop enforcing it’s ban on putting “for sale” signs in car windows in Cefali v. San Juan Capistrano. Because any other sort of sign is allowed, we argued that this sort of content-based restriction on speech violates the First Amendment. Fortunately, the City agrees with us and by agreeing to correct itself, it has saved us the time and trouble of extended litigation that the City would surely lose. You can read more about the conclusion of this case on our blog here.

Brief in support of judicial review

In this brief filed in the North Carolina Supreme Court in Town of Beech Mountain v. Genesis Wildlife Sanctuary, we explain how this judicial restraint veers from our constitutional commitment to liberty over democracy. This case is about a town singling out a small business for unfair treatment because the town wanted the property for other uses. But the real issue in our mind is whether the court should simply have assumed that the town was acting in good faith and defer to its decision. For more, see our blog post here.

Supreme Court denies review in Green Sturgeon case

The Supreme Court of the United States denied our petition for writ of certiorari in Building Industry Association of the Bay Area v. United States Department of Commerce.  This was our challenge to critical habitat designations for the green sturgeon. When the government did not properly take into account the economic impacts of the designations, we sued. For more on this case, see our blog post here.

Loss on appeal in tax case

We received the disappointing news that the California court of appeal has upheld the City of San Ramon’s “special” tax on new development within its territory. Our lawsuit, Building Industry Association — Bay Area v. City of San Ramon, argued that this “special” tax violated the law because, among other things, the services to be provided to the new development was exactly the same as that provided to existing homes. For more, see our blog here.


Loss in San Ramon tax case

This afternoon we received the disappointing news that the California court of appeal has upheld the City of San Ramon’s “special” tax on new development within its territory. Our lawsuit, Building Industry Association — Bay Area v. City of San Ramon, challenged the tax on several grounds. First, the tax violates the statutory requirement that such levies may be used to pay only for services “in addition to” those already available before the tax was levied. San Ramon’s tax will not be used for any new or enhanced service, but instead will be used to pay for the cost of meeting an expected increased demand for pre-existing services. Second, the tax violates the California Constitution’s prohibition on “general” taxation, because the tax’s proceeds will be used to pay for a disparate menu of municipal services otherwise paid for out of general fund revenues. And third, the ordinance levying the tax unconstitutionally retaliates against tax-paying property owners, by threatening to cut off municipal services if the taxpayers are successful in obtaining the tax’s repeal.

In response to these arguments, the court of appeal held: (i) the tax will be used to pay for additional services because meeting an increased demand provides an additional service; (ii) the tax is special, not general, because it cannot be used for any and all legitimate municipal expenses, and because its revenue will be placed in a dedicated separate fund; and (iii) the levying ordinance does not retaliate, because the loss of any service is simply the result of there being no money to pay for the service, not municipal animus.

A petition for review to the California Supreme Court would be due by the end of next month.

Review denied in green sturgeon case

Yesterday, we received the disappointing news that the Supreme Court denied our petition for certiorari to review the Ninth Circuit’s decision in Building Industry Association of the Bay Area v. United States Department of Commerce. Our petition asked the High Court to accept the case in order to decide the question of whether an agency decision not to exclude areas from critical habitat, on account of excessive economic impacts, is subject to any judicial review. We had hoped that the Supreme Court, which has shown much solicitude recently to property owners denied access to court to challenge agency action, would be interested in reviewing the Ninth Circuit’s judicial-review-denying decision. But now evidently is not the right time.