CCC levies a $4.2m fine for blocking nonexistent staircase


Dear Californians, this is your California Coastal Commission: willing to fine property owners over four MILLION dollars for blocking “public access” that doesn’t exist. Even to those who have spent years following (and fighting) the Coastal Commission’s brazen overreaching, this is downright appalling.

Two years ago, the California legislature gave the Coastal Commission the authority to levy administrative penalties. At the time, drafter of the bill Toni Atkins felt fears of excessive fines were unfounded, and mused “I don’t think the Coastal Commission will overreach.” Some of us at PLF were skeptical.

In light of yesterday’s shocking fine against Henny and Warren Lent, it’s safe to say that fears of Coastal Commission overreach were not only well-founded, they were understated.

Read more about the Lents’ story

Who owns what on the Indiana shoreline of Lake Michigan?

Earlier this week, the Indiana Court of Appeals offered its view of the long-running battle in that state between property owners on Lake Michigan who expect the law to protect property rights, and the members of the public who demand the right to traipse across those property owners’ property without paying for the right, contrary to the Fifth Amendment. There have been a few cases that have arisen regarding this dispute; this particular case is known as the Gunderson case.

In a nutshell, the trial court in this case incorrectly ruled that the “public trust doctrine” allows the state to claim the private property of property owners on Lake Michigan up to a “high water mark” (despite the fact that there is no “high water mark” on the non-tidal Lake Michigan) without paying just compensation. That trial court erred, and we argued as much to the Indiana Court of Appeals in our amicus brief. Those who own property along Lake Michigan, like the Gundersons, have deeds that say they own to the waterline. When your deed says you own to the waterline, the State cannot ignore your deed and say, “no, you don’t, we’ve decided we want your property and now it’s ours” (unless, of course, it pays just compensation for the public’s use of that property). Rather, the State of Indiana must respect the property deeds of the Gundersons and other private property owners on Lake Michigan, just as you have to respect the private property line of your neighbors. The State of Indiana is not above the law.

Unfortunately, the Fifth Amendment lost this round. The Court held that the State of Indiana can take away the right to exclude others from the private property of those who own property along Lake Michigan, and give the right to walk through that property to the public up to a make-believe “high water mark,” without just compensation.

We understand that the property owners are reviewing their options. PLF will continue to take an interest in this case to do what it can to make sure this constitutional wrong is constitutionally righted.

PLF seeks to enforce CESA in court this Friday

The California Endangered Species Act requires the Department of Fish and Wildlife to conduct status reviews of species listed as endangered or threatened every five years. The Department has abdicated this duty for 233 species. PLF sued to enforce the law, and will make its case in San Diego Superior Court this Friday.

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PLF files Ninth Circuit brief to salvage Growers’ property rights

In Cedar Point Nursery v. Gould, PLF represents California businesses that want to make productive use of their land. Together, the businesses employ around 3,000 Californians and produce millions of dollars for California’s economy in the form of oranges, table grapes, and strawberry plants.

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California: “take-home” liability extends to workers’ households

Kesner v. Superior Court and Haver v. Burlington Northern Santa Fe Railroad are consolidated cases resulting in a single decision by the California Supreme Court holding that California tort law recognizes “take-home” liability in asbestos cases. “Take-home” cases arise when an employee worked with asbestos on the job 30-50 years ago and got asbestos dust on his clothes, exposing other family members to the toxic dust, after which they were diagnosed with asbestos-related illnesses. Continue reading

Slavery has ended, but we still have work to do

3431207We ended slavery over 150 years ago today. It was a formative and controversial moment. But we rarely see the Thirteenth Amendment–which abolished slavery and involuntary servitude–invoked today as a means of securing liberty. Is it relevant to the issues we deal with now? I believe it is. Continue reading

PLF argues in Oregon Supreme Court that laws should benefit the public, not cronies

Though occupational licensing laws are often justified in terms of health or safety, studies show that licensing regimes are more often bare attempts by entrenched business interests to protect their market share.  The result of such crony laws is that entrepreneurs are barred from pursuing an honest living, with no corresponding benefit to the public.

Take David Hansen.  David studied architecture at the University of Idaho.  After college, he worked at various architectural firms doing design work.  Later, David and a partner started their own firm—Twist Architecture—to use their skills while pursuing licensure in Oregon. His partner was licensed in Washington at the time, and David was not yet licensed anywhere. Aware that they couldn’t practice architecture in Oregon without a license, they limited their work to making marketing drawings.  These drawings were meant to help a property development company attract retailers to developments by imagining different possibilities for the project.  The drawings were not “plans,” and could not be used for construction.  If any development moved forward, the retailers would hire their own licensed architect to draw the actual plans for the project.

After receiving a complaint from a licensed architect, the Board fined David and his partner $10,000 each for purportedly practicing architecture without a license.  The Board contends that “anything done in contemplation of constructing a building” is the practice of architecture and requires a license.

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Briefing update in Fairfax Memo Challenge

In National Federation of Independent Business v. Dougherty, we challenge the so-called Fairfax Memo, a substantial pro-union re-write of federal law governing workplace safety inspections. Last month, the feds moved to dismiss our challenge on procedural and substantive grounds. Yesterday, we filed our opposition to the feds’ motion to dismiss. We argue that our action is procedurally sound and substantively convincing. We expect a decision on the motion sometime in early 2017.

The fight against overcriminalization continues

Would you want to bet your freedom on knowing which of these is protected by the ESA?

Would you bet your freedom that you know which of these is protected?

Last week, PLF’s motion to intervene was granted in a case threatening to radically expand criminal liability under the Endangered Species Act. As you may recall, we represent several southwestern agricultural organizations who, like pretty much everyone else, face the prospect of imprisonment for innocent mistakes if this case succeeds. It is no overstatement to say that this lawsuit is one of the most stark examples of overcriminalization—it would literally demand people go to jail if they accidently strike an unknown, endangered insect while driving down the highway.

In related news, the Daily Signal has a piece by the Heritage Foundation’s John-Michael Siebler placing several recent PLF cases in the broader context of the overcriminalization problem, including our recent victory on behalf of Andy Johnson and his family.

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Weekly litigation report — December 2, 2016

Right to say you are who you are

Image result for photo by fontenot peggy

Peggy Fontenot with her art

We filed this complaint on behalf of Peggy Fontenot against the State of Oklahoma. The rub of Fontenot v. Pruitt is that Peggy Fontenot, who is a member of the Patawomeck Indian Tribe, is not allowed to say in Oklahoma that her photographs and artwork are made by an American Indian. Why not? Because the Patawomeck tribe is recognized by Virginia but not by the federal government. That matters because Oklahoma will not allow someone from a non-federally recognized tribe to sell “Indian” art in that state. Naturally, all tribes in Oklahoma are recognized by the federal government. Not only does this rule limit competition, but it also infringes upon Peggy Fontenot’s free speech right to say who she is when selling her art. For more, see our blog post here.

Reply brief filed in St. Louis discrimination lawsuit

We filed this reply in E.L. v. VICC, where we are suing on behalf of a student whose wish to be able to transfer to other city schools is being blocked solely because he is African-American. For more, see our blog post here.

Liability of wealth

In a tort suit, whether you caused an injury should be more important than how deep your pockets are. In that vein, we filed this amicus brief asking the California Supreme Court to overturn the flawed decision in T.H. v. Novartis. That opinion would essentially impose never-ending tort liability on brand-name drug manufacturers for injuries caused by their generic counterparts.  By adopting an expansive theory of liability, the law threatens to drive up the cost of doing business—possibly deterring useful medications from coming to market. For more see our blog post here.

The law applies to thee, but not to me, if the “me” is government

The California Endangered Species Act requires the Department of Fish and Wildlife to conduct status reviews of species listed as threatened or endangered every five years. PLF sued to enforce the Act, after the Department failed to conduct mandatory reviews for 233 species.The Department now wants to dismiss the lawsuit, arguing that no one is harmed by its failure to follow California law. Today PLF filed its opposition in California Cattlemen’s Association v. California Department of Fish and Wildlife. For more, see our blog.

A plan of extortion from West Hollywood

PLF attorneys filed this reply brief in 616 Croft Ave, LLC v. City of West Hollywood. As you may recall, this case arose from the City’s demand that husband and wife entrepreneurs Shelah and Jonathan Lehrer-Graiwer pay a $540,000 “affordable housing” fee in order to get the necessary permits to build new homes. The Leher-Graiwers challenged the fee, which had absolutely no relation to any impacts caused by the proposed development. That’s because adding to the housing supply causes housing prices to decrease, not increase. Rather than encouraging more home-building in unaffordable cities, cities are making homes less affordable by slapping all sorts of fees and conditions on new home buyers.