PLF Liberty Blog

Extinction false alarms?

Author: Daniel Himebaugh

Mail Online is running this story, which highlights a new study that found "a third of all mammal species declared extinct in the past few centuries have turned up alive and well."

PLF on the radio: reclassifying the wood stork

Author: Joshua Thompson

PLF principal attorney Reed Hopper will be interviewed on Fox News Radio (Ft. Myers 92.5 FM) at 8:30 a.m. EST on Friday, October 1st. Reed will discuss PLF's lawsuit on behalf of the Florida Home Builders Association which forced the US Fish & Wildlife Service to review the classification of all endangered species. Even after a court ordered the U.S. Fish and Wildlife Service to complete a status review for the wood stork in 2007, and the subsequent review by the Service's own biologists resulted in a recommendation to downlist the wood stork from endangered to threatened, the Service never acted on its own recommendation.

For those of you outside the listening area, you can listen to the interview here on your computer or iPhone.

Washington Supreme Court limits inverse condemnation defenses

Author: Brian T. Hodges 

Earlier this month, Washington’s Supreme Court issued its long-awaited inverse condemnation decision in Fitzpatrick v. Okanogan County.  The case arose from a joint state/local project to protect a state highway from flood damage by diking the Methow River.  The diking project, however, blocked the river’s natural overflow channels and, over time, caused the river to redirect during a storm and flood the Fitzpatricks’ home. 

The Fitzpatricks sued for compensation under the Takings Clause of the Washington State Constitution.   Legally speaking, their claim seemed run of the mill.  For nearly a century, our Supreme Court has regularly recognized that government is liable for inverse condemnation where the natural consequences of a public project result in damage to private property.  But the state and county took this case as an opportunity to try to put new limits on the Constitution’s protections.

Leave no doubt about where you stand!

Pacific Legal Foundation is pleased to announce its new "NO to Government Mandated Health Care" bumper stickers and t-shirts! PLF is currently litigating against the national health care mandate on behalf of Matt Sissel, a former Iraq war medic and now a small businessman in Iowa City, Iowa.  Show your support for Matt and for our efforts to get this law struck as an unconstitutional exercise of federal power. Bumper stickers are free with your request, and the shirts can be bought in the PLF Store.  Order one now! 

Fish and Wildlife Service infighting

Author:  Damien M. Schiff

This week's New York Times Greenwire had an interesting article on Benjamin Tuggle, the Service's Southwest Regional Director.  Mr. Tuggle's tenure has been controversial for a number of reasons---fining of humanitarians who leave water bottles for illegal immigrants in wildlife refuges, for example.  But the point I found most interesting in the article is Mr. Tuggle's confession that Service staff on the ground often are out of touch (even in a Democratic administration) with higher-ups in the agency.

Tuggle admitted that his decisions are not always popular with FWS employees. But, he added, field managers sometimes fail to understand other factors that must be taken into account in species decisions.

"That's a fair criticism," he said of the complaint that he sometimes contradicts his field staff. "There are a lot of times that recommendations come in from the field which don't comport with the reality of the decisions we have to make. I think I try to communicate about the decision, but they don't always like the decision. But I always respect their expertise."

One saw a similar dynamic in the Bush Administration, unfortunately exemplified by the Julie MacDonald controversy, where greenie Service employees resisted attempts from above to ameliorate some of the impacts of environmental regulation on property owners and industry.

Farmers dodge a bullet!

Author: Reed Hopper

For decades, the Corps of Engineers has exempted from federal regulation so called prior converted croplands.  These are wetlands that have been put to agricultural use prior to 1986.  In 1993, the Corps issued a formal rulemaking that stated these wetlands would continue to be exempt from federal regulation unless the wetlands were abandoned and the area regained its wetland features.  According to the Corps, there are over 53 million acres of prior converted croplands throughout the country.  That's equivalent to half the land mass of the State of California.  Thousands of landowners have relied on this exemption for years.  But in 2009, the Corps issued a letter changing everything.  For the first time, the Corps claimed it would regulate any prior converted cropland that changed use from agricultural to nonagricultural use regardless of whether it had been abandoned or regained its wetlands features. Okeelanta Corp. (a Florida sugarcane grower) and New Hope Power Company (a renewable energy company) promptly challenged the new policy in court arguing that the Corps had changed rules without going through the rulemaking process which requires public notice and comment.  In court, the Corps claimed the change was just an internal policy shift.  But today, a Florida Judge determined that the policy shift was a complete rule change that should have been subjected to public review.  The Judge invalidated the illegal rule and directed the Corps to use the formal ruelmaking process if it wants to adopt the new policy.

Download New Hope Order

 

The largest class action lawsuit in history

Author: Timothy Sandefur

...is Dukes v. Wal-Mart, a discrimination case in which the class of plaintiffs is larger than the entire United States military. The class is made up of every woman who’s ever worked at Wal-Mart, give or take a few, and earlier this year, the Ninth Circuit Court of Appeals upheld the trial court’s decision to let that case go forward as a class action. Now Wal-Mart is asking the U.S. Supreme Court to intervene, and Pacific Legal Foundation has filed this brief in support of the company.

Muggery or skullduggery? How Oregon takes your money without “taking” it

Author: Brian T. Hodges

Imagine, if you will, a criminal defendant on trial for robbery.  In his defense, the mugger argues that when he pointed a pistol at Joe citizen’s head and demanded “your money or your life, ” he wasn’t stealing.  No, stealing is such an ugly word.  The mugger was simply allowing Joe citizen to make a payment on a newly imposed obligation to provide financial support.  Absurd?  Yes.  But sadly, in West Linn Corporate Park v. City of West Linn, Oregon’s Supreme Court seems to give credence to the mugger’s defense – at least when it comes to a local government demand that landowners pay up in exchange for permit approvals.

In West Linn, the city refused to issue land use permits unless property owners paid to make unrelated off-site improvements to public infrastructure.  For over a decade, Oregon’s appellate courts held that the Takings Clause of Oregon’s Constitution protected property owners from being forced to pay for unrelated public projects.  Indeed, almost 25 years ago, in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), the United States Supreme Court recognized that unless a permit condition is required to mitigate for some impact of the proposal, the government’s demand that a property owner give up some unrelated benefit is an “out and out plan of extortion.” 

The Oregon Supreme Court, however, thinks otherwise.  In its view, a government demand that a landowner pay for improvements to the public infrastructure does not actually take a person’s money.  Instead, the Court explained that the permit condition is simply a new obligation that the landowner put his or her money to a particular use to “construct public improvements that previously did not exist.”  I conclude, without comment, by quoting Oregon’s Takings Clause: “Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation.”

Professor Kanner posted some interesting thoughts about the case at Gideon's Trumpet.

Briefing congressional staff about economic freedom

Author: Timothy Sandefur

The video of the Capitol Hill Briefing that I and Cato's Ilya Shapiro participated in last week is now online. I discuss the history of economic liberty and why America needs a new civil rights act to protect economic liberty.

Gov. Schwarzenegger ponders expanding the abuse of eminent domain in California

Author: Timothy Sandefur

California Governor Arnold Schwarzenegger is currently considering whether to sign legislation that would expand the use of eminent domain for redevelopment throughout the Los Angeles area. Ziggy Kruse has more at the City Watch blog.

Remember, California is the only state to have actually expanded its eminent domain power in the wake of Kelo v. New London, by enacting Proposition 99. That Proposition--contrary to what its proponents claimed at the time--actually expanded eminent domain power by, for the first time, adding "redevelopment" to the state Constitution.

Is government the master or the servant of the American people?

Author: Luke A. Wake

The Founding Fathers believed that government is instituted to protect individual rights, but today many people question that premise. Some reject the concept of rights entirely, and others argue that there is no way to know what our rights are. In response to this on-going debate, I have recently submitted a law review article for publication.

In the article, I discuss competing judicial philosophies and argue that the only acceptable judicial philosophy is one that respects the moral basis of the relationship between the citizen and State. Put simply, the State has been given power in order to protect the citizen's interests. Therefore, the State must faithfully execute that duty, and respect the natural rights of the individual. In the judicial context this requires courts to employ an exacting standard of review when evaluating challenges to government policies, so as to safeguard the citizen's liberty and property interests.

Sadly the American judicial system has failed to live up to this duty. Although the Founding Fathers placed meaningful constraints on the power of government with the Constitution, those restraints have been all but dismantled. During the progressive era, those constraints were eroded to the point that most any restriction on our liberty, and property, will likely be upheld under the rational basis standard today. Under the rational basis standard, a restriction is presumed to be legitimate. But if government owes an obligation to safeguard the citizen's liberty and property interests, shouldn't the presumption favor liberty over regulation? 

You can download the full article here.

 

Reason TV on economic liberty and the Constitution

Reason.tv has an interview today with PLF's Timothy Sandefur about his book, The Right to Earn a Living.

More here.

Fox News interviews PLF Endangered Species Act client

Author: Brandon Middleton

Bob Slobe can't develop his land because it is designated as "critical habitat" for the valley elderberry longhorn beetle under the Endangered Species Act -- this is so even though the government has recognized that the beetle is not an endangered or threatened species.   Fox & Friends interviewed Mr. Slobe earlier this week.  The interview can be seen below.  More info here.

 

 

Ninth Circuit says no to judicial review of compliance orders

Author:  Damien M. Schiff

Last Friday, the Ninth Circuit Court of Appeals ruled in Sackett v. Environmental Protection Agency that a landowner does not have the right of immediate judicial review when he receives a compliance order from the EPA for alleged violations of the Clean Water Act (PLF represents the appellants, Michael and Chantell Sackett).  The Ninth Circuit also ruled that delaying judicial review until either the landowner has been denied a permit, or is the subject of an EPA enforcement action, does not violate the landowner's due process rights.

News flash: all branches of government have an obligation to uphold the Constitution

Author: Brandon Middleton

It's bad enough that some of our politicians don't seem to care about the Constitution.  But now some in the media think such indifference is quite alright and that it would be "weird" for our elected officials to consider the constitutionality of legislation.