PLF Liberty Blog

A beginner's introduction to natural law

Author: Timothy Sandefur

Bill Whittle has an excellent video explaining the basic principles of natural law underlying the American Constitution.

The continuing fight against eminent domain abuse

Author:  Damien M. Schiff

Last week, PLF filed an amicus brief in support of the property owners' petition for certiorari in the United States Supreme Court in Tuck-It-Away, Inc. v. New York State Urban Development Corporation.  The case is about Columbia University's plan to extend its campus into the Manhattanville neighborhood of Harlem.  The so-called "redevelopment plan" that the state agency adopted required the condemnation of many small businesses in the area, all for ostensible "public" purposes, but for the real purpose of facilitating the university's expansion.

The case record is pretty clear on that point.  For example, the redevelopment area was not economically depressed when the redevelopment plan was initiated; the redevelopment plan was paid for by Columbia, not a government agency; the government gave no serious consideration to other competing plans; and Columbia already owns or controls many of the allegedly blighted properties.  Notwithstanding these rather bad facts, the New York Court of Appeals rejected the landowners' challenge to this "pretextual" condemnation, concluding that the state could have rationally considered the plan to further blight remediation and other "civic" purposes.

PLF is asking the High Court to take up the case to explain when heightened judicial scrutiny should be applied to claims that the government is using a purportedly public use as a mere pretext to accomplish an otherwise impermissible private taking.  The majority and concurring opinions in Kelo v. City of New London anticipate that some such claims should receive close judicial inspection, but the opinions are not clear on when that heightened scrutiny should be applied.  The lower federal and state courts, since Kelo, are all over the map on the question.  That's why we're hoping that the SCOTUS will take up the case.

Saving the Polar Bear or Obama's CO2 Agenda?

Author: Reed Hopper

On October 21, the day after the first hearing on the listing challenge to the polar bear, the Pacific Legal Foundation and the Heritage Foundation co-sponsored a panel discussion on the polar bear, the Endangered Species Act, and the implications for our country. 

 

The United States Fish and Wildlife Service, at the urging of environmentalist groups, has added polar bears to the list of “threatened” species under the Endangered Species Act (ESA) despite record high populations of 25,000. What is the logic? CO2 induced global warming will lead to losses in Arctic sea ice, denying polar bears their habitat. Linking the ESA and greenhouse gases has significant ramifications for the lives of the American people. Such a link puts any entity emitting CO2 that could arguably contribute to global warming squarely in the sites of environmental lawyers. Is such an approach in the best interest of the United States? Does it do anything to protect the polar bears?

Hypocrisy as a virtue

Author: R. S. Radford

Writing of John Maynard Keynes's General Theory, Henry Hazlitt once opined that the book contained much that was true, and much that was original.  Unfortunately, the parts that were true were not original, and the parts that were original were not true.  A similar criticism could be leveled at Keith J. Bybee’s new book, All Judges Are Political – Except When They Are Not. 

Bybee’s twofold thesis is that (1) judges decide cases based on their personal ideological preferences, but conceal this with rhetoric about being bound by the rule of law; and (2) we should be happy about that, because this sort of hypocrisy is the glue that holds a civil society together.

As to the first point, there’s no disputing the general truth of Bybee’s proposition, because it is uncontroversial.  Lots of studies, over many years, have shown that many appellate decisions can be predicted or explained simply by reference to the political party with which judges are affiliated.  There’s nothing really new here, because Bybee doesn’t dig deeply enough to get to the interesting part.  Why do some judges subordinate their political views better than others, once they’re on the bench?  Are judges whose political views are in the minority more likely to issue politically-based rulings, or less so?  Why does the political affiliation of judges lose its explanatory power in certain types of cases – notably, those involving property rights? 

What we teach our kids about free enterprise

Author: Timothy Sandefur

Here's this week's Little-Kids'-Lemonade-Stand-Shut-Down-By-Bureaucrat-With-Nothing-Better-To-Do story. Except this time it's a Jack-O-Lantern stand instead.

Court of Appeals: stream buffers took private property

Author: Brian T. Hodges

Earlier this year, PLF stepped in to help Kipp and Marilyn Dunlap protect themselves against an uncompensated taking of their vacant residential lot in Nooksack, Washington (located just south of the Canadian border).  As you may recall, the Dunlaps purchased a quarter-acre lot with the dream of building their home there.  But a stream runs through the middle of the Dunlaps’ lot, and the city declared that land adjacent to streams constitutes an environmentally sensitive area must be kept as a no-touch buffer and is off limits to development.   

After a drawn-out attempt to have the regulations relaxed, the city stated that the only way it would consider granting the Dunlaps a variance to build would be if they redesigned their home to be triangular in shape, raised on stilts, and have a floor area no more than 480 square feet.  The city would not allow the Dunlaps to put in a yard, garden, or even a fence.  The Dunlaps could not accept the city’s demands, so the city denied the variance – and with it, their right to build a house.

Environmental activists angry over wood stork recovery

Author: Reed Hopper

Although U.S. Fish and Wildlife Service biologists have recommended reclassifying the wood stork from endangered to threatened because the stork's range and population have doubled in recent years, activists rage over the Florida Home Builders' request that the Service take action on its own recommendation. Rather than lauding the success of the Endangered Species Act in bringing this majestic bird back from the brink of extinction, some see the possible upgrading of the wood stork as a nefarious plot by developers to destroy the pristine environment.

"They don't give a [expletive deleted] about the wood stork or anything else," said Cynthia Plockelman, the first vice president of the Audubon Society of the Everglades. "It's totally unprincipled. We have an oversupply of housing, plus foreclosures. They are trying to take advantage in unsettled times."

It is unclear why Ms. Plockelman says reclassifying a thriving species is "totally unprincipled," but no one can mistake her anger. Apparently, the Audubon Society doesn't give a ... well ... hoot ... about the wood stork as much as stopping growth.  So much for the ESA's conservation goals.

According to the Service, "A recovery plan was drafted and the wood stork could not be reclassified as threatened until the population reached at least 6,000 nesting pairs over a three-year-average. Between 2001 and 2006 the three-year nesting averages were consistently above the threshold of 6,000 pairs, prompting the U.S. Fish and Wildlife Service to recommend that the wood stork's status be down-listed.

"And the nesting pairs have continued to climb."

...

"However, the wood stork will still be protected even if it is down-listed to threatened, said Steve Godley, a vertebrate biologist who specializes in endangered and threatened species and is long-time consultant to the builders. Reclassifying the wood stork will not make it easier for homebuilders to pull permits, Godley said. [Because the same protections apply to both threatened and endangered species] The only benefit to homebuilders is that it brings the wood stork one step closer to being de-listed altogether, he said.

"There may be a battle among people, but not among the storks. They are doing fine," Godley said. "If you want the public to have confidence in the Endangered Species Act, the list needs to be accurate. Why have a list at all if it's not accurate?"

For the complete text of the article quoted in part above, see The Palm Beach Post: Builders, environmentalists at odds over wood stork's spot on endangered species list.

"Can the Endangered Species Act Compel America to Abandon Fossil Fuels?"

Author: Brandon Middleton

Via the Financial Times, a nice summary by Marlo Lewis on how the Endangered Species Act may eventually be used to limit an individual's day-to-day activities.  An excerpt:

[O]nce the Fish and Wildlife Service (FWS) listed the polar bear as a “threatened species” on the supposition that carbon dioxide (CO2) emissions are melting the bear’s Arctic habitat, the ESA logically requires that people stop engaging in CO2-emitting activities. The potential for mischief is vast. Carbon dioxide emissions come from fossil energy use, which in turn derives from economic activity. There is hardly any economic activity in the modern world that does not, directly or indirectly, produce CO2 emissions. Hence, almost any economic activity can be deemed to threaten the polar bear and, thus, violate the Act!

 

Fox News covers new PLF suit against California Coastal Commission

Author:  Paul J. Beard II

This morning, Fox News did a segment on our most recent lawsuit against the California Coastal Commission: SDS Family Trust v. California Coastal Commission.

You won't want to miss this excellent interview of one of our clients, Denise McLaughlan, explaining the Commission's extortionate demand for a mile-long public easement across her family's property in exchange for a simple permit to make repairs on the family home: 

 

What's it all mean?

Author: Reed Hopper

After months of preparation, 15 attorneys (including myself) were sitting in the D.C. District Court last Wednesday to finally argue the much anticipated listing challenges to the polar bear.  Although the overall polar bear population is the highest in recorded history and there is no current or immediate precipitous decline in overall population anticipated, the U.S. Fish and Wildlife Service listed the polar bear as a threatened species in 2008.  Under the Endangered Species Act, a "threatened species" is one likely to become endangered within the foreseeable future while an "endangered species" is one that is "in danger of extinction throughout all or a significant portion of its range."  But instead of addressing the arguments for and against listing, the Judge posed a single question that only a lawyer could love: What does the term "in danger of extinction" mean? 

Because the parties disagreed as to the meaning of the term, with the government and industry groups arguing it meant in "imminent" danger of extinction, and the environmental groups arguing that it's a question of probability and not timing, the Judge declared the term ambiguous.  Under federal precedent, the Judge felt bound to remand the question back to the Service to explain why its interpretation is reasonable under the law.  The judge has yet to issue its remand order but he is likely to give the Service 30 days to respond and the parties some to time to reply.  The hearing on the listing argument will need to be rescheduled probably to late January. 

Check back for further details.   

 

PLF Nationwide

Author: Timothy Sandefur

I was on the east coast this week, to speak in Massachusetts, Maine, and Connecticut about the Constitution's protections for economic liberty. Thanks so much to the Cato Institute, the Boston University Federalist Society, the Yankee Institute, the Maine Heritage Policy Center, and the Harvard Federalist Society for their hospitality on this exciting trip.

Next stops on The Right to Earn a Living tour: San Francisco (Nov. 8) and the midwest in December. More information here.

Randy Barnett lectures on the individual mandate at NYU

Author:  Luke A. Wake

 

This is an excellent lecture from Professor Randy Barnett on the individual mandate, which PLF is challenging. We represent Matt Sissel, a small businessman and Iraq war veteran who served his country honorably as a medic; he now objects to being conscripted into this new federal health care regime. Under the PPACA Sissel is required to purchase health insurance against his will. Barnett explains why that mandate is unconstitutional here.

 

PLF holds webchat on Florida proposal to tighten land-use controls

Author:  Paul J. Beard II

Today, PLF moderated a Web chat on Amendment 4, which will appear on next month's ballot in Florida.  If passed, Amendment 4 would modify the Florida Constitution to require a popular vote, by referendum, before a local government could adopt a new comprehensive land use plan or amend an existing one.  

Ryan Houck, Executive Director of Citizens for Lower Taxes and a Stronger Economy, and a prominent opponent of Amendment 4, took questions from Floridians about the likely effects of the law on the economy and property rights.  Unfortunately, the amendment's sponsors refused to participate in this informative discussion, after repeated requests by PLF. 

An active participant on today's Web chat was The Florida Independent's Travis Pillow, who cited PLF's chat and some of Mr. Houck's insights in a story about Amendment 4.

Federal land swaps dealt another blow

Author:  Damien M. Schiff

Federal law authorizes agencies to exchange federal lands for private lands.  These land exchanges are often very advantageous to both sides:  the feds get property that they need for environmental or other public purposes, and private industry gets land that they need for business.  Unfortunately, land swaps have been the target of the environmental community for some time, and recent judicial decisions have made it much more difficult for land exchanges to be consummated.

As my colleague Brandon Middleton pointed out on this blog a few months ago, the Ninth Circuit in the Kaiser Eagle Mountain Case overturned a land swap because the federal agency listed Kaiser's private purposes as one of the swap's official purposes in the swap's environmental impact statement (required under the National Environmental Policy Act (NEPA)).  PLF submitted an amicus brief in support of an ultimately unsuccessful petition to rehear the case before the entire Ninth Circuit.

And recently, the Ninth Circuit again denied a petition for rehearing en banc in another land swap case, Center for Biological Diversity v. United States Department of Interior.

Leading biz journal dubs PLF "one of the state's top property-rights law firms"

Author:  Paul J. Beard II

Earlier this month, we filed a lawsuit against the California Coastal Commission for attempting to extort a mile-long public-access easement of shoreline property from a family with land in San Luis Obispo, California, that wants to make simple repairs to a home.  We argue that the easement conditon effects an unconstitutional taking of private property, and we are asking the San Luis Obispo County Superior Court to strike down the condition.  For more information about the case, we've created an informative video presentation.

As I wrote in an October 12, 2010, blog post, the case has garnered substantial attention in the local media.  This week, the Pacific Coast Business Times wrote an excellent front-page story on the challenge.  In it, the Times (appropriately!) describes PLF as "one of the state's top property-rights law firms" that brings "legal expertise" to the case.