PLF Liberty Blog

The 2011 water year in a nutshell

Author: Brandon Middleton

A highly informative article from The Sacramento Bee's Matt Weiser.

The 14th Amendment and the debt ceiling

Author:  Damien M. Schiff

Former President Bill Clinton recently caused something of a stir by his public suggestion that President Obama could unilaterally increase the debt ceiling by invoking the authority of Section 4 of the 14th Amendment.  That provision of the Amendment states:  "The validity of the public debt of the United States, authorized by law, including debts incurred for payments of pensions and bounties for services in suppressing insurrection or rebellion shall not be questioned."

Legal scholars are mixed on whether Section 4 is a time-bound provision intended to avoid a Southern repudiation of Union Civil War debts and nothing else, or whether the provision means, as Professor Jack Balkin suggests, that the national debt cannot be used as a pawn in some larger political game.

But most academics appear to agree that, should Section 4 be invoked, no court would entertain a lawsuit to challenge the President's action.  Such a lawsuit would likely be precluded by the doctrines of standing or political question (which we've covered previously).

Whether Section 4 would apply today depends largely on one's theory of interpretation.  Does one take the meaning of the words of the Constitutional text as understood when enacted?  As understood today?  Does one cabin an otherwise broad provision by limiting it to the historical milieu from which it emerged?  Or is what matters the rule itself, divorced from the problems that necessitated its adoption?

NRDC attempts to silence dissent in delta smelt litigation

Author: Brandon Middleton

As the delta smelt litigation proceeds in Fresno, Pacific Legal Foundation continues its fight to have the U.S. Supreme Court review the constitutionality of delta smelt water cutbacks.  This week, numerous groups and organizations filed amicus curiae briefs in support of PLF's petition for a writ of certiorari.  These groups, which include the Center for Constitutional Jurisprudence and the Cato Institute, the National Federation of Independent Business, Mountain States Legal Foundation, and a broad coalition of western and California water organizations, agree that the Supreme Court should review the Ninth Circuit's flawed delta smelt Commerce Clause decision from this past March.

It should be noted, however, that not everyone is willing to allow these groups to voice their opinions in this important matter.  The Natural Resources Defense Council (which is an intervenor in the delta smelt litigation) has taken the unusual step of refusing to consent to the groups' filing of amicus curiae briefs in support of PLF, even though the rule to seek consent is seen by many as pro forma.

Practically speaking, this did not pose much of a burden for PLF's supporters.  All the amici curiae needed to do as a result of NRDC's denial of consent was file a short motion demonstrating why the Supreme Court should accept their briefs.

But NRDC's needless refusal to grant consent does speak volumes of how it treats differing viewpoints on environmental issues.  And if NRDC is so convinced that it is in the right when it comes to the delta smelt, why should it fear simply allowing others to offer divergent perspectives?

Indeed, one commentator has suggested that "opposition to the filing of an amicus brief brings Shakespeare to the minds of most judges: 'The lady doth protest too much.'"  In this case, NRDC's treatment of amici curiae in the delta smelt Supreme Court litigation is at best petty, and at worst discourteous.

Will EPA regulate forest road stormwater runoff?

Author:  Damien M. Schiff

Earlier this year the Ninth Circuit Court of Appeals, in Northwest Environmental Defense Center v. Brown, overturned the EPA's longstanding Clean Water Act regulatory exemption for stormwater runoff from forest roads.  PLF filed two amicus briefs in the case on behalf of industry groups that are rightly concerned with the potential and significant negative impact that the court's ruling will have.  The groups' principal concern is that, without EPA's exemption, millions of miles of forest roads in the country will be immediately out of compliance with the Clean Water Act, subjecting their owners to thousands of dollars in liability.

Not surprisingly, a petition for certiorari to the Supreme Court is being prepared.  But also of note:  the New York Times reports that a bill has been introduced in Congress that would legislatively reinstate EPA's exemption.  And the bill has already garnered bipartisan support.  This may be one of those rare instances where the only group that is interested in expanding EPA's authority is the enviromentalists.

Happy Birthday, Milton Friedman!

Author: Jonathan Wood

Milton Friedman, one of the greatest minds of the 20th century, would have turned 99 on Sunday.  Though few individuals have been as deserving of praise, Milton Friedman was “much more interested in having people thinking about the ideas” than the person having them.  In that spirit, we celebrate his birthday by reflecting on some of his greatest ideas.  Unsurprisingly, this past year provides ample evidence of Milton Friedman’s continued genius.

Milton Friedman demonstrated that stimulus programs could not succeed because households would use the money to save or pay down debt.  In the wake of the financial crisis, the Federal Government ignored this lesson and passed a $787 billion stimulus package.  Despite extravagant promises, the stimulus package completely failed to spur demand or employment.  This past year, a paper by renowned economist John B. Taylor largely confirmed that Milton Friedman’s insights explain the failure of the stimulus:

[Stimulus] grants increased steadily from the first quarter of 2009 through the third quarter of 2010 before tapering off. But state and local government purchases hardly changed at all during this period. The biggest change during the period of the [stimulus] grants was a large decrease in state and local government net borrowing, or, equivalently, an increase in net lending.

Milton Friedman was also a vocal critic of centralized administration of education.  His groundbreaking article, “The Role of Government in Education,” set the stage for the modern school choice movement.

The result of [vouchers] would be a sizable reduction in the direct activities of government, yet a great widening in the educational opportunities open to our children. They would bring a healthy increase in the variety of educational institutions available and in competition among them. Private initiative and enterprise would quicken the pace of progress in this area as it has in so many others. Government would serve its proper function of improving the operation of the invisible hand without substituting the dead hand of bureaucracy.

This past year has shown that Milton Friedman’s criticisms are as valid today as they ever were.  The rampant cheating in the Atlanta public school system is just the most recent in a long string of events confirming that centralized education continues to fail both students and taxpayers. 

Let’s hope that when we celebrate his 100th birthday we can look back on the year and celebrate the benefits that were derived from heeding the lessons of Milton Friedman.  This past year has certainly shown the folly of ignoring his insights.

Growth management ruling exposes Washington’s east/west divide

Author: Brian T. Hodges

Washington’s Growth Management Act (GMA) envisions a scheme where every city and county, in every nook and cranny of the state, adopts land use regulations responsive to a host of general societal interests  (e.g, affordable housing, preserving property rights, protecting rural lands from urban development, protecting the environment, promoting natural resources industries, etc.).  Visionary?  Maybe ... to some. 

Are polar bears really drowning?

Author:  Damien M. Schiff

Fox News is reporting that a leading polar bear researcher---Charles Monnett---is under investigation by the US Bureau of Ocean Energy Management, Regulation and Enforcement.  Apparently the investigation is focusing on a 2006 peer-reviewed report that Monnett authored, which details the supposed drowning deaths of several polar bears owing to global-warming-caused sea ice melt.

No doubt that, if the report is found to contain false or otherwise bad data, Monnett's credibility will be undercut.  But I doubt that such a turn of events would have much if any impact on the polar bear's ESA listing or the ongoing lawsuits (including PLF's) challenging the listing.  That decision was based principally on the US Fish and Wildlife Service's estimates of polar population viability using various climate change models.  Although the Service's methodology and modeling are deeply flawed, those errors have little to do with Monnett's episodic evidence of drowning bears.

The Title IX Blog soundly defeats a number of straw men

Author: Joshua Thompson

After PLF and the American Sports Council made waves announcing their lawsuit concerning the application of sex-based quotas on American high schools, the proponents of sex-based quotas have finally begun their counter-attack.  Unsurprisingly, however, the response from the Title IX Blog is based solely on hyperbole, ad hominems, straw man arguments, and non sequiturs.  I'll point out some of the most egregious fallacies after the fold.

Showdown at the Flower Hill Mall

Author:  Damien M. Schiff

The California Coastal Commission is making a ruckus over the expansion of the Flower Hill Mall, a popular spot located just east of the Del Mar Racetrack on the north coastal edge of the City of San Diego.  The Commission contends that the Mall's expansion requires a coastal development permit from the Commission, but the Mall's owners respond that the property falls within the City of San Diego's local coastal plan, and therefore that the Commission does not have original permitting jurisdiction over the expansion project (and presumably nobody bothered to appeal the City's permit to the Commission; one wonders what the ever-vigilant commissioners were doing).  The Commission hasn't backed down, apparently having sent a staffer to post a notice at the Mall indicating that each day the expansion goes forward, the Mall becomes liable for up to $15,000 per day in civil penalties.

Sign On San Diego reports that the Mall's hurry is because, if it doesn't get the expansion done in time, Whole Foods will decline to open up shop.  The Mall's attorney reports that the property is clearly within the City's jurisdiction and that even the City agrees with the Mall.

One suspects that the case against jurisdiction is a fairly strong one for the Mall's attorneys to counsel the Mall to go forward with the project at the risk of such heavy fines.  One wonders, though, whether, even assuming that the Mall is right, Whole Foods would want to move in to a facility that could have a legal cloud over it for some time to come.

Victories and unanswered questions in buffer appeal

Author: Brian T. Hodges

Earlier today, the Kitsap Sun published an op-ed that I co-authored with Jackie Rossworn, executive director of Kitsap Alliance of Property Owners.  The op-ed highlights several property rights victories and important issues that remain unresolved after Washington’s Supreme Court declined to review the Kitsap County big buffer case, Kitsap Alliance for Property Owners v. Central Puget Sound Growth Management Hearings Board.  Read the op-ed here.

PLF represents seaplane pilots in important shoreline permitting case

Author: Daniel Himebaugh

Douglas Tomczak owns property on Lake Whatcom, in Whatcom County, Washington.  Earlier this year, he asked the county for permission to use a soon-to-be built dock on his property to moor a seaplane.  Asking for permission to moor a seaplane on Lake Whatcom is not an unusual request, since the lake is home to an FAA approved seaplane base and is available for seaplane use.

The Washington Seaplane Pilots' Association helped Mr. Tomczak prepare his application.  The Association trains seaplane pilots on the proper cleaning of seaplanes, and offers a course to certify pilots in best management practices for protecting against invasive species, such as zebra mussels.  The county approved Mr. Tomczak's application subject to implementing the Association's recommended practices.

The Wade L. Hopping Institute for Private Property Rights

Pacific Legal Foundation is proud to announce the establishment of The Wade L. Hopping Institute for Private Property Rights at Pacific Legal Foundation's Atlantic Center in Stuart, Florida.

PLF is grateful for the leadership and friendship Wade gave to us during his many years on the Board and we are honored to carry on his mission for the benefit of future generations of Americans.

The Institute will serve to permanently commemorate Wade’s leadership, legislative advocacy and vigilant determination to win landmark court decisions that protect the right to own and use private property. Through the Institute PLF will apply new and considerable human and financial resources to litigate property rights cases that have the best chance at setting legal precedent; advance the Institute’s initiatives with focused communications, marketing and public outreach; and prepare new property rights attorneys to carry on this mission for the benefit of future generations of Americans. Learn more

Judge rules the Coastal Commission violated the Sterlings’ constitutional rights…again!

Author: J. David Breemer

For the second time, a California Superior Court judge has held that the California Coastal Commission violated the constitutional rights of property owners Dan and Denise Sterling by imposing an unlawful permit condition on their application to build one home on 143 acres of land in San Mateo County, California.
 
The court specifically ruled that the Commission had acted unlawfully, and violated the Takings Clause of the United States Constitution, in demanding that the Sterlings record an open space deed restriction on all their property outside their single family home building site—about 140 acres—in order to acquire a permit for the home.
 
This is the second oppressive condition the CCC has tried to force on the Sterlings and the second condition the Court has struck down.  Originally, the Commission demanded that the Sterlings dedicate an affirmative agricultural easement as a permit condition. This condition would have required the Sterlings to actively farm or agriculturally use 142 acres of their land—forever—in order to build one home on a 10, 000 square foot site.  The Court held this easement condition was “flat out unconstitutional.” It sent the case back to the Commission so it could reconsider the Sterlings’ application.
 
After settlement negotiations, the CCC held another hearing.  Against the advice of its staff and the Sterlings’ wishes, the Commission imposed a new condition that was as objectionable as the first. The new condition did not require the Sterlings to accede to perpetual, active farming, but did demand that the Sterlings record a deed restriction permanently converting 140+ acres of their land outside the home site into open space for the public good.  This condition wiped out the Sterlings’ development rights, and would have prevented them from building a second home at some point for their children.
 
At the Commission hearing, the Sterlings informed the agency that the new condition was unconstitutional and that the Sterlings would take the Commission back to court if it was adopted. The Commission responded, “So be it.”
 
And so it was. PLF filed a new complaint, and on July 22, the superior court held that the Commission lacked authority to impose the deed restriction condition, and that, even if had authority under state law, the condition failed the “nexus” and rough proportionality” takings standards of Nollan v. California Coastal Commission and Dolan v. City of Tigard,  “on all scores.”
 
The court concluded: “The new condition, in the form of an open space deed restriction is not tailored to the development and is once again irreconcilable with Nollan and Dolan. As compared to the Commission’s prior failed attempt to impose an agricultural easement on the property, the Commission’s new attempt is a distinction without a difference.”
 
Lets hope the Commission will get the message and just let the Sterlings build their family home.

The featherbedding case and more...

Author: Timothy Sandefur

I will be joining Chris Reed on Top Story, on San Diego's KOGO AM 600 tonight at 7:30 to talk about the California Supreme Court's decision in the California Grocers case. You can listen online here.

Fed up with "environmental justice" in Alabama

Author: Brandon Middleton

A mine operator reacts to misplaced environmental hostility towards the private sector: "So as I stood against the wall here today, basically what I’ve decided is not to open the mine. I’m just quitting. Thank you."  At the link, David McElroy provides further insight:

The only thing I’m sure of is that what I saw today is a broken process and a sham. We all want a decent environment in which to live, but when various people at a public meeting — including federal officials and community members — talk about 'environmental justice' and make it clear that their intent is to make it harder for businesses to operate, well, I can see why a businessman would decide to quit. I consider myself an environmentalist — because I want to live in a safe, secure, clean world — but what I saw isn't reasonable concern for the environment as much as it’s an ideological agenda.