President’s weekly report — September 26, 2014

Property Rights — Suction Dredge Ban Undermined

The California Court of Appeal has issued a decision that seriously undermines California’s ban on suction dredge mining. Adopting the argument of our amicus brief, the Court held that a state ban forbidding all commercially beneficial use of a federal mining claim is preempted by federal mining law.  For more, see our blog.

Environment — Sea Otters and Sea Urchins

PLF has filed its opening brief in the Ninth Circuit challenging the dismissal of a challenge brought by Southern California fishermen against the U.S. Fish and Wildlife Service’s decision to violate federal law by terminating protections for them and their fishery guaranteed by Congress. For more, see our blog.

Separation of Powers, Liberty, and Supermajorities

The genius of the Federal and State constitutions is that they make it difficult for a mere majority to trample on the rights of individuals.  Thus, in the Federal Constitution, taxes are supposed to originate in the people’s house (see for example our Sissel case on Obamacare) and in a number of State Constitutions a supermajority is required to pass new taxes.  We filed this amicus brief in Biggs v. Brewer,  a case where a tax was adopted via subterfuge in Arizona without a legislative supermajority, as required by Arizona law.  Our brief points out the importance of such supermajority requirements in maintaining separation of powers and the need for the courts to enforce such limits.  Our blog explains more.

Property Rights and the Public Trust Doctrine

We filed this amicus brief in LBLHA v. Town of Long Beach, Indiana, a case that deals with the question of whether the public trust doctrine calls for the usurpation of owners of shoreline property along the Great Lakes.  As our blog explains, our brief recounts the history of the public trust doctrine along the Great Lakes and explains that The Fifth Amendment’s protection of private property bars the state from expanding the public trust doctrine in a manner that divests private landowners of their property without compensation.

New Jersey strikes down the Law of Contracts

The New Jersey Supreme Court issued this terrible decision in Atalese v. US Legal Services Group. Here, Patricia Atalese signed a contract with a financial services firm, in which she agreed that “any claim or dispute” between herself and the firm, related to the services provided, “shall be submitted to binding arbitration upon the request of either party” and “[a]ny decision of the arbitrator shall be final and may be entered into judgment in any court of competent jurisdiction.”  But because the contract didn’t contain the magic words that she had “waived” her right to go to court all the standard highlighted arbitration language turns out not be worth the paper it was written on. Well, to be fair, the Court didn’t say magic words were needed, just that people signing contracts in New Jersey aren’t sophisticated enough to understand that arbitration is not the same thing as litigation in court. For more on this awful decision, and its specific treatment of our amicus brief, please see our blog post here.