January 27, 2018

Litigation update—January 27, 2018

By James S. Burling Vice President for Litigation

Supreme Court grants important Endangered Species Act case

This week the Supreme Court of the United States granted certiorari in Weyerhaeuser v. United States Fish & Wildlife Service. In this case, our Louisiana clients, Edward Poitevent, his family, and related business interests, awoke nearly a decade ago to the news that the federal government deemed their 1500 acres of private property “critical habitat” for a “shy” frog nobody had seen in Louisiana for nearly 50 years (at least). The government  took the position that our clients could not alter their use of their property without a federal permit because of that designation. The designation does not help the frog (this frog, called the Mississippi Gopher Frog or Dusky Gopher Frog, could not survive on the land even if put there unless dramatic changes were made to the land), but it hurts our clients ability to plan for a future that already included reasonable, locally-government approved development. The economic impact of this government overreach? At least $34 million dollars. We have fought alongside Edward and his family to have this critical habitat designation declared illegal if not unconstitutional ever since they learned of it. Read more about the case in our press release here and our blog post here.

Supreme Court declines to hear Florida Keys takings case

In the wake of the Supreme Court’s decision last term in Murr v. Wisconsin, the Court has shown a reticence to take up new takings cases where landowners find themselves at the mercy of local and state governments willing to ignore property rights in favor of ‘government planning.’  We learned that again this week in Ganson v. City of Marathon when the Court denied our Petition for Certiorari in Ganson v. City of Marathon. Here, the local governments in the Florida Keys took our clients’ nine-acre property without providing any financial compensation whatsoever. The Florida courts refused to stop this unconstitutional government action, and now the U.S. Supreme Court has declined to enter the fray. You can read more about the case at our blogpost published this week.

Defending the right to protect private property against natural hazards

PLF continues its case representing coastal landowners in  the Beach and Bluff Conservancy against the City of Solana Beach (on whose behalf the California Coastal Commission and Surfrider Foundation have also intervened against PLF and the BBC). We are challenging land use ordinances enacted in 2014 that eliminate or restrict the rights of property owners with homes along the city’s bluffs from building, repairing, or replacing seawalls and private beach-access stairways. A trial court gave PLF a partial win in the case last year by invalidating some but not all of the ordinances we challenged. We appealed that decision and the government cross-appealed seeking to overturn the parts of the trial court judgment that they lost. This week we filed our reply brief to the government’s opposition to our appeal, combined with a brief in opposition to the government’s cross appeal. Briefing will be complete when the government files its final reply in February. We argue that the city’s land use ordinances violate the Coastal Act, which recognizes a right of property owners to protect homes with seawalls when threatened by erosion, and the Constitution’s prohibition against taking private property without just compensation.

Objecting to involuntary bar membership for attorneys

The Supreme Court approved mandatory state bar associations (sometimes called “integrated” or “unified” bars) in a 1961 case, Lathrop v. Donohue, and reiterated its belief that this forced association justified infringement objecting attorneys’ First Amendment rights in PLF’s case, Keller v. State Bar of California (which presented a direct challenge only to subsidization of politicking, not to forced association for general regulation purposes). The Supreme Court made certain assumptions when it decided those cases, among them that state bar associations were well-suited to competently regulate the legal profession. As explained on the blog, whatever may have been the case in 1961, subsequent years have not borne out that ideal. Arnold Fleck, a North Dakota lawyer, is asking the U.S. Supreme Court to free him from his forced association with the State Bar Association of North Dakota. PLF, which has long supported attorneys’ efforts to refrain from subsidizing the political and ideological activities of state bar associations, filed an amicus brief supporting the petition in Fleck v. Wetch.

Tennessee Court of Appeals allows Nashville’s monopoly system for short-term rentals to continue

We received an adverse decision this week in Anderson v. Metropolitan Government of Nashville. Last year, the Anderson family successfully challenged Nashville’s limitation of permits for non-owner-occupied short-term rentals to 3% of a census tract after their request to convert their owner-occupied permit was denied because the limit for their neighborhood was already exceeded. But Nashville appealed, and this week the court of appeals held that the 3% cap was a permissible monopoly under the Tennessee Constitution. Fortunately, and in line with PLF’s amicus brief, even though the court applied a test similar to the rational basis, it did not apply the test in as deferential a manner as some federal courts have recently done.

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