Litigation update — March 18, 2017

March 18, 2017 | By JAMES BURLING
  • Murr Monday coming up
  • Tax-lien foreclosure-for-profit scheme rehearing denied
  • Union trespass challenge continues
  • Get your super-easy injunctions today in the Ninth Circuit!
  • Is crony capitalism a public use?
  • Loss for rights in mining claims
  • Ninth Circuit declines to vacate Levin decision

Murr Monday coming up

We are busily preparing for oral argument on Monday, March 20th, before the Supreme Court of the United States in Murr v. Wisconsin. We’ve had a series of moot courts and strategy sessions to make sure that the Court gets the best argument possible. For those not familiar with the case, the bottom line is that the Murr family acquired two adjacent but separately deeded parcels in the 1960s. They built a small cabin on one lot and saved the other as an investment, with every right to sell it or build another home on it. Now that the property has passed onto the children, the State says that because the land use laws have since downzoned the property, the second lot can no longer be sold or developed. But instead of paying for the taking, the State says that because the Murrs own another lot, they really haven’t lost anything and don’t deserve to be made whole.

Tax-lien foreclosure-for-profit scheme rehearing denied

The Sixth Circuit denied our request for rehearing in Wayside Church v. Van Buren. That’s the case where the county is foreclosing on the property of people with tax liens, but pocketing the entire sales price of the properties, making a windfall profit often many times the value of the actual tax lien (with interest and penalties). In the case of the Wayside Church, the County pocketed $206,000 for a lien of only $16,500. This case, and many others just like it in the same county and across the country, are direct takings of a lot of money from those least able to afford the losses. Our next stop is the Supreme Court of the United States.

Union trespass challenge continues

In Cedar Point Nursery v. GouldPLF represents a California business that wants to make productive use of its land. In 2015, pursuant to regulations from the state’s Agricultural Labor Relations Board, union organizers entered our client’s property, and meandered around with bullhorns. Some workers left the property during an important harvest season. Others felt scared and intimidated. We sued, and the case is now before the Ninth Circuit. This week, we filed this reply brief in the 9th circuit.

Get your super-easy injunctions today in the Ninth Circuit!

To get a court to put an immediate stop to something — by ordering an injunction — the person seeking the stop has to prove a “likelihood of success on the merits.” No likelihood of success, no injunction. Except in the Ninth Circuit, which has lowered the standard in environmental cases. In the Ninth, environmentalists must raise only “serious questions” about the legality of an agency action. Seriously. Of course, the environmentalists claim to be serious about everything they do in court (no matter how devastating to everyone else) and they get a virtual free pass on injunctions. What’s more, the Ninth Circuit also, instead of requiring some sort of proof,  assumes that there is always “irreparable harm” when claims are being made about an endangered species.  In Cascadia Wildlands v. Scott Timber Company, we filed this friend of the court brief arguing that enough is enough — and that if an environmental activist wants to stop something, the activist has to make the same showing as everyone else. For more on this, see our blog post here.

Is crony capitalism a public use?

Some folks seemed to have learned nothing from Kelo. Kelo was, of course, all about taking property from one private party to give to another better politically connected party. After the public erupted in dismay after that case, many states, including Louisiana, amended their state constitutions to halt these crony takings. Now comes along the St. Bernard Port District which is trying to take a small private port for the benefit of another more politically connected port. We filed this amicus brief asking the Louisiana Supreme Court to consider whether such a private crony transfer is “public use” as required by the state and federal constitutions in St. Bernard Port, Harbor & Terminal District v. Violet Dock Port, Inc., LLC.

Loss for rights in mining claims

We received this adverse decision in the amicus case Reoforce v. United States. The case involved an unpatented mining claim that was frustrated by a decade of regulatory actions. The mine owners filed a temporary taking lawsuit, which the Claims Court rejected on multiple grounds.  PLF filed an amicus brief addressing two of those grounds:  the rights inherent in an unpatented mining claim and the notion that people who buy regulated property cannot challenge the application of those regulations (an issue on which we won in Palazzolo.) The Federal Circuit today affirmed the decision to dismiss Reoforce’s temporary takings claim. The Court reached the merits without deciding whether ownership of an unpatented claim is a property right and without addressing the trial court’s refusal to follow Palazzolo.

Ninth Circuit declines to vacate Levin decision

After we won our challenge in Levin v. City and County of San 
Francisco to the City’s imposition of massive fees on landlords who wish to stop leasing rental units, the City rescinded its ordinance and replaced with something less drastic (though probably still illegal.) The Ninth Circuit refused this week to vacate the favorable trial court decision.