PLF is a perennial voice at the Supreme Court. Every term, PLF defends liberty at the nation’s highest court in our own cases or as friends of individual rights in cases relevant to our practice.
Pacific Legal Foundation was founded in 1973 by members of then-Governor Ronald Reagan’s staff as the first public interest law firm dedicated to the principles of individual rights and limited government. Early public interest law firms had achieved heroic work defending individual rights, such as the rights to free speech and equal protection under the law. In the 1960s and early 70s, however, the public interest law movement took a notably collectivist turn. The nation needed an effective legal advocate inspired by the American ideals of individualism and liberty to enforce real constitutional limits on government power.
In 1985, Professor Richard Epstein published Takings: Private Property and the Power of Eminent Domain, which rekindled academic and legal interest in property rights. PLF began litigation to stop “regulatory takings,” where instead of taking someone’s property outright, the government limits its use through regulation.
Government bureaucracy is a headache. Getting a permit to build on your land can mean endless forms and red tape. Government bureaucrats can take your time and energy, but can they take your land as a condition of issuing a permit? PLF’s first Supreme Court victory in Nollan v. California Coastal Commission answered that question.
In the 1980s, if a landowner wanted a coastal development permit the California Coastal Commission (CCC) forced them to dedicate a portion of their property to the state and provide public access across their land, even when the development didn’t actually interfere with existing public access. You want a permit? Pay up with your land.
In the Nollan decision, the Court pointed out that the exaction demanded by the CCC amounted to nothing more than “an out-and-out plan of extortion.”
Now, if a government demands someone’s property in exchange for a permit, then the taking of the property must reduce a serious harm caused by the development. “For the public good” isn’t a good enough reason to take someone’s private property. Instead, there must be a direct link between the development and a specific harm it would cause.
Nollan is now taught in every law school curriculum on land use. The CCC’s rule was struck down in California and new favorable law was created in an additional 29 states.
PLF’s founding president, Ronald A. Zumbrun, retired in 1994 and handed over the reins to Robert K. Best, the lead PLF litigator in Nollan v. CCC and former head of the California Department of Transportation. Bob continues to serve as a PLF Trustee today.
At the Supreme Court, PLF continued to build on the win in Nollan with more regulatory takings cases and also began working in free speech.
Our freedom of speech protects us from government censorship. But the ingenious B-side to our First Amendment right is our protection from being forced to say (or pay for someone else to say) what the government wants.
Keller v. State Bar of California debated whether someone could be forced to pay dues to an organization to keep their job, but then have that organization use that money to support political causes.
The unanimous verdict? The government can’t force you to pay for someone else’s political speech. Or put another way, the government can’t force you to support an issue against your will.
As Thomas Jefferson put it: “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.”
Keller has been cited in 148 federal and state appellate courts and 516 law review articles.
It seems to me your argument is: if the TRPA says you can’t use your lot but here’s some [credit], you go over to Harrah’s and you can play roulette with it. Then you say no, we don’t value the [credit]. We require the owner to stand outside the door of Harrah’s and see what she can get for it, though.- Chief Justice Rehnquist
All Bernadine Suitum wanted to do was build a small home for her retirement years in Incline Village, near Lake Tahoe. Yet because a small drainage ditch ran behind her property, the Tahoe Regional Planning Agency (TRPA) declared the site to be a “stream environment zone” unsuitable for building.
As a consolation prize for destroying her property’s value, the TRPA then determined Bernadine was eligible for “transferable development credits,” an imaginary currency she could attempt to sell to other landowners (with the agency’s approval of course).
In Suitum v. Tahoe Regional Planning Agency, the Court held that Mrs. Suitum could go directly to court to defend her property rights without agreeing to the absurd demand that she first try to obtain and use the made-up credits. Justice Rehnquist even compared the “credits” to casino chips Bernadine could try and use at the roulette table.
“My goodness. I mean, why not give this poor, elderly woman the right to go to court and have her takings claim heard?” –Justice O’Connor, at oral argument.
This case has proven immensely important for anyone who needs to sue the government to protect their property. Suitum wiped away procedural hurdles blocking landowners’ from the courthouse doors.
Suitum has been cited in 152 federal and state appellate courts and 342 law review articles.
PLF developed a steady rhythm of arguing a case at the High Court about every five years. More justices were appointed to the Court with an appreciation for originalism, the idea that the Constitution should be interpreted as it was written.
PLF also began challenging unjust application of the Clean Water Act, which exemplifies threats to liberty and property by the regulatory state.
This land had rights... After the sweep of a pen, it had no rights. Where did they go to? The state got them. How much did it pay for them? Zero.- Anthony Palazzolo
Government bureaucrats constantly try to dictate the timeframe for challenging a harmful law or regulation.
Before this case, many government agencies across the country claimed that landowners weren’t allowed to challenge a law or regulation impacting their land if they acquired their land after the law went into effect. If you bought a piece of land, and a law from your grandfather’s era violated your rights: too bad.
But PLF’s client Anthony Palazzolo fought for his rights as a landowner and with his case, the Supreme Court righted this wrong.
The Court ruled that if a law is unconstitutional, simply being old doesn’t make it right.
As Justice Anthony Kennedy wrote, “Future generations have a right to challenge unreasonable limitations on the use and value of land.”
Palazzolo has been cited in 402 federal and state appellate courts and 1059 law review articles
“the court's ruling in Palazzolo v. Rhode Island also had an important side effect: It sent a message that all of society -- not just a few unlucky landowners -- must be prepared to bear the cost of environmental regulation. –Wall Street Journal Editorial Board
“The plain language of the Clean Water Act simply does not authorize this 'Land is Water' approach to federal jurisdiction.”
- Justice Antonin Scalia
Is a puddle “navigable water?” Is a stream that trickles with some rainwater?
For decades, part of the Army Corps of Engineers’ definition of “navigable waters” included any private property containing water that might eventually drain to a river (even a river that is miles away)
In Rapanos v. United States, the Supreme Court rejected the government’s expansive and self-serving definition of “waters.”
Now, thanks to John Rapanos, the government can’t take control of your home just by pointing to some water in your yard.
Rapanos has been cited in 111 federal and state appellate courts and 1053 law review articles.
Associated win (GVR): Gerke Excavating v. United States (2006).
Gerke Excavating was fined $55,000 for grading and removing tree stumps and soil, because the Army Corp of Engineers considered their property a wetland. PLF argued that their property lacked any connection to a navigable water. The Court sent the case back to the lower court to reconsider in light of the decision in Rapanos.
PLF’s Supreme Court docket accelerated, with more Supreme Court cases this decade than in the previous four combined.
Our reputation is established as a powerhouse at the Court in property rights, free speech, and constitutional government.
In a 2017 interview, Justice Anthony Kennedy noted: “We have amicus briefs often, and some NGO’s—ACLU, the Pacific Legal Foundation—turn in very, very fine briefs.”
The Supreme Court ruled unanimously for the Sacketts and against the Obama EPA—just like they should.- Mitt Romney
Before this victory, landowners had little hope to defend themselves against overbearing regulations associated with the Clean Water Act.
Chantell and Michael Sackett received a local permit to build a home on a half-acre lot with no connection to water. The Environmental Protection Agency (EPA) declared their property to contain a wetland and demanded they restore the lot to its natural condition or pay fines of up to $75,000 per day. Further, EPA asserted they had no right to judicial review of the enforcement order.
The Court’s unanimous decision set an important precedent limiting the government’s ability to extort private landowners. Now, landowners dealing with a Clean Water Act enforcement order have the right to immediately challenge those regulations in federal court.
“If you related the facts of this case as they come to us to an ordinary homeowner, don't you think most ordinary homeowners would say this kind of thing can't happen in the United States?” –Justice Alito, to the government’s attorney in oral argument.
This case marked a turning point in the growth of the administrative state. Previous Supreme Court decisions allowed for extreme deference of agency actions, but Sackett signaled to lower courts that they should be scrutinizing regulatory agencies more closely.
Sackett has been cited in 55 federal and state appellate courts and 193 law review articles.
“Extortion” is a term you usually hear when the FBI walks white collar criminals out of high-rise office buildings. But what about government extortion? What are our rights when the government demands absurd requirements to issue permits and licenses?
In this case, the Court decided whether government could require landowners to surrender part of their land, or pay exorbitant fees, in exchange for a government-issued building permit.
The Court ruled that extortion is extortion—even if it’s coming from a government agency. If the government decides to take someone’s land for a necessary public good, it can do that, but it must pay that landowner first.
Koontz showed that a government permit isn’t an excuse to violate a landowner’s rights.
Koontz established a uniform federal rule that improved the law in 40 states. The case has been cited in 82 federal and state appellate courts and 284 law review articles.
Extending the victory in Sackett, this case established the principle that Americans have a right to their day in court to challenge overreaches of the regulatory state.
Together, Sackett and Hawkes have opened courthouse doors across the country, giving individuals better access to the courts—and to justice.
The Chief Justice wrote that the Hawkes Company shouldn’t have to wait for the government to “‘drop the hammer’ in order to have their day in court.”
He added that “parties need not await enforcement proceedings before challenging final agency action, where such proceedings carry the risk of ‘serious criminal and civil penalties.’”
Hawkes has been cited in 37 federal and state appellate courts and 66 law review articles.
Associated Win (GVR): Kent Recycling Services, LLC v. U.S. Army Corps of Engineers (2016)
Kent Recycling wanted to establish a solid waste landfill in Louisiana, but the overzealous Army Corps of Engineers determined that the property contained wetlands. Kent disputed this claim, but lower courts claimed they could not review the dispute. A few days after PLF’s victory in Hawkes, the Court sent the case back to the lower court to reconsider.
As United States citizens, our right to vote is crucial. But can the government ban passive political speech at the ballot box that doesn’t disrupt the voting process? In Minnesota Voters Alliance v. Mansky, PLF defended Andy Cilek’s freedom of speech and his right to vote.
On Election Day 2010, Andy wore a “Don’t Tread on Me” t-shirt with a Tea Party logo. Simply because of his shirt, Minnesota poll workers prevented him from voting and recorded his name and address for potential prosecution.
The Supreme Court ruled that broad bans on political expression, even near polling places, violate our freedom of speech.
The precedent set by this case has been critical for defending our freedom of speech at the polls—no matter what shirt we’re wearing.
Minnesota Voters Alliance has been cited in 9 federal and state appellate courts and 18 law review articles.
How much time do citizens have to challenge new regulations, after they are enacted?
The Environmental Protection Agency (EPA) had tried limiting the window of time to contest a new agency law or regulation in court to 120 days—even though most people rarely know a new regulation is even being submitted in such a short time. PLF and our clients argued that people should have the standard six years to challenge a new law or regulation—and the Supreme Court agreed.
After National Association of Manufacturers v. Department of Defense, there is now a reasonable amount of time to challenge harmful, burdensome, or unconstitutional regulations
This victory set an important precedent defending people’s opportunity to properly defend their rights and challenge unjust laws in a court of law.
National Association of Manufactures has been cited in 20 federal and state appellate courts and 29 law review articles.
According to the ordinary understanding of how adjectives work, ‘critical habitat’ must also be ‘habitat.’- Chief Justice Roberts
Can a piece of land be “critical habitat" for the recovery of an endangered species, if that land is neither “critical” nor “habitat”?
If land is designated a “critical habitat” for an endangered species, it makes sense that the species needs to live on that land. In Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, the Court checked the federal government’s power to designate private land as “critical habitat” for an endangered species—especially when land isn’t actually habitable for a species.
Because of Weyerhaeuser, a landowner may challenge federal overreach in court before a neutral judge. If the government cannot show a species actually lives on land designated as critical habitat, then the court can declare the designation invalid, freeing the property from the grasping hand of the federal government.
Weyerhaeuser has been cited in 9 federal and state appellate courts and 11 law review articles.
Rose Knick just wanted to live out her retirement in peace and quiet on her Pennsylvania farm. But her local government allowed the public to trespass on her property, or face fines. This was clearly a taking of property, but Rose wasn’t allowed to fight back.
Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, a 1985 Supreme Court case, barred property owners from bringing takings cases in federal court. Americans could bring free speech cases, or due process cases, but property takings were relegated to second-class status.
In Knick, the Supreme Court overruled Williamson County. As the Chief Justice explains in his decision, “Williamson County was not just wrong. Its reasoning was exceptionally ill founded and conflicted with much of our takings jurisprudence.”
Now, property owners can bypass state courts and seek redress directly in federal court, where they may receive a fairer hearing.
Rose’s dispute with the county over its graveyard law was later settled in her favor.
The decision in Knick will likely result in more property rights cases coming to federal courts, providing the Supreme Court with future opportunities to reinforce these fundamental rights.
PLF is now a perennial presence at the Supreme Court. Through the Supreme Court clients PLF represents and the amicus briefs we file in numerous cases every year, PLF has become a constant, powerful, and successful voice for individual rights at the High Court.
Because of PLF’s consistent presence at the Supreme Court, Americans’ property rights not only are being protected against government abuse, but are strengthened in courts across the country.
What do your property rights mean really? At their core, they mean the ability to decide—and control—what happens on your property as long as it doesn’t hurt others. That’s something California politicians have always struggled to understand.
In Cedar Point Nursery v. Hassid, California strawberry grower Mike Fahner was fighting California’s law that required him to allow union activists on his property for 3 hours a day, 120 days a year to disrupt the Nursery’s work in an attempt to recruit his well-paid and happy workers.
The Court ruled that states like California can’t simply wish (or legislate) away landowners’ property rights. And if the government feels strongly enough about a regulation that takes property owners’ land, the government must pay for it.
As Chief Justice Roberts succinctly put it in the decision: “Government action that physically appropriates property is no less a physical taking because it arises from a regulation.”
Cedar Point sent a clear message to state and local governments that individuals’ property rights cannot be a casualty of any special interest or political cause.
Now, governments have clear guidance from the nation’s top court that property rights cannot be infringed or ignored without proper compensation.
Given that the Fifth Amendment enjoys ‘full-fledged constitutional status,’ the Ninth Circuit had no basis to relegate petitioners’ claim ‘to the status of a poor relation’ among the provisions of the Bill of Rights.- Supreme Court, per curiam opinion
Ben Franklin famously quipped that the only things certain in life are death and taxes. But when San Francisco tried to add lifetime leases onto that list, they learned they might not get away with it.
In 2009, Peyman Pakdel and his wife Sima purchased a San Francisco residential property called a tenancy in commons for their retirement. But when San Francisco politicos changed the permitting process to force property owners to offer their tenants lifetime leases, the Pakdel’s were forced to take the city to court for violating their property rights—and their planned retirement home.
The Supreme Court unanimously ruled that the Pakdel’s deserve their day in court to defend their property rights and ordered the lower courts to hear their case.
The Court’s decision strengthens another PLF Supreme Court victory: Knick v. Township of Scott, where property rights plaintiffs were freed from the litigation limbo between state and federal courts that governments used to avoid accountability for taking property.
After the Supreme Court’s decision in Knick, some state and local government’s questioned how much they could still use administrative rules and laws to prevent property rights plaintiffs from having their day in court. Pakdel sent the clear message that governments can’t avoid accountability for violating American’s property rights just by keeping those people out of court.
The Supreme Court is once again viewing property rights as they should be viewed: As one of our most important civil rights.