President's weekly report — April 10, 2015

April 10, 2015 | By ROB RIVETT

Wetlands — Major victory in the 8th Circuit

The 8th Circuit handed us this major victory today in Hawkes v. United States.  The decision is a wonder to read because the court “got it.”  It understood that requiring a landowner to seek a wetlands permit when the landowner doesn’t think there are any jurisdictional wetlands has legal effect and should be appealable (these “wetlands” are a peat bog 120 miles from the nearest navigable waterway.)  It understood that because it can take years and hundreds of thousands of dollars to obtain a wetlands  permit, a wetlands jurisdictional determination should be appealable.  And it understood that when the Corps tells a landowner’s employees to “start looking for another job” (meaning no permit is forthcoming), when it asks for detailed information requests that would cost more than $100,000 to fulfill, and when it ignores the advice of its own administrative appellate process and continues to maintain a property is a wetland, then it is time to allow the landowner to appeal to a court of law.  As the court put it,

The prohibitive costs, risk, and delay of these alternatives to immediate judicial review evidence a transparently obvious litigation strategy: by leaving appellants with no immediate judicial review and no adequate alternative remedy, the Corps will achieve the result its local officers desire, abandonment of the peat mining project, without having to test whether its expansive assertion of jurisdiction — rejected by one of their own commanding officers on administrative appeal — is consistent with the Supreme Court’s limiting decision in Rapanos.

Amen.  For more detail on this case, read about it on our blog here.

Victory for our children — Charter schools victory in California

The California Supreme Court ruled in favor of California’s charter schools in its long-awaited decision in California Charter Schools Association v. Los Angeles Unified School District. California voters adopted the charter school program in order to provide students and their parents alternatives to California’s failing schools.  Charter schools are designed to compete, and make better, traditional school programs that are now burdened by hidebound bureaucracies, coddled incompetents, and union-dominated boards. While they do not provide the same degree of competitive choice as found in other states that have more robust private-school voucher programs, California’s charter schools provide alternative public school programs within existing school district infrastructure. And therein lies the rub.  State law mandates that school districts free up some of their resources to accommodate the charter schools.  But some districts, like the defendant Los Angeles district here, have tried to limit the competition by limiting the resources available to the charter schools.  As our blog post explains in more detail here, the Supreme Court said “no,” the school district cannot violate state law by making up its own rules on the sharing of resources with its charter schools.  You can find our amicus brief in support of the charter schools here.

Property rights — affordable housing scheme before California Supreme Court

We argued California Building Association v. City of San Jose before the California Supreme Court this week.  This is the case where we are challenging San Jose’s shakedown of new home builders, where the City is demanding that builders of 20 or more market-rate homes contribute three homes to the city’s supply of “affordable” housing by selling those homes for less than what they are worth to low-income buyers and slapping on deed restrictions to cement in the price reductions.  Alternatively, the builders can give the City land or cash — at $122,000 per home.  We expect a decision within 90 days.  For video and podcast links, see our blog here.

Economic Liberties project — unreasonable licensing requirements in Nevada

We filed this reply in support of our motion for a preliminary injunction in Castillo v. Ingram This is the case where we’re arguing that the state should not make a brick and mortar office a requirement of having a private investigator’s license in Nevada.

Property rights — coastal land rights in Massachusetts

Last month, we offered oral remarks at a hearing of the Massachusetts Coastal Erosion Commission regarding its preliminary report on proposals to respond to coastal erosion. This week PLF sent written comments to the Commission, which included analysis of the Commission’s draft report and some suggestions for its improvement. Among other things, we advised the Commission it needed to acknowledge at least the most obvious protections for private landowners in both the Massachusetts and United States Constitutions.  Put simply, the purported solution to coastal erosion of letting homes fall into the sea is not a solution and is not lawful.  For more on this, see our blog post here.

Free Enterprise Project — Arbitration in New Jersey

PLF went racing in the streets this week up to the swamps of Jersey to file an amicus brief in an arbitration case pending at the New Jersey Supreme Court. In Morgan v. Sanford Brown, we argue that the Court should uphold a lower court decision to enforce an arbitration agreement and send the parties to arbitration.  The lower court held that people in New Jersey might not understand that the word “arbitrate” in a contract actually means “arbitrate” at the exclusion of a court trial.  We think the people of New Jersey are smarter than that.  But do see our blog post if you want to explore further the lyrical intersection between New Jersey culture and the law.