President's weekly report — August 22, 2014

Property Rights — Extortion-by-the-Bay

We had a hearing today in Levin v. San Francisco on our challenge to San Francisco’s new scheme to extract huge chunks of cash from rent-controlled landlords who wish to go out of the landlord business.  For example, two of our clients wish to move downstairs to the lower half of their small two-story home.  But because they have a renter on the first floor, the law now requires them to pay the tenant to difference between what the free market charges for similar spaces over a two-year period and what the tenant actually pays under rent control — here a whopping $117,000!  When the Levins first sought to move down to their first floor, the ordinance required that they pay “only” around $9000 for the right, but now, with the retroactive application of the new law, they have no choice; they must pay the tenant the extra windfall, period.

As our blog post notes here, today’s hearing was to determine whether an immediate injunction should issue to stop the law.  While the judge noted that the case was very important, he declined to issue an injunction, instead calling for a quick trial on the Merits in October.

Environment — Federal Retaliation for Daring to Sue

You will recall that in Duarte Nursery v. Corps of Engineers, we sued the Corps over its issuance of a cease and desist letter to the owner of a wheat farm in Northern California.  The Corps said the farmer was farming in protected wetlands — a contention the farmer disputes but has been given no way to go to court to challenge the order.  (Instead he must apply for an expensive and time-consuming permit that he doesn’t think he needs in the first place.)  Like the Sacketts, who received a “Compliance Order,” we’re arguing that after a landowner is ordered to stop farming, he is entitled under the Due Process Clause of the Constitution to a hearing before a neutral judge on the question of whether there are actually any protected wetlands at stake.

After the court refused to throw out Duarte’s due process complaint, the Corps turned around and countersued for the supposed Clean Water Act violations.  Thus we have now filed this Supplemental Complaint.  We allege that the Corps of Engineers would not have brought an enforcement action if Duarte Nursery and its officers had not exercised their First Amendment rights by suing over the due process violation, and speaking out against the Corps’ actions in print, radio, and television interviews.

Environment — Forest Service Ski Area Permit Water Rights Policy

We filed this comment letter objecting to the Forest Service’s proposed policy to require concessionaires who operate ski areas in National Forests under permits from the Service be required, through the permit, to abandon their rights to transfer privately owned water rights to places of use other than the ski area.  PLF’s comment letter explains how this policy would violate the prohibitions in Nollan and Dolan against unconstitutional exactions in permitting processes.

Environment — The Gopher Frog Habitat that Isn’t

A federal trial court issued this adverse decision in Markle v. United States, the case where the Fish & Wildlife Service designated our client’s land as critical habitat for a gopher frog that hasn’t been seen in the area for over 50 years and for which the land is presently uninhabitable for the frog.

The Fish and Wildlife Service designated over 1500 acres of private property as gopher frog habitat at a potential cost to the landowner of up to $34,000,000.  We challenged the designation arguing the area was unoccupied, unsuitable and inaccessible to the species and therefore was not habitat at all and should have been excluded.  In other words, we argued  that the agency cannot designate nonhabitat as critical habitat as a matter of logic and law.  If the federal government can regulate nonhabitat as habitat, it can regulate any and all land and water resources throughout the nation without limit.

While the judge had expressed some skepticism about the Endangered Species Act, as noted in our blog post, he felt constrained by precedent to rule for the government.  The decision was on nine different motions for summary judgment and the next stop will be the Fifth Circuit Court of Appeals.

Right to Earn a Living — Another Kentucky Transportation Cartel Broken

You may recall that earlier this year we won an important case in Bruner v. Zawacki, where a federal court struck down a “competitors’ veto over people who wanted to start up moving van companies.  After we got wind of the fact that the same veto was about to be used against someone who wanted to start up a van service for disabled passengers, we began preparations to sue.  But as soon as the word got out, the State decided to remove all such competitors’ vetoes from the transportation industry.  While we fully agree that the State may impose safety and insurance standards, the notion that existing business owners have a right to keep out competition is an anathema to our constitutionally guaranteed right to earn a living. For more information, see our blog here.

School Choice Week

Be sure to check out our school choice week blog posts starting here, as well as our podcast here.