President's weekly report — January 17, 2014
Property Rights — United States Supreme Court
The Supreme Court heard oral argument this week in Brandt v. United States, a case in which the United States is trying to argue that abandoned railroad easements are not, in fact, easements. The reason the United States is arguing that the easements are not easements is because they claim they are instead a strange and previously unknown creature of law where the government gets the land under the tracks after the railroad is abandoned, and not the actual owner of the land. If that isn’t confusing enough, the owners here, ably represented by our friends at Mountain States Legal Foundation, rested much of their argument on a prior Supreme Court case where the Court agreed with the United States’ arguments (made 70 years ago) that the easements were easements. The Justices seemed more than a little perturbed with the government’s inconsistency for convenience approach. Based on the questioning by the Justices, we have a good feeling where this one might be going. For more on the case, read our amicus brief, see our blog here or read the transcript here. It’s a feast for property law mavens.
Property Rights — Avigation Easements
The California Court of Appeal issued a mixed decision in Powell v. County of Humboldt. That’s the case where we’re representing the owners of a mobile home who are trying to get a permit to fix a porch cover — after they were told it was out of compliance and they needed to get a permit. The trouble is that the county is demanding that, in order to get the permit, the Powells give up an “avigation easement,” meaning that the owners must forever give up their right to sue over airplane overflights, even if the nearby airport expands. In particular, the Powells were told to give to the County “the right to make flights, and the noise inherent thereto, in airspace over the property . . . in connection with landings, takeoffs, and general operation of the Arcata/Eureka Airport.” Since the easement bears no relationship whatsoever to the porch cover, we thought this was a clear violation of Nollan, Dolan, and Koontz. But the Court found a way to avoid the constitutional violation: it interpreted the easement not to mean what it says it means. Although there is no express limitation in the easement, the court said, it only immunizes the county from the current level of operations.
Environment — Oyster Farming
This week, in Drakes Bay Oyster Company v. Jewell, , the Ninth Circuit Court of Appeals denied Drakes Bay Oyster Company’s petition for rehearing, and issued an amended opinion in the case which once again upholds the trial court’s decision to deny the oyster farm an injunction which would prevent the closure of the farm. For more, see our blog post here. We had filed this amicus brief supporting the oyster farm. Drakes Bay plans on petitioning for cert with the United States Supreme Court.
Economic Liberties Project
In Patel v. Texas Dept of Licensing, the Texas Supreme Court granted the petition for review on the question of whether the Texas Constitution’s due course of law clause imposes a higher rational basis standard than does the federal Due Process Clause. As our blog post explains, this case brought by the Institute for Justice asks whether eyebrow threaders must obtain a cosmetology license before practicing their trade. As our amicus brief argued, when a person challenges an allegedly unjust government regulation, courts must carefully scrutinize the regulation, rather than taking the government at its word when the government says, “nothing wrong here, move along.”
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