President's weekly report — March 14, 2014

March 14, 2014 | By ROB RIVETT

Property Rights — Supreme Court Victory!

The United States Supreme Court handed down an 8 – 1 victory in Brandt v. United States, a case brought and argued by our allies at Mountain States Legal Foundation.  As explained more in our blog here and in our amicus brief,  Brandt involved an attempt by the United States to redefine the common law doctrine of easements.  Here, it held that when a railroad abandons a right-of-way, the easement reverts to the owner of the fee, and not to the government.  This result was perfectly in line with a sixty year old case where the government won decades ago when argued that the railroad easement is just that — an easement rather than something more with mineral rights attached.  This case may have an impact on many miles of abandoned railroad easements that the government has tried to turn into public hiking and biking trails.  In her dissent, Justice Sotomayor lamented that the decision “undermines the legality of thousands of miles of former rights of way that the public now enjoys as a means of transportation and recreation. And lawsuits challenging the conversion of former rails to recreational trails alone may well cost American taxpayers hundreds of millions of dollars.”  But isn’t this the point of the Constitution — to ensure that the government does not take valuable property without paying for it?  Just because the government has attempted to steal lots of property doesn’t make it any more right than if it had just stolen a small amount of property.

Property Rights — Invasions of Private Property Struck Down

Although we did not file a brief in this case, we should note that the Court of Appeal issued a highly important property rights victory yesterday in Property Preserve v. Superior Court.  Here, the State of California wanted access to tens of thousands of acres of private property for extended periods of time in order to assess the property for the Delta water tunnel project.  The access would have included in some cases geological boring wells and other very impactful incursions.  However, the State didn’t want to go through the legal niceties of paying for the access or in following procedures for the condemnation of land.  As explained in more detail in our blog post, the Court of Appeal held that the Constitution protects private property rights — even in the face of an important public project.  The extended incursion upon the private property was an easement, and easements cannot be taken outside of proper and constitutionally required procedures.  Nor without the payment of just compensation.

Equality Under the Law — Suing the Secretary of State

We filed this opening brief in Shea v. Kerry, a challenge to discriminatory policies at the Department of State.  As explained here, we believe that recent Supreme Court decisions has placed a greater burden on government agencies trying to justify discriminatory policies.

Environment — Fish v. People

A majority of the  Ninth Circuit ruled in favor of the government’s plan to shut down water supplies for California farmers and farm workers in favor of the Delta Smelt in San Luis & Mendota Water Authority v. Jewell.  Readers may recall that several years ago that a district judge struck down the Fish & Wildlife Service’s poorly conceived biological opinion because it was based on bad science.  As explained in our blog, the split Ninth Circuit opinion essentially held that the trial court shouldn’t have ruled on the bad science behind the biological opinion, nor on the speculative nature of its remedies.  Instead it should have simply deferred to the agency.  Such judicial abnegation of its power to review administrative decisions is a troubling when the lives of so many farmers and farm workers will again be upended when this government drought is piled on top of nature’s drought.

Environment and Property Rights — Stack and Pack Planning

We filed our motion for judgment on writ of mandate in Bay Area Citizens v. Association of Bay Area Governments, our challenge to Plan Bay Area — aka “Stack and Pack” housing for the masses.  As our blog explains, this plan cannot be justified on environmental grounds and violates California law.  More importantly, it’s a very ill-conceived plan that contains the worst aspects of unrestrained central planning, the needs of people and their rights be damned.

Environment — Endangered Species Act and the Nonendangered “Endangered” Caribou

We filed our complaint to delist the Southern Selkirk population of caribou because it isn’t a separate species, or even a separate subspecies, or even a distinct population segment.  The Fish & Wildlife Service has ignored our petition by not issuing a 12-month finding and our only option is to go to Court.  Check out our blog for more information.  And especially, check out this infographic that explains why it so difficult to get the government to obey the law.

Environment — Endangered Species Act and the Tidewater Goby

At long last, the Fish & Wildlife Service has proposed downlisting the Tidewater Goby from endangered to threatened.  As noted before, we first filed a petition in 2010, then filed a lawsuit in 2013 — all based on the Fish & Wildlife Service’s own data.  Now the Fish & Wildlife Service will consider the downlisting.  We wouldn’t be surprised, however, if we have to file suit again next year  to get the Service to actually act on the petition.