March 20, 2015

President's weekly report — March 20, 2015

By President's weekly report — March 20, 2015
SKR --Photographer: Cheryl Brehme
USGS photo

Environment & Endangered Species Act — 60-day notice filed for the Kangaroo Rat

As required by the Endangered Species Act, we filed a sixty-day notice on intent to sue with the United States Fish & Wildlife Service over the Service’s failure to act on our petition to delist the Stephens Kangaroo Rat. Ad described here, our petition is based on new scientific studies that show the rat is not endangered because its populations are not as isolated as once believed.  If the Service doesn’t act in sixty days, we’ll sue.

Free Speech — Commercial speech vindicated in Virginia

In response to our lawsuit in McLean v. City of Alexandria, the City has repealed its ordinance that banned “for sale” signs on cars parked on city streets.  The sort of restriction on commercial speech violates the First Amendment and rather than defend the unconstitutional law in court, the City made the wise decision to repeal it.  For more on the case view a news video here or  see our blog here.

Property Rights — Settlement in secret easement case

Martin County agreed to settle our lawsuit in Breinig v. Martin County where we’ve been representing the Flash Beach Grill.  When the Robert and Anita Breinig sought to expand their operations, they were told that they couldn’t use a substantial amount of their property because there was an unrecorded secret conservation easement on it.  What’s more, because they were already using part of that property for their restaurant, they were told they were subject to fines of $1000 per day.  This is flatly illegal because to be effective easements must be recorded so people like the Breinigs will know about the restrictions before they buy property in the county.  This week the County settled, and will now allow the Breinig’s to use their property for their restaurant. For more, see our blog post here.

Property Rights — Turning private property into a public road

What’s the best way for a city to get new land for a new public road?  In North Carolina the City of Emerald Isles decided the best way is simply to take it by passing an ordinance declaring the property to be part of a new public road.  As a result, we filed this opening brief in Nies v. City of Emerald Isle in the North Carolina Court of Appeals. Here, Gregory and Diane Nies have a home along the beach and, according to their title and North Carolina law, they own the land down to the mean high-tide line.  But the City of Emerald Isle decided it wanted to drive across everything the Nies own between that high-tide line landward up to the dune line — all property owned by the Nies according to their title.  What’s more, the City is selling permits to the public for permission to drive across the Nies property.  Naturally, it’s not even sharing the proceeds with the Nies.  As a result, the Nies are now subjected to having all manner of vehicles drive across their property, leaving deep ruts and making it dangerous to use and even walk across. The City is suggesting that the “public trust doctrine” gives them the right to declare the Nies’s private property to be open to the public. But as our blog post explains, this is wrong.  There is no public trust in North Carolina on the dry land above the mean high-tide line.

Free Enterprise Project — Tort reform and premises liability

We filed this amicus brief in the California Supreme Court in Haver v. BNSF Railway Company, a case that asks when does “premises liability” go home?  As our blog explains here, premises liability does not and should not wander away from the workplace and into the homes of employees.  In this case Lynn Haver claims she became ill after she washed her husband’s clothing that contained asbestos fibers.  The problem with imposing premises liability to such exposure is that there is no logical stopping point — what about a shared laundry facility in an apartment complex, what about occasional visitors to an employee’s home — all things that the owner of the business or premises cannot monitor or control?   We think that exposure to a husband’s clothing is far too attenuated a contact to count for premises liability.

Free Enterprise Project — Opposing expanded tort liability

Should the suppliers of harmless inert materials be liable for injuries caused by the fumes when those materials are melted down or otherwise processed in an industrial operation?  Our amicus brief in the California Supreme Court in Ramos v. Brenntag Specialties says, “no.”  Workplace injuries of this sort ought to be and are compensated for through workers compensation programs. Such programs provide a quick and direct method of reimbursing injured employees without the need of a phalanx of lawyers and experts to determine who caused what damage when and where.   But that doesn’t stop some personal injury lawyers from trying.  As our blog explains, in this case, they are arguing that the suppliers of raw supplies — iron ore, limestone, and the like — should be held responsible for workplace injuries caused by the processing of those materials.  This is despite the utter lack of control by the suppliers over how their industrial buyers will use their products.  This is tort liability gone too far.  Not only would it make suppliers pay for alleged mistakes of others, but it would jeopardize the protection given to both workers and employers by workers compensation laws.

Access for all — opening up the National Forests for all Americans

In their quest to cordon humans out of the environment, zealous environmentalists in the National Forest Service have ben been closing thousands of miles of roads and trails to recreational vehicles.  This week we filed this complaint in Granat v. United States Department of Agriculture against the Plumas National Forest on behalf of Amy Granat, Plumas and Butte Counties and two recreational groups — the Sierra Access Coalition and the California Off-Road Vehicle Association.  As our blog points out these roads and trails had been open to all for many years.  Families have used them for generations for access into the National Forests.  But now, at the behest of a small elite of backpacking environmentalists, the roads and trails have been closed to these families and people who are unable to hike into the forest.  We filed our complaint, however, because the closures are illegal because they did not follow lawful procedures.   But this is only one Forest and we’re hoping that a victory here will help set a precedent that can be applied in some of the other 150 national forests where access is being taken away.  Be sure to listen to this podcast on the case and watch our video on the case here.

 

 

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Granat v. U.S. Department of Agriculture

Using the pretext of a transportation plan update, the U.S. Forest Service shut down thousands of previously accessible roads and trails – nearly 700 miles’ worth – within the Plumas National Forest. By forbidding any motor vehicle access, the policy prevents Amy Granat, who cannot walk unaided, from using a motorized vehicle to access vast areas of the forest. Granat and other recreational users of the forest are challenging the Service’s cavalier decision to withhold national forest land from members of the public without justification. The Service failed to comply with federal environmental laws that require a searching investigation of the impacts of barring access.

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