President’s weekly report — March 25, 2016

March 25, 2016 | By ROB RIVETT

Property Rights — Coy Koontz gets paid!!!! 

In the “you can’t get something for nothing” category, the St. Johns Water Management District finally paid the Coy Koontz estate $602,000 for the temporary taking of the Koontz property. While it was only 22 years late, Coy Koontz has finally been vindicated. As you recall, we took Koontz v. St. John’s Water Management District to the Supreme Court after the family lost in the Florida Supreme Court.  This case began after the District demanded that Coy Koontz pay the District $150,000 to fix up district property several miles from the 3.7 acres he was allowed to develop — after he already agreed to give over ten acres to the District. Enough was enough and he sued in 1994. We won on the argument that government agencies cannot demand money in exchange for a permit when that money isn’t being used to take care of a harm caused by the development of the property. During the course of the litigation, one District official responded this way when asked why the District just didn’t pay for the property: ““Why should we pay him for it when we can just take it from him?”  The answer became clear today when the Koontz estate received their check. Not even government can get something for nothing, at least not if PLF has anything to do with it. For more, see our blog post here.

Property Rights — Gearing up for oral argument in Hawkes

We received the government’s reply brief this week in United States v. Hawkes as we’re preparing for oral argument next Wednesday at the Supreme Court of the United States. The government’s argument continues to suggest a series of contra-realities: that jurisdictional determinations really mean nothing, that they are not final agency actions subject to review, and giving landowners to right to go to court would lead to chaos. We’ll be setting the record straight on the 30th. For more, see the reflections of one of our attorneys on the case here.

Property Rights — Alaskan takings decision for road flooding

We received this decision in Beeson v. Palmer out of Alaska. This case arose when water backed up from a City improved road into the Beeson’s home. The City failed to take measures, such as building a culvert, that might have protected their home.

The Court upheld the finding that there had been no taking, finding that there were other causes of the flooding, such as the location of the home at a low spot. The Supreme Court had asked us to file an amicus brief, here, on the question of whether there can be a duty to ameliorate a potential flooding risk. We had argued against the adoption of a per-se rule that would prevent finding government liability in all such cases, arguing instead that these cases should be looked at on a case-by-case basis. The Court declined to adopt any rule, finding that the Beeson’s claim was too late.

Because Alaska follows the “American rule” on attorneys’ fees, the trial court had awarded the City $80,000 against the Beeson’s for bringing their losing claim. The Supreme Court, however, held that the trial court failed to consider the Beeson’s economic hardship, and remanded for a possible reduction in fees.

So, all in all, a loss for the property owner but at least the owner may get some relief for the attorney’s fee charge. Also, the Court declined to adopt the sort of per se rule we were arguing against, although this didn’t help the landowner here.

Wetlands & WOTUS rule challenge

PLF and others filed petitions this week for a rehearing of the Sixth Circuit’s WOTUS rule decision. The issue is where to hear the various challenges to the Waters of the United States Rule (wherein everything that is damp, a lot of what is dry, and most of everything in-between is now classified as a “water of the United States” subject to federal jurisdiction.) We think the Clean Water Act calls for these cases to be heard first in the trial courts, not in the appellate courts. For more, see our blog here. And here is our petition.

Property rights — relevant parcel issue

Today, the United States asked the Supreme Court to take up United States v. Lost Tree Village, or at least hold it until its decision in our Supreme Court case, Murr v. Wisconsin.
As you recall, in Murr the state is arguing that it can forcibly “merge” two separate parcels together for purposes of a takings analysis. Instead of taking the entirety of one lot, for which it surely would have to pay, it is arguing that the Murr family owns a second lot, so they can still have some property left and they haven’t been damaged all that much, so there’s no need to pay damages for a taking of one lot.

In Lost Tree, the government lost a similar argument in the Federal Circuit when it tried to combine unrelated parcels in an attempt to prove that the landowner there had lost only a small fraction of everything it owned originally. This is the “the more you own, the more government can steal” rule.

We’re hoping that the Court will see this attempt at larceny for what it is and rule for us in Murr and deny the government’s request flowing form Lost Tree.

Alaskan National Parks — mixed Supreme Court decision

The Court issued this decision in Sturgeon v. Frost. While using an airboat to hunt along a navigable river surrounded by National Park land in Alaska, John Sturgeon was cited for violating a nationwide ban on using airboats in National Parks. The problem is that when Alaska’s parks were vastly expanded in 1980, Congress recognized that the land in these parks was critical to the rural and subsistence lifestyles of many Alaskans. For that reason, Congress carved out an exception for activities on private and state-owned land within these parks — wherein general regulations wouldn’t apply to them. Sturgeon argued that the navigable waterway was state property and he therefore wasn’t subject to the airboat ban. The Supreme Court partially agreed with him — saying that the nationwide ban did not apply to private and state property — but it declined to reach the issue whether this navigable river was state property. So the case will go back down. But it is a good start to fulfilling the promise of the 1980 law that recognizes the unique circumstances of Alaska’s parks. For more on the arguments, see our amicus brief here  or this blog post.

Tort reform — class action filings made easier

The Supreme Court issued a this adverse 6-2 decision in Tyson Foods v. Bouaphakeo, a case involving a class action filed by workers over being paid for their time in putting on and taking off uniforms. We had filed this amicus brief arguing that class action plaintiffs should not be allowed to use statistical sampling to paper over the fact that individual issues predominate over common issues.  The Court issued a long decision, authored by Kennedy, saying that our position is true generally, but not in this case. For more on the Court’s hair-splitting argument,see our blog post here.

Equality under the law project — opposing government discrimination

We filed this reply brief in Shea v. Kerry, our challenge to the State Department’s use of racial preferences in hiring. We’re asking the Supreme Court to take the case in order for it to rule that the Constitution forbids this sort of pernicious discrimination unless government can justify the practice in court under a very strict standard of review.

School choice — challenging Montana’s religious exclusion rule

We filed this brief in opposition to a motion to dismiss in Armstrong v. Kadas, our challenge to the rule adopted in Montana that forbids the use of tax credits for private schools affiliated with religious institutions. We are arguing that this violates the First and Fourteenth Amendments to the Constitution.