President's weekly report — May 16, 2014
Property Rights — Second Circuit Honors Yossarian in Catch-22
We received an astonishing decision today from the Second Circuit Court of Appeals in Sherman v. Town of Chester. For those who appreciate property rights, this decision is a joy to behold. We say astonishing because it is clear that the court “got it,” meaning that it understood that a series of “move-the-target” machinations by the town deprived a land owner of his property, and that there comes a time when no further procedures need be followed. Here, for well over a decade, every time the owner submitted a plan, the zoning was changed. Every time he submitted a study, he was told to do a new study. Every time he was on the brink of success, a moratorium or zone change was adopted.
If that were not bad enough, after the owner sued in federal court, the town moved to dismiss, pointing out that the case should have been filed in state court. The owner agreed to the dismissal and then filed in state court. At which point, the town successfully moved to have the case removed to federal court because the case had a federal takings claim. And then, after getting the case into federal court, the town successfully moved to have the case dismissed — because the takings claims had to be first heard in state court. Citing to our victory from the 4th Circuit in Sansotta v. Town of Nag’s Head, the Court rejected the town’s shenanigans.
This case is astonishing for two reasons. First, the court’s language does little to disguise its displeasure with the Town. Second, this sort of behavior on the part of government officials has no place in this country. Instead of defending themselves, the town officials should be ashamed and apologize. For more, read our blog post, read our amicus brief, and then read the opinion — which begins, by the way, with a short synopsis of Catch-22, the novel.
Property Rights — Washington State and temporary takings
We filed this amicus brief in 10 North Washington Avenue, LLC, v. City of Richland, urging the Washington Supreme Court to accept review. This suit was filed after the City cut off rail access to plaintiff’s property. The court of appeals, however, found no taking because the landowner could have built a new access line, meaning that the alleged taking was not “permanent and recurring.” As explained here in our blog, because this test is inconsistent with federal takings jurisprudence, the Washington Supreme Court needs to take this case to bring state takings doctrine in line with the federal Constitution.
We filed this opening brief today in Friends of Tahoe v. Department of Agriculture. This is the case where the Forest Service is cutting off access to hundreds of miles of roads and trails to motorized vehicles — without doing the required analysis under the National Environmental Policy Act. As our blog explains, “the Forest Service has come to the point where human values are increasingly irrelevant, and public policy decisions are offered as sacrifices on the altar of keeping our environment free from us, rather than encouraging healthy human interaction with the environment.”
We filed this amicus brief in Drakes Bay Oyster Company v. Jewell, the case where the Park Service is kicking out a long-established Oyster Farm from Drake’s Bay. We’re asking that the United States Supreme Court take this case. As our brief points out, the Park Service failed to consider adverse environmental impacts when it terminated the leases. Moreover, when the government decides not to review leases in other parts of the country, judicial review is available. Not so in the Ninth Circuit. This case has implications far beyond one Oyster Farm — precedent set here could affect ranchers and thousands of individuals depending on federal permits and leases.
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