We were traveling last week, so this week’s President’s blog contains two weeks worth of updates! Enjoy reading over the long weekend.
Environment — Endangered Species in Massachusetts
We filed our amicus brief in the Massachusetts Supreme Judicial Court in Pepin v. Massachusetts Division of Fisheries and Wildlife. In Massachusetts, there are particular procedures the state must follow before designating land as “significant habitat.” To avoid these procedures (designed to protect the rights of affected landowners), the Division created something called “priority habitat” that it can designate free from all the niceties of the law. However, as this blog post notes, just because the Division is trying to make life easier for itself, doesn’t mean it can do by violating the law or the Constitution.
Property Rights Scholarship — Takings Law
Brian Hodges’ article Will Arkansas Game & Fish Commission v. United States Provide a Permanent Fix for Temporary Takings? has been accepted for upcoming publication in the Boston College Environmental Affairs Law Review. In the meantime, you can see an pre-publication version here.
Property Rights — Unlawful Exactions
We filed our reply brief in Powell v. County of Humboldt. This is the case where the County is demanding that the Powell’s receive an after the fact permit for work done on a porch attached to their manufactured home. The Powells aren’t complaining about the permit requirement — but they are complaining that the county is forcing them to give up an “avigation easement” before they can get the permit. In other words, if the nearby small airport ever expands, they have to allow an increasing number of increasingly noisy planes to fly over their home without any right to complain about the state of affairs. Since there is no way we can think of where doing work on a porch can possibly create a need for more airplane noise, we can think of no way this permit condition is constitutional.
Free Enterprise Project — Tort Reform
There was a nice victory from the Massachussetts Supreme Judicial Court in Medina v Hochberg. In response to a lawsuit filed against a doctor after one of his patients had a seizure, the court held that the doctor did not have a duty to the general public to prevent his patient from driving. As described on our blog, we filed an amicus brief explaining that a physician’s duty is to his patients, and that courts must not interfere with the doctor-patient relationship by imposing liabilities for harms caused by patients to unrelated third parties.
Environment — Road Access for All
We filed our opening brief on summary judgment in Friends of Tahoe Access, et al. v. United States Department of Agriculture. As explained in this blog post, the Forest Service seems hell-bent on closing forest roads to public access without following lawful procedures for doing so.