President's weekly report — May 20, 2016

May 20, 2016 | By ROB RIVETT

Complaint filed to stop “competitors’ veto” in West Virginia

PLF attorneys challenged West Virginia’s Competitor’s Veto law on behalf of Arty Vogt, who owns a moving company based in Virginia.  Arty would like to provide moving services within neighboring West Virginia, which is just miles from his office.  But that state’s Competitor’s Veto law denies him the opportunity to compete there unless he gets permission from established West Virginia moving companies first. For more see our blog here and our press release and video here.

Brief filed to support Church’s property rights

We filed this amicus brief in Wayside Church v. Van Buren County supporting a church’s right to receive some money for its church building. The sad tale begins when the church fell behind on its property taxes and owed $16,750 to the County. The County foreclosed and sold the property at auction for $206,000. So who took the difference of $189,250? The county of course. We think that’s not only unfair, but unconstitutional.

Victory in New York!

We received this good decision from New York’s highest court in Friends of Thayer Lake v. Brown. This case addresses the question whether the public has a right to access a small non-navigable stream that runs across private property in upstate New York. We had filed this friend of the court brief on behalf of the New York Farm Bureau and the Property Rights Foundation of America. This case was brought after an activist trespassed across the private property in order to make his argument that the land should be open to all. He trespassed first via a kayak and when that became impossible, he portaged several hundred yards across dry land before putting his Kayak back in the stream — all to make the case for public access across a nonnavigable stream on a family’s private property. The family sued for trespass and the lower court ruled against the family, saying that the trespasser has a right of access, even if the stream wasn’t completely navigable and even as the court acknowledged that it was upsetting centuries of established law. Fortunately, the New York high court reversed and sent the case back to the trial court for more factual determinations. For more, see our blog post here.

Favorable decision from the Supreme Court

We had this favorable decision from the Supreme Court of the United States in Spokeo v. Robins. In this case Spokeo, a web “people search engine,” described Thomas Robins as having a wife, more education and a better income than he actually had. Normally one wouldn’t consider this to be particularly harmful. But he sued under the Fair Credit Reporting Act, claiming that any inaccuracy gave him the right to sue, whether he was injured or not. The Constitution, however, is quite clear: the courts are available only to people who have been injured. Here, the Supreme Court reversed the Ninth Circuit’s ruling in favor of Robins, but did not reach the ultimate question of whether Congress can create a right to sue in persons who have suffered no concrete injury. We had filed this amicus brief. For more, see our blog here and a Daily Journal article linked here.

PLF comments on caribou critical habitat.

This week, PLF filed comments, joined by Bonner County, Idaho and the Idaho State Snowmobile Association, on the Service’s proposed critical habitat designation for the woodland caribou. The comment argues that the Service must address changes in the species’ status, which were brought about by a PLF petition challenging the earlier, illegal listing. For more, see our blog post here.

Reply brief filed in WildEarth Guardians strict liability case

PLF filed a reply brief in support of our motion to intervene on behalf of the New Mexico Cattle Growers’ Association, New Mexico Federal Lands Council, and the New Mexico Farm and Livestock Bureau in a WildEarth Guardians v. United States. This case that threatens to radically expand criminal liability under the Endangered Species Act. If the case is successful, we’ll all need to quickly become experts on each of the nearly 1,500 obscure species covered by the statute, lest our reasonable ignorance land us in jail. At present, if someone mistakes one critter for another, the Department of Justice can decide not to prosecute for an illegal “take.” But WildEarth Guardians want to change that, making everyone criminally liable under the Endangered Species Act, even for innocent mistakes.

PLF invited to the Hague

Jim Burling, PLF’s Director of Litigation, has been invited by the Brigham-Kanner Property Rights Conference to speak on a panel at the Hague on October 21.  His panel topic will be “Eminent Domain and Expropriation as Wealth Redistribution Tools.” This year’s conference will include scholars from both the United States and Europe.

Named after a preeminent Florida Eminent Domain attorney, Toby Brigham, and Loyola Law School of Los Angeles Professor Emeritus Gideon Kanner, the Brigham-Kanner Property Rights Conference brings together academics and practitioners to discuss topics on property law. Each year, the conference honors an individual for an outstanding contribution to the practice and understanding of real property law. Previous recipients of the award have included Professor James Ely, Professor Richard Epstein, Michael Berger and Justice Sandra Day O’Connor. The recipient of this year’s Brigham-Kanner award will be Hernando De Soto. For those of you not familiar with him, he wrote two brilliant books, The Other Path: An Economic Answer to Terrorism which is relevant to our work on barriers to entrepreneurship and The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else, which relates to the problem of stranded wealth in real property caused by inefficient title regimens in the third world.