September 20, 2014

President's weekly report — September 19, 2014

By President's weekly report — September 19, 2014

Contract rights — adverse New Mexico decision

The New Mexico Supreme Court issued this adverse decision in First Baptist Church of Roswell v. Yates Petroleum.  Here, the church entered into a standard contract with Yates, which specified that until the church provided proof of ownership, no interest would accrue on the royalties.  The church sued pursuant to a state statute saying that interest should be paid.  Ignoring the plain language of the contact, the Court held that statute controls, and that parties cannot negotiate around this statutory default. PLF filed an amicus brief arguing that the public policies supporting freedom of contract would allow parties to negotiate around default rules, thereby increasing efficiency by ensuring that parties are not required to purchase costly overprotection, or be deprived of protections that they desire.  For more analysis, see our blog post here.

Environment — Endangered Species Act — Valley Elderberry Longhorn Beetle

Based on new scientific information, the Fish & Wildlife Service officially withdrew its 2012 proposal to delist the Valley Elderberry Longhorn Beetle. That proposal was the direct result of a petition and two lawsuits filed by PLF attorneys on behalf of a coalition of property owners, levee districts, and farming organizations who strongly object to the significant land-use restrictions imposed on account of the beetle’s listing under the Endangered Species Act.  Previously, the Service indicated that its own information justified the delisting but declined to act until we brought suit.  As noted in our blog, however, the Service is promising a new level of cooperation with landowners in dealing with the beetle.

Environmental Regulations — Catastrophic Forest Fires

On Wednesday, PLF filed an amicus brief in United States v. Otero County.  The Lincoln National Forest, located partially in Otero County, New Mexico, is one of many National Forests posing a severe risk of catastrophic fire to surrounding communities.  In response, Otero County adopted an ordinance pursuant to a New Mexico statute, under which the County declared the Lincoln National Forest a nuisance.  This ordinance also authorizes the County to carry out fuel reduction projects to reduce the threat of fire, without the consent of the Forest Service.  The United States is suing to declare the ordinance invalid on the grounds that local governments may not reduce forest fire risks on National Forests without the consent of the United States, under the Property and Supremacy Clauses of the U.S. Constitution.  PLF’s amicus brief in support of Otero County argues that the Forest Service and other federal agencies may be held liable for maintaining a condition of public nuisance on their property, and that the federal courts can order the Service to abate these nuisance conditions.

Property Rights — Coastal Land Rights —  Solana Beach

On Thursday, PLF attorneys filed a motion to amend the complaint in Beach and Bluff Conservancy v. City of Solana Beach.  This case challenges the city’s Land Use Plan as illegal under the California Coastal Act and the state and federal constitutions.  Among other things, the Plan places draconian restrictions on bluff top property owners’ ability to build seawalls to protect their homes from erosion.  Amendment of the complaint is necessary to conform the causes of action to the City’s most recent version of the Plan, which the City changed after the lawsuit was filed.  The amendment will also name the California Coastal Commission as a defendant in the action.  A hearing on the motion to amend will be heard by the San Diego Superior Court on October 3, 2014.

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