July 27, 2012

President's weekly roundup

By President's weekly roundup

Individual Rights – Defense of Prop 13

In Young v. Schmidt, the California Court of Appeal upheld Proposition 13’s supermajority legislative vote requirement in a short, unpublished decision.  We filed this amicus brief in this case supporting the Howard Jarvis Taxpayers Association which took over the defense of the case when the government defendants failed to file any briefs or to defend the measure.  In reaching its decision, the court relied on the 1972 California Supreme Court case Amador County, which affirmed Proposition 13’s constitutionality.  The plaintiff in this case tried to argue that the holding of Amador County only applied to the supermajority vote requirement imposed on local governments, not on the state legislature.  As described on our blog here, the court rejected that argument and noted, as both we and Howard Jarvis argued, that when the California Supreme Court upheld Proposition 13 in Amador County, it affirmed the constitutionality of the entirety of the measure—not simply individual pieces of it.  Hence, the plaintiff’s argument lacked merit.

Environment – Public Lands Access

On July 17, PLF filed its lawsuit in Friends of Tahoe Forest Access v. United States Dep’t of Agriculture, which challenges the United States Forest Service’s decision to close over 800 miles of roads and trails to motorized recreation at the Tahoe National Forest.  The lawsuit raises several claims under the National Environmental Policy Act.   The problem in this case is that the Forest Service largely hid the impacts of road and trail closures from the public. Among other flaws, the Forest Service provided misleading information that suggested that motorized recreation would benefit through the addition of roads and trails to the Tahoe National Forest’s route system, when in fact motorized recreation was significantly curtailed by the Forest Service’s decision.  PLF’s lawsuit asks the district court to order the Forest Service to redo its motorized route designation process so that our clients and all who have an interested in motorized recreation at the Tahoe National Forest have a fair shot in the regulatory process.  PLF’s lawsuit was announced by a press release, blog post, video, and other social media.  It has been well received by motorized recreation enthusiasts and others who understand the importance of public access to national forests.

Environment – Water Contracts and the Endangered Species Act

The Ninth Circuit issued its decision in Natural Resources Defense Council v. Salazar, in which NRDC claimed that the renewal of Central Valley water delivery contracts should be subject to Endangered Species Act Section 7 consultation in order to protect the delta smelt.  PLF filed an amicus brief in support of Central Valley water users that argued that Section 7 consultation is not required for contract renewals because the Department of Interior lacks discretion when renewing the contracts.  On July 17, the Ninth Circuit ruled in our favor.

Property Rights:  Coastal Land Rights

In Town of Nag’s Head v. Toloczko, PLF filed this opening brief in the Fourth Circuit Court of Appeals in support of Matthew and Lynn Toloczko.  In this case, described here on our blog, the Town attempted to convert the Toloczkos’ residentially developed beachfront land into a public beach park and to remove their family cottage so the public can have the area for recreation. The Town formally declared the Toloczkos’ family beach cottage to be a nuisance because it suffered minor damage during a 2009 storm, and (more importantly) had come to be located on “public trust lands”—namely, the dry sand beach defined by the Town as any land seaward of the first line of vegetation.   PLF’s brief on appeal argues that federal courts cannot abdicate their legitimate role of determining whether a state has violated a property owner’s constitutional rights.

Property Rights – Precondemnation Blight

In Friedman v. South Florida Water Management District, the Florida Court of Appeal issued a per curiam affirmance of a trial court order dismissing a property owner’s claim of a regulatory taking.  As amicus PLF had argued in this brief that the Williamson County ripeness requirements do not apply to a taking claim based upon non-regulatory pre-condemnation activity that resulted in pre-condemnation “blight,” severely diminishing the property owner’s ability to use the property.  More information on the case is available here.

Property Rights – Coastal Land Rights

The Fifth Circuit denied today the petition for rehearing filed by the State of Texas in Severance v. Patterson.  The Fifth Circuit had previously ruled that the case should not be dismissed.  This long-running battle for the rights of coastal landowners in Texas is described at length here.

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