James S. Burling

Vice President for Litigation

Sacramento

Before becoming an attorney, James had been a productive member of society working as an exploration geologist in the late 1970s throughout the southwestern United States. However, after several years of dealing with irrational government bureaucrats and environmental policies untethered from reality, James decided that what the world needs is more lawyers — if they are willing to fight for rationality in regulatory regimes, property rights, and liberty.

James attended the University of Arizona College of Law in Tucson, where he served as an editor for the Law Review and received a J.D. degree in 1983. He had previously received a Masters degree in geological sciences from Brown University and an undergraduate degree from Hamilton College in New York.

James has worked with Pacific Legal Foundation since 1983, litigating cases from Alaska to Florida. He is a member of the Federalist Society’s Environmental Law and Property Rights Practice Group’s Executive Committee, a member of the American College of Real Estate Lawyers, and an honorary member of Owners Counsel of America, an organization comprised of eminent domain attorneys who represent property owners. The Owners Counsel awarded James its Crystal Eagle award in 2013.

In 2001, James successfully argued a major property rights case, Palazzolo v. Rhode Island, before the United States Supreme Court, a case which affirmed that rights in regulated property do not disappear when land is bought and sold. He has written extensively on all aspects of property rights and environmental law and frequently speaks on these subjects throughout the nation.

When James is not suing the government he enjoys skiing faster than he should, bicycling, hiking, swimming, and spending quality time with his wife, family, and new grandchild.

Before becoming an attorney, James had been a productive member of society working as an exploration geologist in the late 1970s throughout the southwestern United States. However, after several years of dealing with irrational government bureaucrats and environmental policies untethered from reality, James decided that what the world needs is more lawyers — if they are willing to fight for rationality in regulatory regimes, property rights, and liberty.

James attended the University of Arizona College of Law in Tucson, where he served as an editor for the Law Review and received a J.D. degree in 1983. He had previously received a Masters degree in geological sciences from Brown University and an undergraduate degree from Hamilton College in New York.

James has worked with Pacific Legal Foundation since 1983, litigating cases from Alaska to Florida. He is a member of the Federalist Society’s Environmental Law and Property Rights Practice Group’s Executive Committee, a member of the American College of Real Estate Lawyers, and an honorary member of Owners Counsel of America, an organization comprised of eminent domain attorneys who represent property owners. The Owners Counsel awarded James its Crystal Eagle award in 2013.

In 2001, James successfully argued a major property rights case, Palazzolo v. Rhode Island, before the United States Supreme Court, a case which affirmed that rights in regulated property do not disappear when land is bought and sold. He has written extensively on all aspects of property rights and environmental law and frequently speaks on these subjects throughout the nation.

When James is not suing the government he enjoys skiing faster than he should, bicycling, hiking, swimming, and spending quality time with his wife, family, and new grandchild.

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Property Rights

Ganson v. City of Marathon, Florida

Florida decides couple’s land is for the birds

The Beyer family owns a 9-acre island off the Florida coast that was reclassified from a general zoning designation to a bird rookery that permitted no use of the property other than temporary camping. Instead of offering compensation for this taking of property, as required by the Fifth Amendment, the city offered the Beyers only transferable development credits toward possible purchase of a limited number of development permits in other locations.

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Property Rights

Tin Cup, LLC v. U.S. Army Corps of Engineers

Frozen ground is not “navigable water”

Representing Tin Cup, a family-owned pipe fabrication business, PLF filed a lawsuit challenging the “Alaska Supplement” to the Corps of Engineers’ 1987 Wetlands Delineation Manual, arguing that it fails to provide a legally adequate standard for determining the presence of wetlands under the Clean Water Act. This supplement sweeps permafrost – covering vast swaths of Alaksa – under federal jurisdiction, significantly reducing the ability of property owners to make productive use of their land. Relying the supplement, the Corps improperly asserted jurisdiction over 200 acres of permafrost on Tin Cup’s property. The district court of Alaska rejected Tin Cup’s challenge and the case is now on appeal.

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Procedural Guarantees

WildEarth Guardians v. Department of Justice

Unintentional, accidental “take” of species should not be a crime

A radical environmental group challenged the government’s interpretation of the Endangered Species Act. Because the ESA’s criminal penalties apply only you “knowingly” take a protected species, the government reasonably interprets this to mean that you must know that your actions will cause take and the identity of the species affected. PLF intervened on behalf of several southwestern agricultural organizations that fear imprisonment for innocent mistakes that inadvertently “take” anyone of the thousands of federally-protected species. If the radical interpretation succeeds, people could go to jail for accidentally striking an unknown, endangered insect while driving down the highway.

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Post

By James S. Burling

Weekly litigation report—December 9, 2017

PLF Asks Michigan Supreme Court to Review Taking of Home for an $8 debt, Oral Argument at the U.S. Sixth Circuit in PLF’s Marquette County case, and Seattle’s “involuntary speech – forced democracy” scheme has been appealed.

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By James S. Burling

Weekly litigation report—December 2, 2017

Motion for summary judgment to be filed in Minerva Dairy, PLF testifies before Congress on WOTUS, and the California Supreme Court upholds compulsory interest arbitration for agricultural employers.

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By James S. Burling

Weekly litigation update — November 18, 2017

The U.S. Supreme Court will hear PLF’s First Amendment challenge to political apparel ban, PLF presents oral argument on challenge to access regulation in the Ninth Circuit, and since the Feds get to regulate “species” and “subspecies,” shouldn’t we have an understandable definition of “species” and “subspecies”?

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Op-Ed

Victory for property rights at Wisconsin Legislature

Good news out of Wisconsin: The Legislature has acted to shore up the rights of property owners that the U.S. Supreme Court undercut earlier this year in its unfortunate decision in Murr v. Wisconsin.

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By James S. Burling

Weekly litigation report — October 28, 2017

City sells townhouse, demolishes it, and then sends new owner bill for the demolition

Representing David and Lourdes Garrett, PLF filed  this opening brief in the Fifth Circuit Court of Appeals to challenge New Orleans’ unconstitutional destruction of a townhouse on their property The facts are outrageous: They bought property from the city itself, which then, four months later and without any notice to the Garretts, sent in a wrecking crew and demolished their building When the Garretts complained, the city billed them $11,000 for the demolition When they sued, a federal district court added insult to injury by tossing their lawsuit, which sought vindication of their due

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Post

By James S. Burling

Weekly litigation report — October 21, 2017

  • Squash the wrong bug, go to jail
  • The price of selling your home in Santa Barbara? An illegal warrantless search
  • Free speech wins one in California legislature!
  • Brief filed in Oklahoma First Amendment right to say who you are case
  • Oral argument in Florida takings case
  • Allies file amicus briefs in support of our bird island in the Keys takings case
  • Is going out of business a coastal development? 
  • Georgia Supreme Court Upholds Anti- Competitive Law

Squash the wrong bug, go to jail

This week, we filed our opening brief in WildEarth Guardians v DOJ,  a rare case in which we’re aligned with the federal government An

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