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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By James S. Burling

Weekly litigation update — October 14, 2017

Oral argument held in WOTUS case

The Supreme Court held oral argument this last Wednesday in  National Manufacturers Association v USa case that our Washington Cattlemen’s Association case had been consolidated into These cases challenge the Obama administrations “Waters of the United States” rule At issue in this particular argument was whether challenges to such Clean Water Regulations should be filed in federal district court (which would have a six-year statute of limitations) in the first instance, or in a Court of Appeals (where there is a 90 day statute of limitations)

The tenor of the argument seemed quite favorable our position that the plain language of the Clean Water Act

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By James S. Burling

Weekly litigation update — October 7, 2017

  • New lawsuit challenging ESA overreach
  • WOTUS at SCOTUS on Wednesday
  • An end to mobilehome park fight in Palo Alto
  • Opposing another legislative tax-limitation end-run, this time in Arizona
  • Motion for Judgment attacking unconstitutional permit fees

New lawsuit challenging ESA overreach

This week we filed a complaint challenging the 2016 biological opinion issued by the National Marine Fisheries Service for the national flood insurance program in Oregon  Styled City of Coos Bay v Ross, our lawsuit contends that the Service had no authority to issue the opinion, which imposes significant land-use restrictions as a condition for local communities to obtain federal flood insurance  A biological opinion may be issued only

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By James S. Burling

Weekly litigation report — September 30, 2017

  • Government workers have another chance to declare independence!
  • Supreme Court asked to restore Utah prairie dog conservation program—and constitutional limits on federal power
  • Neither legislative bodies nor government bureaucrats can steal property
  • National Forest lands should be accessible to all — not just a few hearty backpackers
  • PLF asks the Supreme Court to stop government theft in Wayside Church 
  • Loss in Alaska permafrost case

Government workers have another chance to declare independence!

On Thursday, Sept 28, the Supreme Court granted certiorari in Janus v AFSCME, to determine whether non-union public employees can be forced to subsidize union politicking against their will, as is currently the case pursuant to a

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By James S. Burling

Weekly litigation report — September 23, 2017

Ninth Circuit sides with PLF in compelled speech case

On Tuesday, the Ninth Circuit issued a favorable opinion in American Beverage Association v City and County of San Francisco, an important compelled speech case As we explain on our blog, the case involves a San Francisco ordinance that forces advertisers of sugar-sweetened beverages to devote 20% of each advertisement for the government’s message that the beverages uniquely contribute to a variety of health problems A group of producers and advertisers filed a constitutional challenge, arguing that the ordinance compels speech and thus violates the First Amendment The district court, applying minimal First Amendment scrutiny, sided with San Francisco

PLF

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By James S. Burling

Weekly litigation report — September 16, 2017

On Thursday, in Minnesota Voters Alliance v. Mansky, PLF filed this reply brief in support of its cert petition to the Supreme Court of the United States. In this case, we’re representing Minnesota voters in a First Amendment challenge to a ban on political apparel at polling places.

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By James S. Burling

Weekly litigation report — September 2, 2017

This week’s topics: Can the executive branch be the judicial branch? When is “just compensation” unjust? Meet the new boss, same as the old boss?

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