Weekly litigation report — April 15, 2017

April 15, 2017 | By JAMES BURLING
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  • Opposition to Assembly Bill that would gut protections for coastal homeowners
  • Golden parakeet should fly off endangered species list
  • Taxpayer victory in San Diego over union objections
  • Notice of appeal filed in cap-and-trade case
  • Public trust case goes to the Indiana Supreme Court
  • Opposing government-sanctioned trespass in Florida
  • Florida Supreme Court denies review of takings case

Opposition to Assembly Bill that would gut protections for coastal homeowners

The Coastal Commission failed in court in its attempt to force the owner of this mobile home to give up the right to maintain an existing seawall. Now it’s trying with legislation statewide.

We filed this opposition to A.B. 1129, a bill that attempts to take away the right of property owners to protect existing structures on the coast that were built after 1977. This proposal seems designed to directly counter our efforts to help coastal landowners maintain their right to build or repair seawalls when their homes are threatened by erosion. The Coastal Commission has been on a mission to demand that homeowners give up their right to a seawall in exchange for permits, and we’ve had some success in challenging these demands, such as in our recent victory in Capistrano Shores v. California Coastal Commission.  But now the Coastal Commission is arguing that protections in the California Coastal Act for “existing” structures apply only to homes and buildings that existed before 1977. Interestingly, for several decades the Commission argued the opposite — that the protections applied to all post-1977 homes. But now the Commission has embraced a much more rigid anti-seawall stance. Perhaps fearing that it cannot win the argument in court, the Commission and allied legislators are trying to change the law. However, as our comments point out, this will lead to much litigation and government liability for homes threatened or consumed by erosion. Our blog post is here.

Golden parakeet should fly off endangered species list

We sent a 60-day notice of intent to sue the United States Fish & Wildlife Service and the Department of Interior over their failure to issue a finding on the American Federation of Aviculture’s petition to delist the golden parakeet (aka the golden conure). The federal government listed the South American bird as endangered in the 1970s. At one time, experts estimated its population at 1,000-2,500. Today, experts estimate 10,000-20,000 golden parakeets. On April 10, 2015, the U.S. Fish and Wildlife Service acknowledged that delisting might be warranted. That decision triggered a 12-month deadline, which has long passed. Frustrated by the federal agency’s stalling, the AFA asked PLF for help. For more, see our blog post here.

Taxpayer victory in San Diego over union objections

After San Diego voters passed a pension reform initiative, public employee unions objected, not in Court but before the labor-friendly Public Employees Relations Board. They argued that because the mayor supported the initiative, it was essentially city legislation and was illegal because the city failed to negotiate the terms of the initiative with the unions. The Board agreed with the unions and tossed the initiative. But the City appealed in City of San Diego v. Public Employment Relations Board and San Diego Municipal Employees Association.

As a friend of the court, PLF argued in this amicus brief that the Board was subverting the people’s reserved right of initiative by inventing an exception for ballot measures that happen to draw support from public officials.  We argued that a measure’s status as a true citizen initiative – a proposal that is immune from interference by the Board, and from the procedural requirements of state labor law — doesn’t depend on who drafts, sponsors, endorses, or even funds it.  In a landmark victory for taxpayers, the Court of Appeal ruled here that the right of the people to adopt initiatives cannot be stifled as the union attempted to do here.

Notice of appeal filed in cap-and-trade case

We filed a notice of appeal in Morning Star Packing v. CARB to the California Supreme Court. You can find a press release here. This is our challenge to the billion dollar auction scheme that has, in effect, rammed through a multi-billion dollar tax increase on California businesses and consumers without the two-thirds majority required by Proposition 13.  The Court of Appeal disregarded state Supreme Court precedent for determining when purported regulatory fees are actually illegal taxes, and instead fashioned its own rule for defining taxes. Under its novel rule, existing taxes like the per gallon gas tax would be free of Prop 13’s taxpayer protections. We think the state supreme court needs to resolve whether the billions of dollars in auction revenue the state is collecting are illegal taxes or not. For more, our blog post is here.

Public trust case goes to the Indiana Supreme Court

We filed this friend-of-the-court brief in Gunderson v. Indiana, asking the Indiana Supreme Court to review this public trust doctrine case. Landowners in Indiana own a complete fee simple down to the water line. But here the State has created an artificial “high water mark” (which makes little sense and has no tradition in a state unaffected by tides) and asserts that the public has the right to use and recreate on privately owned beaches below this artificial line. The state is basing its assertion based on its attempt to extend the “public trust doctrine” to these dry upland beaches. The problem is, as our amicus brief points out, that the common law public trust doctrine applies to submerged and tidal lands only — and that neither the courts nor the legislature can declare private property to be public merely by rewriting the public trust doctrine. For more, see our blog post here.

Opposing government-sanctioned trespass in Florida

We filed this amicus brief in Chmielewski v. City of St. Pete’s Beach. Here, the City took over the private access and the use of the Chmielewski’s private land in front of their small beach home for city purposes — such as public access and events at a nearby art center built by the City. The City claims that the public, not it, is trespassing so the City shouldn’t be held responsible. But because the City has done everything possible to convert this private land into public use, it has clearly violated the Chmielewski’s constitutional rights.  And now, despite the Chmielewskis winning a quiet title action, and persuading a federal court that the City has violated the couple’s rights, the City has appealed to the 11th Circuit. For more, see our blog post here.

Florida Supreme Court denies review of takings case

The Florida Supreme Court denied review of our Ganson v. City of Marathon regulatory takings case. We’ve previously written about the case here, herehere, and here. In a nutshell, government officials in the City of Marathon, along with officials in Monroe County and the State of Florida, decided that Gordon and Molly Beyer, a married couple who owned a 9-acre piece of property in the Florida Keys, lost all rights to develop on the nine acres – an island known as Bamboo Key – because it made a fine bird rookery. We believe that this may present a very intriguing case for review by the Supreme Court of the United States — our next stop.