Weekly litigation report—December 16, 2017

• PLF supports property owners’ right to a jury in federal takings cases
• Code violations should not be a city’s no-appeal cash machine
• PLF announces appeal to illegal jaguar rule
• Coastal Commission tries to force city to destroy property rights
• Courts should rule in the best interests of Indian children — just like other children are treated
• Due process protects property owners against abusive government

PLF supports property owners’ right to a jury in federal takings cases

In Brott v. United States, a group of Michigan property owners sued for compensation after the federal government took their land. But takings claims against the federal government face a unique hurdle: such claims must be heard in the Court of Federal Claims, where plaintiffs lack many of the traditional benefits of a normal federal court, such as a jury. The property owners are now asking the Supreme Court to decide whether they can litigate their constitutional claims in a normal federal court in the presence of a jury. We filed an amicus brief supporting their petition, joined by our friends at Reason and the American Civil Rights Union. This blog post offers more detail.

Code violations should not be a city’s no-appeal cash machine

On Tuesday, we argued Lippman v. City of Oakland in the California Court of Appeal. In enforcing its building code, Oakland treats property owners like a piggy bank, without giving them a fair chance to fight back. California law requires every local government to establish an independent board to hear appeals from alleged building code violations or let property owners appeal to their elected city council. Yet Oakland took more than $12,000 from Lippman over alleged violations while refusing to honor his right to a fair appeal. Instead, Oakland’s code enforcement agency selected a former employee to hear his appeal, who not only rubber-stamped the agency’s decision but denied Lippman any opportunity to make arguments against the allegations. Fortunately, the court’s questions suggest that it won’t let Oakland ignore Lippman’s rights under state law.

PLF announces appeal to illegal jaguar rule

This week, PLF filed notice that we will be appealing the district court decision in New Mexico Farm & Livestock Bureau v. United States Department of the Interior, which upheld the jaguar critical habitat rule. The designation of critical habitat for jaguar in New Mexico makes it harder for ranchers to get grazing permits, build corrals, stock ponds, or additional fences. The designation also increases fire risks in fire prone areas like Coronado National Forrest. The problem with the designation of critical habitat in New Mexico is that the habitat is not “essential” to conserve the species, and thus fails the requirements for critical habitat designations set out by Congress.  We will be asking the Tenth Circuit to hold the federal government to those requirements and overturn the rule.

Coastal Commission tries to force city to destroy property rights

This week at the Coastal Commission meeting the Commission considered proposed amendments to the City of San Clemente’s coastal land use plan. The Commission’s staff urged the commission to require the city to amend its land use plan by adding a definition of “existing development” as any structure that was legally permitted before January 1, 1977 (the date the Coastal Act went into effect) and has not undergone a major remodel since. Importantly, this would remove the right of seawall protection guaranteed in the Coastal Act to any home that was built after that date. We submitted a comment letter that noted that the Commission’s definition was inconsistent with the California Constitution and Coastal Act, and could unfairly impact coastal homeowners in San Clement. The City also opposed the changes, filing their own letter with the Commission. The Commission couldn’t reach a decision, so the matter has been continued until early next year. Read more at the LibertyBlog

Courts should rule in the best interests of Indian children — just like other children are treated

Today we filed this amicus brief in the Supreme Court of the United States in Renteria v. Superior Court (Tulare County). We argue that the Indian Child Welfare Act (ICWA)—which subjects Indian kids to separate, less protective standards in custody proceedings—violates the right of Indian children to equal protection and is beyond Congress’s power.  ICWA was intended to redress child welfare practices that resulted a large number of Indian children being removed from their families and placed in non-Indian homes.  It imposes certain requirements in custody proceedings involving Indian children.  Unlike children of any other race, Indian children do not enjoy the “best interests of the child” standard in such proceedings.  Because ICWA applies solely on the basis of race, it raises serious equal protection concerns.  And because it applies to private intra-family disputes, it is beyond the reach of Congress’s power under the Indian Commerce Clause.

Due process protects property owners against abusive government

PLF attorneys filed this amicus brief with the Washington State Supreme Court, asking the court to hold that property rights are protected by the Due Process Clause of the U.S. Constitution. This may sound elementary, given that the Constitution guarantees that an individual will not be deprived of “life, liberty, or property” without due process of law. This plain command has been watered down over the years by government arguments that people have no rights without first securing some form of approval. In Maytown Sand & Gravel LLC v. Thurston County, the government argues that a mining company had no protected right to use a permitted gravel mine because the permit contained conditions requiring periodic review and oversight. Based on this, the county argues that it was free to collude with environmentalists to strip the mining company of all rights granted by the lawfully-issued permit. PLF’s amicus brief reminds that court that the U.S. Supreme has long recognized that traditional property rights, including the right to make profitable use of one’s land, are protected by due process. The brief also argues that the touchstone of due process is arbitrariness: thus, the jury’s verdict finding that Thurston County’s actions against the mining company were abusive, lacked any reasonable justification or relation to a legitimate government purpose, and “shocked the conscience” were more than sufficient to support the trial court’s conclusion that the County violated Maytown’s due process rights.