Weekly litigation report — July 15, 2017

• PLF asks Supreme Court to protect plaintiffs’ right to raise takings claims in federal courts when government steals
• Complaint filed against Marin County forced farming law
• Mandatory housing shakedown fees before the Supreme Court
• Getting union tentacles out of worker paychecks
• Phantom frogs and critical regulations
• PLF files appeal to guarantee public access to public forest
• Reply Brief filed in P.I.E., LLC v. DeSoto County, a Florida takings case
• Regional plan upheld against vague greenhouse gas challenge
• Farmer asks Ninth Circuit to delay trial.

PLF asks Supreme Court to protect plaintiffs’ right to raise takings claims in federal courts when government steals

When PLF client Wayside Church fell behind on its 2011 property taxes on a parcel that the church had used as a youth camp, Van Buren County took the youth camp property and sold it for $206,000 to pay the church’s $16,750 in taxes, penalties, interest, and fees. The County kept the surplus proceeds—$189,250 more than the debt—as a windfall. Similarly, the County sold Henderson Hodgens’s childhood farm and home for $47,750 to pay a $5,900 debt. The County kept the surplus from these each of these sales. On Thursday, PLF filed a petition in the Supreme Court, asking the Court to review Wayside Church v. Van Buren County and hold that local governments violate the Takings Clause of the Constitution when they keep more than they are owed from tax sale proceeds. To reach this decision, the Court will need to first answer the question of whether federal courts have jurisdiction over federal takings claims. If taken, this case could overturn the unjust state-litigation rule created by a case called Williamson County. Read more and watch a video about the case on the Liberty Blog.

Complaint filed against Marin County forced farming law

This week, we filed our complaint on behalf of Marin County farmer Willie Benedetti, alleging that Marin County’s new requirement that agricultural landowners be “actively and directly engaged in agricultural use of the property” violates their constitutional rights. “This interference in my family’s freedom and our future is unfair, unjust, and, I believe, unconstitutional,” said Willie, owner of Willie Bird Turkeys. For more see our blog post here. The challenge has been filed in Marin County Superior Court, and alleges that the requirement is an unconstitutional condition under the Fifth and Fourteenth Amendments to the U.S. Constitution. Blog post pending.

Mandatory housing shakedown fees before the Supreme Court

Earlier this week, PLF attorneys filed our reply brief in 616 Croft Ave LLC v. City of Hollywood, which asks the U.S. Supreme Court to finally resolve the question whether permit conditions required by an act of legislation are subject to the same constitutional nexus and proportionality standards as permit conditions imposed by other branches of the government. At issue in this case is a West Hollywood ordinance that required property owners to pay a half-million dollar “affordable housing” fee to secure permission necessary build 11 new condominium units, despite the city having concluded that the proposal would actually help the city’s stock of affordable housing. For more on 616 Croft, see our blog post here.  SCOTUSblog, which highlighted the case as a petition to watch in the upcoming term, has collected all of the briefs here.

Getting union tentacles out of worker paychecks

In the continuing effort to protect employees’ paychecks from grasping public employee unions, the National Right to Work Legal Defense Foundation filed cert petitions in Janus v. AFSCME and Hill v. SEIU asking the Supreme Court to revisit and overrule Abood v. Detroit Bd. of Education (which permits unions to garnish wages of unconsenting non-members) and to strike down an “exclusive representation” law that effectively silences non-union workers on matters within the union’s purview. PLF, joined by Linda Chavez and our allies at the Goldwater Institute, The Fairness Center, the Pioneer Institute, and the Empire Center for Public Policy, filed amicus briefs in support of both Janus and Hill. Among other things, we argue that these types of laws give a green light to unions and politicians to collude to benefit the unions at the expense of individual workers and citizens, who have basic, fundamental rights to speak and petition the government.

Phantom frogs and critical regulations

This week, we filed a petition for review in the U.S. Supreme Court  in Markle v. U.S. Fish and Wildlife Service. The case has gained national attention because it involves one of the worst abuses of agency power in the history of the country. The government designated more than 1500 acres of private property in St. Tammany Parish, Louisiana, as “critical habitat” that literally has no connection to a protected species. This is the first time in over 40 years the government has applied the Endangered Species Act to a tract of land that is unsuitable as habitat and provides no benefit to a listed species but imposes enormous costs on the landowners. The government itself estimated the landowners stand to lose up to $34 million in lost value. Six judges on the Fifth Circuit Court of appeals called the designation of non-habitat as “critical habitat,” “unprecedented and sweeping” and warned the decision would give the government “virtually limitless” power to control and regulate any area in the country under the guise of species protection in violation of the law. To protect landowners nationwide and defend the Rule-of-Law, PLF has asked the Supreme Court to review the case and restore a commonsense interpretation to the ESA.  For more, our blog post is here.

PLF files appeal to guarantee public access to public forest

This week, PLF attorneys filed the Opening Brief in Granat v. United States Department of Agriculture on behalf of individuals, recreational organizations, and local governments to challenge the United States Forest Service’s decision to close thousands of miles of previously available roads and trails to motorized travel in Plumas National Forest. As we demonstrate in our brief, the Forest Service failed to follow the National Environmental Procedure Act and the Service’s own Travel Management Rule. The Forest Service was required to, but did not, consider true alternatives to its eventual decision; nor did the Service “coordinate” with Plumas and Butte Counties, where over 1,000,000 acres of Plumas National Forest are located. Instead, the Forest Service cherry-picked “alternative” motorized-vehicle routes from only one-third of the Forest’s available roads and trails—all but guaranteeing that the final decision would severely restrict motor-vehicle access. Further, Plumas and Butte Counties raised their unique concerns, including proposed restrictions’ effect on emergency access. Had the Service “coordinated” with the Counties, as it was legally required to do, instead of simply considering their input, the Counties’ public-safety (and other) concerns would have been a serious and consequential part of the Service’s decision-making process. But the Service ignored its legal obligations and has closed off thousands of miles of previously accessible roads and trails to what is, after all, a public forest. We’re hoping the Ninth Circuit Court of Appeals recognizes the Service’s unlawful procedure and the resulting substantive harm. You can read more about this case at our blog-post.

Reply Brief filed in P.I.E., LLC v. DeSoto County, a Florida takings case

This week, in P.I.E., LLC v. DeSoto County, we filed our Reply Brief in Florida’s Second District Court of Appeal. P.I.E. purchased land with the intent to excavate it and mine its sand— a plan DeSoto County officials informally approved.  But when P.I.E. sought a permit, the County reversed course and went on to amend its code to explicitly prohibit what P.I.E. had spent money and time preparing to do. If the property cannot be mined, then the property’s value decreases by more than two million dollars.  P.I.E. is suing DeSoto County under Florida’s Bert Harris Act for compensation for this inordinate burden on the use of the land.  For more on the case, see our blogpost “Making takings law great again in Florida,” here.

Regional plan upheld against vague greenhouse gas challenge

In Cleveland National Forest Foundation v. San Diego Association of Governments, the California Supreme Court rejected a CEQA challenge to a regional development plan. The challengers claimed the plan was invalid because it did not adequately address the consistency of the plan with a vague, nonbinding executive order calling for reductions in statewide greenhouse gas emissions. As PLF explained in its amicus brief, a contrary ruling would have encouraged even more CEQA abuse than exists now, by allowing special interest groups to upend projects based on vague, unenforceable policy statements.

Farmer asks Ninth Circuit to delay trial.

 Late last week, PLF filed a Petition requesting that the Ninth Circuit direct the trial court to stay the trial in Duarte Nursery. Duarte Nursery and John Duarte are facing millions of dollars in fines based on the government’s contention that small and isolated vernal pools and swales on the company’s property are protected wetlands under the Clean Water Act. Next month, in a different Clean Water Act case, the Ninth Circuit will hear arguments about the proper scope of the Act. Because that issue is critical to the Duarte Nursery case, PLF requested a stay of the trial in order to avoid wasting time and resources conducting a trial while the controlling issue of law is in doubt. The trial court denied the stay, and PLF has now requested that the Ninth Circuit step in.