June 17, 2016

Weekly litigation report — June 17, 2016

By James S. Burling Vice President for Litigation

Property rights — limits on the public trust doctrine

The Washington state court of appeals issued this opinion on the “public trust doctrine” in Chelan Basin Conservancy v. GBI Holdings.  The facts here involved a lake that had been raised 21 feet by a dam in the 1920s. GBI owned several acres of land that periodically flooded under the raised lake level. In 1961 and 1962 the owners put fill on three fingers of their land with the goal of keeping these fingers permanently above the raised lake level. In 2010, the owners sought to develop the fingers.

A local environmental group objected not only to the development, but to keeping any of the 50-year old fill on the not-so-natural lake.  They sued and claimed that the public trust doctrine had been violated. Now that doctrine comes from the common law and stood for the unremarkable idea that riparian landowners cannot block public access to navigable waterways. Back in 1892, the Supreme Court weighed in, saying in Illinois Central Railroad v. Illinois that when the legislature gives riparian property to a private entity (say for a wharf or dock) it must consider and accommodate the public interest or trust. But in more recent years, some have suggested–with some success–that the doctrine is an all-encompassing conservation easement, and have attempted to unmoor the doctrine from its commercial origins.

But here the plaintiffs tried to go even further: arguing that the doctrine prohibits all manner of private use of tidelands. After dealing with a minor question of whether the challengers had standing (they did), the appellate court found first that Washington State’s Shoreline Management Act regularized certain historic fills that might otherwise violate the public trust doctrine. Second, the court held that the SMA itself did not violate the public trust doctrine.

This is as it should be and is entirely consistent with public trust doctrine law and cases like Illinois Central which held that the legislature can make decisions allowing for private interests in navigable waters – so long as the legislature considers and is consistent with the interests of the public. In other words, the public trust doctrine does not create some kind of sacrosanct perpetual preservation easement on shoreline natural resources. Previously, we had filed this amicus brief supporting the landowner’s position.

Property rights — tax lien scheme challenge moves forward

A federal district court has allowed a challenge to Washington D.C.’s tax lien scheme to move forward in Coleman v. District of ColumbiaThis is the case where an elderly war veteran fell behind in his taxes by a whopping $134.00.  He had senile dementia and was not able to pay the tax lien and penalties in time to avoid foreclosure of his home worth some $200,000. But after the city sold the home at an auction, the city pocketed the entire proceeds of the sale, leaving Mr. Coleman with nothing, zero, and nada for the value of his home. He sued for the taking under the Fifth Amendment and we filed an amicus brief. The district court thanked PLF for its amicus brief and denied the District’s motion to dismiss, holding that Mr. Coleman and the other plaintiffs may proceed with their Fifth Amendment challenge

Property Rights — Supreme Court requests a response

The Supreme Court requested that San Juan County file a response to our petition for writ of certiorari in Common Sense Alliance v. San Juan County. That’s the case where we are arguing that mandatory shoreline buffer zones violate the constitution. While we had a lot of amicus support, the county decided not to respond. Now it will have to. While this is no guarantee that the Court will take the case, it does show that someone at the Court is paying attention.

Environmental regulations — victory at the Eighth Circuit

A divided panel of the Eighth Circuit issued this opinion in North Dakota v. Heydinger,  holding that a Minnesota law regulating greenhouse gas emissions beyond the state’s borders is invalid. This is a welcome result. PLF, joined by NFIB, filed an amicus brief in the case, supporting the challenge, arguing that the Constitution’s Dormant Commerce Clause forbids extraterritorial state laws. For more, see our blog post here.

Wetlands — adverse decision for wheat farmer

We had this adverse ruling in Duarte Nursery v. Army Corps of Engineers on a motion for summary judgment. The court ruled that a farmer requires permit from Corps of Engineers to plow any land that contains “waters of the U.S.” despite clear statutory and regulatory text to the contrary. Here’s how the court explained that plowing is “dredge and fill” under the Clean Water Act: “[plowing causes] the material, in this case soil, to move horizontally, creating furrows and ridges…. This movement of the soil resulted in its being redeposited into waters of the United States.” In other words by moving dirt around a few inches to loosen it up for planting seeds violates the law unless the farmer first gets a permit from the Army Corps of Engineers.

The court also ruled that Army Corps’ order that John Duarte cease all activity in any portion of the property that contained waters of the U.S. did not deprive the company of any property under the Due Process Clause. For more see our blog post here and an interview on AgNet West here.

New Jersey tosses arbitration contract

The New Jersey Supreme Court issued this decision in an arbitration case called Morgan v. Sanford Brown InstituteLike California courts, New Jersey courts are hostile to arbitration clauses. Having already ruled that people in New Jersey are not smart enough to understand that the word “arbitration” means a contract’s arbitration clause an alternative to dispute resolution outside a courtroom, in this case it ruled that it didn’t have to follow precedent from the United States Supreme Court which had held under the Federal Arbitration Act,  states must enforce arbitration agreements.  We had filed this amicus brief supporting the arbitration clause. For more details, see our blog post here.

PLF files brief opposing disparate impact claim in voting rights case

PLF filed this amicus brief in United States v. North Carolina, the Department of Justice’s challenge to North Carolina’s voter ID law. Among other things, DOJ claims that the law has a “disparate impact” on minority populations in North Carolina. That means even if there is no proof that North Carolina intended to harm minority voters because they were minority voters, the mere statistically greater likelihood of such harm is enough under the theory. Our brief doesn’t tackle the veracity, or lack thereof, of that claim. Nor does our brief address the justifications for the voter I.D. law. Instead our brief points out that disparate impact, alone, is not a ground for finding of a violation of the Voting Rights Act. That act guarantees equality of opportunity to vote, not a particular guaranteed percentage of voting turnout. Indeed, trying to force a disparate impact regime onto the Voting Rights Act could well exceed Congress’s powers under the 14th and 15th Amendments and contravene the Equal Protection Clause. For more, read our amicus brief here.

Equality under the law project — supporting school choice

We filed responses this week in White v. Voluntary Interdistrict Choice Corporation to the corporations defense of its policy that overtly discriminates against an African-American child by not letting him attend the elementary school of his choice. Our briefs are here and here.

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Chelan Basin Conservancy v. GBI Holding Company

Along the shore of Washington’s Lake Chelan, a large fill known as “Three Fingers” has been in place since 1961. The placement of this fill was retroactively authorized by the state’s Shoreline Management Act, which grants consent and authorizes impairment of public rights of navigation, fishing, and recreation caused by fill placed in navigable waters prior to December 4, 1969. An environmental group, Chelan Bay Conservancy, sued the owner of Three Fingers to remove the fill on the basis that it allegedly violates the public trust doctrine. The Washington Supreme Court issued a decision largely adopting the legal principles espoused in PLF’s amicus brief in favor of the property owner and remanded the public trust question for trial.

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