COURT RULINGS

AUGUST 2016

FLIGHT-SHARING START UP ASKS US SUPREME COURT TO HEAR CASE
Posted on June 24, 2016, http://goldwaterinstitute.org

Washington, D.C.—Today the Goldwater Institute asked the United States Supreme Court to hear its case against the Federal Aviation Administration (FAA) for shutting down Flytenow Inc., an innovative start-up business that uses the Internet to connect private pilots with passengers wishing to share flight expenses.

Flytenow expands on “sharing economy” services that companies like Uber and Airbnb have popularized: websites or mobile applications allowing consumers to connect directly with private service providers. Flytenow passengers do not pay for tickets or for the pilot’s time; instead, they share fuel and fee costs with the pilot. If the Court hears the case, it would be the first sharing-economy case to be considered.

This cost-sharing arrangement between private pilots and passengers has been allowed by the FAA since the 1960s. Pilots previously found people to cost-share with by word of mouth, phone, posting notes on bulletin boards in airports, and various other means. Flytenow simplified the process by allowing pilots to post a preplanned trip on a website for passengers interested in sharing costs. But the FAA determined that the process of posting a planned trip on a website constituted advertising and that subjected the pilots to the same onerous regulations that pilots for a commercial airline like Delta would have to meet. This forced Flytenow to shut down.

“The sharing economy is based on communication – it is about using technology to connect service providers to consumers. Flytenow is simply a communications hub; it connects pilots looking to share their flights with passengers interested in joining them,” said Jon Riches, the national litigation director at the Goldwater Institute and the attorney representing Flytenow. “In this case, the FAA has stopped pilots from using the Internet, and only the Internet, to communicate. The First Amendment does not tolerate this type of speech discrimination.”

The Goldwater Institute is arguing that the FAA’s decision violates the First Amendment rights of Flytenow and its pilot members. The Institute is also asking the Court to decide that no deference is due when a government agency interprets a term (in this case “common carrier”) that is predominately defined in the common law, because deference is based on agency expertise, and courts, not agencies, have expertise on common law interpretation. This clarification in deference standards would make it harder for courts to simply defer to agencies when regulations are challenged, as is typically the standard now.

“The government shouldn’t get a thumb on the scale when its decisions are challenged. Courts exist to carefully examine unlawful government regulations, not to rubber stamp them,” said Riches.

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JUNE 2016

UNITED STATES V. TEXAS: THE MOST IMPORTANT CASE THE SUPREME COURT WILL DECIDE THIS YEAR
By Dan Stein, 4/15/2016

On April 18, the U.S. Supreme Court will hear arguments in United States v. Texas. The Obama administration is seeking to have the high court lift a lower court’s injunction preventing two programs that would grant de facto amnesty and work authorization to about 4.7 million illegal aliens (approximately 40 percent of the estimated illegal alien population) from going into effect.

The two programs, Deferred Action for Parents of Americans (DAPA) and an expanded version of Deferred Action for Childhood Arrivals (DACA+), were announced by President Obama in November 2014, just two weeks after voters handed his party a stinging defeat in the midterm elections. In announcing these programs, the administration asserted broad discretionary authority to not just refrain from enforcing immigration laws against entire classes of violators, but also to grant them permission to live and work in the U.S., despite clear statutory prohibitions against both.

When the Republican-led Congress made it clear that they lacked the political courage to defend either their plenary constitutional power to make immigration laws, or to block funding necessary for the president to carry out the amnesty programs, 26 states, led by Texas, stepped into the breach and filed a lawsuit seeking to prevent the administration from implementing these amnesty programs. In February 2015, just days before DAPA and DACA+ were scheduled to go into effect, a federal judge agreed that the states had standing to sue and the administration had violated Administrative Procedures Act, and issued an injunction. That injunction was subsequently upheld by the Fifth Circuit Court of Appeals.

What is at stake in this case is more than just the integrity of our nation’s immigration system, namely the legitimacy of laws that restrict immigration in order to protect the social, economic and security interests of the American people. Even more importantly, what hangs in the balance is the integrity of the Constitution’s Separation of Powers Doctrine which, for more than two centuries, has prevented the consolidation of power in the hands of a single individual.

In issuing the original injunction, Federal Judge Andrew Hanen opined that the states were on solid ground in contending that the president overstepped his constitutional authority. Indeed, every congressional legislative act that addressed the question of prosecutorial discretion in immigration enforcement since 1952 has either rolled back or prohibited the exercise of discretion.

Judicial precedent limiting prosecutorial discretion in immigration matters is also clear. In a 1952 Supreme Court decision, Justice Felix Frankfurter wrote that, “The conditions for entry of every alien, the particular classes of aliens that shall be denied entry altogether, the basis for determining such classification, the right to terminate hospitality to aliens, [and] the grounds on which such determination shall be based, have been recognized as matters solely for the responsibility of the Congress.” The Court reaffirmed that position in 2005, asserting that “Congress did not place the decision as to which applicants for admission are placed in removal proceedings into the discretion of the Attorney General, but created mandatory criteria.”

If clear legal precedent, or even the clearly enunciated intent of Congress in 1996 that legislation enacted that year was meant “to prevent delay in the removal of illegal aliens,” then the Court should consider this: If a president has the power to nullify laws enacted by the Legislative Branch by simply refusing to enforce them or, as President Obama is attempting to do, by substituting his own policies and programs in their place, then the separation of powers deliberately written into the Constitution by our founders, are rendered meaningless.

Even those justices who might agree with the president’s views on immigration policy generally should appreciate the precedent-setting decision they would be making by allowing the president to run roughshod over the constitutional Separation of Powers doctrine. It would open the door to future presidents asserting virtually unlimited authority to carry out politically-driven policies without regard for the laws.

When the justices render their ruling in United States v. Texas they will not only be deciding whether there will be any meaningful limits on immigration in the future, but also whether there will be any meaningful limits on executive power. Let’s hope they decide wisely, because the stakes do not get much higher than that.

Reprinted with permission from The Daily Caller: http://dailycaller.com/2016/04/15/united-states-v-texas-the-most-important-constitutional-case-the-supreme-court-will-decide-this-year/

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APRIL 2016

SCALIA'S VACANCY WILL SET OFF A STRUCTURAL POWER STRUGGLE
By Elliot Engstrom, 2/19/2016

The vacancy of Justice Antonin Scalia’s seat on the Supreme Court has set off a predictable power struggle over his replacement. As that struggle plays out during the coming months, it will serve as a reminder that, as much as Americans love the Bill of Rights, it is not the most important part of the United States Constitution.

At least, that’s what the framers thought. America’s founders were much more concerned with the structure of government and division of powers than whether any particular right was or was not protected. Think about it — if the courts do not have the power to check unconstitutional actions, or the legislature is unable to rein in a power-hungry executive, then the Bill of Rights has no teeth. The structural ability to protect rights is a condition precedent to their protection.

Conflicts over the constitutional power structure usually play out slowly over time. For example, the courts’ ability to strike down acts of the legislature has waxed and waned over time, reaching a height in the early Twentieth Century and a low during the New Deal. The executive’s power to make war without the consent of Congress has grown slowly to its apex under the two most recent presidents. These structural conflicts are always playing out, but they usually do not happen overnight.

In 2016, Americans will watch a structural power struggle take place over the course of a few short months. With the vacancy of Justice Scalia’s seat on the Supreme Court, the nation’s eyes are fixed on the division of power between the president and the Senate regarding judicial appointments. The nature of this division is defined in the Appointments Clause of the U.S. Constitution:

[The President] shall have Power, … and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court.

So what does that mean? What is the proper division of power? As one could imagine, different sides read it different ways. Sen. Elizabeth Warren has read the provision as giving President Obama near-sole discretion to appoint Supreme Court Justices, with the Senate’s involvement little more than a partisan nuisance. This is clearly not the meaning of the clause from its plain language, and given the intelligence of Sen. Warren, she knows that. But facing a power struggle that will very concretely affect the future of the United States, all pretense of political neutrality is going out the window on both sides of the aisle.

So what does the Appointments Clause actually say? It provides that the president “shall” appoint Supreme Court Justices — so he has to do it — with the “advice and consent” of the Senate. “Advice” and “consent” are listed conjunctively — meaning that both must be present. So, the President has a duty to appoint, but his appointments are contingent on the “consent” of the Senate.

And therein lies the question — must the Senate give its consent? The president “shall” nominate. But there is no “shall” for the Senate. And given the Founders’ concern with the structural division of power — and their historical disdain for executive power — this is not an accident. The Constitution imposes a duty on the President, but it provides the Senate with the power to check the president’s pick.

Our founders were specific about how power should be divided amongst the branches of government. The president has a duty to appoint Supreme Court justices. His appointments are subject to the “consent” of the Senate. And the Senate has no duty to give that consent. This is not hackery. It is the plain reading of the Constitution’s division of power regarding Supreme Court appointments. Such structural concerns were of the utmost importance to the founders. We must be sure to give those concerns their proper attention as the debate over judicial appointments moves forward.

Article reprinted with permission from The Daily Caller: http://dailycaller.com

URL to article: http://dailycaller.com/2016/02/19/scalias-vacancy-will-set-off-a-structural-power-struggle/

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JANUARY 2016

HIGH COURT WILL HEAR PLF  CASE OVER 'WETLANDS' DESIGNATIONS
M. Reed Hopper, Principal Attorney

WASHINGTON, DC; December 11, 2015: The U.S. Supreme Court announced today it will hear a Pacific Legal Foundation (PLF) case in which PLF argues that property owners should have a right to judicial review when federal regulators label their land as “wetlands” subject to federal oversight.

The court granted the government’s petition for certiorari in Hawkes Co., et al. v. U.S. Army Corps of Engineers (Supreme Court docket no. 15-290), a case in which PLF was victorious at the court of appeals. PLF, which has long litigated to establish judicial review of wetlands designations, supported the Hawkes petition, which opens the prospect of winning a Supreme Court ruling for that principle.

Donor-supported PLF is a watchdog organization that litigates for limited government, property rights, and balanced environmental regulations. Today’s announcement builds on a powerful PLF record of reaching and winning at the U.S. Supreme Court on behalf of our clients. Founded in 1973, PLF has won its last seven direct-representation cases at the High Court.

In the Hawkes case, PLF represents — free of charge — The Hawkes Co., Inc., Pierce Investment Company, and LPF Properties. All three of these parties own property in New Maine Township, Marshall County, Minnesota, which was designated as “wetlands” over which the Army Corps of Engineers has regulatory authority under the Clean Water Act. The Eighth Circuit agreed with PLF that property owners have the legal right to bring a court challenge to such a “jurisdictional determination” — and this PLF victory prompted the petition for certiorari by the federal government.

“The Supreme Court’s decision to take this case gives it an opportunity to affirm the Eighth Circuit’s historic ruling and strike a blow for accountability in government and Americans’ access to justice,” said PLF Principal Attorney M. Reed Hopper. “When Clean Water Act officials assert control over someone’s private property, they should be prepared to defend, in court, their claim that the property is, in fact, wetlands. Their decisions should not be insulated from scrutiny and examination, as if the regulators were a law unto themselves.

“In the same way, when a government agency asserts control over people’s land and their lives, the affected property owners should not have the courtroom doors slammed in their faces,” Hopper added. “There must be a reasonable right of appeal, or our system of checks and balances has been replaced by a regime of arbitrary bureaucratic dictates.

“This case is about the rights of property owners, but it’s also about more than that,” said Hopper. “We’re arguing for credibility in the environmental regulatory process, and for the principle that bureaucracies are bound by the law and answerable to the courts, just like the rest of us.”

This case follows up on PLF’s Supreme Court victory three years ago in Sackett v. U.S. Environmental Protection Agency, where the court unanimously held that property owners may seek judicial review of “compliance orders” from Clean Water Act regulators.

“Just as Sackett established that federal wetlands orders may be appealed to the judiciary, in Hawkes we’re arguing that the formal designation of a property as ‘wetlands’ by the federal government is also subject to judicial review,” said Hopper. “Anything else would imply that wetlands bureaucrats can do no wrong and make no mistakes. But they’re human like the rest of us, so the property owners who are subject to their decrees have the right to ask the courts for a second opinion.”

The right of judicial review is especially important because regulators can assert Clean Water Act coverage over almost any piece of property if they are creative enough. As Justice Samuel Alito commented in Sackett, the “reach of the Clean Water Act is notoriously unclear,” so “any piece of land that is wet at least part of the year” may be covered, “putting property owners at the agency’s mercy.”

“Because of the Clean Water Act’s potentially limitless scope, it is imperative that the courts safeguard a landowner’s right to challenge the erroneous application of the law to his property,” said Hopper.

Without the right of direct appeal to the courts, owners whose property is designated as “wetlands” are left with three options, none of which is feasible or fair: (1) abandon use of the land; (2) go through the pointless and costly permit process (averaging more than $270,000 and more than two years); or (3) proceed with property development without a permit, risking immense fines of $37,500 a day and imprisonment.

“These are not legitimate options,” said Hopper. “They are punitive sanctions imposed on landowners who dare to challenge federal jurisdiction under the Clean Water Act.”

The case is Hawkes Co., et al. v. U.S. Army Corps of Engineers. More information, including PLF’s briefs and a PLF Liberty Blog explanatory blog post, may be found at: www.pacificlegal.org.

Donor-supported Pacific Legal Foundation is the leading legal watchdog organization that litigates for limited government, property rights, free enterprise, and a balanced approach to environmental regulations, in courts across the country. PLF represents all clients free of charge.

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NOVEMBER 2015

A WIN FOR PROPERTY RIGHTS AND LIMITED GOVERNMENT
By Christopher M. Kieser and Brian T. Hodges, Sep. 2015 www.pacificlegal.org

The dispute in Horne c. Department of Agriculture arose from some questionable New Deal-era regulations designed to prop up the price of crops by preventing farmers from bringing their entire harvest to market.

Fresno-area raisin farmers Marvin and Laura Horne balked at government demands that the forfeit up to 47 percent of their raisins without compensation.  In response the Department of Agriculture slapped them with almost $700,000 in fines and penalties.  After over a decade of litigation, the Hornes finally prevailed in a Supreme Court ruling in late June.  In the process, they struck a blow for property rights and limited government. 

First, Chief Justice John Roberts, writing for an eight-justice majority, held that the Takings Clause protects personal property, like raisins, to the same extent as real property.  The principle that "property" refers equally to real and personal property, he wrote, "goes back at least 800 years to Magna Carta, which specifically protected agricultural crops from uncompensated takings."

The court then rejected the government's argument that it could avoid a taking by offering to pay the Hornes something in the future based on the government's eventual use of the seized raisins.  The court held the fact that the owners could later receive some money (or not) for the seized property was irrelevant to the question of whether a taking had occurred.

The court next rejected the Ninth Circuit's conclusion that the raisin reserve requirement was a permissible condition on the right to sell raisins.  As the court recognized, the right to sell a product on the open market is not a benefit subject to government controls -- it is a constitutionally protected right.

Importantly, the chief justice held that the Hornes were entitled to prevent the taking from occurring in the first instance -- they did not have to first subject themselves to the government's unconstitutional demand before challenging it.

The Chief justice's opinion is great news for advocates of limited government and private property.

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MAY 2014

SCATHING APPEALS COURT CALLS OUT RAGING
 HYPOCRISY OF RACE-BAITING OBAMA
ADMINISTRATION BUREAUCRATS

By Eric Owens  04/23/2014

It’s always satisfying to see race-baiting bureaucrats get their comeuppance in court, but an opinion by the 6th Circuit issued earlier this month begins especially delightfully:

In this case the EEOC sued the defendants for using the same type of background check that the EEOC itself uses. The EEOC’s personnel handbook recites that “[o]verdue just debts increase temptation to commit illegal or unethical acts as a means of gaining funds to meet financial obligations.” Because of that concern, the EEOC runs credit checks on applicants for 84 of the agency’s 97 positions. The defendants (collectively, “Kaplan”) have the same concern; and thus Kaplan runs credit checks on applicants for positions that provide access to students’ financial-loan information, among other positions. For that practice, the EEOC sued Kaplan.

The April 9 ruling in Equal Employment Opportunity Commission v. Kaplan Higher Education Corp. has received little fanfare. It should probably receive more, though, if only because the EEOC lost so good and hard.

In the case, the unanimous three-judge panel ruled to exclude the findings of government contractor General Information Services and the testimony of a dubious statistical analyst, thus affirming a lower court’s “meticulously reasoned” summary judgment decision and likely ending the EEOC’s complaint against Kaplan.

The troubles for Kaplan began when the company experienced problems involving financial improprieties among its employees. The test-prep and for-profit education giant responded by hiring third-party vendors to perform credit checks on current employees and job applicants who would be involved in financial matters.

Kaplan collected no race (or gender) data about job applicants at the time of the credit checks. The company only sought such information at the hiring stage. Nevertheless, the EEOC saw a convoluted conspiracy to identify people by race — by using the very credit checks the EEOC uses.

In its subsequent lawsuit, the EEOC alleged that Kaplan’s “use of credit checks causes it to screen out more African-American applicants than white applicants, creating a disparate impact in violation of Title VII of the federal Civil Rights Act.”

The case quickly became absurd and hilarious when the super sleuths at the EEOC set out to prove racial disparities in Kaplan’s credit checks by matching up the subpoenaed names of Kaplan job applicants with photos from various Department of Motor Vehicles databases.

The glaring problem with the name-matching scheme, of course, is that there can be no guarantee that someone who applied to work for Kaplan is the person with the same name who also got a license down at the DMV.

The 6th Circuit panel highlighted as much. “The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, accepted only by the witness himself,” the unanimous opinion observes.

Horace Cooper, an adjunct fellow with the National Center for Public Policy Research and co-chairman of Project 21, a leading voice of black free-market conservatives, spoke to The Daily Caller about the 6th Circuit smack-down.

“Kaplan said they didn’t even know the race or gender of the applications they were rejecting,” Cooper pointed out.

“The unanimous ruling by the 6th Circuit demonstrates just how untenable the EEOC’s position was,” he told TheDC. “Telling employers who haven’t asked or in any way inquired about the racial status of applicants that they cannot adopt simple, widely-used preventative measures to ensure that potential employees won’t engage in wrongdoing is unfair. Using government contractors to scour applications and get third parties to provide photos to guess the applicants’ race to show how it might constitute racially-biased disparate impact is just plain bizarre.”

Cherylyn Harley LeBon, the other Project 21 co-chair, noted the irony of the EEOC’s actions.

“It defies logic that a federal agency would seek to punish a private company for instituting a widely-accepted business practice — especially since this agency engages in the same practice,” she said. “This is an example of the lengths to which this presidency will go to advance their divisive agenda.”

The EEOC has 90 days since the decision to appeal to the Supreme Court.

Follow Eric on Twitter and on Facebook, and send education-related story tips to erico@dailycaller.com.

Article reprinted with permission from The Daily Caller: http://dailycaller.com
URL to article: http://dailycaller.com/2014/04/23/appeals-court-calls-out-hypocrisy-of-eeoc-bureaucrats/

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FEBRUARY 2014

DRAKES BAY OYSTER COMPANY V. SALAZAR
Drakes Bay Oyster Company to seek relief at United States Supreme Court
January 15, 2014 Tony Francois, Pacific Legal Foundation http://www.pacificlegal.org

Drakes Bay Oyster Company’s operations at Point Reyes National Seashore in California are carried out under a Reservation of Use and Occupancy from the National Park Service that began in 1972, and was set to expire on November 30, 2012. The Reservation of Use and Occupancy provided that the Park Service could issue a Special Use Permit to allow Drakes Bay Oyster Company to continue operations after that date. 

In 1976, Congress designated Drakes Estero as “potential wilderness.” In 2005, National Park Service asserted that the 1964 Wilderness Act and the 1976 potential wilderness designation prohibited National Park Service from issuing Drakes Bay Oyster Company a new Special Use Permit when its Reservation of Use and Occupancy expired in 2012. In 2009, Congress authorized the Secretary to issue a Special Use Permit allowing Drakes Bay Oyster Company to continue its existing operations “notwithstanding any other provision of law.” 

In July, 2010, Drakes Bay Oyster Company applied for this Special Use Permit. On November 29, 2012, Secretary Salazar denied Drakes Bay Oyster Company the Special Use Permit.

The company sued the Secretary of Interior, seeking an injunction to keep the oyster farm open and operating until the lawsuit could be decided.  The District Court refused to do so and the Ninth Circuit Court of Appeals agreed with the District Court.

On January 14, 2014, after the Ninth Circuit denied its petition for rehearing, Drakes Bay Oyster Company announced in a statement that it will seek relief in the United States Supreme Court.

Remarkably, both the district court in Oakland and the Ninth Circuit Court of Appeals in San Francisco held that there is no federal court jurisdiction to even hear the oyster farm’s case in the first place. Under the courts’ reasoning, Congress gave federal bureaucrats unlimited power to deny the oyster farm’s permit for any reason or no reason, and in the face of such limitless discretion there is nothing for the courts to judge. The bureaucrats get to do whatever they want, and the courts will not even listen to whether the agency broke the law.

There is a fundamental problem when an executive agency destroys a farm, puts its workers out of their jobs, and workers’ families out of their homes, and federal courts say they have no power to even review the decision. This is not the way a government of checks and balances operates; it is the way a totalitarian state does. Pacific Legal Foundation will be proud to support Drakes Bay Oyster Company’s petition to the Supreme Court as a friend of the court, and wishes the oyster farm complete success in their ongoing fight for survival against a despotic bureaucracy.

As amicus in support of Drakes Bay Oyster Company, Pacific Legal Foundation argues that the Secretary was not mandated to deny the Special Use Permit, but had the legal discretion to grant it.

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SEPTEMBER 2013

PLF DEFEATS SCHEME TO DENY ACCESS TO JUSTICE FOR COASTAL PROPERTY OWNERS
J. David Breemer, Pacific Legal Foundation, jdb@pacificlegal.org, (916) 419-7111

Town of Nags Head, North Carolina; July 25, 2013: A federal appellate court today ruled against the Town of Nags Head and held that a beachfront cottage owner may sue the town, in federal court, for taking his property without “just compensation” as required by the Fifth Amendment.

In a precedent-setting ruling, the Fourth U.S. Circuit Court of Appeals rejected a “shell game” procedural trick that the city employed as a scheme to derail the lawsuit — a ploy that involved transferring the case from state court (where the property owner first filed it) to federal court, and then arguing that the property owner had no right to proceed in federal court.

The case is Sansotta v. Town of Nags Head. Property owner Roc Sansotta is represented, free of charge, by attorneys with Pacific Legal Foundation, a watchdog organization that litigates nationwide for limited government and property rights.

The lawsuit was triggered by the town’s actions against Sansotta and other beachfront cottage owners following a 2009 storm. The town ordered the cottages to be removed, without compensation, and the land to be turned over for beach recreation. The storm had moved the vegetation line landward of the homes, putting them on a dry sand area, and the town contended that dry sand beaches are subject to a “public trust” easement allowing public beach uses.

Sansotta responded to the town’s land grab — and the novel theory used to justify it — by suing in North Carolina state court. He argued, among other things, that he was the victim of an unconstitutional taking.

The town then resorted to a procedural gimmick. It removed (transferred) the case to a federal court on the basis that it raised federal constitutional questions. Then, the town argued that Sansotta’s takings claim was unripe (or procedurally premature) in the federal court — and had to be dismissed — under a doctrine known as the Williamson County ripeness doctrine. This doctrine generally says that takings plaintiffs must sue and lose in state court before they can have their federal takings claims heard by a federal court.

“The town dragged Mr. Sansotta into a procedural Catch-22 loop,” said PLF Principal Attorney J. David Breemer. “The district court gave its blessing to this ploy, dismissing Sansotta’s takings claim on the ground he should have litigated in state court first — even though he had started in state court. He was only in federal court because the town moved the case there.

“Thankfully, the Fourth Circuit has now rejected this shell game,” Breemer continued. “In a first-of-its-kind opinion, the appellate court held that the town waived its right to argue that Sansotta should have litigated in state court, when the town moved to get the case taken out of state court. In other words, the town can’t have it both ways — it can’t deny property owners their day in court by jerking them from one courthouse to another.

“This decision will inhibit governments from utilizing the Williamson County doctrine as a tool to whipsaw property owners between state and federal courts in order to sidetrack any hearings on the constitutional claims that are being raised.”

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JANUARY 2013

SUPREME COURT REFUSES TO WATER DOWN TAKINGS CLAUSE
Brian T. Hodges, Managing Attorney Pacific Legal Foundation

WASHINGTON, D.C., December 4, 2012: In a major property rights decision, the United States Supreme Court today held that the Takings Clause of the United States Constitution protects against all government invasions of private property, even if the government intrusion is temporary in duration. The decision in Arkansas Game & Fish Commission v. United States reverses a Federal Circuit Court of Appeals opinion that had authorized the government to temporarily flood private property without paying just compensation to the owner.

“The Takings Clause does not come with a stopwatch”

“This decision is an important victory for the rights of all property owners,” said PLF managing attorney Brian T. Hodges, who wrote PLF’s amicus brief in the case. “By expressly rejecting any distinction between temporary and permanent government intrusions on private property, today’s decision closes a dangerous loophole in takings law that could be exploited to allow the government to avoid its obligation to pay just compensation when it takes private property. Simply put, the Takings Clause does not come with a stopwatch. If government commits a taking, including flooding or occupying someone’s land, there is an obligation to pay, period. That obligation doesn’t depend on how long the government uses the property. Imposing arbitrary conditions and limits on the duty to compensate only serves to weaken property rights, and, by extension, all the rights secured by the Constitution.

“Importantly, the Court refuted — in no uncertain terms — the government’s argument that if the Takings Clause is enforced against temporary government intrusions, federal agencies will not be able to carry out their duties,” Hodges said, with reference to this passage from the decision:

The slippery slope argument, we note, is hardly novel or unique to flooding cases. Time and again in Takings Clause cases, the Court has heard the prophecy that recognizing a just compensation claim would unduly impede the government’s ability to act in the public interest. We have rejected this argument when deployed to urge blanket exemptions from the Fifth Amendment’s instruction. While we recognize the importance of the public interests the Government advances in this case, we do not see them as categorically different from the interests at stake in myriad other Takings Clause cases. The sky did not fall after Causby [military overflights effected a taking of neighboring property], and today’s modest decision augurs no deluge of takings liability.

About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation (www.pacificlegal.org) is the leading watchdog organization that litigates for limited government, property rights, and a balanced approach to environmental regulation, in courts across the country.

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AUGUST 2012

ROBERTS HANDS A POISONED CHALICE TO THE PRESIDENT
By Christopher Chantrill, July 2, 2012

What in the world was Chief Justice Roberts trying to do by voting with the liberals on ObamaCare? Conservative opinion is all over the map, but conservative talk show hosts were clear, as I drove south from liberal Seattle to liberal Ashland, Oregon, on June 28, 2012, that the ball was in the voters' court.

Whatever you think of Roberts' decision, his message was unequivocal. If you don't like ObamaCare then you'd better vote it down in November. In this he gives conservatives real clarity.

If the Supreme Court conservatives had voted down ObamaCare by a vote of 5 to 4 the liberals would not have accepted it, any more than the pro-life movement accepts Roe v. Wade. There was only one way in 2012 to make a Supreme Court decision to invalidate ObamaCare stick, and that would have been for Justice Kagan to join the conservative majority in a 6-3 decision. Why Kagan? Look at the other three liberals: Ginsburg was a liberal ACLU lawyer; Breyer was a Kennedy staffer; Sotomayor an affirmative action pick -- liberal hacks every one. But Elena Kagan was dean of Harvard Law School and Solicitor General; she is the liberal educated elite. Her vote to overturn would have been an admission from the educated establishment that ObamaCare was unjust and wrong.

Good luck with that. So the only way to make liberals accept a repeal of ObamaCare is by the brute force of political power, the mandate of the voters expressed at the ballot box, just as Chief Justice wrote in the majority decision.

Chief Justice Roberts did his level best "nudge" the voters. First of all, he ruled that ObamaCare is constitutional because it is really a tax. This means that Mitt Romney and a dozen SuperPACs can tell the voters that President Obama has raised taxes on the middle class. Secondly, Roberts ruled that the federal government cannot penalize states that don't accept expanded Medicaid.

These two poison pills hand the president a poisoned chalice. "Tell it like it is," Howard Cosell used to say: a tax is a tax. Forget using Medicaid as a bludgeon to force the states to enroll the near poor.

The central weakness of ObamaCare is the same as the HillaryCare of 18 years ago. It does nothing for the middle class. The middle class already has health insurance. The Obamis tried to surround this truth with a bodyguard of lies about everyone being able to keep their present health insurance and with the canard that a penalty is not a tax. Now Chief Justice Roberts has insisted on telling the American people the truth.

If Americans vote against President Obama in November it will be the third election that liberals have lost on the health care issue. Perhaps liberals will finally get the point.

It is, of course, grossly unfair that the liberals can create unjust law with the help of the Supreme Court but conservatives can't use it to repeal injustice. But life is unfair. Liberals get to use the Supreme Court as their pet pony because they are the educated elite and the aristocratic branch of government is naturally the branch of the educated elite. Conservatives merely add up to a sub-culture allied with movements of resistance on abortion, guns, and taxes.

The generation-long conservative strategy for turning the Supreme Court from a liberal rubber stamp into a bench with respect for the Constitution as written is a good one. But it cannot make liberals abandon their program of political domination and what James C. Scott in Seeing Like a State calls "internal colonialism," the domestic liberal equivalent of the old imperialist program of using raw power to bring the benefits of civilization to the backward natives whether they like it or not.

This means that Chief Justice Roberts is right. There is no short cut to reforming the welfare state and ending its reign of injustice and oppression. It must be accomplished through the expression of the American popular will.

Ultimately conservatives must still persuade the liberal educated elite that their once noble program has turned into a cesspit of injustice and cruelty that visits its harshest cruelties on the people it is supposed to help, the folks in Charles Murray's underclass Fishtown, the single mothers on welfare and the men that have dropped out of the work force. But intelligent people don't abandon their closed system on their own. They will only be persuaded by the ruin of their hopes and the destruction of their power. That is what elections are for.

Today conservatives are disappointed. The Supreme Court failed to wave a magic wand over ObamaCare and make it disappear in a pinch of fairy dust. But it gave us a bracing dose of reality and did us the favor of handing President Obama a poisoned chalice to drink from. Tomorrow conservatives must return to the fight.

Page Printed from: http://www.americanthinker.com/articles/../2012/07/roberts_hands_a_poisoned_chalice_to_the_president.html

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AUGUST 2011

HIGH COURT AGREES TO DECIDE:
CAN EPA TAKE OVER PROPERTY WITHOUT JUDICIAL REVIEW?
By Pacific Legal Foundation, June 28, 2011

When the U.S. Environmental Protection Agency asserts control over private property, claiming it is “wetlands,” does the owner have the right to meaningful judicial review?  This is the question in Sackett v. U.S. Environmental Protection Agency, a property-rights case accepted today by the United States Supreme Court.

“The decision to take the case and review an anti-property rights ruling by the Ninth Circuit should be encouraging for all property owners, all across the country,” said Damien Schiff, senior staff attorney with Pacific Legal Foundation.  Donor-supported PLF is the leading watchdog organization that litigates for limited government, property rights, and a balanced approach to environmental regulations nationwide.  Schiff is the lead counsel for the property owners in this litigation, Mike and Chantell Sackett of Priest Lake, Idaho.

"We’re standing up for everyone’s right to go to court when the government hands you a raw deal — or takes over your hard-earned property. Thank goodness PLF has been helping us, and now PLF will be making our case in the nation’s highest court."

The Sacketts were blindsided several years ago when EPA suddenly told them that it considers their small parcel in a residentially zoned neighborhood at Priest Lake to be “wetlands,” and that the federal government — not the Sacketts — controls the property.

The Sacketts sought court review of EPA’s determination.  But the Ninth Circuit Court of Appeals held that they must first apply for a wetlands development permit — a long and probably fruitless process, the cost of which ($200,000 or more) would exceed the value of their property!

“With this case, the Supreme Court confronts important issues for property rights and due process,” said Damien Schiff.  “When government seizes control of your land, and you disagree with the justification, shouldn’t you be allowed your day in court?  Just as important, should EPA be a law unto itself, without meaningful accountability to the courts and the Constitution?”

Schiff authored the petition for certiorari that the U.S. Supreme Court granted today.

The Sacketts’ dream:  to build a house in a residential neighborhood

The Sacketts’ parcel is in a residentially zoned area, surrounded by houses, and their dream was to build a house of their own.  But in 2007, the EPA swooped in with a “compliance order” delivered without any warning or hearings.  The agency announced that the land was “wetlands” and under federal control.

The Sacketts deny that their property is wetlands and that the EPA has any authority over it.  For instance, there is no standing water on the property or any continuously flowing water connection between their land and Priest Lake.  They want to take this case directly to a court, seeking judicial review of EPA’s claim of jurisdiction over their property.

PLF attorney:  feds are imposing “a $200,000 price tag on justice”

“The Ninth Circuit’s ruling against the Sacketts amounted to putting a $200,000 price tag on their right to pursue justice,” said Damien Schiff.  “If they can’t get judicial review of the EPA’s land grab without going through a long, costly, and probably futile permitting process, then for all intents and purposes, they have been denied their day in court.

“Charging property owners a sky-high admissions fee to get into court isn’t just wrong, it’s flat-out unconstitutional.”

“We’re very encouraged that the Supreme Court has recognized how important our case is,” said Mike Sackett.  “We are standing up against an agency that seems to have unlimited resources and few if any limits on what it can do to property owners.  We’re standing up for everyone’s right to go to court when the government hands you a raw deal — or takes over your hard-earned property.  Thank goodness PLF has been helping us, and now PLF will be making our case in the nation’s highest court.”

Reprinted from Pacific Legal Foundation, http://www.pacificlegal.org

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APRIL 2011

IDAHO COUPLE APPEALS TO US SUPREME COURT
 IN FIGHT AGAINST EPA LAND GRAB

Contact: Damien M. Schiff, Attorney -- Pacific Legal Foundation -- dms@pacificlegal.org (916) 419-7111

Washington, D.C.; February 24, 2011: The U.S. Environmental Protection Agency blindsided Chantelle and Michael Sackett, of Priest Lake, ID, several years ago when it suddenly told them it considers their small parcel to be “wetlands,” and that the federal government – not the Sacketts – controls the property.

The agency also told them they’d have to remove the gravel they’d put down in preparation for building a house, and restore the land to EPA’s liking – or they’d face thousands of dollars per day in fines!

Today, the Sacketts formally petitioned the U.S. Supreme Court to take their case and rule that they have the right to challenge the EPA’s power play in court.
Thank goodness PLF is helping us fight for this principle, all the way to the U.S. Supreme Court.
In their petition for certiorari to the high court, the Sacketts are represented by attorneys with donor-supported Pacific Legal Foundation, the nation’s leading legal watchdog organization that litigates for property rights and a balanced approach to environmental regulations. Because of the support of PLF’s thousands of contributors nationwide, the foundation never charges for its legal services, so PLF attorneys represent the Sacketts pro bono.

“The issue in this case is simple, but critically important to all property owners, and everyone who values fair play and due process,” said PLF attorney Damien Schiff. “When bureaucrats try to impose their will on private property, shouldn’t the owners be permitted their day in court, to challenge the government’s claim of control?”

The Sacketts’ dream: to build a house in a residential neighborhood

The Sacketts’ parcel is in a residentially zoned area, surrounded by houses, and their dream was to build a house of their own. But in 2007, the EPA swooped in with a “compliance order” sent without any warning or hearings. The agency announced that the land was “wetlands” and under federal control.

The Sacketts deny that their property is wetlands and that the EPA has any authority over it. For instance, there is no standing water on the property or any continuously flowing water connection between their land and Priest Lake. They want to make this case directly to a court, seeking judicial review of EPA’s claim of jurisdiction over their property.

PLF attorney: feds are imposing “a $200,000 price tag on justice”

But the Sacketts are being denied their day in court. The Ninth Circuit has ruled that the Sacketts can’t get judicial review of the EPA’s assertion of power over them unless they first go through the long and expensive – and likely futile – process of formally applying for a federal wetlands permit. That process could take years and cost $200,000 or more – more than the value of the Sacketts’ property!

Damien M. Schiff -- PLF Attorney

“The Sacketts are being hit with an unconscionable price tag for the right to challenge the feds’ power play,” said Damien Schiff. “Basic principles of due process say that the Sacketts deserve their day in court, to argue for their property rights. As we’re arguing to the U.S. Supreme Court, putting an exorbitant price tag on the pursuit of justice, and the defense of property rights, is flat-out unconstitutional.”

“We’re very grateful that PLF attorneys are defending our rights,” said Mike Sackett. “The government can’t get away with making unjust demands, with no judicial review. Thank goodness PLF is helping us fight for this principle, all the way to the U.S. Supreme Court.”

Reprinted by permission from Pacific Legal Foundation, www.pacificlegal.org

About Pacific Legal Foundation -- Donor-supported Pacific Legal Foundation is the leading legal watchdog organization that litigates, pro bono, for limited government, property rights, and a balanced approach to environmental regulations, in courts across the country. A brief video about PLF’s history and mission, including comments by former U.S. Attorney General Edwin J. Meese III, may be viewed at: http://www.youtube.com/watch?v=HnBSlRQwxKU.

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MARCH 2011

FED JUDGE: NOW THE COMMERCE CLAUSE COVERS 'MENTAL ACTIVITY'
Thomas Lifson, February 23, 2011

According to federal Judge Gladys Kessler of the DC US District Court, the powers granted to the federal government on the Commerce Clause extend to regulating "mental activity." Ruling on an ObamaCare challenge brought by 2 individuals, the good Judge made the leap from "physical activity" to "mental activity" in extending the reach of the federal government. This is not a joke. Read the 64 page decision here. According to Judge Kessler:

As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress's power...However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not "acting," especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.

Philip Klein of The American Spectator writes:

The ruling by the Clinton appointee, U.S. District Court Judge Gladys Kessler of the District of Columbia continues the pattern of Democratic-appointed judges siding with the Obama administration and Republican judges siding with the plaintiffs in ruling the mandate unconstitutional. Kessler's ruling comes in a case brought by individual plaintiffs, where as the two decisions striking down the mandate have come in cases brought by 27 states, based in Virginia and Florida.

I look forward to liberals trying to defend the notion that feds have the right to regulate mental activity. As the political fires have intensified, more and more liberals are letting the slip the full extent of their ambitions for power.

Page reprinted with permission from the American Thinker: http://www.americanthinker.com/blog/2011/02/fed_judge_now_the_commerce_cla.html

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FEBRUARY 2011

STATE SUPREME COURT REAFFIRMS PROPERTY RIGHTS OF LAKEFRONT OWNERS
By Russ Harding, 1/4/2011

The Michigan Supreme Court gave all private property owners in the state a belated Christmas gift with a ruling handed down on Dec. 29, 2010, that reaffirms that landowners in Michigan still have private property rights. Voting 4-3, the Michigan Supreme Court reversed the 2000 Baum Family Trust v. Babel appellate court decision regarding riparian property rights along Lake Charlevoix. Justices Markman, Kelly, Corrigan and Young voted with the majority, while Justices Davis, Cavanagh and Hathaway dissented.

At issue in the case was whether owners of property fronting a lake but separated from the water by a public road have riparian rights to a portion of the lake. The lower courts had ruled that property owners with land fronting Lake Charlevoix did not posses riparian rights due to a platted road running parallel to the lake. The Michigan Supreme Court disagreed and reversed the decision of the lower courts.

Most people understand that secure private property rights are essential to their liberty as U.S. and Michigan citizens. It is less commonly understood that the protection of private property rights is essential to the economic rejuvenation of Michigan’s economy and the creation of jobs. Without the legal assurance of secure private property rights, it is difficult to attract private capital investment in the state — which is essential for job creation. The recent Michigan Supreme Court decision affirming the private property rights of Charlevoix lake front property owners is an important step in the right direction.

Permission to reprint this blog post in whole or in part is hereby granted, provided that the author (or authors) and the Mackinac Center for Public Policy are properly cited. http://www.mackinac.org

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NOVEMBER 2010

GOVERNMENT APPEALS HAGE CASE
Liberty Matters, October 7, 2010

After 18 years in one court, Hage v. United States officially moves to the next level at the U.S. Court of Appeals after the U.S. Department of Justice filed its appeal on October 1, 2010.

“The government had too much at stake to let the Court of Claims decision stand,” said Margaret Hage Byfield, daughter of Wayne and Jean Hage and executive director of American Stewards of Liberty.

No briefing schedule has been issued, but hopefully, the case will be heard and decided in a much more expedited fashion and no matter the decision, Hage will probably end up at the U.S. Supreme Court.

Since this has been appealed to the Federal Circuit in Washington, D.C., whatever decision is made will have binding precedent throughout the U.S., unless and until it is appealed to the Supreme Court.

Wayne and Jean Hage, both deceased, filed the landmark Fifth Amendment takings case on September 26, 1991, and obtained a final decision nearly 19 years later on August 2, 2010. The case achieved remarkable precedents for all landowners and is one of the most important Fifth Amendment victories for private property in the past two decades explaining why the government felt they had to appeal.

The Hage case not only achieved a monetary award for the taking of the Hage Pine Creek Ranch, but it received an unprecedented award for attorney’s fees as well. Judge Loren Smith’s decision said Hage owned; (1) the rights-of-way and 50 feet on each side of the ditches on the federal lands, (2) the range improvements on the federal lands and (3) the water that flows from the federal lands onto the private fee land.

Unfortunately, the Hage family may be in the court system for another two to five years.

Reprinted by permission from American Stewards of Liberty, Copyright 2010 https://americanstewards.us/news-publications/archive/liberty-matters

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SEPTEMBER 2008

 BULLETIN! JUDGES SHOULDN'T ACT AS SCIENTISTS

An astonishing ruling has come from the oft-overturned 9th Circuit Court of Appeals, in which the 11-judge panel unanimously decided that judges must not act as scientists when considering U. S. Forest Service timber projects. The Court also made it clear that all aspects of the “public interest” including local economy must be included in the Forest Service’s evaluation of timber projects.

District Judge Edward Lodge had earlier refused to halt a Forest Service logging project designed to improve forest health, improve recreation opportunities, and provide jobs in local communities in the Idaho Panhandle. He was reversed by a 3-judge panel, but, was then affirmed by the full Court, sitting en banc, in Lands Council v. U.S. Forest Service. (7/2/08)

The Court established a 9th Circuit rule that judges will not substitute their scientific views for the expertise of the Service: “we are not free to ‘impose on the agency [our] notion of which procedures are ‘best’ or most likely to further some vague, undefined public good.” The Court, “as non-scientists” held that “the Forest Service must support its conclusions…with studies that the agency, in its expertise, deems reliable” and that it would reverse the Service only “when the record plainly demonstrates that the Forest Service made a clear error in judgment in concluding that a project meets the requirements of the [National Forest Management Act].”

In affirming Judge Lodge’s refusal to stop the project, the Court put teeth into the NEPA requirement that economic impact is important in any project assessment. Intervening local governments proved that prevention of the project would cause lay-offs of timber workers, and other “indirect harm to the struggling local economy.” Relying on their position, the Court stated that in considering the “public interest” the judge must take into account not only environmental resource preservation but also prevention of “catastrophic fire, insect infestation and disease” and aiding “the struggling local economy and preventing job loss.”

Reprinted by permission from the July 17, 2008 edition of Liberty Matters News Service www.libertymatters.org.

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MAY 2008

ARE ILLEGAL ALIENS ENTITLED TO FREE EDUCATION?

In a piece featured on Townhall.com on April 1, 2008, William Perry Pendley, President and Chief Legal Officer at Mountain States Legal Foundation, reviewed the 1982 Supreme Court decision which is said to guarantee children who are in the US illegally the right to a public education and that schools cannot inquire into their immigration status.

The case was Plyer v Doe, 457 US 202 (1982). It held only that illegal aliens are “persons” under the Equal Protection Clause and that states must have a basis that passes “intermediate scrutiny” to deny them free primary education. The Court held that a new Texas law did not meet that test.
The case does not apply to secondary and post-secondary education, did not hold that public education is a right, did not confer legal status on illegal alien children, does not prevent an illegal alien from being arrested and deported, and does not prevent a school from inquiring as to the legal status of and reporting illegal aliens. Plyer does not prohibit a state from denying primary education to illegal aliens, only that to do so, it must have a better reason that Texas did in 1982.

The 5 liberal judges who were in the majority at the time, admitted that free school was not a right, but that it was a special benefit and that Texas had not shown its law “had a substantial relationship to a substantial state interest” when it voted to deny them free education. They noted that there were only 3 million illegal aliens in the US, that Congress might declare them to be citizens, they would never leave, so citizens should pay to help them improve themselves, that citizens are “callous” toward illegal aliens so courts must protect them from “neglect,” and the cost of paying for their education is not as important as the psychological toll on them of not having a free education.

Penley noted that the 4 conservative judges in the minority responded with a vigorous dissent. “In an effort to become an omnipotent [problem solver,] . . . the court distorts our constitutional function;” “the importance of a governmental service does not elevate it to the status of a fundamental right;” “assum[ption of] a legislative role [is] one for which the court lacks both the authority and competence;” “[i]llegal aliens have no right whatever to be here, and the state may reasonably, and constitutionally, elect not to provide them with government services at the expense of those who are lawfully in the state;” “the constitution does not provide a cure for every social ill, nor does it vest judges with a mandate to try to remedy every social problem.”

Since the “facts” the majority relied upon to justify this decision are clearly different from the situation today, this case cannot be relied upon to support free education for illegal aliens.

However, when you consider the expense and damage this case has done over the years and the costs imposed by 5 “do-gooders” who usurped legislative powers, consider carefully the November elections both at the State and federal level. The choice of judges is very important to everyone.

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JANUARY 2008

FREE SPEECH FORBIDDEN IN MISSOURI

The City of St. Louis seems to have lost its copy of the Constitution, that musty old document that contains the Bill of Rights. Why else would it attempt to force Jim Roos to remove his mural that criticizes the City's abuse of eminent domain?

Jim Roos owns and manages affordable housing through Neighborhood Enterprises, Inc. and the non-profit Sanctuary in the Ordinary, but St. Louis keeps seizing his properties to make way for more profitable [for the City] private enterprises. This latest snatcheroo is the third time and Roos is fed up.

When the Land Clearing for Redevelopment Authority (LCRA) began acquiring property in the Bohemian Hill neighborhood, Roos had a large mural painted on one of his buildings. It said: "End Eminent Domain Abuse." It had a great big red circle around the words with the red line going through the middle. That didn't sit well with city authorities and Roos was ordered to apply for a sign permit, which the city denied and claimed it must be removed because it violated local "sign codes."

"Jim's mural is a powerful, unique and low-cost protest to the city of St. Louis," said Nick Dranias, staff attorney for the Minnesota Chapter of the Institute of Justice (IJ). "The mural speaks volumes about peoples' anger over eminent domain abuse," said Roos. "People are delighted that someone has stood up to the abuse."

Mr. Roos helped found the Missouri Eminent Domain Abuse Coalition that is gathering signatures to place a constitutional amendment on the ballot to protect property owners. Roos and attorney John Randall took their fight to state court in August and the case was moved to federal court. On November 14, 2007, the Institute of Justice filed an amended complaint with the U.S. District Court for the Eastern District of Missouri in Neighborhood Enterprises, Inc. v. City of St. Louis.

"If the First Amendment means anything, it must mean that citizens like Jim Roos have the right to effectively protest government abuse and build support for meaningful reform - without having to get government approval," said Bill Maurer, executive director of the IJ Washington Chapter.

Reprinted by permission from Liberty Matters News Service, Dec. 5, 2007 edition.  www.libertymatters.org

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APRIL 2007

IDAHO RANCHERS WIN BIG FOR WESTERN WATER RIGHTS

The Idaho Supreme Court has ruled ranchers who have grazed their livestock on federal lands before the 1934 Taylor Grazing Act hold instream water rights.

The Idaho Supreme Court decision in Joyce Livestock Co. vs. United States of America also decides the LU Ranching Company water rights case filed by the Bill and Tim Lowry families. The court ruled that the ranchers had grazed the lands beginning in 1898. "Joyce Livestock's predecessors obtained water rights on federal land for stock watering simply by applying the water to a beneficial use through watering their livestock in the springs, creeks, and rivers on the range they used for forage," the Court said.

The Supreme Court even went further and denied the United States' claims that it owned the water based upon its ownership and management of the federal lands. It held that they did not prove beneficial use under the constitutional method of appropriation. The Court threw out the lower court's ruling that the earliest priority date Joyce Livestock could establish for water rights was April 26, 1935, remanding that portion of the case for "a re-determination of the priority dates of such rights," with guidelines of how this would be decided. Unfortunately, however, the court denied the rancher's attorney's fees, saying the United States "did not act frivolously, unreasonably, or without foundation in asserting its water rights claim."

Reprinted by permission from the Feb. 26, 2007, edition of Liberty Matters News Service.  www.libertymatters.org

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JANUARY 2006

SUPREME COURT AGREES TO HEAR RAPANOS CASE

The U.S. Supreme Court has agreed to hear the case of John Rapanos, the Michigan man who has been persecuted by the federal government for twenty years for dumping sand onto his property without the government's permission. The government claimed Rapanos' 176 acres was a wetland and that the fill could harm "waters of the U. S. even though the property is located twenty miles from the nearest navigable water, Saginaw Bay.

The government successfully prosecuted Rapanos who was sentenced to 200 hours of community service, three years probation and fined $185,000. The feds then accused Rapanos of violating the Clean Water Act using the "migratory molecule" rule, which says that even isolated wetlands fall under federal jurisdiction because there is a theoretical chance that a water molecule from any location may reach a navigable waterway. Rapanos lost again, with the government demanding a fine of $13 million, forfeiture of 80 acres and federal prison time.

Rapanos appealed to the Supreme Court, but was turned down. The Court has since had a change of heart and will hear the case early next year. "The [Rapanos] case," says a Grand Rapids Press story, "should turn on the language of the Constitution, the limits on federal powers provided there and the founders' efforts to respect private property."

Reprinted by permission from the Dec. 7, 2005 edition of Liberty Matters News Service www.libertymatters.org

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SEPTEMBER 2005

TURNABOUT

On August 9, 2005, Tech Central Station reported that the Competitive Enterprise Institute (CEI), a Washington think tank advocating free markets and limited government, filed a constitutional challenge to the 1998 Master Settlement Agreement (MSA, otherwise known as the Tobacco Settlement.)  The suit alleges that the agreement between 46 states and the four major tobacco companies is unconstitutional because it violates the Compact Clause of the Constitution: "No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State." (Article I, Section 10)

Under the terms of the MSA, the major tobacco companies would make annual payment to the state in perpetuity, with an estimated cost of $200-250 billion over 25 years.  Anybody else that wanted to sell cigarettes -- even a new company that had not sold any cigarettes or been sued, would be forced either to pay "damages for others' past wrongs" or set aside an even larger amount as a sort of collateral against torts that have yet to be committed/invented.  Not surprisingly, the small competitors -- about 50 so far -- have "agreed" to pay into the extortion scheme.

Thus, Big Tobacco showers the states with money in exchange for protection from competition, paid for by retailers, distributors, small manufacturers and smokers.

CEI filed the suit in federal court in Shreveport, Louisiana, on behalf of a distributor, two small manufacturers, a tobacco store, and an individual smoker against Louisiana's attorney general.  Its complaint begins with the allegation that the major tobacco companies and the states "became business partners in establishing one of the most effective and destructive cartels in the history of the Nation."  It concludes that the MSA violated the Compact Clause, which was meant to prevent states from stepping on federal power or bullying other states.  In effect, this is an "antitrust" suit against the public acts of states (as opposed to conventional antitrust actions against private entities.)

By restricting competition and increasing cigarette prices, the states bestowed upon Big Tobacco a sweetheart deal that "transformed the States from adversaries into business partners."  This allowed the four companies to maintain their market share and increase profits to the point where they are better off than before making the payments, while the courts and Congress were cut out of the deal.

The complaint alleges other violations of the constitution and laws, as well.

In short, said CEI President Fred L. Smith, Jr., "[T]he tobacco settlement was a major government power grab at the expense of taxpayers and the rule of law."

Ilya Shapiro, the author of the article notes: "Only time will tell whether CEI's suit gains any headway, and indeed, begins a wave of public interest lawsuits that actually serve the public interest."

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OCTOBER 2004

UPDATE ON A NATIONAL SHAME

For 16 years, John Rapanos from Michigan has been fighting the federal government over their claim that he filled a wetland on his property. Only problem is, there never was a wetland on his 200 acre field because the county government dug drainage ditches around the plot in 1904. At Rapanos' second sentencing, Federal District Court Judge Lawrence P. Zatkoff balked at carrying out the government's vendetta and sentenced him to 200 hours community service, three years probation and a $185,000 fine. But the Justice Department is still not satisfied demanding Judge Zatkoff sentence him to at least 10 months in prison. To make matters worse, the government wants civil damages to the tune of $10 million in fines, forfeiture of 81 acres of land and $3 million in mitigation fees to restore wetlands that never existed. Rapanos' scheduled August 18 sentencing trial has been postponed, according to Greg Broderick, attorney with the Pacific Legal Foundation because Judge Zatkoff wants to wait on a ruling in a federal sentencing guidelines case (Booker) to be heard by the U. S. Supreme Court in October. Hopefully, the Supreme Court ruling will favorably impact Mr. Rapanos's situation. If not, this will remain a national disgrace.
Reprinted by permission from the August 25, 2004 edition of Liberty Matters News Service.  www.libertymatters.org 

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SEPTEMBER 2003

WHY THE JUDGES MATTER

All cases decided in the federal courts in Michigan are sent to Cincinnati, Ohio for appeal.  There, the 6th Circuit Court of Appeals is allocated 16 appellate judges.  Right now, that court is 25% short.  The four judges nominated to fill those seats are being blocked by Senators Carl Levin and Debbie Stabenow.  They do not have any stated objections to the qualification of the judges, they simply want the President to fill two of those positions with choices which were made by President Clinton.

That court is overwhelmingly dominated by liberal activist judges.  The result of that bias shows up in a recent ruling by the 6th Circuit in the case of United States of America v. John A. Rapanos, No. 02-1377 decided August 5, 2003.

John Rapanos, a Midland resident, was convicted in a criminal prosecution for unlawfully filling wetlands in Bay County in violation of the Clean Water Act.  He was sentenced to thee years of probation and fined $185,000.  After conviction, two appeals, and a grant of certiorari (meaning the US Supreme Court agreed to look at the case), the Supreme Court sent the case back for the Court of Appeals to consider in light of the case Solid Waste Agency of North Cook County v Army Corps of Engineers, 531 US 1159 (2001).

That case held that the Corps of Engineers did not have jurisdiction over the abandoned quarry in question because the Congress has jurisdiction only over navigable waters and adjacent wetlands.  Since the quarry did not have any connection to navigable waters and was not adjacent to them, the Corps of Engineers did not have jurisdiction.

The Court of Appeals sent the Rapanos case back to the District Court.  There, Judge Lawrence P. Zatkoff, looked at the fact that the 175 acre plot of land was between 11 and 20 miles from the nearest navigable waters. He, therefore, set aside Mr. Rapanos' convictions and dismissed the case, finding that Solid Waste had changed the scope of federal jurisdiction under the Clean Water Act.  Because the wetlands on Rapanos' property were not "directly adjacent to navigable waters," the government could not regulate them.  The United States appealed this decision.

The judges of the 6th Circuit reversed Judge Zatkoff and reinstated the conviction and sent the case back for resentencing.

The reasoning adopted by the 6th Circuit said that since the property was connected to a drain which flows into Hoppler Creek, which, in turn, flows into the Kawkawlin River, which is navigable.  The Kawkawlin eventually flows into Saginaw Bay and Lake Huron.

The Court of Appeals adopted this reasoning:

In Riverside Bayview [another case dealing with the jurisdiction of the Corps under the Clean Water Act] the Supreme Court concluded that the Corps regulation extending jurisdiction to adjacent wetlands was a reasonable interpretation in part because of what [Solid Waste] described as "the significant nexus between the wetlands and 'navigable waters.'"  There is also a nexus between a navigable waterway and its nonnavigable tributaries. . . .  This nexus, in light of the 'breadth of congressional concern for protection of water quality and aquatic ecosystems," is sufficient to allow the Corps to determine reasonable that its jurisdiction  over the whole tributary system of any navigable waterway is warranted.  The regulation, as the Corps reads it, reflects a reasonable interpretation of the Clean Water Act.  The Act thus reaches to the roadside ditch and its adjacent wetlands.

Under this interpretation, the word "adjacent" means nothing and the Corps of Engineers has jurisdiction of every piece of land in the United States -- except landlocked quarries with no inlets or outlets.

If this interpretation stands, its time to take another look at the Clean Water Act.

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AUGUST 2003

LEVIN AND STABENOW STOP JUDGES

In a press release dated July 8, 2003, The Committee for Justice (CFJ), which supports constitutionalist judicial nominees, blasted Michigan Senators Carl Levin and Debbie Stabenow for their abuse of the "blue slip" process to block all four of President Bush's nominees from Michigan for appointment to the 6th Circuit Court of Appeals.  

This Court which serves Michigan, Tennessee, Kentucky and Ohio, has 16 authorized positions -- 25% of which (4) are vacant.  All four of the vacancies have been designated "judicial emergency" by the non-partisan Administrative Office of the US Courts.  CFJ Chairman, C. Boyden Gray, accused Sen. Levin of "going to the mattresses" on Michigan nominees in a bold attempt to blackmail the President into appointing his cousin-in-law to the federal bench.

The Washington Times reported on July 15, 2003 that the Senate Judiciary Committee is preparing to hold hearings for the four judges.

Mr. Levin and Mrs. Stabenow have made no secret that their objections have nothing to do with the individual nominees, but rather with the way previous Clinton nominees were treated.  Late in President Clinton's term, Michigan Court of Appeals Judge Helene White and lawyer Kathleen McCree Lewis were blocked for confirmation.  Levin and Stabenow want them renominated by President Bush.

Republican judiciary staffers say the senators are using their blue slips in this case as ransom notes.  "The blue slip has always been about adequate consultation with home-state senators prior to the nomination," said one senior committee staffer.  "Blue slips have never given individual senators absolute veto power."

The Republicans tried to go around the committee by calling them directly to the floor of the senate for a vote.  Democrats were outraged and attacked Republicans for trying to confirm judges without holding hearings.  

"So" said one Republican staffer, "we decided to give them just what they asked for."

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SEPTEMBER 2001

RAILS TO TRAILS PAYS

On May 23, 2001, Liberty Matters reported on the trial in the case of Preseault v United States.  In a case that lasted almost twenty years, a federal judge ruled in May that the government must pay a couple in Burlington, Vermont, $234,000 plus 15 years worth of interest for a strip of land less than 500 feet long that was taken to form part of the Burlington Bicycle Trail.  The interest from 1986 could double the size of the court's award.  The order also permits the Preseaults to apply for recovery of their attorney fees and expenses.

The trail on this land brought the case to the United States Supreme Court which held that the federal "rails-to-trails" legislation does not violate the Constitution, but may require compensation to be paid to landowners under the Fifth Amendment.  The Court of Appeals for the Federal Circuit later determined the Presaults owned land that was taken for the Burlington Trail and must be paid.

In the first damage award against the United States for property converted from rails to trails, the easement for public use was limited to an 8-foot paved bicycle path plus 2-foot shoulders.  The government originally sought between 80 and 150 feet, which Burlington claimed to have obtained under a lease from the railroad.  The City will have access to as much as fifty feet beside the trail, but only for the purpose of access for maintenance, according to the order of the court.

Nels Ackerson, the Preseaults' lead attorney, explained that the decision will benefit other landowners across the nation who have similar claims.  "This is a benchmark decision," he said.  "The largest part of the damages occurred because the trail limited access and reduced the ability to enjoy, use, or develop the rest of the Preseaults' land.   The same type of severance damage has been suffered by many other landowners across the country.  Farmers, ranchers, and commercial landowners, as well as homeowners now have a precedent to be compensated by the federal government in the same way if a trail has taken part of their property."

The Ackerson Group is a Washington, DC law firm that represents hundreds of landowners in "takings" claims against the United States.

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AUGUST 2001

PRIVATE PROPERTY RIGHTS RISE

Recently, courts have decided cases which seem to be recognizing private property rights in a more favorable light.

Starting with the Michigan Supreme Court, a unanimous court (Markman not participating) held, in the case of Tolksdorf v Griffith, 464 Mich 1 (2001), that the Opening of Private Roads and Temporary Highways Act, MCL 229.1 et seq. was unconstitutional.  This act allowed a private property owner to petition a township supervisor to open a private road across another landowner's property.  A jury of property  owners determined whether the road was necessary, and, if granted, set the amount the petitioner had to pay the other landowner.  The Supreme Court, in a decision written by Justice Kelly, found that since the provision authorized the taking of land for a private, not public, purpose it violated the Michigan Constitution of 1963.

Palazzolo v Rhode Island, decided by the United States Supreme Court on June 28, 2001, involved a piece of waterfront property in Rhode Island.  Palazzolo and others formed a corporation to buy and develop the 20-some acres in 1959.  Because the property was a salt marsh, it needed to be filled to develop it.  From 1959 to 1966, several applications for development were made, all of which were denied by various governmental agencies.  In 1971, the State created the Rhode Island Coastal Resources Management Council to protect the State's coastal properties.  In 1978, the corporation was dissolved by operation of law and Palazolla, the sole remaining shareholder, became the owner of the property.  

In 1985, Palazzolo submitted another development plan which involved filling 11 of the 18 wetland acres to build a private beach club.  The Council denied this application saying that the plan did not meet the "special exception" for filling a salt marsh -- the purpose for the activity proposed would have to serve a compelling public purpose.

Palazzolo then sued the State of Rhode Island saying that he was entitled to be compensated for the taking of his property under the Constitution.  The Rhode Island trial court ruled against Palazzolo and was upheld by the Rhode Island Supreme Court, saying that Palazzolo could not sue yet because there might be a development plan the Council would approve, that he could not challenge any regulations before the time he first owned the property, that he couldn't claim the total loss of his property because everyone agreed there was an upland area which had $200,000 in development value, and that since the regulation came into existence before he (not the corporation) owned the property he had no reasonable expectation that he could develop the property.

The US Supreme Court reversed the Rhode Island Court, in essence, allowing Palazzolo to proceed in his claim saying that he did not have to continue ad infinitum in submitting plans that would not be approved, was not barred because the regulations were adopted after he took title in his own name, was not barred from bring his claim because some of the land could be developed (even though most of it could not be) and should not be barred from recovery under the theory that he could have no reasonable expectation of economic development because the regulations were adopted before he took the property.

While the case will go back to the trial court for review of Palazzolo's claims, he is still not guaranteed recovery.  He will, however, have a chance to make his claim.

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JUNE 2001

COURT REPORT ON GUN CASES

Lower courts have been making decisions which impact gun litigation.  

A Jan. 4, 2001 article in Front Page Magazine reported on the dismissals on lawsuits against the firearms industry in December 2000.  Federal court judges in New Jersey and Pennsylvania dismissed actions by Camden County and the city of Philadelphia.  This follows the dismissal of an action by Cincinnati, Ohio against the industry which was upheld on appeal.  

On May 1, 2001, the Associated Press reported that the state Supreme Court of Louisiana reaffirmed its earlier certification of a 1999 state law which barred Louisiana cities from suing handgun manufacturers.

The Legal Intelligencer reported on April 12, 2001 that US District Judge Stewart Dalzell has raised the question of whether two recent decisions of the Supreme Court cast serious doubt on the validity of prior rulings of the high court and the 3rd US Circuit Court of Appeals.  The question raised is whether federal gun laws are valid since they are based on the premise that they involve interstate commerce.  This is known as the "Scarborough" rule.

"Simply phrased, Scarborough's legal fiction is that the transport of a weapon in interstate commerce, however remote in the distant past, give its present intrastate possession sufficient interstate aspect to fall within the ambit of the statute," Dalzell wrote.

"This fiction is indelible and lasts as long as the gun can shoot.  Thus, a felon who has always kept his father's World War II trophy Luger in his bedroom has the weapon 'in' commerce. . . ."

The judge affirmed the possession conviction under the federal statute because any change to the rule must come from the Supreme Court.

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MAY 2001

THE COURTS HAVE BEEN BUSY

The Supreme Court has been handing down some very wide-reaching decisions recently.  

In the case of University of Alabama v. Garrett, 99-1240, the Supreme Court again upheld the 11th Amendment, holding that state workers cannot file employment-discrimination lawsuits against their employers under the federal disability-rights law, USA Today reported on Feb. 21, 2001.  This followed a January decision in which the justices barred state workers from suing their employers in federal court under the federal Age Discrimination in Employment Act.  That case was also decided on 11th Amendment grounds.

Other cases are pending.  The Supreme Court is visiting a North Carolina redistricting case for the fourth time.  The issue before the court is the extent to which race may be used to redraw political boundaries and hence redistribute political power, the Wall Street Journal reported on 2/20/01.  This case is expected to be decided by the time of the summer recess.

The case of Adarand Constructors v. Mineta, 00-730 is again back before the court.  The issue here is the extent to which federal programs may provide preferences to minority-owned businesses.  This case has been before the Court before under a previous program of the Transportation Department.  While the rules were changed after the previous decision, Adarand's lawyers claim the new rules "compel race discrimination," the Associated Press reported on 3/26/01.  The Supreme Court refused to review Fulton County v. Webster, 00-1174 in which the lower courts held that Fulton County could not use racial, ethnic or gender goals in accepting or rejecting contract bids.

The Supreme Court is now considering the case of Palazzolo v. Rhode Island in which the question is whether governments are unconstitutionally "taking" someone's property when they pass regulations that effectively lower its value.  The state of Rhode Island  prevented Palazzolo from developing a pond-side plot of land because it is protected wetlands, for twenty years.  The retired auto wrecker wants to be paid because the property's value is diminished by the regulation.  The Associated Press reported on the case on 2/27/01.  Again, a decision should be forthcoming by the summer recess.

Other cases involving controversial issues which will probably be headed for the Supreme Court in a few years are arising.  In the last general election, the voters in Oregon approved a constitutional amendment known as Measure 7, Newsday.com reported on Jan. 27, 2001.  The measure says that if the state or a local government passes or enforces a regulation that restricts the use of private property, the owner shall be paid for any loss in value.  It does not allow claims for restrictions on pornography, nude dancing, bars and casinos.

However, The Oregonian reported on Feb. 23, 2001, that a Marion County judge held Measure 7 unconstitutional and issued an injunction against its enforcement.  This case will be appealed.  

And, we have a couple of cases in our state which will also head up the chain.   In December of 2000, US District Judge for the Eastern District of Michigan ruled that the University of Michigan could use its points system to give minority candidates a boost in the selection process.  That decision has already been appealed.  But, The Detroit News reported on March 27, 2001, that another Judge of that same court, Bernard Friedman, held that the University of Michigan Law School's use of race as a factor in admissions is unconstitutional.  This case will also be working its way to the US Supreme Court.

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APRIL 2001

ROUGH ROAD FOR SCOUTS

In a recent column in the Bay City Times, United Way of Bay City announced that it was in discussions with the Boy Scouts about their policy barring overt homosexual men from holding leadership positions in their organization, a position which has been allowed by the United States Supreme Court.  United Way says that it continues to fund the local Scouts while the conversation continues but that the Scout policy is in conflict with the United Way policy of non-discrimination.

This action is part of a concerted attack on the Scouts.  The Indianapolis Star reported on Jan. 25, 2001 about the latest in a series of suspicious fires at Boy Scout Camps in the Midwest which have caused $1.7 million in damages.  The first was in February 1999 at Camp Friedlander in southwest Ohio.  This was followed by four fires at Camp Owasippe, a 6,000-acre scout reservation near Muskegon, Michigan, from Sep. 1999 to Sep. 2000.  They typically have been set in the main buildings which typically are the dining halls.  They are being investigated by the Bureau of Alcohol, Tobacco and Firearms.

However, not everyone agrees with the attack on the Scouts.  When the United Way of Greater Duluth decided to cut off funding to the Voyageurs Council of the Boy Scouts of America, it fell 12.1% short of its fund-raising goal, the Duluth News-Tribune reported on Jan. 25, 2001.

Under the First Amendment to the US Constitution, citizens are guaranteed the right to peaceably assemble, and this has been interpreted to mean that you may freely associate with persons of your choice.  This was the basis of the Supreme Court decision.

Fortunately, in America, we still have the right to choose to whether or not we support voluntary organizations with our donations.  However, when activities become "rights" that choice may be lost.

P.S.  On Feb. 16, 2001, the Associated Press reported about a former assistant Boy Scout Leader from Greensburg, Pennsylvania who pleaded guilty to making three boys, ages 12 and 13 strip.  He tied them to a tree and cut the letter "T" into their chests telling them these were secret hazing rituals required for them to join a secret group he founded.  

John T. Levendosky II, 52 had been a 20-year scouting volunteer.  A search of his home turned up pornographic bondage magazines and sadomasochistic paraphernalia.

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FEBRUARY 2001

SUPREME COURT DUMPS ON USACOE

On January 9, 2001, the US Supreme Court decided the case of Solid Waste Agency of Northern Cook County (SWANCC) v United States Army Corps of Engineers (USACOE), et al. (No. 99-1178).

The case arose from a 533-acre gravel quarry which had not been used since about 1960.  The site eventually gave way to a successional stage forest with the excavated trenches evolving into a scattering of permanent and seasonal ponds of varying size and depth.  Municipalities in northern Cook County wanted to purchase the property for a landfill for baled non-toxic waste and obtained the necessary state and local permits.  

SWANCC contacted various federal agencies to determine if a federal landfill permit was necessary.  At first, the USACOE determined it had no jurisdiction over the site because it contained no "wetlands," but changed its mind when the Illinois Nature Preserves Commission informed the USACOE that approximately 121 migratory birds had been observed at the site.  The USACOE then denied the permit.  After losing at the administrative hearing,  trial and appellate court, SWANCC was granted a review by the US Supreme Court.

The Supreme Court, in a 5-4 decision (Justice Renquist, joined by Justices Scalia, Thomas, Kennedy and O'Connor -- dissent by Justice Stevens, joined by Justices Souter, Ginsburg and Breyer) reversed the decision.

The USACOE claimed jurisdiction under the Clean Water Act (CWA) and relied on its own rules to extend its jurisdiction to any waters which are or would be used as habitat for migratory birds, endangered species or are used to irrigate crops sold in interstate commerce, whether or not these waters were "those waters of the United States which are subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate or foreign commerce."  This was the definition used when the CWA was first adopted.

While the Supreme Court noted that there were significant constitutional questions raised in the case, in conformance with its usual practice, the Court did not reach those questions because it could decide the case without doing so.  Instead, the Court found no clear statement from Congress that it intended the CWA to reach an abandoned sand and gravel pit such as was involved in the case.  

The Court stated:

Permitting [the USACOE] to claim federal jurisdiction over ponds and mudflats falling within the "Migratory Bird Rule" would result in a significant impingement of the States' traditional and primary power over land and water use. . . . Rather than expressing a desire to readjust the federal-state balance in this manner, Congress chose to "recognize, preserve, and protect the primary responsibilities and rights of the States . . . to plan the development and use . . . of land and water resources. . . ."

The Court found that the USACOE's application of the "Migratory Bird Rule" to the site exceeded its authority under the CWA and reversed the case, finding that the USACOE had no jurisdiction over the case.

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FEBRUARY 2000

LAWSUIT RUNS AFOWL OF JUDGE

Last fall, Minnesota Humane Society, Friends of Animals and their Environment, and the Humane Society of the United States filed suit against the Director of the US Fish and Wildlife Service over a permit issued by the Service to manage Canada geese in the Twin Cities area of Minnesota.

In the Spring issue of DU Leader, a publication of Ducks Unlimited, US District Judge James Rosenbaum's decision in throwing the case out of court is quoted as follows:

"The plaintiffs' hopes have again taken wing.  In a flight of fancy, they apparently seek an order from which to appeal, in an effort to vindicate an abstract principle of law.  Neither the law, nor this court, should countenance such a wild goose chase.  

"Each year, Minnesota's litigants hatch more than 325 civil cases for each of our seven federal judges.  During that same year, each judge must also accommodate 45 criminal cases, yielding more than 70 defendants, per judge.  In conducting these criminal cases, the Court is egged-on by the rigorous demands of the Speedy Trial Act . . . .  The court notes those facts to emphasize it has real work to do."

After denying the plaintiffs' request for a preliminary injunctions, Judge Rosenbaum continued:

"Meanwhile plaintiffs' counsel wish to put this Humpty Dumpty case together again.  The Court declines to play.  This permit is no spring chicken; while its nominal term extends to December 31, 1998, it is merely an empty shell.  All actions possible under its authority have been taken and concluded.  Its virtues -- or its evils -- have flown as down on the wind.  Lacking a case or controversy, the Court will not further consider this dead duck lawsuit."

Eggsactly.

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JULY 1999

NEW SUPREME COURT RULINGS -- MAY 24, 1999

The case of Monterey v. Del Monte Dunes at Monterey arose from 37 oceanfront acres of land which were purchased for development. The city of Monterey had disallowed development of the land because the area has natural buckwheat plants, the only known habitat of the Smith Blue Butterfly, an endangered species which had never actually been seen on the land. Despite that, several Fish and Wildlife Service agents said the development of the 37 acres would have a devastating effect on that species.

The government did not exercise its right to condemn the property and buy it, but simply refused five different development plans over 5 years. Finally, the landowner sued the City in federal court arguing that the regulatory restrictions on the land were enough to amount to a "taking" which required just compensation. In a jury trial a verdict of $1.45 million dollars was returned. The City argued that the developer was not entitled to a jury. The 9th Circuit Court of Appeals let the verdict stand and the Supreme Court agreed in a 5-4 decision, with Justices, Souter, O'Connor, Ginsburg and Breyer dissenting.

In companion cases, Hanlon v. Berger, and Wilson v. Layne, the Supreme Court unanimously held that police can be sued for letting TV camera crews and other journalists accompany them into people's homes to observe arrests or searches. These "media ride-alongs" violate privacy rights protected by the Constitution's Fourth Amendment. However, by an 8-1 decision, the court ruled that since this rule was not clearly established as unconstitutional back in 1992 and 1993 when the ride-alongs in question took place, all of the Justices except John Paul Stevens would not allow the cases to proceed to trial against the police agencies involved.

The Bergers case against CNN is still pending. The 9th Circuit had allowed the case to proceed against both the officers and CNN. On June 1, the Supreme Court refused to review that decision.

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