Ethics Panel Weakens Rule on Junkets
For the last six years, members of Congress, ethics experts,
former judges, and non-profits such as Community Rights Counsel
have worked to stop corporations and other interested parties
from lobbying the federal judiciary through expense-paid trips
to resort locations. Several prominent Senators, including
Senator Patrick Leahy, the Ranking Member of the Senate Judiciary
Committee, have introduced legislation that would ban certain
gifts associated with education seminars while providing a
fund that judges can use to pay their own way to needed educational
opportunities. Senator Leahy was poised in May 2003 to add
this legislation to a judicial pay raise bill, but he pulled
the amendment based on assurances from judges that they would
propose "self-regulation" on the topic.
In August, the judiciary's Committee on Codes of Conduct indeed
proposed "self-regulation," but instead of tightening
the guidelines for attending trips to luxury resorts, the
Committee made the guidelines weaker, effectively blessing
judicial participation in even the most problematic corporate-sponsored
trips. The Committee also failed to inform Senator Leahy of
its handiwork, so the Senator was first alerted to the change
by a Dec. 16th letter that CRC sent to the Committee.
This was obviously not what Senator Leahy had in mind when
he pulled his amendment, and the Senator immediately pledged
to reintroduce his legislation. Senator Russ Feingold (D-WI),
another strong proponent of ethics reform, also commented
that the new guidelines "go in the wrong direction."
CRC's letter to the Committee and the news stories chronicling
these developments can be found at www.communityrights.org/Newsroom/newsroommain.php.
Doing the Berger Flip-Flop
Lawyers sometimes argue in the alternative, but this is ridiculous.
In September 2004, CRC wrote an op-ed for the L.A. Daily
Journal recommending that the Supreme Court grant review
in Lingle v. Chevron, which raises the issue of whether
a regulatory taking occurs when government action does not
substantially advance a legitimate government interest. The
Ninth Circuit ruled that a Hawaii law designed to preserve
competition in the retail gasoline market worked a taking.
In so ruling, the Court applied heightened means-end scrutiny
and gave no deference to the State's legislative judgment.
Scholars and judges have long questioned whether this kind
of means-end inquiry is a legitimate takings test, or whether
it is more appropriately conducted under the Due Process Clause's
rational basis test.
The op-ed sparked an over-the-top response by Michael Berger,
who accused CRC of "not caring" about the Constitution,
having "disdain" for property rights, and being
filled with "ire." Mr. Berger's column concluded
that Supreme Court review was unnecessary because the Ninth
Circuit ruling "is merely a current application of a
As we reported last month, the Supreme Court granted review
on October 12, putting us in mind of the adage: "He who
laughs last, ..."
But Mr. Berger evidently has had a change of heart. In his
November column, Berger now writes that Lingle "presents
a fascinating issue that has piqued the interest of courts,
litigants and commentators since the dawn of the Supreme Court's
modern regulatory-taking era."
We couldn't say it better ourselves, Michael. Thanks for
Louisiana Court Nixes $1.8 Billion Takings Award to Oyster
Avenal v. The State of Louisiana,
No. 2003-C-3521 (La. Oct. 19, 2004)
It's not often we write about positive takings developments
in our Outrage of the Month column,
but the $1.8 billion judgment in the case of Avenal v.
State of Louisiana was so outrageous, we can't help ourselves-especially
now that Louisiana's high court has agreed. The court's decision
overturns the earlier verdict and reestablishes the importance
of the public trust doctrine.
The stunning award to a group of oyster fishers was the result
of class-action lawsuits alleging that the value of their
state-issued oyster bed leases was wiped out by a successful
coastal restoration plan. The restoration plan, which ironically
was supported by the oyster industry generally, involved diverting
freshwater to reduce artificial salinity in Breton Sound caused
by Mississippi River levee systems. The change in water salinity
has improved oyster conditions in some areas, but reduced
oyster viability in the areas of the claimants' leases. Combined
with another multi-million dollar verdict, state courts had
awarded some 200 claimants more than $2 billion, an amount
equal to one eighth of the state's budget. The takings awards,
the largest in U.S. history, were worth more than the total
value of all oysters harvested in Louisiana since the state
created its leasing program in 1902.
The Louisiana Supreme Court reversed because the coastal
restoration project fell "precisely within the public
trust doctrine." The court recognized that the "public
resource at issue is our very coastline, the loss of which
is occurring at an alarming rate." Coastal restoration,
the court noted, is not merely an environmental goal but a
critical protection against hurricanes and storms that threaten
lives and property.
Notwithstanding the government's ultimate victory, the outrage
here is that such a massive, meritless takings claim could
be allowed to chill desperately needed coastal restoration
for so long.
CRC did not write an Outrage
for September. Instead, we wrote a short column about our
forthcoming book, Redefining Federalism.
If federalism is about protecting the states, why not listen
to them? That question is at the heart of an upcoming book
by Community Rights Counsel called Redefining Federalism:
Listening to the States in Shaping "Our Federalism."
In the last decade, the Supreme Court has reworked significant
areas of constitutional law with the professed purpose of
protecting the dignity and authority of the states, while
frequently disregarding the states' views as to what federalism
is all about. According to the amicus briefs filed by the
states in Supreme Court federalism cases over the past decade,
the Court is protecting federalism too much and too little:
too much, by striking down federal law where even the states
recognize that a federal role is necessary to address a national
problem; too little, by inappropriately limiting state experimentation.
Redefining Federalism takes the positions advanced
in state amicus briefs and turns them into a roadmap for a
federalism jurisprudence that reaffirms Justice Louis Brandeis's
vision of states and localities as the laboratories of democracy.
Scheduled to be published in October 2004 by the Environmental
Law Institute, Redefining Federalism explains
why empowering state and local governments is both constitutionally
appropriate and a promising avenue for advancing the public
Billboard Companies Use Litigation to Intimidate Local
Ogden Nash got it right when he wrote: "I think that
I shall never see, a billboard lovely as a tree." But
protecting scenic beauty and community character comes at
a price these days - lawsuits from the billboard industry.
For example, last year Lockridge Outdoor Advertising sued
the City of Oldsmar, Florida, in federal court challenging
the constitutionality of the city's billboard ordinance. Oldsmar
is a city of just 10,000 residents and unaccustomed to defending
itself in federal court.
That's just what the billboard industry is counting on, according
to an editorial in the St. Petersburg Times. Although
courts routinely uphold properly constructed sign ordinances,
companies bring takings and other lawsuits hoping that the
expense, time, and sheer intimidation factor of defending
these cases will force communities to reach settlements that
either allow existing billboards to remain in place, or give
companies rights to erect new road-side signs. One Georgia
company, Granite State Outdoor Advertising, specializes in
challenging community sign ordinances across America and then
selling the permits it wins through settlement to other billboard
companies. The Times editorial singles out Atlanta
attorney E. Adam Webb for special mention due to his nationwide
campaign to replace scenic vistas with billboards. He finds
the work so lucrative that he does nothing else in his solo
Communities enact sign ordinances to protect their vistas
from the visual blight of unwanted billboards and reduce distractions
that threaten public safety on the road. Here's hoping they
continue to stand firm in defending their laws against challenges
from the billboard industry.
The Problem With Myers
William Myers, a grazing lobbyist and former Interior Solicitor
nominated to a lifetime appointment on the Ninth Circuit,
has a long history of deeply troubling statements. He has
likened federal land management to the tyrannical rule of
King George over the American colonies. He has accused environmentalists
of "mountain biking to the courthouse as never before,
bent on stopping human activity wherever it might promote
health, safety, and welfare." He argued that the ability
to exploit property is just as fundamental as free speech
In addition to this intemperate rhetoric, Myers' substantive
record as Interior Solicitor gives no indication that he put
aside his advocacy for his lobbying clients, as CRC painstakingly
documented in pre- and post-hearing reports (available at
Myers' disturbing record and lackluster qualifications led
to unprecedented opposition to his confirmation by groups
such as the National Conference of American Indians and the
National Wildlife Federation, which had never opposed a judicial
nominee before in 65 years of operation.
Thus we were surprised to learn in a piece written in National
Review Online by Jonathan Adler, www.nationalreview.com/adler/adler200407230901.asp,
that the real problem with the Myers nomination was the fact
that Community Rights Counsel was "agitating" against
it. While recognizing that "Myers is not the most distinguished
of Bush's court nominees," Adler accused CRC of trying
to make a "nominee's purported views on environmental
questions a litmus test for confirmation."
Earlier this month, Myers did become the first nominee in
history whose confirmation was defeated primarily based on
environmental opposition. But CRC and other groups opposed
Myers not because of his views on environmental policy, but
because his record in public service shows an unwillingness
to set aside those views when his position so requires. If
an Interior Solicitor, charged with protecting the public
interest, acts as an industry sock puppet, it is hard to believe
he will be fair as a federal judge.
The only litmus test we apply is whether a nominee will set
aside personal views and apply the law in a fair and thoughtful
way. Myers' record at Interior displays a predisposition to
ignore the requirements of the law in order to advance his
own agenda. That should be disqualifying by anyone's standards.
Death Threats Down By the Bayou
Smart Growth makes some people's blood boil, especially, it
seems, in Louisiana.
Last month George Hopkins, Jr., former councilman and member
of Advocates for Smart Growth in St. Tammany Parish, received
a death threat soon after filing suit challenging the parish's
approval of Timber Branch II, a controversial subdivision
near the Tchefuncte River. Hopkins argued that the subdivision
did not meet environmental standards in the parish's recently
completed land use plan, New Directions 2025.
According to the New Orleans Times-Picayune, Advocates
for Smart Growth claimed that "the project will damage
nearby Little Tchefuncte River and Timber Branch, and the
development will destroy an important pine savannah habitat."
The lawsuit was filed on May 26, and Hopkins received the
anonymous death threat the very next day.
Is there something in the water in Louisiana? In 2001, we
reported that a lobbyist for the Louisiana Home Builders went
into U.S. Senator Jim Jeffords's office and shouted he wanted
to kill the senator. Jeffords's decision to become an Independent
tolled the death knell for federal takings legislation being
pushed by developer lobbyists, and evidently caused this Louisiana
lobbyist to go over the top. According to The Washington
Post, this and other death threats prompted the Capitol
Police to provide Jeffords extra security.
Leaders of the so-called property rights movement sometimes
claim to be engaged in a holy war. It's time to turn down
the rhetoric. We trust state law enforcement officials will
give the latest death threat the investigation it deserves.
Water Wars Heat Up, Marzullas Stir the Pot
A half-billion here, a billion there. Pretty soon, you're
talking real money.
In another sign of how damaging extreme takings rules can
be to the public fisc, the property rights law firm of Marzulla
& Marzulla, the heads of which-Roger and Nancie Marzulla-also
lead the Defenders of Property Rights, continues to gin up
multi-million dollar litigation over Western water rights.
Brought on behalf of Central Valley water districts in California,
the firm's latest case is a $500 million claim alleging that
the federal Bureau of Reclamation improperly failed to deliver
water from New Melones Reservoir. The Bureau maintains they
have provided some water and that the districts are obligated
to pay only for water received.
"It's a lot of money," Nancie Marzulla told the
Sacramento Bee on April 21, "but this is a high-stakes
business we're in." Indeed. The Marzullas recently filed
a $1 billion takings claim in the U. S. Court of Federal Claims
alleging that the government impermissibly denied water to
farmers in the Klamath Basin along the California and Oregon
border in order to protect endangered fish. They also won
a $14 million case (with interest and fees that could top
$26 million) over water rights in the Tulare Lake Basin on
the basis of a highly questionable physical occupation theory.
That case could be appealed later this year.
We'll keep you posted as these cases progress, but as Rep.
Cal Dooley said in response to this latest claim, "I
think the only people likely to get compensation here are
Administration Plan to Drill in Mesa Draws Fire
It takes a lot to get ranchers, hunters, and environmentalists
to agree on anything, but the Bush administration's plan to
drill for natural gas in New Mexico's Otero Mesa has done
The 1.2 million acre plain in Otero County, home to herds
of pronghorn, migratory songbirds, and the endangered Aplomado
falcon, is revered by hunters and naturalists alike. New Mexico
Governor Bill Richardson has called the grassland region the
"West's ANWR," a reference to recurring battles
over oil and gas exploration in the Alaska National Wildlife
Refuge. Concerns over lost wildlife habitat and contamination
of groundwater and forage have united ranching and environmental
groups that are usually at odds with each other.
The planning process for the Otero Mesa began in 1998 and
originally called for setting aside much of the land. The
Bush administration plan released in January protects half
as much land as earlier drafts. The plan has prompted allegations
of cronyism because the two companies that stand to gain most
from gas development have ties to Vice President Cheney and
Interior Secretary Gale Norton.
Justice Tainted by Seminars for Judges
On March 23, CRC issued a report called Tainted Justice
that describes the ethical problems that arise from free
judicial seminars at resort locations offered by the Foundation
for Research on Economics and the Environment (FREE). Here
are some of the unsavory details:
Ed Warren was invited to serve on FREE's Board of Directors
alongside D.C. Circuit Chief Judge Douglas Ginsburg, and to
lecture D.C. Circuit Judge David Sentelle at a FREE seminar.
All the while, Mr. Warren was lead industry counsel in ATA
v. EPA, a challenge to key Clean Air Act rules governing
smog and toxic soot then pending in the D.C. Circuit. Mr.
Warren's lecture tracked a law review article he wrote, which
in turn sets forth arguments at the core of his ATA
briefs, including an extreme view on the doctrine of unconstitutional
delegation. Regardless of whether Mr. Warren discussed the
ATA case by name, his position with FREE allowed him
to give judges an ex parte preview of his oral argument. The
D.C. Circuit accepted Mr. Warren's unconstitutional delegation
argument, with Chief Judge Ginsburg serving on the 2-1 panel
and Judge Sentelle casting a critical vote against rehearing.
The Supreme Court unanimously reversed in an opinion by Justice
Scalia that demonstrates the radical nature of the position
advocated by Mr. Warren and accepted by the D.C. Circuit.
Environmental attorney Cristobal Bonifaz sued Texaco on behalf
of 30,000 Ecuadoreans, seeking up to $1 billion for 30 years
of environmental degradation from oil drilling. While the
case was pending before him, federal Judge Jed Rakoff attended
an all-expense-paid seminar from FREE, which is funded in
part by Texaco. At the seminar, Alfred DeCrane -- former Texaco
CEO and a key potential witness in the case -- delivered a
lecture called "The Environment: Some Thoughts from the
Corner Office." Notwithstanding this ex parte seminar
on environmental law from a key potential witness, Judge Rakoff
denied a motion for recusal and ultimately dismissed the action.
Mr. Bonifaz states he "will forever feel that [the seminar]
disadvantaged us in the litigation."
Several federal judges sit on FREE's board. CRC has filed
petitions requesting a ruling that this board membership is
improper under applicable ethical standards.
The report has received extensive media coverage, and is
available at http://www.communityrights.org/TaintedJustice/main.php.
The Fundamental Right to Ranch?
William Myers, a nominee to the Ninth Circuit, is a quiet
man, not the kind central casting would send down if you asked
for a wild-eyed radical. But his views on property rights
are off the charts.
Myers believes property rights are "fundamental rights."
Now, property rights are fundamental in the sense of
being important. But the term "fundamental right"
as used in constitutional law is a term of art that describes
rights such as the core right to free speech. It connotes
the strictest of constitutional scrutiny and tolerates impairment
only where the challenged government action is the least restrictive
alternative to promote a compelling state interest. Nothing
in the Constitution, our traditions, or Supreme Court precedent
suggests that property rights are fundamental in this sense.
Yet Myers thinks they are. He argued to the Supreme Court
that "the Constitutional right of a rancher to put his
property to beneficial use is as fundamental as his right
to freedom of speech," and that "[e]very bit as
much as a regulation that restricts speech, the regulation
of private property here must be held under the strong light
of Constitutional scrutiny." And because he was both
client and counsel on this brief, it's difficult for him to
explain this position away as the backwash of zealous advocacy.
The President says he wants judges who interpret, not make,
the law. But his vetting process let another clunker slip
through the cracks. For more information on Myers, visit http://www.communityrights.org/CombatsJudicialActivism/JEP/MyersReport.php.
Sprawl Apologists Take Show on the Road
The so-called Preserving the American Dream Conference once
again reared its ugly head last November, this time in Cincinnati.
As we reported in our Feb. 2003 Outrage, the American Dream
Conference is a one-sided propaganda festival for sprawl apologists
and supporters of unfettered development. The latest conference
featured headliner Wendell Cox, who argues that smart growth
is a "naíve civic religion" and calls public
transportation a "welfare service." The black-helicopter
crowd was also in attendance in the form of representatives
from the Thoreau Institute, whose website asks "Is Smart
Growth a United Nations Conspiracy?" The groups are planning
another builderfest for Portland, Oregon in April. For more
information on their Cincinnati rant, see http://www.citybeat.com/2003-11-12/news.shtml.