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Community Rights Report Newsletter -
2004 Outrage of the Month Archive


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


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 long-standing rule."

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 your support.


Louisiana Court Nixes $1.8 Billion Takings Award to Oyster Fishers
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 good.


Billboard Companies Use Litigation to Intimidate Local Governments

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 practice.

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.

JULY 2004

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 rights.

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,, 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.

JUNE 2004

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.

MAY 2004

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 the lawyers."

APRIL 2004

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 just that.

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.

MARCH 2004

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


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


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


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