Category Archives: Legal Matters

Idaho court refuses to look the other way as agencies try to avoid democratic accountability

Unelected bureaucrats hold tremendous power over us, thanks to decades of Congress delegating evermore authority subject to the vaguest of constraints. However, Congress has imposed some checks on federal bureaucrats to ensure a modicum of democratic accountability over the administrative state. One of those checks is the Congressional Review Act, which requires agencies to submit every rule they wish to impose on us to our elected representatives in Congress for review.

The CRA experienced a renaissance in 2017, with Congress disapproving sixteen burdensome and controversial rules. However, as PLF has long pointed out, many more rules must still undergo this scrutiny, thanks to decades of agencies simply ignoring the CRA’s requirements. There are literally thousands of rules being enforced today that have never received even this minimal democratic scrutiny.

Thanks to a decision last night from the District Court for the District of Idaho, those rules may finally receive the scrutiny they deserve. Representing ranchers unlawfully subject to controversial rules regarding the greater sage grouse, PLF sued the Departments of the Interior and Agriculture, demanding that they finally send these rules to Congress as required. Indicative of how adamantly opposed agencies are to democratic oversight, the government sought to have the case dismissed, arguing that agency violations of the CRA—no matter how clear cut—cannot be reviewed by any court.

In this case, the Court recognized that argument for what it is—a claim that agencies are free to behave lawlessly—and squarely rejected it. “[W]ithout review,” the Court explained, “an agency would frankly have no reason to comply with the CRA.” The Court continued: “[I]f the agency never submits its plans—as required—the Court is troubled with Defendants’ position that essentially any rule or law can go into effect without oversight or approval and there is no legal remedy available[.]” Continue reading

Owners of Dewatto Bay tideland property take state to court

In court filings, the state has noted that if the court finds that the Iddings have legal title to the tidelands, the state can still take them without compensating the Iddings, since for decades the public has harvested on those tidelands. State lawmakers this month have filed bills in the Senate and House of Representatives that would restrict how the state goes about acquiring lands through this process, known as adverse possession.

Read the Feb 2 2019 Kitsap Sun article here

 

 

Supreme Court vindicates all Americans’ right to be free from excessive fines

The Supreme Court held that the U.S. Constitution protects individuals from being excessively fined by all levels of government in this country—not just the federal government. The decision in this case, Timbs v. Indiana, is a significant victory that limits the abusive use of fees and fines by state and local officials—abuse that frequently targets the most vulnerable in society.

This case, litigated by our friends at Institute for Justice, started when the State of Indiana tried to take Tyson Timbs’ $42,000 Land Rover, on top of other punishments, for his violation of a drug law. Yet the maximum fine in cases like Timbs’s is $10,000 in Indiana.

Recognizing this obvious disparity, the trial court and court of appeal found that the confiscation of Timbs’s vehicle would violate the Eighth Amendment’s protection from excessive fines. But the Indiana Supreme Court reversed those decisions, holding that the U.S. Constitution does not protect individuals from excessive fines imposed by state or local government actors. Continue reading

Proposed Revision to Title 2 Code Compliance

The Kitsap County Department of Community Development is working on a proposed revision to County Code Title 2 Code Compliance (Entry Policy 020719 DDL ) specifically to the requirements needed to enter private property to investigate possible code compliance issues. They are proposing to hold a public hearing on March 11 at the 5:30 PM Board of County Commissioners Evening meeting, Commissioner Chambers, County Admin Building, 610 division St, Port Orchard.

State Law and the State constitution are very specific about what a County inspector can do without the owner’s permission.  RCW 59.18 Residential Landlord –Tenant Act

Support House Bill 1213

AN ACT Relating to granting local governments the authority to make challenges related to growth management planning subject to direct review in superior court.

The legislature finds that local elected officials are appropriately responsible and responsive to their citizens regarding land use decisions within their communities. The legislature also finds that citizens of these local governments have suffered significant financial and other costs resulting from reviews of disputes by the growth management hearings board that are subsequently resolved in a court of law. The legislature intends to relieve this additive burden of process by allowing jurisdictions with fewer government resources the ability to seek judicial interpretations of the growth management act without the costly and time-consuming practice of an initial review by the growth management hearings board.

HB 1213 http://lawfilesext.leg.wa.gov/…/Bills/House%20Bills/1213.pdf

 

Supreme Court Deals Unanimous, Welcome Blow to Administrative State in Frog Case

Unanimity is elusive in today’s America but the Supreme Court achieved it last week. Although the dusky gopher frog is endangered, so are property rights and accountable governance. Both would have been further jeopardized if the frog’s partisans in the U.S. Fish and Wildlife Service (FWS) had gotten away with designating 1,544 privately owned Louisiana acres as a “critical habitat” for the three-inch amphibian, which currently lives only in Mississippi and could not live in the Louisiana acres as they are now. The eight justices (the case was argued before Brett Kavanaugh joined the court) rejected both the government’s justification for its designation, and the government’s argument that its action should have received judicial deference, not judicial review.
Continue reading

The Consequences Of Land Ownership

“If a man owns a little property, that property is him.…it is part of him….in some ways he’s bigger because he owns it.” 
                                                              —John Steinbeck, The Grapes of Wrath

Property rights are the most fundamental institution in any economy and society. They determine who makes decisions about valuable resources and who captures the economic gains from those decisions; they mold the distribution of income, wealth, and political influence; they set time horizons and investment incentives; and they define who will take part in markets. These attributes are well recognized among economists for spurring economic growth.

But economists have missed another equally important characteristic of private property rights that has long been emphasized in philosophical, legal, and historical literatures and is captured in the quote from John Steinbeck above. Individual owners are more confident, self-reliant, and entrepreneurial than non-property owners. Where access to property is widespread, politics are more stable. Owners have a stake in the existing political regime. Moreover, people acquire property through the market and do not mobilize for forced redistribution using the power of the state through revolution and revolt. They expect property rights to be secure and view government regulation with suspicion. The use and trading of property assets is seen as a positive sum game. With broad property ownership and market participation, the state is less important than the market, and the economy in turn is less centralized, more atomistic, market-based, and supportive of entrepreneurship. This description characterizes the United States from its colonial beginnings through the 19th century and generally on to today.

In contrast, in countries where property ownership is highly skewed and access to ownership open only to elites, non-owners view things differently. Acquisition of property, wealth, and political power can only occur through capture and then enlistment of the state, as occurred in the extreme in 1789 France or 1917 Russia, or is reflected in recurrent political upheaval and redistributions characteristic of Latin America with its many disaffected populations, military revolts, and coups that have occurred since colonial times. This political uncertainty and lack of overall optimism and entrepreneurship has contributed to slower long-term economic growth than a region so rich in natural resources might have otherwise enjoyed. Why has the southern half of the hemisphere had such a different long-term experience than the northern half? Why has there been more ongoing economic growth and political stability in the North than in the South? Differences in the ownership of land is the key. Continue reading