Jeff McCoy is an attorney with the Pacific Legal Foundation, where he leads the Coastal Land Rights Initiative.
Federal Newswire:
The Pacific Legal Foundation (PLF) just won its 15th victory before the Supreme Court. What is the history behind these cases?
Jeff McCoy:
It started way back in the 90’s with a coastal case, Nollan v. California Coastal Commission–one of our first victories. One of the great things about working at PLF is being able to work on such important cases.
A major case we won about a decade ago is Sackett, and now we are back at the Supreme Court. Ten years ago, the Supreme Court said that the Sacketts, who were just trying to build a house in the middle of a subdivision [when] the Army Corps of Engineers said that it's a wetland. So the Supreme Court said that the Sacketts could sue, and now 10 years later, we're actually deciding whether or not this area of dirt is a wetland.
Federal Newswire:
How long had the Sacketts been waiting before they were told that they had the right to sue?
Jeff McCoy:
Before that it was at least a few years. They were facing thousands, tens of thousands of dollars of fines per day, but yet they weren't able to challenge that determination. The agency said, "Well, we haven't made a final determination even though we're threatening you with tens of thousands of dollars."
Federal Newswire:
Can you explain the concept of ripeness, and why it's so pernicious, especially in these property rights cases?
Jeff McCoy:
Generally when you sue someone, you have to actually have a disagreement about something, and that tends to be what some courts decide. They don't just philosophize about the law. You have to actually have a dispute.
The problem is that the government has used these rules…to try and just prevent litigants from coming in.
For ripeness, usually it's that the problem hasn't occurred yet. You're not actually injured. Something hasn't happened yet, and there are some cases where that might be true.
I guess if you are, for example, in a contracts case, if no one has actually broken the contract, then, no, it's not ripe–there's nothing there. But in this case, the federal government had threatened the Sacketts with thousands of dollars of fines, but they said, "Well, you can go through a bunch of hurdles, go through a bunch of more hoops, go through this long process, and then maybe we'll say that it's ripe."
Federal Newswire:
Is this the very definition of Kafkaesque?
Jeff McCoy:
Absolutely. The Supreme Court agreed that it was Kafkaesque and said, "No, you've told them that they face penalties. The case is ripe to decide whether or not this determination that it's a wetland is correct."
Federal Newswire:
Does the Federal Government use the process to wear citizens down?
Jeff McCoy:
Yes, and not only just time, but it's expensive if you go all the way to the Supreme Court– twice [in this case]. PLF is a nonprofit. We represent our clients for free, which helps them continue the fight, because if you went to the Supreme Court twice, you're probably talking over a million dollars in legal fees.
Federal Newswire:
With your 15 wins, does PLF have a better understanding of how to win a case in the Supreme Court?
Jeff McCoy:
Yes, and ultimately it comes down to our clients. Our clients have good stories to tell. Unfortunately, good stories mean that the government is doing ridiculous things, but they're willing to fight.
The other thing is even when they don't have to pay–10 years of litigation is hard–our clients continue to fight because they realize that it's not just about themselves.
One thing that I hear from my clients all the time is, "I'm not just doing this for myself. I'm doing this for other people who are in my same situation." Unfortunately, there's a lot of people for PLF to choose from. There are so many people who are victims of this, that we are able to find people who have stories of just outrageous conduct. That's what makes it successful, because courts [and] judges are people, and if they hear an outrageous story, they're going to be moved by that.
We also have the law and the Constitution on our side. There's this old saying in law school, "If you have the facts, argue the facts. If you have the law, argue the law," but we have both, and that's what makes us successful.
Federal Newswire:
What is the disconnect between Supreme Court decisions on the one hand and what these agencies are doing in practice on the other?
Jeff McCoy:
One is these rules, like rightness, standing, or other rules where agencies often will, even if you sue them, dismiss the case, which extends it longer.
I worked on another case, Pakdel v. San Francisco. The city of San Francisco required our clients to give a lifetime lease to their much younger tenant when they bought their apartment for a retirement home. They weren't ready to retire, so they rented it out. Later they were told that they had to give their tenant a lifetime lease.
This case went all the way up to the Supreme Court as well, just on ripeness. The city said, "We're not changing this." They said, "You could have filled out this form to object," even though they had called and said they're not going to waive this requirement.
The lower court said that the city had not reached a final decision, even though [the city] said in no uncertain terms, "This is final."
This had to go all the way to the Supreme Court. The Supreme Court ruled unanimously without even an oral argument that, yes, when they say that it's a final decision, it's a final decision. But these rules are really one of the big things.
Federal Newswire:
Did they get to reclaim their apartment?
Jeff McCoy:
It's still going on. We defeated a motion to dismiss at the district court level, and it's still continuing. So again, it's this whole thing that even when you win, things still go on for a long time.
This one has been going on for about six years. It's only been about a year and a half since the Supreme Court decision.
Federal Newswire:
Can you explain what the Tucker Act is and has it been solved or is it still a problem?
Jeff McCoy:
It's still a thing. The Tucker Act allows people to sue the federal government for a takings claim. But it has to be done in the Court of Federal Claims in Washington. D.C.
Federal Newswire:
Do these have to do with state or local agencies acting under color of federal law?
Jeff McCoy:
That too, if it's the state or local level. What you'll get is a case where, if it's against a city agency and even though they're acting under the color of federal law, they'll move to dismiss and say, "No, you have to go to the Court of Federal Claims." The Court of Federal Claims will say, "No, this isn't ours." It'll go back and these rules just shift you around so that you never get relief.
There was a similar shuffle that has since been corrected where the Supreme Court said decades ago that if you were going to file a takings claim in federal court you had to first go through the process, any state process, to try to get compensation.
Of course, states took this to mean you have to litigate the case.
What you would do is if you would file in federal court, they'd say, "Well, you didn't go through the state process." The state would go through it. They would litigate it and essentially say, "Well, we've made a decision, “It's not a taking,” and then you'd go back to the federal court and say, "Okay, we've done everything we need to do," and the federal court [would say], "Well, you already got a decision. Why are you here?"
Of course, the state courts sometimes are going to be more receptive to arguments from their own state government. It's one of the reasons why the Constitution has federal courts for federal questions like the constitutional questions.
This was a whole thing that just went around and around. No one would be able to get a decision on things, on a takings claim, but fortunately in Knick, the Supreme Court said that you don't have to go through this whole process anymore.
Just like with anything else, if you have a First Amendment free speech claim, you're allowed to file in federal court, and if you have a takings claim, you're allowed to file in federal court. You don't have to go through extra processes.
Federal Newswire:
Can you explain the due process concept and your experiences with the California Coastal Commission?
Jeff McCoy:
The California Coastal Commission is one of the worst examples of these agencies. They see themselves essentially as a statewide zoning board, and their jurisdiction extends about three quarters of a mile from the high tide line. You're talking about places that maybe can see the ocean, but aren't anywhere close to it.
Presumably they say they're there to protect access to the coast, but what they've turned into is just micromanaging properties, or preventing people from improving their house or even building houses in this "coastal zone."
One of the biggest problems is that they in the last few years have gotten the ability to fine anybody in this area that they allege has violated the Coastal Act, which is a bunch of regulations about what you can do on the coast.
We had some clients who were fined millions of dollars because they bought a property that had a gate over a cliff. The California Coastal Commission said, "Well, we have an easement access here. You're blocking people,” I guess, from falling off the cliff onto the beach.
[The owners] said, "Well, we don't want people to hurt themselves. No one is using this. If you build a stairwell, we'll remove the gate. Also, we didn't build the gate. Why are we being held responsible for the previous people?"
So not only do you have these outrageous fines, but the only people you're allowed to go to is the commission itself. Also, any fines that they collect go to the agency and not to the general state fund. So you can imagine the incentive to find that people are violating the law.
Unfortunately the Supreme Court declined to take this case because we filed due process claims.
We did have some successes against the Coastal Commission. In the Tibbitts case, there was a couple where the husband unfortunately suffered a stroke. They have a house that's near the beach, and they needed to remodel so that he could use a wheelchair to get around. The local county said, "Okay, go ahead." They approved the plans like a local government usually does, and then the California Coastal Commission said, "Whoa, hold on. We're appealing this."
Fortunately, it worked out that the Coastal Commission in a very close vote sided with our clients, granting them the permit, even though it took a lot of work. PLF and some private attorneys were able to go through this process.
But we had to catch the Coastal Commission on a good day, and barely got it approved. Even though they weren't changing the footprint of the house, and weren't blocking access or views, they were just doing some relatively minor renovations to their house that they owned.
Federal Newswire:
Can you explain the issue of regulatory purgatory and the Ralston case?
Jeff McCoy:
This is a case where there is a family that owns [a piece of property in] San Mateo County, which is Northern California, but the county has labeled this an environmentally sensitive habitat. They have adopted regulations that say, "No one is allowed to build here." The Ralstons reached out to the county attorney asking, "Are we going to be able to build here?" The county attorney said no. So they said, "Well, if we're not allowed to build here, your regulations have taken our property, we're going to sue you."
Federal Newswire:
Explain the concept of regulatory taking?
Jeff McCoy:
A regulatory taking is when a regulation effectively takes your property. There's a lot of different factors, which is part of the problem with this. But this piece should be fairly easy because the Supreme Court has said, "If a regulation prevents any use of the property, it must provide just compensation."
So the owner’s not going to be able to build anything, do anything on it, but he sued and said, "You've taken my property." But the county argued, "Well, you didn't apply for a permit."
Of course, applying for a permit isn't free.
Federal Newswire:
Is this a ripeness argument they're raising?
Jeff McCoy:
Yes. Applying for a permit, even though he knows what the outcome is, would cost him. He'd have to hire an architect to say what he wants to build there. He would have to do environmental consulting, which will eventually just say, "Yeah, this is an environmental area that the city has said you can't build on," but they'll still charge him for that opinion.
Then there's no timeline once he actually applies. The city can just sit on it. They can say, "Well, you didn't cross that T. You need to refile. We'll charge you an application fee probably, go through all this."
When the county attorney has said, "This is our position," the courts have accepted this argument because they said, "Well, you could apply. Maybe they'll change their mind." But in order for them to change their mind, they would have to violate their own laws.
This is one of the areas [where] cities, counties, and other governments sometimes give themselves an out. [They] say, "Well, you can always apply for a variance. Maybe we'll find an exception to the zoning board," But that takes years, and eventually they say, "No," or they don't say anything at all.
You have no relief in the courts because the courts say, "Well, they haven't actually made a decision yet."
Of course, other people that if they did grant the exception would sue and say, "You're violating your own laws." This is the regulatory takings purgatory.
Federal Newswire:
Is the Ralston case still going on?
Jeff McCoy:
We're filing a cert petition with the Supreme Court asking them to take the case. Similar to Pakdel, we said, "Look, this is clear they've made a decision, and this needs to go to a court to decide whether or not it's a taking."
This one is pretty clear cut. You never know with judges, but they've taken the whole thing.
Federal Newswire:
What is at issue in the Wilkins case?
Jeff McCoy:
This is another one of those purgatory processes. We represent two property owners about an hour south of Missoula, Montana, and they live next to the Bitterroot National Forest. They have a couple of neighbors as well, and there's a road that goes across all of these properties to go to the National Forest there.
The easement said that the Forest Service could use it for limited purposes, mainly their officials, firefighters, people who have permits, like for timber harvesting. In fact, the cover letter to this easement, which was granted decades ago by the previous owners of the land, says, "We are going to use this road for timber harvesting purposes." So it's a very limited use.
But in recent years, the Forest Service has essentially allowed anybody to come on, and this has caused lots of problems.
People are speeding. People are stealing things from Will and Jane's house. They're shooting, illegally hunting. They're shooting from the road near their houses, rather than shooting where they're supposed to. Will, one of our clients, his cat got shot from a car.
This was because the Forest Service was allowing people to come on [the property]. They went to the Forest Service and tried to work it out. They said, "Hey, can you try and manage this?"
Usually if you have permission to use someone else's property, you're responsible. If you allow people on, you're responsible to make sure that they're using it in a reasonable way, they're not interfering.
There was a time about 13 or 14 years ago under the Travel Management Process, which said that every National Forest had to say where you can go, what you can do, because it was very obscure about which roads were open or not.
At the beginning of this process, Forest Service officials told our clients, "Well, don't worry about it. We're proposing to close this thing." This process took eight years, and then they said, "We're opening it up."
Then there were lots of problems. So Will and Jane sued and said, "No, this isn't what the easement says." The government argued after eight years, "Well, you filed too late. You should have filed earlier." I mean, no one in their right mind is going to file a case.
Federal Newswire:
If they filed earlier, would they have been told that their administrative remedies had not been exhausted or a final determination had not been made?
Jeff McCoy:
Well, exactly. They would've argued that it was too early, and then when they actually filed, they argued that it was too late.
Federal Newswire:
What was it like preparing to litigate in front of the Supreme Court?
Jeff McCoy:
It is kind of like the Super Bowl. If you're in our line of work, it's the top thing that you can achieve, and I mean, it's intimidating because these are the most famous of all the judges in the country. The courtroom, the courthouse is famous. It is built to be awe-inspiring and a little bit intimidating.
Federal Newswire:
Did Justice Gorsuch have to recuse himself, because you worked for him as an extern, or was that not a conflict of interest?
Jeff McCoy:
No, that wasn't a conflict, and you'll see even former clerks will argue in front of the Court.
Federal Newswire:
What's it like arguing in front of the Justice you previously worked for?
Jeff McCoy:
In some ways it's kind of comfortable, because I've had conversations with him. Of course, he's one of the smartest, if not the smartest person I've ever met. So I also knew that he wasn't going to play it easy, and he's going to ask tough questions about it, so it worked.
There was some good and bad about it, but it's nice to know someone on the court.
Because PLF has done so much work at the Supreme Court, they know how to prepare their attorneys for doing this. I can't take credit for it, because there was so much help in preparing for it. I was the one saying the words, but it was the accumulation of almost everybody at the organization, plus many people outside the organization that helped with this.
Federal Newswire:
What's the moment like waiting for a decision?
Jeff McCoy:
Waiting for a Supreme Court decision is different from other courts because they announce, "We're going to announce opinions on these days."
Usually you just get an email when you get a decision from [other courts], and it could be in the middle [of the day]. You're working on something else, you get an email, the court has now ruled on your case, and your whole day is ruined.
But with the Supreme Court, there were several weeks where I would be on their website at the time they released an opinion. [Then], it's not mine, so I guess I'll have to wait another week.
When it finally was released, I skimmed the opinion, because there were a lot of people who wanted to talk about it and see what happened.
One of the most important things is calling the client, telling them that all their hard work was worth it, although we'll get to what this actually means. That was one of the best things about telling them that they won.
Federal Newswire:
Was it surprising to you that the opinion was 6-3 and not 5-4, and that the majority was written by Justice Sotomayor?
Jeff McCoy:
Well, it was somewhat surprising. I think the dissents were surprising.
Federal Newswire:
Who dissented?
Jeff McCoy:
Justice Thomas wrote the dissent, the Chief Justice, and Justice Alito joined the dissent. That was a little bit surprising.
We had relied on some opinions that were written by Justice Kagan that Justice Sotomayor had joined, so it wasn't too surprising that we had convinced them with their own words. It was a little surprising that it wasn't unanimous. You never know exactly what was going to happen, but it was a little surprising.
Ultimately, I think the tension between the majority and the dissent is about how often you can sue the government, and Justice Thomas takes a very strict view of that. Basically, [he] says that you can only sue if Congress passes a law.
I think some of the newer justices–because all of the Trump appointees were in the majority–are much more willing to let [the] courts do their work. I think that's where the tension came between the majority and the dissent, is this view over how much you should allow people to sue.
Obviously working as someone who tries to sue the government all the time, I would like to make it much easier for my clients to sue.
Which is what happened in Wilkins. There are a lot of conflicts, especially out West, where people live next to federal land. The government thinks they own it. Private property owners think they own it until something happens.
The main thing about the Wilkins case is that it will make it easier to resolve these disputes in court because these long waits where you don't actually have any dispute aren't going to prevent you from filing a suit. The government can't argue, "Well, it's out of time because you didn't file when there was no problem."
I think that's the big benefit to it because...one of the things about the statute here is the Quiet Title Act, which allows you to sue the federal government to basically get a judge that says, "Who owns what?"
When Congress passed this, they recognized that these disputes are going to happen. They need to be resolved in court, because if you don't, then there's going to be other problems if you think you own something.
Federal Newswire:
If the federal government doesn't know what it owns, why do they get to say that you have a limited amount of time if you don't know that you own this? Why do they get this say?
Jeff McCoy:
That's the whole purpose of this act of Congress. That's what they wanted, because they realized that these things come up.
There are disputes, and they wanted them to be resolved in court rather than have private property owners put up barricades and say, "Well, we own it." Because, of course, the federal government has no time limit. It can always sue a private property owner if it thinks it owns something. There's no time limit for it. So sometimes you see private property owners try to get the federal government to sue them by doing things like put up gates or block out things.
Federal Newswire:
What’s next for the Wilkins family or the two clients? They now have the right to sue, what are you anticipating?
Jeff McCoy:
They've been at this for five years, and we're back at square one, because we can just now make our argument. We hope that the court will look at what the deed says for the easement, and will say, "No, you don't have unfettered access here."
Another part of it is that whoever you let on, you have to be responsible for. Just like anybody else who owns an easement across someone's land, you can't just not take responsibility if you're letting someone on.
Federal Newswire:
Is this the most pro-private property rights court that we've ever had?
Jeff McCoy:
Certainly. There's been a lot of private property cases in the last few years. There's always been a pretty good track record of private property cases through the last couple of decades, but they came more infrequently.
One of the things about the Supreme Court is that they only take about 80 cases a year. I don't know if the view has changed that much on the actual merits of these cases, but I think their interest in it has changed, which means that they're willing to take more cases about these private property issues.
That's the big thing. The Court is going to take what they want to take, what issues they want to decide. I think that the big key is that they're more willing to decide these private property cases. If they continue the trend that they've had for a couple of years, it's going to make it better for private property owners.
Federal Newswire:
How do folks find out more about the Pacific Legal Foundation?
Jeff McCoy:
They can go to our website at Pacificlegal.org. We're on all the social media sites, @PacificLegal for most of them. Once you get to our website, you can sign up. We have a monthly magazine that tells everything about our work and also about some of the nerdy conversations that we have about broad concepts and the law, and it's very informative.
We make sure to write it so you don't have to be a lawyer to understand it. We have a great communications team that makes sure that the lawyers don't get too lawyerly when we write things.
