FIGHTING LEGAL BATTLES against the government can feel like David versus Goliath. Government bureaucracies with in-house legal departments and seemingly unlimited budgets will stretch out a legal challenge for as long as possible with endless motions and appeals.
As public interest attorneys fighting government violations of individual liberty, we don’t share the same advantages. So we make strategy our advantage.
At PLF, our winning strategy is to achieve, extend, and entrench. You achieve a court victory to establish a precedent, extend that precedent to subsequent cases, and then entrench the precedent in the law. The goal is to make liberty-advancing precedents so exhaustive and sturdy that the government won’t want to start a fight in the first place. We achieved that goal with one of PLF’s first, and most significant, Supreme Court victories: Nollan v. California Coastal Commission (CCC).
In 1982, Marilyn and Patrick Nollan wanted to replace a one-story ramshackle bungalow on the California coast with a modest two-story home. The CCC agreed to grant the permit, but only on the condition that the Nollans give away one-third of their property to the government in exchange. The Commission claimed the taller home would make it harder for motorists to see the ocean, creating a “psychological barrier” to the sea.
Patrick Nollan knew that almost nobody had ever successfully challenged the CCC before. So he acquiesced and submitted his permit application. Then back at his office, he picked up a paper and saw that Pacific Legal Foundation had, in fact, just won a lawsuit against the CCC. He called PLF and asked if we would take his case, but it was too late because he had already submitted the application.
He quickly found a solution: Patrick walked smoothly into the CCC’s office and told the unsuspecting woman at the window that he made a mistake on his permit application. When she handed him the paper, he walked out, ripped it up, and called PLF.
“Will you take my case now?”
We did take the case—all the way to a victory at the Supreme Court. The Court’s 1987 decision was one of the first times the CCC had been defeated at the Supreme Court—and was the CCC’s biggest legal defeat in the agency’s history. That precedent established that the government had to honor the Constitution’s Takings Clause by paying for property taken from private landowners. This was a huge blow to bureaucracies that had been bullying property owners into surrendering property simply because the government demanded it.
That decision marked the first step—we achieved the court victory that set the precedent. And while it was a happy ending for the Nollan family, it was only the beginning for PLF’s attorneys.
Because the Nollan decision limited the government’s ability to take property, the government’s attorneys smartly changed tactics. Instead of making large scale demands for major tracts of landowners’ property, they started using specific demands, like claiming that bike paths and flood plain easements were needed to alleviate some sort of exaggerated harm.
With Dolan v. City of Tigard, the City demanded a store owner who wanted to add a few parking spots in front of her store cede portions of the property to the government for a bike path. The government’s reasoning? The larger store footprint would in-crease traffic on the road, which the bike path would help alleviate (because everyone loves going shopping on a bike, right?).
PLF didn’t argue Dolan, but we submitted an amicus brief arguing that the government couldn’t simply get around Nollan’s property rights protections by looking for the most creative loopholes. The Court rejected the government’s demands and agreed with the Dolans and PLF. The decision extended the property rights protections won in Nollan to specific government property demands.
But the regulators didn’t stop there. After losing Dolan, the government tried demanding extortionate fees during the permit process as an end-run around the Nollan and Dolan decisions. So we fought them again, securing the 2013 Supreme Court decision in Koontz v. St. Johns River Water Management District, which again clarified that the government must pay property owners when it takes their property.
Each of these decisions reinforced one another: The Nollan and Dolan cases were necessary precursors, setting the precedent that made Koontz possible. By systematically stacking up precedents against the government’s position, we made it harder for these decisions to be overturned. Taken together, the three decisions served to fortify the rights of property owners against bureaucratic abuse.
Achieve, extend, and entrench is a proven strategy that has delivered real results in property rights cases for PLF clients—and by extension, for all Americans, for nearly a half-century. The government will always be a Goliath, but with the right strategy and the right victories, we can make our Davids just as strong.