Leaders & Success - Pacific Legal’s Zumbrun

By Michael Fumento

Investor’s Business Daily, 1992
Copyright 1992 Investor’s Business Daily

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A long time ago in this country, somebody decided that civil rights were rights and economic rights were, well, something else.

For 20 years, Ronald Zumbrun’s Pacific Legal Foundation (PLF) has been fighting that notion.

"Property doesn’t have rights. People have rights. They should be seen together," the PLF president and legal director told Investor’s Business Daily.

The Sacramento, Calif.-based PLF, which also has small offices in Oregon, Washington State and Alaska, has taken on and defeated such major opponents as the Environmental Protection Agency, the California and South Carolina coastal commissions, and the California Bar Association. The issues have ranged from property rights to free speech and association rights.

The Constitution: Zumbrun wants it interpreted literally.

The nation’s most prominent conservative or libertarian public-interest law firm finds itself outmanned and outspent at every turn. But it wins more than its share of victories.

Public-interest law firms such as the PLF do not behave like normal firms in that they are tax-exempt and funded mostly by donations rather than client fees. Their purpose is to defend and advance ideas and principles rather than the interests of individuals.

The great majority of these firms — more than 150 — are liberal and often well-funded. The environmentalist Natural Resources Defense Council, for example, has an annual budget of about $11 million. By contrast, there are about a score of conservative public interest firms, of which PLF is the largest with a budget of about $3.5 million and 14 attorneys.

Zumbrun, 58, is a 1961 graduate of the University of California at Berkeley’s Boalt Law School. His undergraduate degree was in economics.

After serving as a high-ranking trial attorney for the state of California, he was appointed by Gov. Ronald Reagan to the state’s Department of Social Welfare, where he was one of the principle architects of the state’s landmark Welfare Reform Act of 1971.

During the 1970s, the PLF was active in the welfare-reform fight, even opening a temporary office in Springfield, Ill., where it helped the state develop a computer system to spot welfare fraud. (The PLF still takes on that fight occasionally.)

PLF also filed a friend-of-the-court brief on behalf of Allan Bakke’s claim of reverse discrimination in medical school applications procedures in the 70s, supported construction of a Trident nuclear submarine base in Bangor, Wash., and successfully fought each of many court challenges to California’s Proposition 13 property tax limitation law passed in 1973, including one earlier this year.

Relying On Fifth Amendment

But it is in defense of property rights that PLF has truly left its mark.

PLF’s courtroom arguments rely heavily on the Fifth Amendment of the Constitution, which says private property cannot be taken for public use without "just compensation."

The Supreme Court has held that any kind of a physical taking of private property, whether it involves all of a landowner’s property for a freeway or just a narrow strip to run a cable television line, requires compensation.

But as the law now stands, in some instances the government, acting in the name of the public good, can destroy the value of large portions of land without providing any compensation. Zumbrun says that’s wrong.

"The real test" in the courts, he said, "is becoming fairness, and whether individuals are being asked to carry too much of the burden. The burden is really society’s, and it’s unfair to place too much on specific individuals."

One case PLF argued and won concerned the attempt of the California Coastal Commission to refuse to grant a building permit to a Malibu, Calif., couple unless they granted a public right-of-way to their beachfront property. The Supreme Court ruled in 1988 that if such an easement is required, the property owner is entitled to payment.

Today he’s protecting your property, but tomorrow he may come back to seize it.

In another PLF case, decided the year before, the high court ruled that Los Angeles County was required to compensate a church that was barred by a flood control ordinance from reconstructing storm-damaged buildings in a canyon.

Yet a third PLF victory, however, may prove to be a costly one. In 1990, a federal court ruled in favor of PLF clients that the community of Bolinas, Calif., just north of San Francisco, had violated the property rights of landowners by refusing to hook them up to the area’s water system.

Unfortunately for PLF, the same court in September also ruled that some aspects of PLF’s claim were so without merit that they were "factually frivolous," and ordered a $30,000 sanction against the Foundation.

It is the first sanction levied against PLF, according to a PLF attorney, the organization has been granted a rehearing.

Environmental Regulations

In recent years, environmental regulations have brought new urgency to the property rights conflict. Indeed, John Echeverria, counsel for the National Audubon Society, has said, "The ’taking’ issue is the single most important issue facing the environmental movement now."

Zumbrun believes that environmental groups in this country pose a "very definite" threat.

"Extremists, including those in environmental groups and the government," said Zumbrun, "try to make examples out of people. So if they find someone with a little activity (violating regulations), they can hammer them, bankrupt them, put them out of business."

He cited the case of William B. Ellen, the cofounder of a rehabilitation refuge for orphaned and wounded wildlife in Virginia. Despite a massive effort to get Ellen a presidential pardon, he went to federal prison last week for failing to obtain the proper permits to fill in 86 acres of Maryland wetlands for the purpose of creating a hunting and wildlife sanctuary.

Rep. Garry Studds, D.-Mass., chairman of the subcommittee on Fisheries and Wildlife and an opponent of compensation for wetlands owners whose property is regulated to a point of uselessness, has asked, "Will town planning boards across the country suddenly face the prospect of lawsuits every time they adopt a new zoning ordinance or deny a subdivision application?"

Zumbrun says this shows a misunderstanding of the problem. "There is a role for government regulation, but it must be responsible," he said.

One role for the government is in the granting of and denying of development and building permits, he says. "A permit is not a right but a privilege, and taking doesn’t apply to this."

But, he said, "Once they grant a subdivision permit and the property owner buys a lot and the government wants to downzone it to open space for park purposes and for scenic purposes, then the government has to pay for it."

The PLF won a major victory early this year when the Supreme Court ruled in a case involving a developer in South Carolina. The court ruled that David Lucas must be compensated after the state passed a regulation forbidding the use of his beachfront property for subdeveloping, a purpose for which he had bought and obtained a permit. The regulation, which aimed to protect the beach from erosion, in effect wiped out the value of the million-dollar property.

Taking Criticism In Stride

Certainly, there are many who are enamored of neither Zumbrun nor his creation, often labeling them a shill for business or, as a lawyer for a San Francisco public-interest firm, Public Advocates, put it, a "Trojan Horse."

Zumbrun takes it in stride. "Being a voice for free enterprise and limited government, we often have opponents redefine those terms. We stand by what we have stated to courts, that our concern is for economic and individual freedom in our country."


Read Michael Fumento’s additional work on government, on laws, and on economics.