Weekly litigation report — May 27, 2017

PLF urges the Administration to reverse Antiquities Act abuses

 We submitted comments to the Department of Interior regarding its review of the Bears Ears National Monument. The Monument, like several others made in the past twenty years, is not a small reservation of land to protect historic artifacts. Instead, it prevents multiple and productive use on over 1.35 million acres of federal land in southeastern Utah. But a large reservation of land is not necessary to protect the area. Local residents have used and preserved the land for generations, and would continue to do so without a Monument designation. In our comments, we argue that the President has the power, and should exercise that power, to rescind or reduce the Bears Ears National Monument.

Amicus brief filed in support of doctors restrained by anticompetitive laws

 PLF filed this amicus brief in Women’s Surgical LLC v. Reese, a case filed by our friends at the Goldwater Institute and currently at the Georgia Supreme Court. Women’s Surgical specializes in conducting outpatient procedures for traditionally inpatient surgeries, which benefits patients by providing less expensive and less invasive operations. Women’s Surgical wants to expand its practice, building more operating rooms and contracting with more doctors, but it has had to deal with Georgia’s Certificate of Need (“CON”) laws. Under those laws, competing medical practices are permitted to object to the issuance of a CON, triggering a hearing by the Department to determine whether there is a “need” in the community for the applicant’s proposed new services. PLF urged the court to strike down these unconstitutional laws.

PLF’s Wen Fa speaks to the Conservative Republicans of San Joaquin County

Last week, I had the pleasure of speaking to the Conservative Republicans of San Joaquin County. I discussed PLF’s latest efforts to protect the First Amendment rights of voters nationwide, something you’ll hear much more about next week.

The speech centers around PLF client Andy Cilek, who was threatened with criminal and civil charges just for wearing a t-shirt to the polling place. As I explained, “[t]he shirt didn’t say ‘vote Republican’ or even that others should join the Tea Party. Instead it featured a small Tea Party logo of about three inches next to its primary message: a picture the Gadsden Flag.”

Read the rest here.

PLF urges the Administration to reverse Antiquities Act abuses

As readers of this blog are aware, many PresidBears Earsents have abused their power under the Antiquities Act to prevent productive use on federal lands (and on the ocean). President Trump has ordered a review of several of these Monuments, and the Department of the Interior has solicited comments from the public.

Yesterday, PLF submitted comments on the administration’s review of the Bears Ears National Monument. The Monument is located in southeastern Utah and is representative of other Antiquities Act abuses that have occurred since the 1970s. The Proclamation lists several different types of “objects” that are purportedly of historic or scientific interest but relatively few of those objects are actual antiquities. Instead the Monument removes productive use from 1.35 million acres of land and was created unilaterally despite strong opposition from federal, state, and local elected officials from Utah—who were working on congressional legislation that would have provided enhanced protection for certain sites and balanced other interests.

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Georgia’s Certificate of Need laws harm patients

Usually a medical practice that provides innovative, cost-effective, and relatively less invasive care for patients would be seen as a benefit to the community it serves. But that is not the case in Georgia, where Women’s Surgical Center, LLC, has had to fight the state’s anti-competitive Certificate of Need (“CON”) laws in order to expand their practice. Today, PLF filed a friend of the court brief at the Georgia Supreme Court in support of Women’s Surgical and their fight against Georgia’s CON laws.

Women’s Surgical specializes in conducting outpatient procedures for traditionally inpatient surgeries.  Their expertise allows them to provide medical care for women that is less expensive and less invasive than other medical practices. The practice has done well, and they wish to build more operating rooms and contract with more doctors. But before Women’s Surgical could expand, they had to get permission from competing medical practices.

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Wisconsin Supreme Court to hear public trust case

Yeah, it's really just a lake with a funny name

Sailor Creek Flowage

An interesting public trust case will be heard in the Wisconsin Supreme Court that has some potentially significant ramifications. Like many lawsuits, it starts with a dispute between neighboring landowners (who also happen to be brother and sister).

At issue is whether or not a landowner that owns property adjacent to a flowage (a special kind of lake in Wisconsin) may build a dock out into the flowage that will have pilings that sit on what is clearly privately owned (though submerged) land under Wisconsin law. The Court of Appeals said yes, and they used a strange expansion of the public trust doctrine to get there.

Learn more about dams, flowages, and the public trust

Weekly litigation report — May 20, 2017

  • Amicus brief filed for contractor long frozen out of contracts
  • Settlement reached in mobile home park case
  • Cap and trade appealed
  • Prairie dog ruling petition to the 10th Circuit
  • Reply filed in Kinderace petition to Supreme Court
  • Affirmative action case goes back to district court

Amicus brief filed for contractor long frozen out of contracts

We and the Center for Equal Opportunity filed this amicus brief asking the Supreme Court to take up Rothe Development v. Department of Defense, filed by our friends at Mountain States Legal Foundation. This is a challenge to racial quota preferences given to minority contractors who bid on certain government projects. In our brief, we’re highlighting the story of Thomas Stewart, a small business owner near Spokane who installs guard rails on highway projects. Stewart writes that “my competitors … have enjoyed taking work from my firm at higher prices for many years. When does it end?” Stewart continues that “I want no more than the chance to succeed — or even fail — on my individual merit…It’s just not fair to punish my firm because neither minorities nor women own it.” We agree with Chief Justice Roberts who put it a few years ago: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” For more see our blog post here.

Settlement reached in mobile home park case Continue reading

Yes, the Constitution even protects communists

Naively, I thought that was obvious. But apparently I was wrong. In California, government employees may be fired solely because they are a member of the Communist Party. What if they’re great at their job? Doesn’t matter. What if their ideas are irrelevant to their job? Doesn’t matter. What if they’re the most qualified person for their role? Nope. That’s right, Bill the forest ranger, or Julia at the California Arts Council, or Susan at the DMV can all be fired for joining the Communist Party.

The law has rarely been enforced since it was enacted during the height of the Cold War. But it seems possible now that some supervisor within the state government may attempt to enforce the law. Earlier this month, the California Assembly passed a bill that would’ve repealed the language which allows the government to fire communists due to their political party membership. The vote was far from unanimous, however, and the bill only passed by an 11-vote margin on its way to the Senate. Opponents of the bill scuttled it, however, on the grounds that communists today in China and North Korea are “still a threat.” Continue reading

New PLF petition highlights the national importance of the Murr case

The U.S. Supreme Court’s decision in the regulatory takings case, Murr v. Wisconsin, is expected to come down any day. At issue in that case is the so-called “relevant parcel” question, which requires courts to identify the extent of an owner’s property interests as a threshold determination in a regulatory takings case. The purpose of this inquiry is to set a baseline so that the court cane determine the degree to which a government action impaired an owner’s rights. It sounds rather straight forward, but in the decades since the Supreme Court, in Penn Central Transportation Co. v. New York City (1978), declared that a takings analysis focuses on the “parcel as a whole,” the lower courts have struggled with the concept, resulting in conflicting rules and inconsistent judgments. Continue reading

Why the separation of powers matters for racial equality

In high school, I spent hours hunkered at a library computer playing Sid Meier’s Civilization instead of working on the school newspaper. In the game, you could lead your own civilization from stone age to space age. You’d guide every detail about your burgeoning society–from their religion to their labor. You’d eventually cross paths with rival civilizations led by guys like Stalin, somehow attired in his Bolshevik uniform and holding a cigarette even in the Bronze Age; “Greetings from he who makes mortals tremble,” he’d say.

As I toyed with the fate of millions on the clunky library PC, H.L. Mencken had me pinned: “The urge to save humanity is almost always a false front for the urge to rule.” To avoid petty potentates like myself, our Constitution fragmented power. The growth of federal agencies, however, threatens to centralize it. This dangerous trend stems from the notion that realizing one’s coveted vision of the world outweighs the constitutional structure that shelters us from the abuse of power.

A petition now before the Supreme Court raises just such a concern. On its surface, Rothe Development v. Department of Defense continues a weary and threadbare conversation–the constitutionality of favoring certain races over others in federal contracting. That’s a vital issue. But the case also raises questions about the kind of power that unelected bureaucrats should wield in a constitutional republic–even when they’re pursuing a goal like remedying discrimination. PLF, joined by our friends at the Center for Equal Opportunity, filed an amicus brief to highlight the importance of separated powers, especially when it comes to racial favoritism. Continue reading

PLF testifies before Appropriations Committee on AB 1129

I testified before the California State Assembly Appropriations Committee this morning about the potential fiscal impacts of AB 1129. PLF was joined in its opposition by thousands of coastal homeowners represented by the non-profit Coastal Rights Coalition, which was formed by affected property owners to lobby against AB 1129 and future policies that undermine the right to use and protect coastal property in California.

In addition, there was opposition voiced by the California Association of Realtors, the California Association of Sanitation Agencies, the California Chamber of Commerce, and the Western Manufactured Housing Communities Association.

The California Coastal Act requires the Coastal Commission to grant a permit for seawalls or other shoreline protective devices when necessary to protect “existing structures” against erosion or other natural hazards. AB1129 will redefine “existing structure” to include only structures in existence prior to January 1, 1977. This would strip vital property rights to shoreline protection from thousands of property owners along the California coastline. We highlighted the significant litigation and takings costs this could impose on state and local governments.

Read more about AB 1129 and its potential costs