Free speech at the University of Florida after Charlottesville

Florida alligator ready to greet Nazis and KKK members in Gainesville.

How should local public officials, be they police officers, city officials, or university presidents, protect First Amendment free speech rights when the safety of the public is put at risk by those looking for permits to march or protest in a public forum (or when safety is put at risk by those protesting the marchers)? In the wake of the tragic deaths of two law enforcement officers and a paralegal named Heather Heyer during protests that became deadly last week in Charlottesville, that’s a question on many Americans’ minds. It’s definitely on mine.

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Weekly litigation report — August 19, 2017

  • Environmentalists warn of catastrophic sun-darkening on Monday!
  • Support for the Supreme Court to toss Michigan’s theft by tax-forclosure scheme
  • Widespread support for “absent frog” case in Supreme Court
  • And widespread concern for unoccupied sage-grouse habitat rules
  • John Duarte settles with the Corps over making mountains out of farm furrows
  • Stay denied in Utah prairie dog case
  • PLF urges high court to review constitutionality of Indian Child Welfare Act
  • Artisan butter remains illegal in Wisconsin for now
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Is there a shadowy plot at EPA to darken the sun on Monday?

Environmentalists warn of catastrophic sun-darkening on Monday!

Our good friends at the Center for Bogus Disasters are warning that unless you send them lots of money immediately, the EPA under Secretary Pruitt will darken the sun on Monday in a bid to increase demand for coal by reducing the efficiency of solar panels. On the plus side, the plot to darken the sun will at least temporarily slow the growth of global warming. If the sun does go dark on Monday, we suggest instead that you to send a tax-deductible contribution to Pacific Legal Foundation. It will surely brighten our day!

Support for the Supreme Court to toss Michigan’s theft by tax-forclosure scheme

This week, several groups filed “friend of the court” briefs supporting PLF’s Supreme Court petition in Wayside Church v. Van Buren County. Two of the amicus briefs—one by AARP and the other by the Buckeye Institute—focus on the need for the Court to review Michigan’s unjust tax foreclosure law, which allowed Van Buren County to take all $206,000 from the tax sale of Wayside Church’s property. The church owed only $16,750 in taxes, penalties, fees, and interest, but the local government kept all of the profits, rather than returning the remainder to the church. The other two briefs—one by Center for Constitutional Jurisprudence, and the other by NFIB Small Business Legal Center, The Cato Institute, Southeastern Legal Foundation, and Ilya Somin—ask the Supreme Court to overturn or limit Williamson County’s state litigation rule, which stops victims of unconstitutional takings claims (like Wayside Church) from vindicating their rights in federal court. Read more here.

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15,000 acres set aside for absent frog

Widespread support for “absent frog” case in Supreme Court

This week, business groups, associations, think tanks, and government entities all filed “friend of the court” briefs supporting PLF in its high-profile Supreme Court case for property owners’ rights, Markle Interests, LLC, et. al,, v. U.S. Fish and Wildlife Service. This is the case involving 1500 acres of land in Louisiana designated as critical habitat for the dusky gopher frog, at an economic cost to the owners of $34 million. Continue reading

PLF urges Supreme Court to review constitutionality of the Indian Child Welfare Act

Are private custodial proceedings Commerce with an Indian Tribe?

PLF filed this friend of the court brief at the Supreme Court today, urging the Court to take Goldwater Institute‘s challenge to the Indian Child Welfare Act. In their petition, two Indian children are asking the Supremes to review an Arizona Court of Appeals decision that applied the Indian Child Welfare Act, or ICWA, to their private “termination of parental rights” proceeding. The children were trying to sever their non-Indian mother’s parental rights so they could be adopted by their father and his new wife.

An Arizona trial court had found that the mother had abandoned her children under Arizona law, and that the severance would be in the best interests of the children. For children of any other race, this would have been the end of the matter, and the mother’s rights would be terminated. But because the two children are eligible for tribal membership, the court held that ICWA required the father to make “active efforts” to preserve the family, and that those efforts were shown to be unsuccessful.

Find out why we think ICWA is unconstitutional

Court refuses to halt Wisconsin’s anti-competitive law on butter … for now

Minerva Dairy is an Ohio-based dairy that has sold its delicious artisanal butter to satisfied consumers in all 50 states. Recently, however, Wisconsin began enforcing a law designed to insulate in-state butter makers from competition. The law prevents out-of-state butter makers from selling their butter in Wisconsin, unless they go through the cost-prohibitive process of getting their butter graded, designing Wisconsin-specific labels, and developing distributor agreements for Wisconsin-graded butter. As a result, consumers in 49 states can buy Minerva butter; consumers in Wisconsin cannot.

Minerva Dairy, represented by PLF attorneys, asked a federal court to halt the Wisconsin butter law until the court can fully resolve the constitutional issues in the case. Today, the court refused to do so, depriving Wisconsin consumers of the opportunity to buy a delicious product that’s sold everywhere else. But there’s good news. Minerva Dairy will now have the chance to establish additional facts to support its argument that Wisconsin’s anti-competitive butter law is unconstitutional. So while the butter law remains on the books for now, it might not be there for much longer.

 

Groups ask Supreme Court to grant PLF’s petition in Wayside Church v. Van Buren County

This week several groups filed “friend of the court” briefs supporting PLF’s Supreme Court petition in Wayside Church v. Van Buren County.

Two of the amicus briefs—one by AARP and the other by the Buckeye Institute—focus on the need for the Court to review Michigan’s unjust tax foreclosure law. Under this unjust and unconstitutional law, Van Buren County took Wayside Church’s property, sold it for $206,000 to pay around $16,750 in property taxes, penalties, fees, and interest. The County then pocketed all of the remaining profit as a windfall. Similarly, the county took the farm and home where Henderson Hodgens grew up, and sold it for $47,750 to pay a $5,900 debt. The County kept the entire profit, even though it already got significant benefit from the penalties and high interest rate due under state law. The amicus briefs offer additional arguments that explain why the County violated the constitution when it took the surplus profit and why it is important that the Court overturn the practice.

The other two briefs—one by Center for Constitutional Jurisprudence, and the other by NFIB Small Business Legal Center, The Cato Institute, and Southeastern Legal Foundation—ask the Supreme Court to review an important jurisdictional issue in this case. As they succinctly explain, this case presents the Supreme Court with a great opportunity to open the federal courthouse doors to individuals who seek to enforce their Fifth Amendment right to just compensation. Congress intended that the federal courthouses be open for these sorts of claims and there is no reason to deny individuals of that right.

We are grateful for these organizations’ support and hope the Supreme Court will grant the petition to remedy the injustice suffered by our clients.

PLF’s Markle critical habitat case draws broad amicus support

Ed Poitevent, one of the landowners at the mercy of a frog who doesn’t live anywhere near his property, and never will.

This week, business groups, associations, think tanks, and government entities all filed “friends of the court” amicus briefs supporting PLF in its high-profile Supreme Court case for property owners’ rights, Markle Interests, LLC, et. al,, v. U.S. Fish and Wildlife Service.  All thirteen of the amicus briefs, representing 19 different organizations and 18 different states led by the State of Alabama, urge the court to grant review of the case and then hold that property cannot be deemed “critical habitat” for an endangered species if the species does not use the property as habitat, and never could use the property as habitat barring changes that the property owner will never make.

The list of “friends of the court” supporting PLF and its clients include:

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PLF statement on Duarte Nursery settlement with Justice Department

August 15, 2017 (Sacramento)

“Duarte Nursery, its president, John Duarte, and Pacific Legal Foundation and their co-counsel announce that Duarte Nursery has agreed to a settlement with the United States in the federal government’s nearly five-year enforcement action over Duarte’s routine action of plowing its property to plant wheat in late 2012,” said PLF Senior Attorney Tony Francois.

Under the agreement, Duarte would admit no liability, pay the government $330,000 in a civil penalty, purchase $770,000 worth of vernal pool mitigation credits, and perform additional work on the site of the plowing.

“This has been a difficult decision for me, my family, and the entire company, and we have come to it reluctantly,” said John Duarte.  “But given the risks posed by further trial on the government’s request for up to $45 million in penalties, and the catastrophic impact that any significant fraction of that would have on our business, our hundreds of employees, our customers and suppliers, and all the members of my family, this was the best action I could take to protect those for whom I am responsible.”

“John would have preferred to see this case through to trial and appealed the court’s liability ruling, which holds that plowing a field requires federal permission — despite the clear text of the Clean Water Act and regulations to the contrary,” said Francois.  “John and his counsel remain concerned that legal liability for farming without federal permission undermines the clear protections that the Clean Water Act affords to farming and poses a significant ongoing threat to farmers across the nation.”

Designating non-habitat as “critical habitat?” Where does it stop?

In 2014, the U.S. Fish and Wildlife Service listed the Gunnison sage-grouse as “threatened” under the Endangered Species Act and designated over 1.4 million acres as “critical habitat” in Colorado and Utah. For years, the affected states, counties, and landowners have partnered to conserve the species while maintaining economic viability. Over 90% of sage-grouse habitat in the State of Utah is found on private land. Local landowners have provided 28,000 acres of their land for conservation management. After the expenditure of over $18 million, these cooperative efforts have increased the primary bird population by 30% and exceeded the government-established recovery goal. In combination with habitat areas that are federally owned and managed, over 75% of occupied habitat is protected, with more to come. But the Service claims this is inadequate and extended the “critical habitat” designation to cover 766,462 acres that are unoccupied. Much of this land is unsuitable as habitat and will remain so. Colorado is challenging the listing as unnecessary in light of the successful conservation efforts while Utah and San Juan County are challenging the designation of “critical habitat” as invalid, in addition to the listing. Continue reading

Weekly litigation update — August 12, 2017

  • Wheat farming goes on trial Tuesday
  • EPA defends its actions in response brief filed with Sixth Circuit
  • Critical habitat for frogs and a toad challenged
  • Amicus brief filed in Indian “reserved” groundwater dispute
  • Petition for rehearing denied in Utah prairie dog case
  • Pennsylvania school boards may flout the law
  • Siskiyou County appeal on public trust doctrine and groundwater use
  • California Supreme Court denies rehearing in our seawall challenge
  • Procedural win in challenge to state’s failure to review its species listings

Wheat farming goes on trial Tuesday

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On Tuesday John Duarte goes to trial in this Sacramento federal courthouse for the offense of wheat farming 

Duarte Nursery v. Army Corps of Engineers goes to a penalty trial starting this coming Tuesday in federal court in Sacramento, on the Army Corps’ demand for tens of millions in penalties and mitigation payments from the company for plowing its property to plant a winter wheat crop with the agency’s permission. Today’s blog post has a handy summary of what PLF and the rest of the Duarte litigation team will prove at trial, in asking the judge to impose only a nominal penalty. The post also includes a link to this excellent article that appeared today on the Daily Caller’s website.

EPA defends its actions in response brief filed with Sixth Circuit

This week the EPA, along with the other defendants in our Marquette County Road Commission v. EPA case, filed its brief responding to our arguments in favor of immediate court review of the EPA’s veto of the 404 permit the State of Michigan planned to issue to our client.That permit would have allowed the Road Commission to build the important road project it had planned for the Upper Peninsula of Michigan, but the EPA veto prevented the project from going forward. For more on the case, see our blog post here.

Critical habitat for California frogs and a toad challenged Continue reading

Trial to start next Tuesday on feds demand for tens of millions from Duarte Nursery for plowing a field

Next Tuesday, August 15, at 9:00 a.m. Pacific, at the federal courthouse in Sacramento, California, trial will get underway in the federal government’s outrageous demand for tens of millions of dollars in punishment from Duarte Nursery for plowing a field to plant wheat without permission from the United States Army. Needless to say, if the judge awards the government that much, it will be the end of the company and the jobs of its several hundred employees (none of whom had any role in this matter).

Today, The Weekly Standard published an excellent article summarizing what is in dispute in the case. The entire piece is available here, but this paragraph captures the essence of it:

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