Weekly litigation report — August 27, 2016

  • Victory over the Coastal Commission
  • Unreasonable EPA denial of road permit
  • Property Rights in Washington State
  • Brief filed in Alaskan wetlands case
  • Court asks government to respond in frog case
  • California Supreme Court says no to miners

Victory over the Coastal Commission

We had this nice Statement of Decision from a California trial court in Capistrano Shores Property v. California Coastal Commission. In this case the owners of a run-down mobile home wanted to replace it with a newer and slightly smaller home. The Commission demanded that the owners first obtain a development permit. Next, the Commission held the permit hostage, refusing to grant it unless the owners agreed never to ask for permission in the future to repair or replace a seawall that protects not only their mobile home, but the homes of 89 other families in their mobile home park. The court found this condition to be illegal. Our blog post is here.

Unreasonable EPA denial of road permit

We filed this amicus brief in federal district court in Michigan supporting the Marquette County Road Commission in its case against the EPA as the commission seeks to build a much-needed road across the Upper Peninsula of Michigan. Although the commission had obtained all necessary state approvals the EPA’s vetoed those approvals with arbitrary and Continue reading

PLF opposes government effort to dismiss Duarte Nursery retaliation appeal

We previously reported our appeal to the Ninth Circuit in the Duarte Nursery case. Today’s update is that the Justice Department has asked the Ninth Circuit to dismiss the appeal, which we oppose. This is part of the Corps of Engineers’ ongoing effort to avoid responsibility for its retaliation against Duarte Nursery’s exercise of its First Amendment rights to petition government.

The trial court has already ruled that Duarte Nursery has alleged sufficient facts to establish that the Corps of Engineers, and the Justice Department, unconstitutionally retaliated against the company for exercising its First Amendment right to sue the government. In asking the court to dismiss the retaliation claim on procedural grounds, the government conceded the factual truth of the claim, and has never rebutted the extensive evidence of retaliation that PLF has produced on Duarte’s behalf.

Justice Department to Witness: "We're Suing Them Back."

Justice Department to Witness: “We’re Suing Them Back.”

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It doesn’t get more exciting than this!

For administrative law nerds, U.S. Tenth Circuit Court Judge Neil Gorsuch’s concurring opinion this week calling for the High Court to reconsider its Chevron doctrine is about as thrilling as it gets!  Although it is hard to top, Tony Francois and I also savored the timing, given that we foreshadowed this type of opinion just a week before in an op-ed featured in the Daily Journal of San Francisco.

Whether you are an administrative law nerd already or you hope to become one (who doesn’t fit one of those categories?), our Daily Journal op-ed helps explain these recent developments and puts them in perspective. We reported on the increasing pressure to either restrict or overrule the excessive and improper deference courts apply to agency interpretations of law, including interpretations of their own power. We describe the historical events that contributed to the problem, including the Supreme Court’s ruling in Chevron v. NRDC (1984) concerning when courts should grant such deference, and we discuss congressional and judicial actions that are being debated to correct this unjust state of affairs. Continue reading

Back to School Choice Week 2016: The latest in the Philadelphia school district’s attempt to stop charter schools from growing

Discovery Charter School is a successful school_choice2Philadelphia school that serves grades K-8. In light of its academic success, Discovery has amassed a waiting list of 1,448 hopeful students. In 2012, Discovery sought permission from the School District of Philadelphia to amend its charter to increase enrollment by 430 students over a four-year period. But the school district only offered Discovery a charter renewal at its current enrollment level. Continue reading

It’s Back to School Choice Week on Courting Liberty

PLF’s Director of Communications Harold Johnson is joined by PLF Principal Attorney Joshua Thompson to discuss Pacific Legal Foundation’s Back To School Choice Week. The conversation also highlights many of the ongoing cases in courts across the United States where PLF is working in the name of school choice.

The week is designed to bring light to School Choice issues all across the United States and highlight how PLF is fighting in the courts to help improve the education system by allowing parents the right to choose a school for their children.

We invite you to listen weekly and subscribe to PLF’s Courting Liberty podcast. The show features a weekly look at development in our high-profile cases, interviews with PLF attorneys and clients, in-depth analysis with policy experts, our “Ask a Lawyer” segment, and everything else PLF.

Citizen suit abuse

The Daily Caller reports here on use and abuse of the citizen suit provision of federal environmental laws, with an interesting comparison between Earthjustice and PLF.  The report may surprise you.  Here is a snippet:

The [Daily Caller News Foundation] found many environmental groups, law firms and attorneys have sued the government for millions of dollars in what are called “citizen suits.” Such lawsuits are often environmentalists looking to force a federal agency to issue more regulations.

“Citizen suits are often brought to enlarge environmental regulation beyond the scope of statutory authority and congressional intent, frequently with the willing help of overzealous bureaucrats and sympathetic judges,” Reed Hopper, an attorney with the Pacific Legal Foundation (PLF), told TheDCNF.

Read the report for more detail.

Opening salvo in Clean Water Act appeal

Earlier this week, we filed our opening brief on appeal in Universal Welding & Fabrication, Inc. v. United States Army Corps of Engineers.  Our client, Universal Welding, is a family-owned steel and pipe fabrication business, based in North Pole, Alaska.  The company wants to expand its operations to a neighboring parcel.  This parcel has about 14 acres of isolated, low-functioning wetlands.  Nevertheless, the Corps demanded that our client obtain a permit under the Clean Water Act to develop the property.  The Corps imposed a number of onerous conditions in that permit, among them that our client pay a $70,000 mitigation fee to The Conservation Fund.

We filed an action challenging the Corps’ jurisdiction over the property, relying on an often overlooked limitation within the Corps’ own regulations.  Those regulations provide that the Corps may assert jurisdiction over wetlands that are adjacent to other waters, unless those other waters are themselves wetlands.  In that instance, the Corps’ regulation declines to assert jurisdiction over such wetlands-adjacent-to-other-wetlands.

Our action relies on an earlier PLF victory, also out of Alaska, successfully applying the same regulatory exclusion, Great Northwest, Inc. v. U.S. Army Corps of Engineers.  In our opening brief on appeal in the Ninth Circuit, we argue that the Corps’ adjacent wetlands limitation means that the Corps cannot assert jurisdiction over two types of wetlands:  (i) those that are solely adjacent to other wetlands, and (ii) those that may be adjacent to non-wetland waters, but only by virtue of their adjacency to other wetlands.  We believe that this interpretation of the Corps’ adjacent wetlands limitation is reasonable because (A) it allows the Corps to regulate wetlands so long as they are immediately adjacent to non-wetland waters, but appropriately (B) it precludes the Corps from “leapfrogging” over intervening wetlands and pretending that an otherwise non-jurisdictional wetland is adjacent to a non-wetland water.

Victory for property rights in California

Today, in a ruling likely to impact property rights up and down the California coast, an Orange County Superior Court ruled in favor of a San Clemente family whose rights to protect their beachfront mobile home with a seawall were under assault by the California Coastal Commission. Continue reading

PLF files amicus brief on behalf of Marquette (MI) County Road Commission

This past week, Pacific Legal Foundation filed an amicus brief in federal district court supporting the Marquette County Road Commission as it seeks to build a needed road across the Upper Peninsula of Michigan despite the EPA’s arbitrary and capricious objections.

Our Atlantic Center summer law clerk summarized the case in a blogpost recently*:

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Back to School Choice Week 2016: The sad end to Vergara highlights the need for school choice

A little over two years ago the Los Angeles County Superior Court issued a decision in Vegara v. California that shook the California public school system. The court ruled that three Education Code statutes — permanent employment, last-in-first-out, and dismissal — violated the rights of California students under California’s Equal Protection Clause. According to the court, these statutes created a public school system that sacrificed children to the interests the teachers’ union, and, as a result, the statutes violated the students’ fundamental right to a quality education.    Continue reading