Weekly litigation report — July 23, 2016

The fight for Edmund Lee goes to the appellate court

This week PLF filed its notice of appeal in E.L. v. Interdistrict Choice Corporation.  Last Friday, the district court dismissed Edmund’s case, holding that he lacked standing to bring his claim, and that the race-based transfer program is immune from challenge in federal court. As Edmund’s mother, La’Shieka White, explains in this interview with ABC in St. Louis, she and PLF are prepared to take this case to the Supreme Court if necessary. Continue reading

Weekend radio interviews on Edmund’s appeal and warrantless inspection case

I’ll be making a couple of radio appearances this weekend to talk about a couple of PLF’s cases. First, I’ll be discussing our fight to vindicate Edmund’s equal protection rights on the Randy Tobler Show at 5:35 AM on Saturday morning. Tune in to find out what the district court did last Friday, and what Edmund’s family plans to do next.

Next, I’ll be talking about our recently launched warrantless inspection case on the Elise Richmond Show at 10:15 AM this Sunday. Is the City of Highland treating a private residence the same way that it treats a Taco Bell? I’ll provide the answer on Sunday morning.

First Amendment success in California (and it didn’t even require a lawsuit)

All too often, cities fail to respect the First Amendment and pass a-frame-signunconstitutional laws that restrict people’s ability to advertise with signs. For recent examples, see here and here. But occasionally, cities can do the right thing. I’m happy to report that this week, Roseville, California did the right thing and enacted an ordinance that frees businesses to use temporary A-frame signs—a simple, yet affordable and effective means of advertising.  Continue reading

Federal supremacy protects miners’ rights

PLF and Western Mining Alliance have filed an amicus brief in the Ninth Circuit case Bohmker v. Oregon. In the brief, we argue that federal mining policy preempts Oregon’s ban on a federally-approved and encouraged mining practice.

Dredge_diagramPart of having a federalist system of government is deciding which level of government gets final say when federal and state laws conflict over shared subject matter. The Supremacy Clause of the U.S. Constitution establishes an easy-to-apply tie-breaker: the federal government wins. Although fans of individual liberty are probably well-past tired of hearing that phrase, the Supremacy Clause serves an essential function and our system of government would be a mess without it. In addition to making our two-level government possible, federal supremacy protects individual rights when state governments turn predatory.

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Briefing complete in sea otter petition case

This week, we filed our reply brief in PLF’s challenge to the Service’s denial of a petition asking it to follow the law and implement protections for Southern California’s fishery.

As regular readers know, in the 1980s, Congress passed a law allowing the Service to move sea otters into Southern California, on the conditions that it use feasible, nonlethal means to remove otters that wandered into the surrounding fishery and exempt fishermen and others from prosecution for incidental take. Decades after accepting this deal, the Service has decided to renege by eliminating the protections (while leaving the otter population established under the law in place, of course). Our brief argues that federal bureaucrats cannot circumvent the law so easily. When Congress says that agencies “shall” or “must” do something, it means it.

You can find out more about the case here.

Oral argument in “Docs v. Glocks” case

Last month, an en banc Eleventh Circuit heard oral arguments inphysician Wollschlaeger v. Governor of the State of Florida (popularly known as Docs v. Glocks). The case concerns whether a Florida law that prohibits doctors from asking their patients questions about gun possession unless the question is directly relevant to the patient’s care violates doctors’ free speech rights under the First Amendment. As we previously discussed herehere, and here, PLF filed a brief in support of the doctors arguing the law violates the First Amendment. Because the Eleventh Circuit does not make oral argument recordings available online, I only recently received a recording on CD.  Continue reading

California high court to decide if its bad law remains a dead letter

Last week, PLF, California Farm Bureau Federation, and the California Cattlemen’s Association applied to file an amicus curiae brief in the California Supreme Court case Scher v. Burke (S230104). Today, the Court granted our application and accepted our brief. In the brief, we argue that the California Supreme Court should reject arguments that the court should resuscitate California’s short-sighted doctrine of implied-in-law public dedication.

There is no public access to Martin's Beach in Unincorporated San Mateo County, Calif., photographed on Thursday, July 19, 2012. Vinod Khosla, a co-founder of Sun Microsystems and a green venture capitalist, bought the beach land in two lots in 2008 and has closed the public access to the beach. The San Mateo County chapter of Surfrider Foundation is holding a protest Saturday regarding the decision by the owner of Martin's Beach to deny access to the public. (John Green/Staff)

Under California’s now-defunct doctrine of implied-in-law public dedication, courts held, essentially, that if the general public uses private property for five years, the public gets a right to keep on using that property, forever. The problem with the doctrine is that it disregards whether the owner actually intends to permanently give up–or dedicate–his or her property to the public or, rather, merely intends to allow the public to use it with permission. By conclusively presuming that a landowner intends to permanently dedicate based only on the fact that the public has used the land for a period of five years, the doctrine disregards the landowner’s actual consent. And if the owner didn’t actually intend to give up the land, then what the doctrine actually accomplishes is the taking of private property for public use without compensation.

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Lesser prairie chicken delisted

Courtesy McRoberts, USFWS

Courtesy McRoberts, USFWS

Today, the U.S. Fish & Wildlife Service formally removed the lesser prairie chicken — a species widely distributed across Colorado, Kansas, New Mexico, Oklahoma and Texas, including key areas for energy development — from the Endangered Species Act’s threatened list. The delisting was the result of a lawsuit against the agency, challenging its decision to give short shrift to voluntary conservation programs developed by states and private landowners. After losing in the district court, the Service decided to forego its appeal.

So where does this leave the species?

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Florida county trespassing on free speech and property rights

The Goodwins

The Goodwins

Today, PLF filed a First Amendment lawsuit in federal court to defend the free speech and property rights of Edward and DeLanie Goodwin. The Goodwins built their beachfront home in Walton County 38 years ago. Today, they live there much of the year, enjoying the coast with their daughter, grandchildren, and extended family. Like many beachfront owners across Florida, the Goodwins own the sandy beach in their backyard down to the mean high water line. The public owns the wet beach seaward of that line. But Walton County is trying to erase the boundary between public and private property. Continue reading

PLF wins venue battle in jaguar case

On Thursday, Judge Kenneth Gonzales of the District of New Mexico ruled in favor of PLF and denied the Center for Biological Diversity and Defender of Wildlife’s motion to transfer venue. I have previously blogged about how Center for Biological Diversity and Defenders of Wildlife, the defendant-intervenors in the case, tried to transfer our case from the District of New Mexico to the District of Arizona. Continue reading