And briefing complete in another wetlands challenge

Also today, we filed our reply brief on summary judgment in Tin Cup, LLC v. U.S. Army Corps of Engineers. This case, also arising out of Alaska, challenges the Corps’ practice of “supplementing” its national wetlands delineation manual with regional variations. The regional supplement that applies to Alaska uses a standard for growing season much more relaxed than that found in the national manual. And — surprise! — that relaxation just happens to expand the Corps’ regulatory authority, in this case over permafrost. Our lawsuit contends that the Corps is required by law to use its existing national manual unless and until it adopts a new or revised national manual (which it hasn’t done). We expect a decision from the District Court of Alaska sometime later this year.

Briefing complete in wetlands jurisdictional challenge

Today, we filed our reply brief on appeal in Universal Welding, Inc. v. United States Army Corps of Engineers. The case concerns the scope of a rarely addressed (and even more rarely applied) regulatory exception to the Corps’ wetland jurisdiction under the Clean Water Act. According to the Corps’ long-standing rule, the agency generally will assert jurisdiction over all wetlands that are “adjacent” (i.e., bordering, contiguous, or neighboring) to other jurisdictional waters. With one exception. The Corps’ regulation provides that the agency will not assert jurisdiction over wetlands that are adjacent to other wetlands. We contend that this exception applies to the wetlands on Universal Welding’s North Pole, Alaska, property.

This case represents an important follow-up to PLF’s 2010 victory in Great Northwest, Inc. v. U.S. Army Corps of Engineers, in which the federal district court in Fairbanks became the first in the nation to apply the adjacent wetlands exception to deny Corps regulatory control. Not surprisingly, the Corps in Universal Welding’s appeal tries to distance itself from the Great Northwest decision by advancing a purportedly “narrow” interpretation of the exception that is, in fact, an evisceration of it. We’re hoping for a hearing in the Ninth Circuit sometime this year.

Missouri court was wrong to allow state to license hair braiders as cosmetologists

Tameka Stigers. Courtesy Institute for Justice.

Ndioba Niang and Tameka Stigers are professional African-style hair braiders in Missouri. When the Missouri Board of Cosmetology and Barber Examiners told them that they had to stop practicing their trade unless they underwent hundreds of hours of irrelevant training (and paid thousands of dollars for the trouble) to be licensed as cosmetologists or barbers, they enlisted the help of our friends at the Institute for Justice and sued. After the federal district court essentially rubber-stamped the law and upheld the licensing requirement under an overly deferential version of rational basis review, Ms. Niang and Ms. Stigers appealed. Yesterday, PLF filed an amicus brief in the 8th Circuit Court of Appeals in support of Ms. Niang and Ms. Stigers, arguing that the lower court’s version of the rational basis test was wrong and tantamount to no review at all.

Continue reading

PLF argues at Oregon Supreme Court: people have a right to compete

Today I’ll argue this economic liberty case on behalf of David Hansen at the Oregon Supreme Court.

David studied architecture at the University of Idaho.  After college, he worked at various architectural firms doing design work.  Later, David and a partner started their own firm—Twist Architecture—to use their skills while pursuing licensure in Oregon. His partner was licensed in Washington at the time, and David was not yet licensed anywhere. Aware that they couldn’t practice architecture in Oregon without a license, they limited their work to making marketing drawings.  These drawings were meant to help a property development company attract retailers to developments by imagining different possibilities for the project.  The drawings were not “plans,” and could not be used for construction.  If any development moved forward, the retailers would hire their own licensed architect to draw the actual plans for the project.

After receiving a complaint from a licensed architect, the Board fined David and his partner $10,000 each for purportedly practicing architecture without a license.  The Board contends that “anything done in contemplation of constructing a building” is the practice of architecture and requires a license.

We argue that the Board’s interpretation is unconstitutional.  Any restriction on a person’s right to earn a living must bear a rational relationship to protecting health and safety.  Overreaching prosecutions like the one at issue here do not protect public safety, and are often bare attempts to keep individuals from competing with licensees.  The Board cannot wield its power to insulate architects from competition by others for ancillary services that are not themselves the practice of architecture.

Can non-native wolves receive protections reserved for native species in Oregon?

Later this year the Oregon Court of Appeals will consider whether it was lawful for the Oregon Department of Fish and Wildlife and the Oregon Fish and Wildlife Commission to remove the gray wolf from the state’s endangered species list in late 2015. Disagreeing with the wolf’s delisting, three environmentalist groups challenged it last year. PLF represents the Oregon Cattlemen’s Association and the Oregon Farm Bureau Federation as intervenors defending the delisting, and today we filed a brief responding to the environmentalist groups’ challenge to the delisting. Continue reading

Federal agency flouts Endangered Species Act again

Members of Save Crystal River, Inc.

Today, PLF sent a warning to the U.S. Fish and Wildlife Service that unless the agency adopts its proposed rule to reclassify the manatee within 60-days, PLF will sue on behalf of Save Crystal River, Inc., to compel downlisting the status of the species from endangered to threatened.

It is disappointing, but not surprising that the agency is once again ignoring the law, as you will understand with a brief review of the species history:

  • In 2005, PLF sued to force the federal government to complete status reviews for 89 species, including the manatee. The Endangered Species Act requires the U.S. Fish and Wildlife Service to conduct status reviews of listed species every 5 years, but the agency regularly ignores that requirement. The last 5-year status review for the manatee at that time was 14-years before the lawsuit.
  • In 2007, as a result of PLF’s lawsuit, the government completed its long overdue status review, which concluded that the manatee was no longer in danger of extinction (i.e., “endangered”) and thus should be reclassified as only “threatened.” The government never acted on that advice.
  • In 2012, PLF represented Save Crystal River (SCR) in petitioning the government to follow its own recommendations from the 2007 status review and downlist the manatee. The government refused to respond as required by law by issuing a “90-day finding” on the petition. It requested more time, but then broke those promises, too.
  • In 2014, PLF sued on behalf of SCR, forcing the government to issue a positive and long overdue 90-day finding. That finding triggered a one-year deadline for a “12-month finding,” but the government missed that deadline, too.
  • In 2015, PLF again sued on behalf of SCR, forcing the agency to issue the 12-month finding.  In response, the government finally complied and proposed a rule to remove the manatee’s endangered status and reclassify it as threatened. The government then had another 12-months to adopt the rule or publish an alternative decision, but it has once again ignored deadlines required by the law.
  • Today we sent a 60-day notice, warning that unless the agency follows the Endangered Species Act and reclassifies the manatee, we will sue yet again.

There is no reason for the agency to delay. The manatee will still enjoy state and federal protections when reclassified as threatened. Moreover, the manatee’s numbers continue to surge. In 2007, the Fish and Wildlife Service’s status review that first recommended downlisting the manatee estimated 3,300 manatees in Florida waters. One decade and two lawsuits later, the agency has failed to reclassify the manatee, despite its experts’ advice, even as the U.S. manatee population has doubled and the total international population reached more than 13,000.

Instead of celebrating the improvement, the agency’s own manatee regulations are needlessly slowing down SCR’s multi-million dollar restoration work to habitat in the waters around Crystal River, Florida. This work benefits manatees and many other creatures. The government should take the next logical (and legally required) step and downlist the manatee.  Otherwise, we will have to sue yet again.

Weekly litigation report — January 7, 2016

Supreme Court watch

The interior of the United States Supreme Court

Supreme Court interior.

We are waiting for word from the Supreme Court on three of our cases where we are directly representing the petitioners. The Court held its conference on Bennie v. Munn(retaliation for speaking out for Tea Party) Foster v. Vilsack, (phony wetlands designation) and the Waters of the United States jurisdictional challenge. We could hear as soon as Monday whether the Court will take these cases.

Economic liberty argument next week

We will be arguing our Twist Architecture case before the Oregon Supreme Court next Tuesday. This is the case where we are arguing people ought to be allowed to make non-technical renderings of proposed buildings without first obtaining an architect’s license. For more, see this blog page.

Union-backed First Amendment violation

We filed this amicus brief in Jarvis v. Cuomo urging the Supreme Court to take up the cause of family daycare providers in New York who have been involuntarily conscripted into a union. In a nutshell, New York has decided that these privately employed providers are “public employees” so that they can be forced into a union, pay union dues, and be prevented from negotiating where their employers. That seriously infringes upon these employees and their independence, not to mention the First Amendment that protects people from forced speech and association. Our brief on behalf of ourselves, the Goldwater Institute, Fairness Center, Pioneer Institute, and Empire Center urge the Court to restore freedom to these workers. As our brief concludes, “It is far past time for public-employee unions to join the great American tradition of voluntary associations, where participants willingly contribute to common goals.” For more, see our blog post here.

American Indian artist can say who she is while lawsuit continues

We reached an agreement with Oklahoma to stay it’s enforcement of that state’s First-Amendment bashing law that prohibits members of state-recognized Indian tribes from truthfully saying that their art is made by American Indian artists. The state will allow our client to make truthful statements about her art while her case, Fontenot v. Oklahoma, is proceeds in court. For more, read our blog here.


Exclusive representation violates the First Amendment

New York laws and regulations deem family daycare providers (individuals who operate daycare businesses in their homes) to be “public employees” and requires a union to be the daycare providers’ exclusive representative for bargaining with (e.g., lobbying) the state over daycare regulations and policies. The workers who are “deemed” public employees for collective bargaining purposes are not permitted to work outside the union-negotiated terms and conditions, violating their rights to negotiate their own terms of employment.

Represented by the National Right to Work Legal Defense Foundation, the providers filed a facial challenge to the law, Jarvis v. Cuomo, alleging that mandatory exclusive representation violates their First Amendment rights to freedom of association and speech.  The federal district court ruled in favor of the state and the union, based on a 1984 Supreme Court case that permits mandatory affiliation. The Second Circuit Court of Appeals affirmed in a short, unpublished opinion that failed to consider the nature of the statute’s infringement on non-union workers’ individual rights. The decision gives a green light to unions and politicians to collude to benefit the unions at the expense of individual workers and citizens, who have basic, fundamental rights to speak and petition the government. This is an issue of growing national importance as states increasingly require in-home care workers to be subject to exclusive representation laws solely for the purpose of enhancing union power through collective bargaining.

The providers have asked the Supreme Court to review the case, and together with the Goldwater Institute, Fairness Center, Pioneer Institute, and Empire Center, Pacific Legal Foundation filed an amicus brief today supporting the petition, arguing that Americans cannot be compelled to speak or associate, or petition the government, against their wishes. The political and self-interested nature of the public-sector union’s collective bargaining, exclusively and on behalf of workers who explicitly decline to join the union, raises a significant issue of constitutional dimension, with nationwide import, that deserves resolution by our nation’s highest court.

Oklahoma officials agree to stay enforcement of unconstitutional American Indian art law

There’s some great news out of Oklahoma to announce. Oklahoma officials have agreed to (and the Court has signed off on) a stipulation to stay enforcement of Oklahoma’s American Indian Arts and Crafts Sales Act while PLF’s challenge to the law is pending. If you’ll recall, in November PLF challenged that law on behalf of award-winning American Indian artist Peggy Fontenot in federal court in Oklahoma. What this stipulation means is that while the case moves forward, Ms. Fontenot and every other American Indian artist in compliance with the federal Indian Arts and Crafts Act may market and describe their art as American Indian-made just as they were before the unconstitutional Oklahoma law was enacted last year. Continue reading

CCC tries to conveniently forget Supreme Court precedent

According to the California Coastal Commission staff, any permit where public access has not been granted can be automatically appealed on the grounds that California likes public access. A standard that weak is no standard at all, and certainly not what the legislature intended when it provided only limited grounds for appeal under section 30625 of the Coastal Act. We submitted a comment letter on the matter today.

PLF has been following appeal No. A-3-PSB-15-0030 out of Pismo Beach for several months. Staff just recommended that the Commission find that the development raises a substantial issue as to public access under the Coastal Act. There’s just one problem—even staff admits that the development at issue has absolutely no impact on public access.

Warning: Strained reasoning by the commission ahead