Weekly litigation report — July 16, 2016

Privacy and property rights  WOTUS at the Tenth Circuit District Court setback in anti-discrimination suit Procedural victory in Jaguar case Procedural victory from Ninth Circuit in sea otter case Defending property against made up public rights Privacy and Property Rights  … Continue reading

Weekly litigation report — July 1, 2016

California Supreme Court to take up tax case The right to a jury when the federal government takes your property Appeal filed in mobile home case Loss in gopher frog critical habitat challenge Union trespassing upheld Stack and pack upheld … Continue reading

Bureaucrats shouldn’t be able to escape legal scrutiny

Yesterday, Townhall published my op-ed highlighting the importance of PLF’s big, unanimous Supreme Court win in our Hawkes case (and its predecessor, Sackett) and whether these cases foreshadow anything for one of our cases currently pending before the Court. As regular … Continue reading

Amicus support for the green sturgeon petition

In the last few days, we’ve received a great collection of amicus briefs supporting our cert petition challenging the Ninth Circuit’s decision in the green sturgeon case, Building Industry Association of the Bay Area v. United States Department of Commerce.  The issue … Continue reading

President’s weekly report — May 20, 2016

Complaint filed to stop “competitors’ veto” in West Virginia PLF attorneys challenged West Virginia’s Competitor’s Veto law on behalf of Arty Vogt, who owns a moving company based in Virginia.  Arty would like to provide moving services within neighboring West … Continue reading

PLF comments on caribou critical habitat

This week, PLF filed comments, joined by Bonner County, Idaho and the Idaho State Snowmobile Association (ISSA), on the Service’s proposed critical habitat designation for the woodland caribou. The comment argues that the Service must address changes in the species’ … Continue reading

Is economically disastrous environmental regulation subject to judicial review?

So ask PLF attorneys on behalf of trade and property rights groups in a cert petition filed this week.  The case, Building Industry Association of the Bay Area v. United States Department of Commerce, concerns the critical habitat designation for a … Continue reading

Adverse decision in green sturgeon critical habitat challenge

Today a Ninth Circuit three-judge panel issued a remarkable legal opinion.  The bottom line: Decisions to include areas as part of critical habitat for endangered or threatened species under the ESA are judicially reviewable, while decisions not to exclude areas from critical habitat are not judicially reviewable.  It’s one heck of a legal opinion.

Logic dictates that decisions to include or exclude areas from critical habitat are flip sides of the same coin. When deciding which area to include, one necessarily decides which areas not to include, i.e., which areas to exclude.  It comes down to a question of what to leave in and what to leave out.  But the Ninth Circuit panel didn’t see it that way when it opined that government decisions “not to exclude” areas from critical habitat designation for the green sturgeon species could not be judicially reviewed, on the ground that there was “no law to apply.”

The decision is wrong on the facts and wrong on the law.  But this case is of more than academic interest to lawyers.  Almost the entire West Coast of the United States has been designated by the government as critical habitat for the green sturgeon, placing substantial roadblocks to economic development and growth in the states of Washington, Oregon, and California.  Quality of life issues for millions of Americans are at stake.

We are reviewing our legal options.