Weekly litigation report — April 8, 2017

  • Competitors’ Veto Law Repealed!
  • Another “relevant parcel” case headed for the Supreme Court
  • Cap and trade upheld by California court of appeal
  • Just compensation means compensation that is just, not cheap
  • Oral argument in Missouri anti-discrimination case
  • California courts don’t like competition
  • WOTUS to remain before SCOTUS
  • Access for all 

These trucks will be able to operate in West Virginia if Governor signs bill

Competitors’ Veto Law Repealed!

On Friday, the West Virginia legislature passed a bill repealing their Certificate of Need law, also known as a “Competitor’s Veto” law.  Formerly, anybody who wanted to start a moving business there essentially had to ask their competitors for permission first. For more, see our blog post here. The bill now awaits the Governor’s signature.

Another “relevant parcel” case headed for the Supreme Court

PLF attorneys filed this petition asking the U.S. Supreme Court to grant and hold the Washington state regulatory takings case, Kinderace v. City of Sammamish, pending its anticipated decision in Murr v. Wisconsin. In this case, the Elliot Severson owned several lots and developed those lots one at a time. But when it came time to develop the last lot, the City said no, it had to remain undeveloped. The owner sued, but the Washington courts found that because the owner had developed other contiguous parcels, nothing had been taken. Why not? Because the “relevant parcel” for takings purposes was all the lots Mr. Severson owned and because some had already been developed, he hadn’t been denied enough use to constitute a taking. This is the same principle that is being used to deny the Murrs any compensation for their 1.25 acre lot in Wisconsin. What this means is that it’s “okay” for the government to take some of your land if you own other neighboring land. For more on this case and the relevant parcel issue, see our blog post here.

Cap and trade upheld by California court of appeal

The California Court of Appeal issued this disappointing ruling in Morning Star Packing Co. v. California Air Resources Board. Our clients are challenging the state’s greenhouse gas emissions allowance auction under Proposition 13, which requires a supermajority vote for new taxes. The court invented a new type of revenue stream that is neither a tax nor a fee, thus avoiding Proposition 13. In this case the cap and trade allowances apparently are a new kind of private property that folks must “voluntarily” buy if they want to remain in business. You can read more about it at our blog post here.

Just compensation means compensation that is just, not cheap

We filed this Pacific Legal Foundation filed this friend of the court brief urging the Supreme Court to review Bay Point Properties v. Mississippi Transportation Commission. In this case, after the state abandoned a highway easement — after moving a bridge elsewhere — it began to negotiate with the underlying landowner to purchase the property for a park. But when the State found that the cost was $8 million, it condemned the property instead. The trouble here was that the State decided to pay for the land as if the abandoned highway easement were still in place — reducing the amount of money it had to pay to $500, a windfall to the state of roughly $7,999,500. Robert Thomas, PLF’s representative in Hawaii and nationally known expert on eminent domain is representing the landowners. For more, see our blog post here.

Oral argument in Missouri anti-discrimination case

Oral argument was held this week in E.L. v. Voluntary Interdistrict Choice Corporation before the 8th Circuit Court of Appeals. This is the case where we are representing a child who is not able to attend either charter or magnet schools in St. Louis solely because he is African-American. This rule is a vestige from an old desegregation order that was designed to help, not hurt, minority children. You can listen to the argument here. Our blog post is here.

California courts don’t like competition

California courts are notoriously hostile to the right of adults to enter into binding arbitration contracts. In the latest attack, the California Supreme Court issued an adverse ruling in McGill v. Citibank, where the court seemed to go out of its way to strike down another arbitration clause and rule that the Federal Arbitration Act does not apply — despite being told repeatedly by the Supreme Court of the United States that it does. For more details on what went south here, read our blog post.

This week, PLF filed this amicus brief in Bloomingdale’s v. Vitolo, supporting a cert petition a the Supreme Court of the United States asking the Court to review a Ninth Circuit court ruling (applying California law) that prohibits enforcement of an arbitration contract that does not permit arbitration of claims seeking “representative relief”—a variant of the class action procedure. Specifically, the case raises the continuing problem of representative actions under California’s Private Attorney General Act. PAGA is a bounty hunter statute that deputizes employees to sue their employers for alleged Labor Code violations. In this case, Nancy Vitolo worked for Bloomingdale’s for six weeks in 2008. She signed a contract promising to resolve any workplace disputes in an internal dispute resolution program that includes individual arbitration. Nonetheless, she ignored the arbitration clause and went straight to court, bringing a class-action case on a variety of claims. Now we’re asking the Supreme Court to take this case so it can put an end to California’s rule of evading arbitration clauses. Our blog post is here.

WOTUS to remain before SCOTUS

Although the Trump administration promises to review the WOTUS regulation (that’s the “Waters of the United States” rule from the Obama administration that turns dry land into wetland), an important case remains pending before the Supreme Court. In National Association of Manufacturers v. Department of Defense, the issue is whether a challenge to a rule like the WOTUS rule should be filed first in district court or in a federal court of appeals. For a variety of technical reasons, the government wants these cases to start in the appellate courts; we and others think the law correctly says they should start out in trial court because it gives landowners a greater ability to establish a record and make their case. The Department of Justice asked the Court to drop the case now that the administration has decided to drop the lawsuit, but we, and others, argued it was important to resolved the issue of where such suits should be filed in the future. The Court agreed with us, and the case continues in the Supreme Court. For more, see our blog post here.

Access for all 

We filed our notice of appeal in Granat v. USDA, a challenge to the Forest Service’s massive route-closure initiative on the Plumas National Forest in northeastern California. In 2005, the Forest Service promulgated a Travel Management Rule. The Rule’s purpose was to formalize and combine the existing network of legally authorized government- and user-created routes on national forests throughout the country. Unfortunately for the Plumas National Forest, the Forest Service used the Rule to embark on an anti-access campaign, ultimately choosing to close hundreds of miles of user-created routes. Our blog post is here.