Weekly litigation report — January 14, 2017

  • Supreme Court grants cert in WOTUS rule case
  • Supreme Court grants review in freedom of contract case
  • Economic liberty case argued at Oregon Supreme Court
  • Warning over manatee listing
  • Brief filed in mobile home park extortion case
  • Non-native wolves are not endangered 
  • Support for hair braiders
  • Alaskan wetland case filings
  • Amicus brief in Drakes Bay case against California Coastal Commission
  • Should courts defer to an agency opinion letter interpreting a regulation that interprets a statute?
  • Supreme Court denies review in wetlands-by-proxy case

Supreme Court grants cert in WOTUS rule case

The Supreme Court granted our writ of certiorari in National Association of Homebuilders v. Department of Defense, a case challenging the Waters of the United States rule. At issue in this particular case is whether a challenge should be brought in a federal district court or directly in a federal Court of Appeals. While this may seem like a technicality, the decision will be important in determining how the carefully the courts will examine the government’s justifications for this rule that vastly expands federal jurisdiction over wetlands, and some not very wet lands. Our petition was filed on behalf of seventeen organizations across the country. For more, see our petition here and our blog post here and our press release here.

Supreme Court grants review in freedom of contract case

The Supreme Court granted certiorari in three cases that raise the same issue: whether the National Labor Relations Act, which protects workers’ rights to engage in “concerted activities” for their mutual benefit, trumps the Federal Arbitration Act’s protection of the freedom of contract that allows employers and employees to agree to resolve their workplace disputes in individual arbitration (meaning: no class actions). We filed this amicus brief in one of the cases, Epic Systems Corp. v. Lewis, urging the Court to take up the case. For more, see our blog post here.

Economic liberty case argued at Oregon Supreme Court

PLF attorneys argued Twist Architecture v. Oregon Board of Architect Examiners this week at the Oregon Supreme Court. At issue is whether one must have an architect’s license to provide artistic drawings of how a property might look if it were developed. When Twist made up such drawings, it was fined because it didn’t have a valid architect’s license from Oregon. Since these drawings were not technical in any sense of the word, and would not be used for any actual development, the requirement that the artist have a license is nothing but economic protectionism. We don’t think that politically powerful cartels should operate at the expense of the free market. For more, see our blog post here.

Warning over manatee listing

In Save Crystal River v. United States Fish & Wildlife Service we sent this 60-day notice to the Service warning that it violated the Endangered Species Act by missing the 12-month deadline to adopt a proposed rule to downlist the manatee or explain the alternative. If the agency doesn’t adopt the rule, we will sue. After all, the manatee is doing well and it is in no danger of extinction. The agency would do better to turn its attention and resources to species that are in real trouble. For more, see our blog post here.

Brief filed in mobile home park extortion case

We filed this reply brief with the Ninth Circuit in Jisser v. City of Palo Alto, our challenge to the demand that the owners of a mobile home park pay over $8,000,000 to the park’s tenants in exchange for a permit allowing the Jissers to close the park. This sort of demand is precisely to sort of government leveraging that was called an “out-an-out plan of extortion” by the Supreme Court in our Nollan v. California Coastal Commission case.

Non-native wolves are not endangered 

We filed this answering brief in Cascadia Wildlands v. Oregon Department of Fish & Wildlife on behalf of the Oregon Cattlemen’s Association and the Oregon Farm Bureau Federation. This is the case where an environmental group is seeking to have the gray wolf listed as endangered under Oregon’s version of the Endangered Species Act. But this particular wolf species is not and never has been native to Oregon and the state law allows for the listing only of native species. For more, see our blog post here.

Support for hair braiders

We filed this amicus brief in Niang v. Carroll in support of African-style hair braiders in Missouri who want to, well, braid hair. What the hair braiders don’t want to do to cut hair, dye hair, apply makeup, or do any of the many things that cosmetologists do. And, more importantly, they don’t want to be forced to spend hundreds of hours and thousands of dollars to get training for and a license to do things they don’t want to do — especially when the license has virtually nothing to do with hair braiding. But to braid hair in Colorado, hair braiders must obtain a full-blown cosmetology license, an insurmountable obstacle to some. That makes no sense unless one concedes that the law should protect politically powerful cartels at the expense of folks who just want to earn an honest living. For more on this case, see our blog post here.

Alaskan wetland case filings

We filed this reply brief in the Ninth Circuit in Universal Welding v. United States Army Corps of Engineers and a reply brief on a motion for summary judgment in the district court in Tin Cup, LLC. v. United States Corps of Engineers. At issue in both cases is how far can the Corps assert jurisdiction over property that do not contain wetlands subject to federal jurisdiction. In Universal Welding, the Corps is claiming to have jurisdiction over property that falls outside the technical definition of wetlands because it is not adjacent to a navigable waterway, but only adjacent to other wetlands. . In Tin Cup, the so-called wetlands in question are permafrost — which lacks a proper growing season as required by the federal regulatory definition. For more on these cases see our Universal Welding blog post here and our Tin Cup blog post here.

Amicus brief in Drakes Bay case against California Coastal Commission

We filed this amicus letter brief in support of review on behalf of PLF and several other organizations, in Drakes Bay Oyster Company v. California Coastal Commission. We’re asking the California Supreme Court to hear DBOC’s due process appeal. At issue here is whether Commission staffers can do double duty as attorneys for the Commission at a hearing over an enforcement action against Drakes Bay and later and as regulators and enforcers of Drakes Bay.  Blog post pending.

Should courts defer to an agency opinion letter interpreting a regulation that interprets a statute?

We filed this amicus brief on the merits in support of Gloucester County School Board in      Gloucester County School Board v. G.G. We argue that the federal courts should not defer to agency opinion letters in interpreting federal regulations or statutes.  Here, the Department of Education’s staff issued an opinion letter claiming that federal laws and regulations allowing for bathrooms for each sex require that transgender students be accommodated in the bathroom of their preference. It is up to Congress to pass, or not pass, such a law, not a mid-level federal bureaucrat. Blog post pending.

Supreme Court denies review in wetlands-by-proxy case

The Supreme Court denied our petition for writ of certiorari in Foster v. Vilsack, a case where mid-level bureaucrats have interpreted ambiguous federal regulations to allow the designation of farmed land to be a wetland based on a “proxy site” many miles away. You can read more in our blog post here.