Weekly litigation report — July 22, 2017

  • A case to tweet about!
  • Pushing back against an unfair Clean Water Act prosecution
  • PLF files input letter on GMO labeling law
  • Gnatcatcher notice of intent to sue letter submitted
  • Minnesota Supremes invite tort abuse

A case to tweet about!

 On Thursday, PLF filed a lawsuit, American Federation of Aviculture v. U.S. Fish and Wildlife Service,  in federal court to force the U.S. Fish and Wildlife Service to obey the law and issue a decision on the American Federation of Aviculture’s petition to remove the golden parakeet from the list of protected species under the Endangered Species Act. Three years ago, the AFA petitioned the government to delist the golden parakeet, or downlist it from endangered to threatened and remove counterproductive restrictions that make it hard for US breeders to maintain genetically diverse flocks. The federal government is more than one year late issuing a decision on the petition. Read more here.

Pushing back against an unfair Clean Water Act prosecution Continue reading

Homeowners in Lynch file petition for rehearing in California Supreme Court

Photo by Tom Frick

CCC: You must build a wall to last 75 years, but we might make you tear it down in 20.

Today, Thomas Frick and the heirs of Barbara Lynch filed this petition, asking the California Supreme Court to grant rehearing in Lynch v. California Coastal Commission.

In that decision, the Court held that the two owners had forfeited their right to judicial review of conditions placed on a coastal permit. The owners had asked the California Coastal Commission for a construction permit to replace a storm-damaged seawall and stairway. The Commission issued the permit for the seawall—but with a 20-year “expiration date,” and denied the permit for the stairway. The owners accepted the permit under protest, filed a legal challenge, and constructed the necessary seawall to save their blufftop homes. Under the Court’s new ruling, any permittee will have to wait for the legal process to be fully resolved whenever they challenge a permit condition, whether or not the permit condition relates to physical attributes of the structure.

Read more about the history and opinion

PLF files amicus brief in Clean Water Act case

The Treasure State

Today Pacific Legal Foundation asked the Ninth Circuit to accept an amicus brief, written on behalf of Mike and Chantell Sackett, as well as John Duarte and Duarte Nursery, supporting the defendant in United States v. Joseph David Robertson. The issue we comment upon involves how the courts should apply the Supreme Court’s Rapanos decision. Since PLF argued and won Rapanos, it makes eminent sense for PLF to explain why the government unfairly applied Rapanos to Mr. Robertson in making its case against him for discharging (read: polluting) into “waters of the United States.”

The Montana Standard summarized Mr. Robertson’s case well:

Continue reading

PLF sues to end counterproductive golden parakeet regulations

Today, PLF filed a lawsuit in federal court to force the U.S. Fish and Wildlife Service to obey the law and issue a decision on the American Federation of Aviculture’s petition to remove the golden parakeet from the list of protected species under the Endangered Species Act.

The federal government listed the golden parakeet, also known as the golden conure or Queen of Bavaria, as endangered in the 1970s. At one time, experts estimated its population at 1,000-2,500. Today, experts estimate 10,000-20,000 golden parakeets. As a result, the IUCN Red list of Threatened Species reclassified the bird from endangered to “vulnerable.” Another reason for the improved status is that the golden parakeet faces a smaller threat of being trapped in its native Brazil habitat, because breeders of captive populations have depressed incentives for smugglers by providing legal, and more affordable options for collectors. In other words, private breeders are helping conserve the bird. Continue reading

PLF submits letter on GMO labeling rule

The government shouldn’t be able to force you to say things you don’t want to say. When the State compels speech for no good reason, Americans may call on the First Amendment for help. First, call PLF. Three weeks ago, we filed a comment pointing out the First Amendment problems with the FDA’s menu labeling rule. This week, we submitted this letter on the Department of Agriculture’s plans to mandate GMO labeling.

The First Amendment protects your right to stay silent just as much as it protects your right to speak. When the government wants to force you to carry its message, it must demonstrate that doing so directly advances a substantial interest (e.g. protecting public health). That’s why the government could require Mars to disclose the presence of peanuts in its Snickers bars. Peanuts, shellfish, and other allergens could make consumers ill or worse.

But that’s also why the First Amendment doesn’t allow the government to enforce its GMO labeling law. The World Health Organization, American Medical Association, and many other organizations agree that GMOs pose no distinct risk to human health. On the contrary, genetically engineered foods, like Golden Rice, can fight disease in impoverished parts of the world, where nutritional deficiency is a serious issue. GMO products are also more affordable, thanks to benefits like increased crop yields and resistance to disease, pests, and drought.

What’s more, an unconstitutional GMO labeling requirement will hit small businesses the hardest. Large companies can afford to pay quite a bit for labels. Many already have. General Mills proudly displays “not made with genetically modified ingredients” on boxes of Cheerios. Campbell recently decided to disclose the presence of GMOs in its soup. At the same time, both companies acknowledge that there is broad scientific consensus that genetically modified foods are safe. Yet small businesses are less able to pay these costs, which serve no good purpose. Fortunately, PLF is accustomed to representing small businesses and fighting for their constitutional rights.

Notice of anticipated gnatcatcher lawsuit submitted

This week, PLF submitted a notice of intent to sue the U.S. Fish and Wildlife Service over

California gnatcatcher (USFWS)

the agency’s denial last year of our petition to delist the coastal California gnatcatcher from the Endangered Species Act. The petition sought the gnatcatcher’s delisting on the basis of a 2013 nuclear DNA study, which undermines the gnatcatcher’s “subspecies” classification and concludes that the bird is not meaningfully distinct from the millions of gnatcatchers dwelling in Baja California. The notice letter, submitted on behalf of a coalition of home builder, sound science, and property rights advocates, challenges the legality of the Service’s delisting denial on two grounds.

First, the denial violates the basic administrative law requirement of reasoned decision-making. In rejecting our petition, the Service acknowledged that there is no commonly accepted definition of what constitutes a “subspecies,” yet the Service offered no definition of its own. Effectively, the agency purported to reserve to itself the power to define “subspecies” however it wants (“we’ll know it when we see it, and we’ll tell you”), whenever it wants, to suit its preferences. That kind of arbitrary power no agency has.

Second, the denial violates the Federal Advisory Committee Act. This law requires agencies that wish to rely on outside expert opinion to provide notice to the public of the convening of such a panel, and to allow the public to participate in the panel’s work. Here, the Service’s delisting denial relied heavily on the recommendations of a privately assembled peer review panel, despite the agency’s failure to provide formal notice of the panel’s creation, as well as its failure to provide the public any opportunity to attend the panel’s deliberations and to offer contrary evidence.

If the Service does not respond favorably to our notice, we’re prepared to litigate these important issues and to bring some measure of fairness and rigor into Endangered Species Act decision-making.

Can government force you to pay for your political opponents’ campaign contributions?

Last Friday, the National Review published my op-ed on PLF’s case challenging Seattle’s new-fangled campaign finance scheme. Seattle’s democracy voucher program gives four $25 vouchers to each Seattle resident per election cycle. They can use those vouchers to support local political campaigns. The voucher money comes from the pockets of property owners through a dedicated property levy. As the op-ed discusses, the First Amendment forbids government from forcing people to sponsor other people’s political views in this manner.

The op-ed concludes:

We treasure the First Amendment because it upholds human dignity — the power to shape our identity by what we believe and express. That dignity is sullied by a government that forces its people to serve as unwilling vessels for beliefs that repel them. As Thomas Jefferson said, “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.” The supporters of the voucher program want to force property owners to underwrite partisan political donations in the name of democracy. I don’t think that word means what they think that word means.

Click here to learn more about the case, Elster v. City of Seattle.


Minnesota Supreme Court abandons limits on tort liability

Last week, in Montemayor v. Sebright Products, Inc., a 4-3 majority of the Minnesota Supreme Court held that any “close” tort case must go to a jury.

This case involves a tragic accident that led to the serious bodily injury of Nereus Montemeyer as a result of his employer’s misuse of an industrial extruder and its failure to adequately train employees on the equipment’s proper use. Montemeyer received workers’ compensation for his injuries and his employer, VZ Hogs, LLP, paid substantial fines for its neglect. Montemayor then sued Sebright Products, the manufacturer of the equipment, arguing a variety of design defect and failure-to-warn theories.

It is a recurring theme throughout products liability law across the United States that a manufacturer’s warning, in conjunction with the obviousness of the risk, puts users on notice of the danger. Both make the injury unlikely to occur. Where a person proceeds despite explicit warnings and in the face of that obvious risk, the manufacturer is not liable for the resulting injuries. Here, the extruder functioned as designed and the existing warnings—as well as common sense—should have sufficed to keep workers outside of a crushing machine (nicknamed “the smasher”) still connected to its power supply. Both the trial court and appellate court granted summary judgment to Sebright for precisely these reasons.

But a sharply-divided Minnesota Supreme Court reversed. Continue reading

Weekly litigation report — July 15, 2017

  • PLF asks Supreme Court to protect plaintiffs’ right to raise takings claims in federal courts when government steals
  • Complaint filed against Marin County forced farming law
  • Mandatory housing shakedown fees before the Supreme Court
  • Getting union tentacles out of worker paychecks
  • Phantom frogs and critical regulations
  • PLF files appeal to guarantee public access to public forest
  • Reply Brief filed in P.I.E., LLC v. DeSoto County, a Florida takings case
  • Regional plan upheld against vague greenhouse gas challenge
  • Farmer asks Ninth Circuit to delay trial.

PLF asks Supreme Court to protect plaintiffs’ right to raise takings claims in federal courts when government steals

When PLF client Wayside Church fell behind on its 2011 property taxes on a parcel that the church had used as a youth camp, Van Buren County took the youth camp property and sold it for $206,000 to pay the church’s $16,750 in taxes, penalties, interest, and fees. The County kept the surplus proceeds—$189,250 more than the debt—as a windfall. Similarly, the County sold Henderson Hodgens’s childhood farm and home for $47,750 to pay a $5,900 debt. The County kept the surplus from these each of these sales. On Thursday, PLF filed a petition in the Supreme Court, asking the Court to review Wayside Church v. Van Buren County and hold that local governments violate the Takings Clause of the Constitution when they keep more than they are owed from tax sale proceeds. To reach this decision, the Court will need to first answer the question of whether federal courts have jurisdiction over federal takings claims. If taken, this case could overturn the unjust state-litigation rule created by a case called Williamson County. Read more and watch a video about the case on the Liberty Blog.

Complaint filed against Marin County forced farming law Continue reading

PLF files lawsuit against Marin County’s forced farming requirement

Aerial view of Mr. Benedetti’s Marin County farm.

Today Willie Benedetti filed his challenge to Marin County’s new Land Use Plan requirement that landowners remain “actively and directly engaged” in agriculture. The complaint asks the superior court in Marin County to declare the requirement facially unconstitutional.

The County’s new Land Use Plan requires landowners within the agricultural zone promise to remain “actively and directly engaged in agricultural use” of their property as a condition on building new agricultural dwellings. For Willie Benedetti, this means a choice between working forever, or retiring and giving up his property.

Read about Marin County’s forced farming law