Weekly litigation report – October 1

Landowners must be made whole when their property is taken

We filed this amicus brief in South Lafourche Levy District v. Jarreau in the Louisiana Supreme Court. There are many valid reasons why government may take private property. That could include anything from a new public highway to levees to protect a city from flooding. But when government takes someone’s property, the owner should be fully compensated — and left no worse off and no better off than before the taking. But a number of jurisdictions refuse to pay for business losses caused by the taking. In this case, a landowner’s land with its ongoing soil excavation business was taken by the levee district so it could use the soil for a levee. So far so good. But the District is paying only for the land, and not its value as a soil excavation and hauling business. In fact, the District has even gone so far to demand that the owner pay the district for soil that the owner had excavated before the taking. As our blog explains, we are urging that the court adopt a rule that when the Constitution says “just compensation” be paid, that should include business losses in a case like this one.

PLF opposes illegal fracking regulations

Opposing the Bureau of Land Management’s illegal fracking rules, we filed this amicus brief in the Tenth Circuit in Wyoming v. Jewell. The BLM has no statutory authority to regulate fracking or groundwater. To the extent that EPA once did, Congress expressly took that authority away. But the BLM appears to be operating under the theory that if Congress doesn’t expressly forbid a particular agency from regulating something, it can go ahead and do what it pleases. We disagree. Regulatory agencies do not have license to regulate without statutory authority, and agencies cannot interpret silence in statutes to grant authority. For more, see our blog post here. 

PLF files appeal to stop discrimination

PLF filed this opening brief in E.L., a minor, by La ‘Shieka White v. Voluntary Interdistrict Choice Corporation in the Eighth Circuit Court of Appeals. This is our challenge to an archaic discriminatory policy that prevents a child from transferring to a public school that specializes in STEM courses, solely because he is African-American. For more on the developments in this case, see our blog post here.

Freedom of contract defended at the U.S. Supreme Court

The Federal Arbitration Act protects the right of employees and employers to agree to resolve individual workplace disputes by arbitration, rather than litigation (including class action lawsuits). The National Labor Relations Board says that those arbitration agreements are unlawful. Different appellate courts have reached opposite answers on the question and several companies involved in those cases have petitioned the Supreme Court to resolve the matter. PLF has weighed in with an amicus brief defending the right of employer and employees’ freedom to make arbitration agreements.

Alabama rule requiring craft breweries to spy on you, rejected

This week the Alabama Alcoholic Beverage Commission rejected a creepy rule that would have required craft breweries to record the names, phone numbers, addresses, and birthdays or anyone who purchased a craft beer (but not other beers) for carryout. PLF had filed formal comments to the Commission illustrating its anticompetitive effects, along with an article in Forbes opposing the the rule.

 

National Labor Relations Act vs. Federal Arbitration Act

empty-boxing-ring Laaaaaadies and gentlemen! In this corner: the National Labor Relations Act, a national heavyweight born in the New Deal, protecting workers’ rights to “concerted activities” for their mutual benefit! And in this corner: the Federal Arbitration Act, a powerful 1925 rebuff to the judiciary’s then-hostility to arbitration, protecting the freedom of contract so employers and employees can agree to resolve their workplace disputes in individual arbitration (meaning: no class actions)! Which statute will win the battle for supremacy? Continue reading

A (mostly) victory when it comes to Alabama spying on your beer habits

Yesterday the Alabama Alcoholic Beverage Control (ABC) Board decided against adopting a creepy rule which would have required craft breweries to record the names, phone numbers, addresses, and birthdays of anyone who purchases craft beer for carryout.  As I detailed in this comment letter and this Forbes piece, the proposed rule was a burdensome and invasive regulation, which would have made it more difficult for craft breweries to compete with other, bigger beer purveyors.  It would have created a logistical predicament for craft brewers, and a privacy dilemma for consumers.

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Marin County and the California Coastal Commission overreaching with Local Coastal Program amendments

Agriculture in Marin County

Agriculture in Marin County

The voluntary preservation of agricultural lands is a noble goal. Forcing landowners into government-run conservation efforts against their will, however, is something else entirely. And a desire to conserve pastoral farmland doesn’t excuse government from following the laws and constitutions of California and the United States. For several years, PLF has been closely watching Marin County’s attempts to adopt amendments to their Local Coastal Program. PLF attorneys have submitted several comment letters highlighting provisions of the proposed amendments and the Implementing Program that both substantially interfere with the property rights of Marin County landowners and raise significant constitutional concerns. Last Friday, PLF submitted this letter to the Marin County Planning Commission, and I appeared before the Commission Monday to remind them that property rights can’t be taken at will by government bureaucrats.

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Seattle’s plans to fix your “unconscious bias”

seattle-skylineSeattle has decided to force landlords to accept the first prospective tenant that walks through the door. Why? Because you may be a racist and not even know it; your unconscious biases could control your rental decisions. Seattle is not content with stopping you from listening to the devil on your shoulder. The city also wants to guarantee that the shoulder devil isn’t mounting a covert op. So Seattle will simply remove your ability to decide who you rent your own property to. As long as the first person to apply meets minimum credit standards, a landlord will have to rent to him. Continue reading

PLF argues that business losses are recoverable in eminent domain cases

One of the most basic protections that the U.S. Constitution provides for property owners is the guarantee that the government cannot take private property without paying just compensation. That mandate is intended not only to ensure that owners are made whole, but also to place a real limit of the government’s exercise of eminent domain authority—which is truly an awesome and terrible power. Continue reading

Supreme Court to hear The Slants’ case

This morning, the United States Supreme Court issued the first orders from its September 26th long conference. Among the cases the Court agreed to hear is Michelle K. Lee v. Simon S. Tam. We have previously discussed Mr. Tam’s case here and here. Briefly, Mr. Tam is the frontman of the rock band, The Slants. The band, comprised of Asian-American members, chose the band’s name in order to bring awareness to discrimination against Asian-Americans and reclaim a derisive term. When Mr. Tam sought to register The Slants as a trademark with the United States Patent and Trademark Office, he was denied because the government claimed the Lanham Act’s Disparagement Clause precludes registration of the name. As shown by several examples in the briefing and lower court opinion, however, the government routinely picks and chooses which names and phrases it considers to be “disparaging” without rhyme or reason.

Also of note, today’s orders list makes no mention of the request by the Washington Redskins’ football team to consolidate their case currently pending in the 4th Circuit that addresses the same legal issue, so it appears the Court will only hear Mr. Tam’s case. While there is no date set for oral argument yet, PLF looks forward to supporting Mr. Tam in his quest to register The Slants and have the Disparagement Clause declared unconstitutional under the First Amendment.

New Endangered Species Act regulations will improve the statute’s implementation

This week, the Fish and Wildlife Service finalized its proposed regulations to reform the Endangered Species Act petition process. The regulation incorporates several important reforms and is a welcome sign for all of us who care about protecting species and avoiding unnecessary litigation and regulation. PLF filed comments on the proposed rule supporting the reforms that made it into the final rule.

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6th Circuit delays Clean Water Rule challenge

Our challenge to the Corps and EPA’s controversial rule redefining “waters of the United States” (WOTUS), subject to federal control under the Clean Water Act, is on hold in the 6th Circuit Court of Appeals.  We were initially scheduled to file our opening brief this week, but the 6th Circuit recently agreed the briefing was premature.  Although the administrative record filed with the court is over a million pages, it’s still incomplete.  We want to augment the record with internal memos from agency officials that state the rule is legally indefensible and scientifically insupportable.  Obviously, the Corps and EPA want to keep those damning memos out of the record, arguing they are confidential communications and are not a part of the record.  Until the court resolves this argument and determines the scope of the record it will examine during the litigation, the briefing is on hold.  Briefing will likely resume in a couple of months.

Update on warrantless inspection case

I’ll be in appearing in federal court on Monday on behalf of a property owner in his lawsuit against Highland. The City punishes those who dare to object to warrantless inspections by withholding the rental license. That forces property owners to waive their Fourth Amendment rights before they may put their property on the rental market. You can learn more about the case here.