July 16, 2016

Weekly litigation report — July 16, 2016

By James S. Burling Vice President for Litigation
  • 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
James Otis defended privacy rights and helped start a revolution

Privacy and Property Rights 

We filed this complaint in Trautwein v. City of Highland over that City’s mandatory warrantless inspection regime for rental properties. While tenants are certainly free to invite city inspectors at any time, others — including our clients — feel violated when forced to allow strangers from the City building department comb through their homes and apartments. One of the driving forces behind the American Revolution was the abusive invasions of private homes by British troops looking for tariff violations. As John Adams later said of a famous colonial era trial where James Otis argued against the inspections: “the child of independence was then and there born.”  Why should tenants be any less free solely because they live in rental housing? For more, see our blog posts here and here.

WOTUS at the Tenth Circuit

We filed this amicus brief in Chamber of Commerce, et al. v. EPA, et al., a Tenth Circuit case that will decide which courts, district or appellate, should properly hear challenges to EPA’s “Waters of the United States” or “WOTUS” rule, the breathtakingly expansive attempt by EPA to claim that dry land throughout the nation is now considered to be wet and under the federal thumb. There is some rather complicated procedural wrinkles in the various challenges to WOTUS, primarily revolving around in which court they should be heard. That is the issue in our brief. You can read more about it on our blog post here.

District Court setback in anti-discrimination suit

A district court ruled against us in White v. Voluntary Interdistrict Choice Corporation. In this case we’re fighting for the right of an elementary school student to attend the school of his choice. Present policy says he cannot solely because he is African-American. We are considering our options.

Map of “endangered” jaguar habitat

Procedural victory in Jaguar case

We won a nice little procedural victory in our challenge to the designation of tens of thousands of acres of land as critical habitat for a non-existent (in New Mexico) Jaguar under the Endangered Species Act. We sued in New Mexico Farm & Livestock Bureau v. Jewell on behalf a number of ranchers in New Mexico (which is in the Tenth Circuit) who are being significantly impacted by the protection of habitat in that state. Environmentalists sued to intervene and then tried to move the case into an Arizona federal court because, it seems, that’s where their offices were located. Oh, did we mention that Arizona is in the Ninth Circuit? The court rejected that maneuver.

Procedural victory from Ninth Circuit in sea otter case

Sometimes the Ninth Circuit gets things right, such as in this opinion in California Sea Urchin Comm’n v. Bean, our challenge to the Fish & Wildlife Service’s illegal actions in administering a sea otter recovery program. In a nutshell, the court ruled that past illegal agency actions can’t insulate subsequent ones from judicial review. What that means is that the Service can be sued over its recent illegal actions (which are hurting our clients not to mention certain aquatic life) just because that illegal action was contemplated by an earlier illegal regulation.

Defending property against made up public rights

We filed amicus brief in Scher v Burke, a case out of Topanga Canyon where some folks want a shortcut through the private property of some California homeowners. We argue that courts should not infer public rights in private property where the landowners have actively resisted public trespass.

 

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California Sea Urchin Commission v. Combs

When the U.S. Fish and Wildlife Service asked Congress for permission in the 1980s to introduce sea otters into Southern California waters, Congress agreed but required protections for lawful fishing activity. In 2012, the Service declared that they would no longer honor the fishing industry protections. On behalf of sea urchin and abalone divers, lobster trappers, and other fishermen, PLF asked the U.S. Supreme Court to review the case to enforce the separation of powers in the Constitution. The Supreme Court denied the petition on October 29, 2018.

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