PLF President's Weekly Roundup — September 21

September 21, 2012 | By ROB RIVETT

Another busy week for Pacific Legal Foundation!

Property Rights – Wayne Hage

In 1989 rancher and author Wayne Hage began his book Storm Over Rangelands with these words describing his research into the assault on the ranching community by the Forest Service and others: “I discovered that the attack on western livestock interests was not a mindless manifestation of urban ignorance but rather a well-planned, superbly orchestrated attempt to destroy the property rights of western interests.” With the publication of that book, the Forest Service began a vendetta against Wayne Hage that lasted until his death in 2006, and is now continued against his children. For more on that see here, here, and here. (The first post is especially chilling, describing a recent federal court’s referring two B.L.M. officers to the U.S. Attorney for possible criminal charges. For more, see the Elko Daily Free Press here.) Along the way, Wayne filed a takings lawsuit against the federal government, Hage v. United States. After a stunning victory in the trial court, his estate suffered a reversal at the Federal Circuit. This week, we filed our amicus brief in support of rehearing. For more information, and links to the decision and brief, see our blog here.

Equality Under the Law – Proposition 209

Proposition 209 remains intact! In Coalition to Defend Affirmative Action, Immigrant Rights and Integration and to Fight for Equality by Any Means Necessary (BAMN) v. Brown we had previously won a very satisfying victory at the Ninth Circuit upholding the constitutionality of California’s Proposition 209. This was despite the fact that the named defendant, Governor Brown, not only did not lift a finger to defend the state law, but actively opposed the law, leaving it to PLF to defend the initiative against BAMN’s attack. Today we have confirmed that BAMN decided not to ask the United States Supreme Court to review, and the Ninth Circuit’s decision remains the law. Proposition 209 codifies the simple proposition that was more recently stated by Chief Justice Roberts: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Equality Under the Law – Coral Construction

We filed our Motion for Summary Judgment in Coral Construction v. City and County of San Francisco. This is the case, described here with briefs, where we previously won a ruling from the California Supreme Court that Proposition 209 is constitutional (despite again an attack from our then-Attorney General Brown.) But the Court did leave an opening for the City and sent the case back to the trial court to see if the City could prove that it had intentionally discriminated against minorities in recent years in granting contracts. We’re hoping that our motion should put that absurd notion to rest.

Environment – California Diesel Regulations

Not content with following federal diesel emission regulations, the California Air Resources Board wants to impose its own tougher and more draconian standards that have less to with protecting human health than an agency power play designed to curb the livelihoods of small businesses throughout the state. But in order to adopt these regulations, California must obtain a waiver from the EPA. Unfortunately for the Board, its only justification for these standards is that “California is a special case because California has always been a special case.” PLF testified against granting the waiver and pointed out that unless and until the Board can produce meaningful scientific evidence of why California needs more draconian standards, it is not entitled to a waiver.

Environment — Breaking News — Global Warming Lawsuit Tossed

In Kivalina v. Exxon Mobil Corp, an Alaskan Native village asserted it had standing to sue Exxon under a nuisance theory over the company’s alleged contribution to global warming. PLF filed an amicus brief, described here, arguing that the suit should be tossed. The Ninth Circuit today held that the suit was preempted by federal law. For more, the decision is here. In a nutshell, the Court held that the claim was toast under the Supreme Court’s ruling in American Electric Power: “Thus, AEP extinguished Kivalina’s federal common law public nuisance damage action, along with the federal common law public nuisance abatement actions.” It concluded, saying, “Our conclusion obviously does not aid Kivalina, which itself is being displaced by the rising sea. But the solution to Kivalina’s dire circumstance must rest in the hands of the legislative and executive branches of our government, not the federal common law.” A concurring opinion would have also found that Kivalina lacked standing.

Environment – War on Fishing

We had a trial court loss in California Association for Recreational Fishing v. Department of Fish and Game. The Department had adopted new unnecessary and unlawful regulations that make it virtually impossible to stock California’s lakes and fishing ponds with fish. The regulations were adopted without public notice and comment through the back door of calling them “mitigation measures” in an Environmental Impact Report that had nothing to do with private fish ponds. We are arguing that these regulations must comply with California’s Administrative Procedures Act. The Trial Court Judge Lloyd Connelly didn’t see it that way, as noted here, and the next step will be to consider an appeal.

United States Supreme Court – Petition Watch

We could hear as early as Monday whether the Supreme Court will take up our petition for writ of certiorari in Koontz v. St. John’s Water Management District, the case where a landowner, after agreeing to set aside 90% of his land in conservation, was told he had to finance millions in water district infrastructure improvements five miles from his development project. The Court may also decide whether to grant cert in Bruner v. Whitman. In that case, the Bruners had obtained a waiver under Oregon’s measure 37 – allowing the Bruners to build and the town to avoid liability for damages. After measure 37 was repealed, the town refused to honor the waiver. We believe the waiver is a vested property right protected by the United States Constitution and we’re hoping the Supreme Court will agree with our amicus brief that the case should be heard.

Free Enterprise and Free Speech Rights

In a defeat for unconstitutional compelled speech, the Ninth Circuit ruled in an unpublished opinion that the City of San Francisco could not force cell phone sellers to include an information page containing fear-mongering and scientifically unproven statements about the danger of radio frequency emissions. For more on this case, with links to the decision, CTIA v. City and County of San Francisco, see this blog post here.