President’s weekly report — August 2, 2013

Environment — Endangered Species Act — Sea Otters

We filed our complaint in California Sea Urchin Commission v. United States Fish & Wildlife Service.  The Service has a statutory duty to contain a transplanted colony of California sea otters in Southern California.  As noted in our blog, because the Service decided last year to ignore the statute, fisheries throughout Southern California are threatened — including an endangered abalone.  Because of the Service’s illegal action, we have sued on behalf a coalition of fishermen whose livelihoods are threatened by the unchecked expansion of the otter.  You can also listen to our podcast on the sea otter case here.

Environment — Endangered Species Act — Killer Whales

This week, in In re petition of CESAR, et al., the National Marine Fisheries Service issued its 12-month finding on the petition under the Endangered Species Act, determining that the Southern Resident population of orca whale should remain as a threatened species. We had previously petitioned the Service to delist the Orca — based on the Service’s own information.  We are evaluating the next steps to take.

Environment — Endangered Species — Polar Bears

We filed a petition for writ of certiorari to the United States Supreme Court in the consolidated polar bear case, Safari Club International v. Jewell.  We are representing the Congress of Racial Equality which is concerned about the impact the listing could have on the economy in minority communities.  Because polar bear populations are at record highs, and because there is no data showing that global-warming induced habitat losses will actually lead to the extinction of the species, the listing is not warranted.  You can find the Polar Bear Cert Petition here.

Environment — Wetlands Determinations

There was an adverse decision from the Minnesota Federal District Court in Hawkes v. Corps of Engineers.  We had filed an amicus brief arguing that the landowner was entitled to judicial review of a final “jurisdictional determination” that his property contained wetlands subject to the Corps’ jurisdiction.  As noted in our blog, the court disagreed, saying that our victory in Sackett did not apply because the Corps had not (yet) threatened the landowner with fines.  Moreover, the court said the owner could always apply for a permit and appeal if the permit were denied.  Unfortunately, that leaves the owner with a Hobson’s choice:  spend up to hundreds of thousands of dollars seeking a permit that the owner does not believe is necessary or risk receiving a compliance order and fines of $75,000 per day.  The only difference we see between this case and Sackett is that the owner is not yet subject to the fines — but could be just as soon as he moves a shovelful of dirt.  We think he should have his day in court first.

Property Rights — Williamson County Gambit

You may recall that last week we reported on the 4th Circuit’s decision in Sansotta v. Town of Nag’s Head holding that once a local government removes a federal takings claim from state to federal court, that same government cannot then move to dismiss the case on grounds it should be in state court under the Williamson County doctrine.  As we noted, this outrageous tactic has been an all too common trick played by government attorneys.  As proof, this week we filed this amicus brief in Sherman v. Town of Chester, in which we are asking the 2nd Circuit to follow the lead of the 4th in yet another example of the Williamson County remove-and-dismiss trick.  It was nice to be able to cite to Sansotta!

Free Enterprise Project — Freedom of Contract

We had a nice decision from the Missouri Supreme Court in Chochorowski v. Home Depot.  The plaintiff rented a garden tiller on which a small charge had been attached insuring the renter for damage to the machine.  Although she signed the contract, she later sued arguing that she shouldn’t have been charged for the damage waiver.  The Court ruled that the renter actually had a duty to read the contract she signed and that the damage waiver was not worthless.  As explained in our blog, this is what we had argued in our amicus brief.

Free Enterprise Project — Defending Arbitration

The Massachusetts Supreme Court was forced to issue a favorable decision in Feeney v. Dell, upholding an arbitration clause in a contract.  We say “reluctantly” because the court had twice before tried to strike down the arbitration clause, but it had no choice this time around in light of a new controlling precedent from the United States Supreme Court in American Express Co. v. Italian Colors Restaurant.  We filed an amicus brief and explain the case more in our blog.