December 6, 2013

President's weekly report — December 6, 2013

By President's weekly report — December 6, 2013

Property Rights — Taking by Flooding

Earlier this week, the Federal Circuit Court of Appeals issued its remand decision in Arkansas Game & Fish Commission v. United States, upholding the trial court’s conclusion that the Army Corps of Engineers took Arkansas Game & Fish’s property.  This was the case where the Supreme Court held earlier this year that the Corps was not immune to liability for flooding, and killing, over a million dollars worth of timber.  As explained in our blog, the government’s attempt to craft a new theory for evading its responsibility was not well-received by the court.

Property Rights – Coastal Land Rights

In Beach and Bluff Conservancy v. California Coastal Commission, we just received adverse trial court ruling.  The court dismissed BBC’s action against the Commission.  The trial court concluded that the City of Solana Beach, which was not named, was a necessary and indispensable party.  (This is not fatal to our challenge to the City’s Land Use Plan, because PLF filed its lawsuit on behalf of BBC against the City, challenging essentially the same policies as in the Commission suit.)

Environment & State Water Rights

In State of Alaska v. Jewell, the State of Alaska has asked the United States Supreme Court to review a decision of the Ninth Circuit which says that the federal government, instead of the state, has the power to regulate hunting and fishing in navigable waters in Alaska.  PLF has filed an amicus brief in support of Alaska, encouraging the high court to accept the case.  The bottom line here is that the federal government is claiming jurisdiction over thousands of miles of streams and rivers within the interior of Alaska.  This is somewhat ironic because Alaskans first rallied for statehood over fifty years ago so they could get local control over these waterways.  As our blog explains, the federal government’s argument is based on a pretextual reading of the Alaska National Interest Lands Conservation Act — a statute passed with the object of clarifying the management of Alaska’s lands and waters — not for the usurpation of the same.

Free Enterprise Project — Arbitration reform

This week, in D.R. Horton v. Cuda, the Fifth Circuit Court of Appeals ruled that a contract provision nixing class arbitration was not an “unfair labor practice.”  As explained in our blog here, the National Labor Relations Board — when it was being run by only two people — ruled that a contract provision that precluded class action lawsuits and arbitration actions violated the National Labor Relations Act.  The Fifth Circuit did not agree that the NLRA trumps the Federal Arbitration Act — which calls for the terms of contracts dealing with arbitration to be followed.  For more details, see our blog here.

Free Enterprise Project — Forced Unionization

In Harris v. Quinn, the Supreme Court will determine the constitutionality of an Illinois executive order and law that declares all personal home assistants to be public employees, for the sole purpose of being represented by a collective bargaining unit of the Service Employees International Union that seeks to lobby for greater government spending (Medicaid) on home healthcare.  PLF, along with the Center for Constitutional Jurisprudence and others, filed an amicus brief arguing that compelling personal care providers to be deemed public employees for the purpose of being represented by a union violates the First Amendment guarantee that Americans cannot be compelled to speak or associate, or petition the government, against their wishes.

Environment – Access to Public Lands

A hearing was held in Friends of Tahoe Forest v. United States Department of Agriculture, our case challenging the massive road closures by the Forest Service.  These closures effectively deprive a great majority of citizens meaningful access to our forests and were done in contravention to established administrative procedures.  The court issued a negative decision from the bench which will be appealed.

Economic Liberties – Right to Earn a Living

We filed our amicus brief in Patel v. Texas Department of Licensing, a case that asks whether eyebrow threaders, who only thread eyebrows, must obtain a full-fledged cosmetology license before they can thread.  Since there is no evidence that there is any public interest to be served by requiring threaders to know the complexities of hair styling, makeup, and the various chemicals and formulae used therein, we are suggesting that the Texas Supreme Court adopt a meaningful standard of rational review.  In particular, the courts must discern whether restrictions on individual liberty can be justified by a real and substantial relation between the restrictions and public health, safety, or welfare.

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