President's weekly report — January 16, 2015

January 16, 2015 | By ROB RIVETT

The Raisins are Dancing Again — cert grant

The Supreme Court granted cert in Horne v. United States, making this the second trip to the Court for the dancing raisins.  Under a depression-era statute, raisin growers must give a substantial portion of their raisins to the federal government or else.  The or else here was a fine of $700,000.  The Ninth Circuit held that there was no taking here, relying on a fairly odd take on takings doctrine.  As explained in more detail in our blog, we’re arguing that when the government physically takes private property — whether that property be land, money, or food — the government must pay for what it takes.  The first time the raisins traveled to the Court, they won when the Court ruled that they had the right to file a takings claim in federal court.  Now they will be back arguing that there was an uncompensated taking.  We had filed this amicus brief in support of the petition.

But the Central Valley farmers and farm workers are not dancing — cert denial

Unfortunately, the Supreme Court denied our petition for writ of certiorari in Stewart & Jasper Orchards v. Jewell.  This was the case where the Fish and Wildlife Service is relying on a seriously flawed biological opinion to force the diversion of water from Central Valley farmers and Southern California waters users and into the Pacific Ocean — all to implement efforts to help the Delta Smelt.  The problem with the Service’s plan is that it is ignoring the words of the Endangered Species Act that its actions must be “reasonable and prudent.”  At minimum, that means that the Service should consider the extreme hardships its actions have caused to Central Valley farmers and farm workers — actions that have had a remarkably poor track record in helping the smelt.  We are not giving up, however.  We will try again in other cases to get the Court to take this issue up again.

Free Speech — Right to Advertise Car for Sale

We filed this opposition to the city’s motion to dismiss in McLean v. City of Alexandria.  Our client, Scott McLean, wants to sell his truck, but the City forbids him from putting a “for sale” sign in the window while parked in the City.  As noted in our blog, such broad restrictions on commercial speech violate the First Amendment.  A hearing is scheduled for later in the month.

Free Enterprise — Right to Buy Beer

In our Crafted Keg v. Lawson case, we’re arguing that it’s totally irrational for the State of Florida to allow beer to be sold by the quart and by the gallon, but not by the half-gallon — the most popular size, known as a “growler,” to allow patrons of microbreweries to take the product home for enjoyment.  The state had filed a motion to dismiss and this week the trial court denied that motion — allowing our case to move forward.

Property Rights — Arrigoni Enterprises v. Town of Durham

We filed our opening brief in the United States Second Circuit in Arrigoni Enterprises v. Town of Durham.  The Arrigoni family owns a 9-acre parcel of land in Durham, Connecticut, that it has been trying to develop for the past decade.  Although the land is zoned for light industrial use, the Town refused to allow building on the property because it would require rock excavation and crushing, which the zoning does not allow.  However, the Town did approve development on neighboring parcels, even though excavation and crushing were required.  The Town denied the family’s requests to change the zoning to allow for excavation, to obtain a variance from the excavation restriction and to process a special permit for the excavation.  PLF attorneys took over representation of the case in the Second Circuit Court of Appeal where they seek to vindicate the Arrigoni’s constitutional right to use and develop their property

Equality Under the Law — No “Disparate Impact” in Fair Housing Act

Oral argument is set for January 21 before the United States Supreme Court in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.  We filed a friend of the court brief and believe, as noted in our blog, that the Court should rule that the plain language of the Fair Housing Act prohibits intentional discrimination, not statistically generated disparate impacts.

Equality Under the Law — State Department Affirmative Action

Oral argument is scheduled January 20 in Shea v. Kerry, where we are arguing that government hires by race, it must be prepared to justify the biased practice in court.  We are representing a state department employee was ineligible to be hired into a mid-level position because of his race.

Sunshine on the Government

PLF attorneys filed an amicus brief in the Supreme Court of Washington in Citizens Alliance for Property Rights Legal Fund v. San Juan County, advocating for greater openness in land use management. The case involves a series of secret meetings attended by several members of the San Juan County Council while developing new critical area ordinances. Because these ordinances can restrict use of private property and reduce property values, they have generated substantial controversy across the island county. Yet affected property owners were shut out of many of the meetings where these policies were discussed.