President's weekly report — July 17, 2015
We filed this challenge in Minnesota District Court on behalf of a variety of landowners and organizations to EPA’s new Waters of the United States (WOTUS) rule, This rule, like the stuff of the alchemists of old, creates water from dry ditches and federal jurisdiction from whole cloth. For more detail, see our blog here.
Privacy in Progressiveland
We filed this complaint this week in Bonesteel v. City of Seattle, our challenge to the City’s law requiring garbage collectors to go through the contents of residents’ trash looking for compostable food. If there’s too much food waste, the collectors can issue a citation and, next year, a small fine. Trouble is, the Washington Supreme Court has made it clear that residents have a privacy right in their trash, and this sort of warrantless snooping into trash isn’t permitted. Our blog goes into more detail, including our video entry into the next Trash Cannes festival: Senseless in Seattle.
Arbitration Evasion in California
The notorious practice by courts in California of writing arbitration clauses out of contracts is front and center in Zaborowski v. MHN Government Services, Inc., where the Ninth Circuit Court of Appeals applied a “no more than one” severability rule created by the California Supreme Court in Armendariz v. Foundation Health Psychcare Services . While there were some objectionable provisions in this contract, the court could have and should have simply written those provisions out, leaving the rest of the arbitration contract in place. That is, after all, the practice in other types of contract disputes. Instead, the court found that if an arbitration contract has more than one objectionable provision, the entire arbitration contract must be voided. PLF filed an amicus brief supporting MHN’s petition for writ of certiorari at the Supreme Court. We urge the Court to grant the petition because, among other things, this problem is not limited to California and the Ninth Circuit.
Taking of Mining Claims
We filed this amicus brief in Reoforce v. United States, a case that seeks compensation for the taking of mining claims by the United States. As far back as 1876, the Supreme Court called unpatented mining claims “property in the fullest sense of the word.” We’re suggesting that the court respect these property rights and order the United States to pay for its regulatory taking after its regulations made it impossible to mine.
Going to the dogs in Denver
The Tenth Circuit set oral argument in People for Ethical Treatment of Property Owners v. United States Fish & Wildlife Service for September 28 in Denver. This is the case where a district court ruled that the federal government has no jurisdiction to regulate the Utah Prairie Dogs — a small rodent that lives only in one state and has no effect on interstate commerce.
Perfect Puppy opening brief filed
We filed this opening brief in Perfect Puppy v. City of East Providence, Rhode Island. In this case a puppy store was forced to close after the town banned all puppy stores. The owner sought to bring a takings claims but was rebuffed on an arcane bait and switch procedural gambit — moving the case that was filed in state court to federal court and then dismissing it because it should have been in state court where it started.
What to read next
PLF asks the U.S. Supreme Court to rule that there is no “legislative exception” to the unconstitutional conditions doctrine
It seems that some governments and courts prefer to treat Supreme Court precedent as an option, rather than a requirement. The Supreme Court has ruled—twice—that it’s unconstitutional for government to … ›