President's weekly report — June 5, 2015

June 05, 2015 | By ROB RIVETT

 Lawsuit abuse — Filing without injury

PLF filed this letter brief asking the California Supreme Court to review of Animal Legal Defense Fund v. LT Napa Partners—which PLF asked the Supreme Court to overturn an Unfair Competition Law (UCL) case that threatens important civil justice reforms enacted by California voters.  Several years ago the legislature adopted a law forbidding the sale of foie gras (or duck or goose liver) in California.  However, a restaurant in Napa is — rather than selling foe gras — giving it away. That doesn’t set well with the Animal Legal Defense Fund.  The fund went “undercover” and ordered gourmet meals at the restaurant in order to get the free foie gras. Now they are arguing they have been “injured” sufficiently to give them standing to sue the restaurant.  Their injury?  The time and expense of ordering the gourmet fare.  As our blog points out, this sort of injury is simply not enough under California law — and California’s lawsuit abuse reform Proposition 64.

Water rights — adverse decision and double the trouble

We received this adverse decision in Siskiyou County Farm Bureau v. Department of Fish & Game. This is the challenge to the Department’s new demand that farmers and ranchers obtain a “streambed alteration permit” merely diverting water for agricultural purposes — an activity that doesn’t involve altering a stream.  We had filed this amicus brief on behalf of the California Cattlemen’s Association   As our blog explains, now water diverters are being subject to two separate regulatory regimes for the same action.

Property rights — victory in the Federal Circuit

Monday, the Federal Circuit issued a very good decision for property rights in Lost Tree Village Corp. v. United States. In this case, Lost Tree Village Corp. was stopped from developing five acres of properties for homes by the Army Corps of Engineers after receiving the necessary local permits.  The permit denial caused the land’s value to drop from $4.2 million to $27,500 – 99.4% of its value. Joined by the National Association of Home Builders, PLF submitted a friend-of-the-court brief explaining that Lucas still applies whenever the government takes all economically viable use of land, regardless of whether the land retains some nominal value.  The Court ruled that this was a “total take” under the Lucas opinion and that the mere ability to sell the property for its residual value wasn’t enough to erase government liability for the take.  For more, see our blog.

Tort reform — class action abuse

In  Imburgia v.  DirecTV, a consumer sued to dispute early termination fees, her service contract explicitly said that any disputes would be resolved in individual (not class-action) arbitration, pursuant to the Federal Arbitration. The California court permitted her class-action lawsuit to continue in court, though. Why? Because a provision in the 2007 agreement says “if . . . the law of your state would find this agreement to dispense with class arbitration procedures unenforceable, the this entire [section] is unenforceable.” In a challenge to California’s rule that PLF filed this amicus brief arguing that this sort of class action is preempted.

Equality under the law project — Contracting discrimination

Midwest Fence Corp. v. United States Department of Transportation.  We are urging the Seventh Circuit to reverse the district court’s decision upholding a discriminatory contracting program, and we are arguing that two Illinois race-conscious highway construction contracting programs are unconstitutional.

Economic liberty project — adverse ruling in private eye case

We received this adverse decision in Castillo v. Ingram, our challenge to Nevada’s requirement that private investigators must have a brick and mortar office in that state in order to investigate.  For a variety of reasons, we think this rule violates the Constitution.  Today’s decision found that Castillo’s case was premature because he had not yet violated Nevada law and wasn’t therefore subject to its sanctions.  We are reviewing our options.

Argument held in case of phantom frog habitat

This week the Fifth Circuit heard oral argument  in Markle v. United States  where the Fish & Wildlife Service designated more than 1500 acres of our client’s property as critical habitat for the dusky gopher frog — despite the fact that the frog hasn’t been seen on the property for over a half-century and the property is now totally unsuitable for the frog.  The Service argues that if the owner stops using it for timber or agriculture, then the land might someday be suitable as habitat.  But that’s like saying if we remove buildings and cars from Manhattan, then Central Park could make for some great critical habitat for the Gray Wolf. We expect a decision within a few months.