President's weekly report — March 1, 2013

March 01, 2013 | By ROB RIVETT

Property Rights — Water, Fish and Takings

The Federal Circuit Court of Appeals affirmed the dismissal on ripeness grounds of Casitas Municipal Water District v. United States.  This was the case where the district alleged that a fish ladder and water diversion required to protect endangered fish took its water rights (see picture to right).  While it had some success initially in pressing these claims, and we supported them with an amicus brief, the Federal Circuit has dismissed the case because the district was unable to point to any reduced water deliveries to its customers caused by the water diversions.

Environment — Polar Bears

The D.C. Circuit today ruled against PLF and many other litigants who have been challenging the listing of the Polar Bear as a threatened species.  We had argued that even taking the Fish & Wildlife Service’s declining population predictions at face value, there was no adequate showing that the polar bear is in any danger of extinction.  There are more polar bears alive today than at any time in the recent past (primarily due to hunting restrictions) and the the Service has simply not made its case.  But in today’s decision, the watchword was “deference” to the government — meaning the court did not take a hard look at the Service’s conclusions.  For more on our take on this decision, see our blog here and here.

Individual Rights — Equality Under the Law Project

This week the Supreme Court heard oral argument in Shelby v. Holder, a challenge to the requirement that certain states received “preclearance” from the Justice Department before they can make any change, no matter how minor, in voting practices.  As explained in this excellent National Review piece, as well as our amicus brief,  what may have made sense in 1965 no longer does.  The Court asked a lot of questions, and we could well see the Court injecting long-needed constitutional limits on Section V of the Voting Rights Act.  You can listen to the argument here.

Individual Rights — Equality Under the Law Project

In Coral Construction / Schram Construction v. City and County of San Francisco, the trial court held that the one remaining issue–whether the federal Equal Protection Clause requires that the City provide preferences to minorities and women contractors to remedy the City’s own discrimination–is moot.  The court denied the summary judgment motions, and determined that the permanent injunction prohibiting the City from reinstituting race and gender preferences is no longer necessary.  PLF’s earlier victory in this case–where the California Supreme Court held the City’s preferences are unconstitutional under Proposition 209–stands and will be included in the final judgment.  While we are pleased that the City seems to understand that it cannot implement a new ordinance mandating discriminatory preferences without being sued by PLF, we still believe that it is necessary for the courts to tell the City this explicitly with an injunction.  We are weighing our options.

Economic Liberties Project — Defending the Right to Earn a Living

Earlier this week, in Bruner v. Matthews,  federal Judge Danny Reeves rejected the state of Kentucky’s effort to dismiss our lawsuit challenging that state’s anti-competitive licensing law for moving companiesAs we have explained, and as Eric Boehm in has explained, a requirement that new moving companies first prove they are “necessary” before they can set up shop and move people’s goods is irrational.  Other than limiting competition (and keeping prices high) there is no purpose for this law.  We will continue with our lawsuit until the law is overturned, or until the Kentucky legislature tosses it out first, as legislatures already have done in Oregon and Missouri in response to our lawsuits.

Environment — National Environmental Policy Act

We filed our amicus brief this week in American Mines v. United States Department of Agriculture.  We are asking the Supreme Court to take up this case to reverse a ruling from the Ninth Circuit that held a party could not file an lawsuit under the National Environmental Policy Act (NEPA) if its only interest in the lawsuit is economic.  Thus, when a federal action is in violation of NEPA, those whose jobs and businesses are threatened have no right to sue because only their jobs and businesses are threatened by the action!  We’re hoping the Court takes this case up and restores sanity to the law.

Environment — Challenging a Wetlands Jurisdictional Determination

A federal district court in Louisiana has ruled in Belle v. Corps of Engineers, that an affected landowner has no right to sue when the Corps of Engineers issues a jurisdictional determination that the owner’s property is a wetland.  The court found that the Corps’s jurisdictional determination is not a “final agency action” subject to judicial review.  This is despite the fact that an owner who touches those wetlands faces serious consequences.  We had hoped, and argued in our amicus brief,  that after Sackett courts would understand that judicial review should be available –even when a compliance order has not yet been issued.  We’re hoping the landowners will appeal this one.

Environment — California Endangered Species Act

The California Supreme Court accepted review in Central Coast Forest Association v. California Department of Fish and Game (now Wildlife) Commission.  The question is an interesting one:  ‘Under the California Endangered Species Act, Fish and Game Code section 2050 et seq., may the Fish and Game Commission consider a petition to delist a species on the ground that the original listing was in error? If so, does the petition at issue here contain sufficient information to warrant the Commission’s further consideration?  This is a review of a case where a Court of Appeal had ruled that plaintiffs could never sue to delist the coho salmon south of San Francisco — where it is alleged this particular salmon is not native, having been introduced to the area in the 19th and early 20th centuries.  In other words, according to the Court, if mistakes are made, its just too bad.  We will be filing an amicus brief in June.

Free Enterprise — Limits on Tort Liabilities

We filed an amicus brief this week in Georgia-Pacific, LLC, v. Farrar, a case where the defendant was found liable because it failed to warn family members of workers who used asbestos of the dangers of asbestos exposure.   Here, the granddaughter of a factory worker was exposed to asbestos used by other workers in the factory.  We argue that there must be limits on the sort of tertiary duties to bystanders advocated for by plaintiffs in this case.