President's weekly report — March 8, 2012
Environment and Property Rights — Wetlands
In response to our lawsuit, the Army Corps of Engineers withdrew its wetlands jurisdictional determination in Smith v. United States Army Corps of Engineers. The Smiths were thanked by the Corps for all the work they did clearing trash and dead trees out of a dry arroyo in New Mexico with a jurisdictional determination explaining to the Smiths that their bone dry arroyo — 25 miles from the Rio Grande — was a wetland and that their work was illegal because they didn’t have a permit.
Environment — Water Rights and the Endangered Species Act
The Ninth Circuit granted en banc review in Natural Resources Defense Council v. Salazar. NRDC is claiming that the Department of Interior must undertake “consultations” for the Delta Smelt under Section 7 of the Endangered Species Act before water contracts are renewed. The Ninth Circuit had held originally that no such consultations for 41 contracts in California’s central valley are required because water contract renewals are not the sort of discretionary activity that triggers Section 7 consultation. That the Ninth Circuit will look at this again is troubling.
Environment — Water Rights
The California Department of Fish and Wildlife has backed off for now from its attempt to restrict the water rights of landowners in Siskiyou County. The Department established “minimum stream flows” that would have essentially taken the privately owned water. We will continue watching this situation closely.
Economic Liberties — Medical Facility Restrictions
PLF filed an amicus brief in support of free enterprise in Colon Health Centers v. Hazel in the Fourth Circuit. The health center wishes to install a new CT-Scanner in its facilities. But to do that in Virginia, the company must first obtain a “certificate of need” from the state, a requirement that drives a stake through the concepts of competition and letting businesses determine the needs of their own customers. When the owners (represented by our allies from Institute for Justice) sued, the court held that it must defer to the state, and upheld the requirement.
We filed our amicus brief in Beeman v. Anthem Prescription Management this week in the California Supreme Court. In this case, the state is trying to force pharmacies to collect what would otherwise be confidential data and submit that data to insurance companies. Our brief points out that the freedom of speech (which includes the freedom not to speak) protects factual speech as well as opinions.
Federal Regulation Under the Commerce Clause.
The Ninth Circuit (finally) held oral argument this week in Montana Shooting Sports Association v. Holder. We filed our amicus brief back in 2011 arguing that the federal government lacks authority to impose regulations on guns manufactured and sold exclusively in Montana under the Commerce Clause. Because the regulations in this case have little to nothing to do with interstate commerce, the federal government lacks the power to regulate here.
Property Rights — Compensation for Water Damage
We filed an amicus brief this week in Biron v. City of Redding. Flooding of plaintiffs property occurred as a direct result of Redding’s storm drain system — flooding that it is alleged would not have occurred but for the drain system. When a government project causes physical damage the government should always be liable because it has a duty not to damage private property. After all, as the U.S. Supreme Court has written, the purpose of the Fifth Amendment’s Takings Clause is “designed to bar Government from forcing some people alone to bear public burdens which in all fairness and justice, should be borne by the public as a whole.” Our brief explains that the exceptions to this rule apply only in limited circumstances — flood control projects where the subject property would have been flooded in any event.
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American Beverage Association v. City and County of San Francisco
A San Francisco ordinance requires advertisements related to sugar-sweetened beverages to devote 20% of the space to city-specified speech: “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.” A coalition of beverage trade associations sued the city for violating their First Amendment right not to be forced to express messages with which they disagree. The district court upheld the ordinance and the coalition appealed. PLF filed an amicus brief in the Ninth Circuit arguing that the ordinance must be subjected to heightened scrutiny and fails to pass constitutional muster.Read more
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