President's weekly report — October 11, 2013

Here is a summary of this week’s highlights at PLF:

Endangered Species — Polar Bear

The Supreme Court denied our petition for writ of certiorari in our challenge to the Polar Bear listing.  This is the end of the line in this case.  Despite the steadily growing population of polar bears throughout the arctic, and no clear evidence that the bear faces extinction even with global warming, the courts below gave great deference to the Fish & Wildlife Service and upheld the listing.

Environment — Wetlands Jurisdictional Determinations

We filed our complaint this Thursday in Duarte Nursery v. Corps of Engineers.  After our victory in Sackett, one would think that federal agencies would be more amenable to providing a forum for property owners who disagree with federal agency determinations of wetlands.  Here a wheat farmer was told to halt all farming activity because the Corps determined the property is a wetland.  But while the farmer disagrees, the Corps is refusing to allow him to contest the Corps wetlands determinations — unless he applies for a costly permit or subjects himself to potential penalties by continuing to farm.  We think there is a better way.  For more information, see our blog post here.

Environment — Clean Water Act & Wetlands

When is a wetland adjacent to a navigable stream? While the question may seem abstract, it is vitally important for many landowners who need to know whether their property is subject to federal jurisdiction under the Clean Water Act.  PLF filed these comments today on a proposed rule on the “connectivity” required for federal jurisdiction.  We will be watching what the federal government does with this proposal closely.

Environment — Clean Water Act & Wetlands “Cease and Desist” order

The 9th Circuit held this oral argument in our appeal in Barnum Timber Co. v. Environmental Protection Agency.  We are arguing that a listing of a small creek as an “impaired water body” (a listing that leads to a regulatory onslaught) is not justified by the facts on the ground.

Equality Under the Law and Government Transparency

As noted in our blog, oral argument was heard earlier this week in Sander v. State Bar of California before the California Supreme Court.  In that case, U.C.L.A.  Professor Richard Sanders is seeking State Bar bar exam data in order to study the effects of law school affirmative action programs on law students.  Even though the data would be redacted to protect the privacy of the bar exam takers, the State Bar has refused to cooperate.  PLF filed this amicus brief in favor of Richard Sanders on the nature of the public interest in the data.  Members of the Court seemed to agree.  As reported here in the Daily Journal, even Justice Gordon Liu seemed skeptical regarding the State Bar’s position: “We are dealing with something the public might have real interest in knowing about,” he said.  We expect a ruling in 90 days.

Equality Under the Law — University Admissions

We filed this amicus brief in Fisher v. University of Texas.  This is a remand from the United States Supreme Court, which ruled last June that the University had a duty to demonstrate why its race conscious affirmative action program is justified, and that the court should review the program with strict scrutiny.  See our blog for much more detail.

Free Enterprise Project — Contracts and Arbitration Clauses

The Supreme Court denied certiorari this week in Toyota Motor Company v. Choi.  Here, a class action lawsuit was filed against Toyota because their anti-locking brakes were allegedly not as reliable as advertised.   The car purchasers, however, had signed purchase agreements with an express clause saying that disputes should be arbitrated.  However, the Ninth Circuit declined to require the case to go to arbitration because the contract was signed — pursuant to state law — with the dealer and not the manufacturer.  Toyota asked the Supreme Court to take the case and we filed this amicus brief explaining the importance of following the terms of contracts and arbitration clauses.   With the Supreme Court’s denial of cert, look to seeing some trial lawyers raking in more profits.