President's weekly roundup

July 13, 2012 | By ROB RIVETT

Greetings from sunny California.  Rob Rivett here once again to let you know about PLF’s latest litigation efforts this past week.  Without further ado:

Economic Liberty Project – Removal of barriers to competition

Our Missouri movers case, Munie v. Koster, was rendered moot this week when Governor Jay Nixon signed a long-awaited reform bill which repealed the licensing law we were challenging.  As you may recall, someone wishing to enter the moving business in Missouri had to first obtain permission from existing competitors – a requirement that effectively kept out new entrants,  stifled competition, and ultimately hurt consumers.  PLF attorneys filed suit, challenging the anticompetitive law as a violation of due process.  Like its counterpart in Oregon, when the Missouri legislature learned about this absurd law when our case made the newspapers, it repealed it in 2011.  However, because he didn’t like unrelated items that were attached to the bill, the Governor vetoed it.  This week the Governor signed a new version of the bill, effectively eliminating the monopoly of existing movers.  For more see our website here and our blog here.

Environment – Endangered Species

We filed a petition to down and delist five southwestern species this week, including the black-capped vireo, Juenzler hedgehog cactus, Tobusch fishhook cactus, gypsum wild buckwheat, and the lesser long-nosed bat.  When the Fish and Wildlife Service did its mandated status review on these species, it recommended that they be down or delisted.  Because, however, the Service took no action, we filed our petition.

Environment – Clean Water Act

We filed comments this week on EPA’s massive  assessment of the Bristol Bay watershed in southwest Alaska.  It appears that EPA is rushing forward with this document in order to provide “evidence” to justify a prohibition on using land in the watershed for mining purposes – a prohibition expected before election day.  However, as our comments point out, there are underway massive environmental studies being done on the impacts of mining, and these should be considered before the entire watershed is ruled off limits.

Free Enterprise Project – Tort Reform

The California Supreme Court denied review this week in Bankhead v. Arvinmeritor, the case where a California Court of Appeal allowed punitive damages against a truck brake manufacturer, even though those damages were out of line when compared to comparable civil or criminal penalties.

Property Rights – Vested Rights

We filed an amicus brief in McMillan v. County of Siskiyou.  The County had refused to recognize the existence of a vested right to mine because the original mine owner had not taken certain steps that were not required by statute.  Our amicus brief pointed out, among other things, that there could be substantial takings implications if landowners are not able to transfer statutorily recognize vested rights to subsequent owners.

Property Rights – Beachfront Homes

We filed our opening brief on appeal in Sansotta v. Town of Nag’s Head.  In this North Carolina case, a storm damaged some beachfront homes – after the town prevented the owners from protecting their homes from erosion.  The town has declared the homes a nuisance which cannot be repaired, it says, because they interfere with the public trust.  We are arguing that the owners have a right to pursue claims for due process, equal protection, and takings in federal court.

Equality Under the Law – Disparate Impact

We filed an amicus brief in Township of Mount Holly v. Mt. Holly Gardens Citizens in Action.  In this case a redevelopment agency has used rather aggressive tactic to clear slums to make way for higher priced homes.  While we do not condone the agency’s tactics, we are concerned that the opponents are claiming that the project causes a “disparate impact” on minorities, thus rising to the level of a violation of the Equal Protection Clause.  The problem with the “disparate impact” theory is that it allows claims to be brought with zero evidence of actual or intentional discrimination.  Moreover, the theory has no logical stopping point.