President's Weekly Update — September 28, 2012

September 28, 2012 | By ROB RIVETT

It’s been another busy week.  Let’s jump right to the cases.

Economic Liberty Project — Freedom of Contract

We filed our amicus brief in Sanchez v. Valencia Holdings in the California Supreme Court. In this case, Mr. Gil Sanchez claims to have not read an arbitration clause in his sales contract when he purchased a used $54,000 Mercedes Benz.  As the brief and our related blog post explain, the United States Supreme Court has held that federal law requires that state courts respect arbitration clauses.  For the Court of Appeal in this case to rule that the unread arbitration clause was unconscionable flies in the face of existing precedent.

Environment — Endangered Species Act Permitting

We filed our amicus brief with the United States Supreme Court today asking the court to grant the petition for writ of certiorari filed by The New 49ers v. Karuk Tribe of California.  In this case, the Ninth Circuit ruled that all ministerial approvals of “notices of intent” to engage in minor mining activities required the exercise of enough discretion to trigger the consultation requirements under the Endangered Species Act.  The problem, however, is that the Forest Service review process of these notices did not involve discretion, only judgment — a key distinction in a prior Supreme Court case.  Moreover, the consultation requirement will add a layer of bureaucratic delay, review, and future litigation potential to make it impossible for the small miners who belong to The New 49ers to operate.  We filed our brief on behalf of the Eastern Oregon Mining District and the Waldo Mining District — two small districts near the Oregon – California border.  Because the Ninth Circuit’s opinion is not consistent with the language of the Endangered Species Act and the precedents of the Supreme Court and other circuits, we believe it is important that the Supreme Court grants review.

Environment — Endangered Species Act

Our side just had a nice victory in litigation over the Colorado River Cutthroat Trout.  That is the case in which the Center for Biological Diversity challenged the decision by the United States Fish and Wildlife Service not to list the trout as endangered or threatened.  We filed an amicus brief opposing the environmentalists’ contention that historic habitat – i.e., areas where a species no longer occurs — constitutes part of a species “range” under the ESA.  The D.C. district court issued an order entering judgment for the USFWS, but without explanation.  The court’s order states that an opinion explaining the order will be issued promptly.  We will post the opinion when it is available.  In the meantime, you can view PLF’s Cutthroat Trout amicus brief here.

Environment — Endangered Species Act

An adverse tentative decision was issued in the Santa Ana Sucker litigation which challenges the designation of critical habitat.  We will report more thoroughly when this becomes final.  In the meantime here is the Santa Ana Sucker tentative ruling.  We are participating as amicus.

Property Rights — Water Rights

We filed an amicus brief in Bragg v. Edwards Aquifer Authority in the Texas State Court of Appeals for the Fourth Appellate District supporting Glenn and Jolynn Bragg in their fight against the Edwards Aquifer Authority to use the groundwater beneath their properties to water their pecan orchards.  Here is PLF’s amicus brief in Bragg.

Property Rights — Restrictions on Faux Timberland

We filed an amicus brief in the California Court of Appeal in JHP LLC v. Japp, in support of the landowner JHP LLC in its fight to develop a property which CalFire has erroneously designated as “timberland” under the Forest Practices Act.  We represented PLF, the County of Del Norte, Del Norte Association of Realtors and the California Association of Realtors.  Here is PLF’s amicus brief in JHP.

Equality Under the Law — Kudos for PLF’s Fisher Brief

The Weekly Standard ran a nice analysis of the dozen or so amicus briefs filed by proponents of admissions equality in Fisher v. University of Texas.  Especially nice was this description of PLF’s amicus brief in Fisher:

 Finally, there is the one brief that is most persuasive overall, that of the Pacific Legal Foundation, the American Civil Rights Institute, the National Association of Scholars, and the Center for Equal Opportunity, whose president, Roger Clegg, is the most penetrating, knowledgeable, and tenacious of all current opponents of race preferences. This brief argues, along with the Thernstroms and others, that “the benefits that flow from a diverse student body are highly dubious.” But more than all the others, this brief underscores the negatives, explaining with care and depth why “the costs attendant to racial classification outweigh any benefits that flow from a diverse student body. Government racial classifications are destructive of democratic society; government racial classifications dehumanize us as individuals; racial preferences in college admissions cause serious harm to the very students the preferences are intended to benefit.” No rational person can read this eloquent set of arguments thoughtfully and continue to suppose that racial preferences for the sake of diversity are a good thing. They are poison.

The Pacific Legal Foundation, the ACRI, the NAS, and the Center for Equal Opportunity conclude, appropriately, by explaining why the principles of stare decisis, worthy of great respect of course, “do not support the preservation of the highly flawed Grutter decision.”