Weekly litigation report — April 12, 2019

Agencies agree to comply with the Congressional Review Act
In February, PLF secured an important victory in Tugaw Ranches, LLC v. Department of Interior, when the District Court for the District of Idaho ruled that agency violations of the Congressional Review Act (CRA) can be challenged in court. The CRA is a key law for restoring a modicum of democratic oversight to the regulatory state, as it requires agencies to submit every rule they adopt to Congress for review and possible disapproval before the rule can go into effect. In Tugaw Ranches, we challenged the Departments of Interior and Agriculture’s failure to submit controversial sage-grouse rules to Congress as the CRA requires. In light of the court’s ruling, the agencies have decided not to fight the inevitable. Interior has submitted its rules to Congress and Agriculture has committed to soon do the same.

OMB endorses PLF’s interpretation of the Congressional Review Act
PLF’s campaign to enforce the CRA got another major boost this week when the White House’s Office of Management and Budget issued a memorandum to all federal agencies explaining that the CRA applies to all guidance documents and informal rules, not just notice-and-comment regulations. Agencies have neglected to send thousands of these rules to Congress, despite the CRA’s dictates. The clear implication of OMB’s memorandum is that these rules must be submitted and, until they are, they cannot be enforced. For more, see our blog.

Setback in Kansas CRA case
We also received news that the District Court for the District of Kansas dismissed Kansas Natural Resources Coalition v. Department of Interior, our challenge to the agency’s failure to submit a critical pro-conservation rule to Congress, which our client needs to go into effect to encourage participation in its conservation plan. The court accepted the agency’s argument that CRA violations are not subject to judicial review—an interpretation that utterly defeats the law’s purpose.

PLF continues its defense of the separation of powers against presidential abuse of the Antiquities Act
On Monday, we filed our opening brief in the D.C. Circuit in Massachusetts Lobstermen Association v. Ross, which explains how the President has violated the Antiquities Act and the Constitution by stretching his power further than the law allows. The Antiquities Act of 1906 allows the President to declare national monuments without public input, but limits this power to “land owned or controlled by the federal government.” Congress established a different regime for ocean conservation, requiring a public, science-based process to designate “marine sanctuaries.” In a brazen violation of the Constitution’s separation of powers, Presidents have not followed this process. Instead, since 2006, they have asserted immunity from these limits by reinterpreting the Antiquities Act to apply far beyond anything Congress intended or a century of presidential practice could support. The result: our clients are forbidden from fishing an area of the Atlantic Ocean the size of Connecticut without the public input or scientific review the law guarantees them. For more, see our blog.

Complaint filed against Marin County’s forced farming mandate
Last week PLF helped Arron and Arthur Benedetti sue Marin County, California,—the latest step in the ongoing battle against unconstitutional requirements in Marin County, California’s, new Local Coastal Program. Arron and Arthur are the sons of the late Willie Benedetti, a staple of his community who worked with PLF to challenge this same policy before passing away last September. The Program requires landowners to remain “actively and directly engaged” in agriculture, in perpetuity, as a condition of obtaining a permit to build new residential structures. But the government can’t use development permits to coerce applicants into making large and unrelated concessions. The Supreme Court decided as much over 30-years ago in PLF’s precedent-setting victory in Nollan v. California Coastal Commission For more see our blog post here.

California DMV censors soccer slogan claiming it has racial connotations.
We filed a free speech lawsuit against the California Department of Motor Vehicles for the DMV’s arbitrary and broad ban on license plate configurations that it finds too offensive. Our client Jon Kotler is a professor, a First Amendment expert, and a huge fan of the London-based Fulham soccer team. The DMV denied Kotler’s request to have a “COYW” (Come on You Whites) license plate, suggesting that the plate had racial connotations, even though it is a commonly used term that refers to the team’s white jerseys. Kotler’s case is just one example of the dangers of arbitrary censorship by the DMV. When the government is allowed to act as the speech police, it inevitably makes decisions that are arbitrary, biased, and wrong. For more, see our blog posts here and here.

Janus didn’t solve all nonunion employees’ problems. Last summer, the Supreme Court decided Janus v. AFSCME, holding that public employees’ political autonomy is protected by the First Amendment and that states may not, therefore, allow unions to garnish workers’ wages for “dues” without the workers’ affirmative consent. States and public employee unions are slowly coming into line, and many non-union workers have successfully ousted the unions’ reach into their wallets. The unions don’t just take money though. As explained on the blog, union-backed “exclusive representation” laws give union bosses—and only union bosses—the right to speak on behalf of all workers, whether they belong to the union or not. On Tuesday, the Massachusetts Supreme Judicial Court upheld one of these laws in Branch v. Commonwealth Employment Relations Board, relying on a 1984 Supreme Court case that has been significantly eroded by Janus. PLF supported the non-union workers as amicus and will continue to do so when they ask the Supreme Court to hear the case.