April 14, 2018

Weekly litigation report — April 14, 2018

By James S. Burling Vice President for Litigation

Complaint filed to stop South Dakota from banning boys from dancing

On Thursday we filed our initial complaint in F.L. v. South Dakota High School Activities Association. Freddie Linden is a tremendously talented 15-year-old dancer. Freddie practices dancing for more than 14 hours a week, has won two national championships, and was named Performer of the Year in 2016. But when he tried to join his South Dakota high school’s dance team last Fall, he was informed that in South Dakota only girls are allowed to compete on school dance teams. Not to be deterred, Freddie has continued training and competing at his private dance studio, and even joined his school’s dance team as the manager. With three years of high school left, though, Freddie wants to dance with his friends and teammates. That’s why, on Freddie’s behalf, we’ve challenged South Dakota’s offensive rule as an unconstitutional violation of Freddie’s right to equal protection of the laws. The Association cannot use outmoded stereotypes for who should dance and discriminate on the basis of sex. For more on the case, read our blog post, and to see just how talented Freddie is, check out our music video.

Two lawsuits filed to enforce the Congressional Review Act

 This week, we filed a pair of cases to enforce the Congressional Review Act against agencies that have ignored the requirement to submit every rule they issue to Congress. As our Red Tape Roll Back project explained, the CRA restores a degree of political accountability to the administrative state, by ensuring our elected representatives in Congress an opportunity to oversee every rule bureaucrats dream up. Unfortunately, the same bureaucrats that would throw the book at you or me if we failed to follow their rules to a “T,” seem incapable of falling the simplest of rules that Congress imposes them. Our two cases highlight both sides of the problem created when agencies ignore their obligation to submit their rules to Congress review. In Tugaw Ranches, LLC v. Department of Interior, we represent a ranching family that is illegally being regulated under burdensome federal land use plans, ostensibly to protect the greater sage grouse. That controversial rule is precisely the sort that Congress might disapprove under the CRA if given the opportunity. The other case, Kansas Natural Resource Coalition v. Department of Interior, demonstrates the opposite problem: our client’s conservation work depends on an important and beneficial rule that the agency has failed to submit. This puts KNRC in an impossible catch-22: it must show that its conservation plan for the lesser prairie chicken is “certain” to be effective, but the agency’s own failure to follow the law undermines the incentives necessary to show that certainty. For more, see our blog post.

Postscript to the Utah prairie dog case: feds embrace elements of state conservation plan

On Thursday, the U.S. Fish and Wildlife Service issued permits to several counties authorizing them to resume implementing Utah’s plan to protect the Utah prairie dog. The state’s successful conservation plan was the direct result of a PLF lawsuit challenging the excessive and unconstitutional federal regulations for the species. When the federal district court struck down the regulation on constitutional grounds, it gave the state a unique opportunity to show a better way to recover the species. Whereas the federal regulation pitted property owners against prairie dogs, the state worked with property owners to improve habitat and begin moving prairie dogs from residential areas to conservation lands. The state plan is a win for both property owners and prairie dogs, the population of which doubled from 2012 to 2017 reaching 84,000. Although the Tenth Circuit’s reversal of the district court’s decision and the Supreme Court’s decision to decline review was a disappointment, the Service’s actions are a significant silver lining and a win for our clients, Utah, and the Utah prairie dog. And it was only possible because our lawsuit gave Utah the chance to show the feds there’s a better way to recover species. For more, see our blog post.

One politician should not have unilateral authority over the use of 640 million acres of public land

This week, in National Mining Association v. Zinke, PLF filed a brief on behalf of Gregory Yount, a self-employed prospector and miner, that asks the Supreme Court to hear two cases involving the use of federal public land. At issue is whether one unelected official can prevent uses like recreation, grazing, timber production, and mining on federally controlled land. In a 1976 statute, Congress authorized the Secretary of Interior to make these types of decisions, but retained the ability to overturn the Secretary’s decision through a vote of Congress that did not require the President’s signature. A few years later, in an unrelated case dealing with immigration law, the Supreme Court held that this sort of “legislative veto” of executive action is unconstitutional. Such legislative vetoes, the Court found, violated the Separation of Powers doctrine by giving Congress too much power over the Executive branch. This raises an important question: Would Congress have given the Secretary of Interior the authority to withdraw millions of acres of land from multiple use if Congress knew its legislative veto power over those withdrawals would be later found unconstitutional?  When one part of a law is found unconstitutional, courts are often asked to determine whether other parts must be tossed out as well – because they are so closely intertwined with one another. But here, the Ninth Circuit decided that the Secretary retains the power to unilaterally withdraw vast acreages of land, despite Congress intention to give the Secretary only limited authority. The Ninth Circuit simply failed to adequately consider how closely the withdrawal power was tied to the veto power. The Supreme Court now has an opportunity to correct the Ninth Circuit’s mistake.

 

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