December 1, 2018

Weekly litigation report — Another Supreme Court Win!

By James S. Burling Vice President for Litigation

Another PLF win in the Supreme Court

This week, the Supreme Court ruled unanimously (8–0 with Justice Kavanaugh not participating) in favor of PLF client Edward Poitevent and his family in Weyerhaeuser v. U.S. Fish & Wildlife Service.

In a factual sense, the decision concerns whether the endangered dusky gopher frog’s “critical habitat” can include our client’s land in Louisiana, where the frog doesn’t live and can’t survive.

But, in the larger legal sense, the decision amounts to another example of the Supreme Court’s playing its proper role in our three-branch system of government and telling the executive branch that it has again exceeded its powers.

PLF has repeatedly tallied victories in the Supreme Court simply by asking the Court to call the executive branch to account when it acts beyond its limits. When government agencies argue that their actions can’t be challenged in court, we’ve successfully argued (as, for example, in our Sackett and Hawkes cases) that the courts can and must review what the agencies do.

Here it happened again. In a step towards what The Wall Street Journal called “regulatory sanity,” the Court held that landowners can challenge agency decisions to designate their private property as critical habitats in court. Further, it held that for a piece of property to be designated a critical habitat for a species, it must be a habitat for that species in the first place.

To read more about the decision, check out our blog post here.

Amicus briefs filed in Marquette County Road Commission v. EPA case

PLF was happy to see from the Road Association of Michigan, Stand U.P. (a non-profit organization in the Upper Peninsula of Michigan), Southeastern Legal Foundation, and the Mackinac Center for Public Policy filed in support of our client in Marquette County Road Commission v. EPA.

We are asking the court to take up the Commission’s case, arguing that when a state has approved a Clean Water Act wetlands permit, the EPA must defend in court its decision to veto that state approval. To hold otherwise would be to ignore the administrative law implications of the Supreme Court’s decisions in Sackett and Hawkes.

For more on this long-running battle in Michigan, read our case page.

PLF sues Oakland over illegal demand that homeowners pay cash to former tenant

PLF filed a lawsuit in federal district court this week on behalf of Lyndsey and Sharon Ballinger in Ballinger v. City of Oakland.

When the Air Force reassigned the Ballingers to Washington, D.C. in 2015, they kept their house in Oakland, California, renting it on a month-to-month lease so they could return to it. When the couple and their two small children came home this spring, the city forced them to pay their tech-sector tenants $6,500—for the right to move back into their own home.

The city claims the law’s intent is to help residents affected by soaring housing costs. But, it’s government regulation, not rental homeowners, that makes new home development very expensive.

This unconstitutional law violates Lyndsey and Sharon’s right to not have their property taken for private use, as well as their right to due process. Represented by PLF free of charge, the Ballingers filed a federal lawsuit against the city of Oakland to stop government bureaucrats from undermining their constitutional protections.

For more on the Ballingers’ filing, read our case page.

Court seems skeptical of unaccountable fourth branch in Congressional Review Act case

This week, PLF argued in federal court in Idaho on behalf of our clients in Tugaw Ranches, LLC v. Department of Interior, in which we argue that the government must send regulations to Congress for review. The government asked the court to dismiss the case, arguing that the failure to send rules to Congress under the Congressional Review Act is not judicially reviewable. The court seemed skeptical of the government’s position, noting that it seemed the agencies think they are a fourth branch of government that is unaccountable to the other three.

For more, see our blog post.

Michigan Supreme Court agrees to hear PLF case challenging abusive tax foreclosures

Last week, the Michigan Supreme Court agreed to hear our appeal on behalf of Uri Rafaeli and Andre Ohanessian in Rafaeli, LLC v. Oakland County. Last year, we asked the Michigan Supreme Court to review cases in which the county had foreclosed upon and sold Rafaeli and Ohanessian’s properties and sold them off to meet tax liabilities, thereby violating their rights under both the U.S. and Michigan constitutions. By agreeing to hear their case, the Michigan Supreme Court has opened the door to ending Oakland County’s abusive tax foreclosure scheme and finally recognizing our clients’ rights.

Read more here.

Supreme Court hears oral argument in excessive fines case

On Wednesday, the Supreme Court heard an oral argument in Timbs v. Indiana, a case brought by our friends at the Institute for Justice. In Timbs, the Supreme Court will decide whether the Eighth Amendment’s Excessive Fines Clause is incorporated against the states. In other words, the Court will decide whether the Eighth Amendment prevents states (and not just the federal government) from imposing excessive fines.

Read more in our blog post.

PLF brief cautions that powerful agencies threaten free speech rights

PLF filed an amicus brief urging the Supreme Court to take up Klein v. Oregon Board of Labor and Industries. The case involves a family-owned bakery’s First Amendment challenge to Oregon’s decision to fine the family $135,000 for refusing to decorate a wedding cake for a same-sex wedding.

For more, read our blog post.

 

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Ballinger v. City of Oakland

When the Air Force reassigned Lyndsey and Sharon Ballinger to Washington DC, in 2015, they kept their house in Oakland, California, renting it on a month-to-month lease so they could return to it. When the couple and their two small children came home this spring, a new city law forced them to pay their tech-sector tenants $6,500—for the right to move back into their own home. The law aims to help residents affected by soaring housing costs. But because the law’s good intent comes at the expense of their constitutional protections, the Ballingers filed a federal lawsuit.

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