Weekly litigation report — December 10, 2016

December 10, 2016 | By JAMES BURLING
  • PLF supports freedom to work
  • Overcriminalization and environmental law
  • Good decision in California endangered species case
  • Union trespass onto private property
  • Shorelines and the public trust
  • Department of Labor shenanigans challenge
  • Take home liability

PLF supports freedom to work

Today we filed this brief in Twist Architecture v. Oregon Bd. of Architect Examiners, our case challenging Oregon’s prohibition on anybody but licensed architects from drafting illustrations of buildings. We’re not talking here about detailed architectural drawings, but the same sort of renderings that any artist can draw. Indeed, though occupational licensing laws are often justified in terms of health or safety, studies show that licensing regimes are more often bare attempts by entrenched business interests to protect their market share.  The result of such crony laws is that entrepreneurs are barred from pursuing an honest living, with no corresponding benefit to the public. For more, see our blog post here.

Over-criminalization and environmental law

A district court granted PLF’s motion to intervene in Wildearth Guardians v. Department of Justice on behalf of he New Mexico Cattle Growers’ Association, New Mexico Federal Lands Council, and the New Mexico Farm and Livestock Bureau.  This case brought by some environmentalist groups threatens to radically expand criminal liability under the Endangered Species Act. If the case is successful, we’ll all need to quickly become experts on each of the nearly 1,500 obscure species covered by the statute, lest our reasonable ignorance land us in jail. It is no overstatement to say that this lawsuit is one of the most stark examples of overcriminalization—it would literally demand people go to jail if they accidentally strike an unknown, endangered insect while driving down the highway. For more, see our blog post here and see if you can tell the difference between a coyote and a wolf. Now imagine trying to do that from 1) the saddle of your horse as your livestock are being attacked in the dark, or 2) from your prison cell for not making the right call.

Good decision in California endangered species case

We has a good decision in California Cattlemen’s Association v. California Department of Fish and Wildlife. According to California law, the Department is supposed to review all species listed under California’s version of the Endangered Species Act every five years. For over 200 species, the Department has done nothing, zilch, nada, sometimes for several decades. We sued. And the Department argued we shouldn’t be allowed to sue because, among other reasons, following the law would be too burdensome. The court rejected the Department’s arguments and the case proceeds.

Union trespass onto private property

In Cedar Point Nursery v. Gould, PLF represents California businesses that want to make productive use of their land. Together, the businesses employ around 3,000 Californians and produce millions of dollars for California’s economy in the form of oranges, table grapes, and strawberry plants. Unfortunately, an Agricultural Labor Relations Board regulation allows union organizers to go on private land for union purposes. In 2015, union organizers entered our client’s property, and meandered around with bullhorns. Some workers left the property during an important harvest season. Others felt scared and intimidated. Today PLF filed its opening brief in the Ninth Circuit. PLF argues that the regulation isn’t just disruptive, but also a flagrant violation of constitutional rights. Our blog post is here.

Shorelines and the public trust

Earlier this week, the Indiana Court of Appeals offered its view of the long-running battle in that state between property owners on Lake Michigan who expect the law to protect property rights, and the members of the public who demand the right to traipse across those property owners’ property without paying for the right, contrary to the Fifth Amendment. There have been a few cases that have arisen regarding this dispute; this particular case is known as the Gunderson case. Unfortunately, the Fifth Amendment lost this round. The Court held that the State of Indiana can take away the right to exclude others from the private property of those who own property along Lake Michigan, and give the right to walk through that property to the public up to a make-believe “high water mark,” without just compensation. For more detail, see our blog post here.

Department of Labor shenanigans challenge

In National Federation of Independent Business v. Dougherty, we challenge the so-called Fairfax Memo, a substantial pro-union re-write of federal law governing workplace safety inspections. Last month, the feds moved to dismiss our challenge on procedural and substantive grounds. Now, we have filed our opposition to the feds’ motion to dismiss. We argue that our action is procedurally sound and substantively convincing. We expect a decision on the motion sometime in early 2017.

Take home liability

The California Supreme Court issued an adverse decision in the consolidated cases Kesner v. Superior Court and Haver v. Burlington Northern Santa Fe Railway. In a single decision by the California Supreme Court, the Court held that California tort law recognizes “take-home” liability in asbestos cases. “Take-home” cases arise when an employee worked with asbestos on the job 30-50 years ago and got asbestos dust on his clothes, exposing other family members to the toxic dust, after which they were diagnosed with asbestos-related illnesses. PLF’s amicus brief cautioned the court about the ramifications of a broad duty to prevent take-home exposure. The court thought it reached a “balanced approach” limiting such liability to family members, but we’re not convinced this will be a workable, or fair, balance. For more, see our blog post here.