Weekly litigation report — Property rights, school choice, free speech, and more

December 15, 2018 | By JAMES BURLING
PLF Logo Filler

Public land stewards reiterate that the president can reduce the size of national monuments

Briefing is now complete on the motion to dismiss Utah Diné Bikéyah v. Trump, a case that challenges the president’s ability to reduce the size of national monuments. PLF represents individuals and non-profit organizations that recreate, work, and volunteer on public lands in Utah and who were harmed when the Bears Ears National Monument was established.

This week, PLF filed another brief explaining that one president cannot bind future presidents when he establishes a national monument. We are asking the court to dismiss the case. A decision on the motion to dismiss is expected in the coming months.

The Ninth Circuit is desperate to get rid of PLF’s Montana school choice case, but we aren’t giving up

Several years ago, in a case called Armstrong v. Walborn, PLF sued the Montana Department of Revenue on behalf of parents educating their son at a private religious school. The Montana legislature had passed a ground-breaking tax credit program that encouraged private donations to a scholarship fund to help families afford private school. The Department of Revenue, however, passed a regulation that banned students from using these privately donated scholarship dollars to attend religious schools.

Our lawsuit claimed that this blatant discrimination violated the religion clauses and the equal protection clause of the U.S. Constitution. The district court, however, dismissed our case without addressing the important constitutional questions we raised. This week, a Ninth Circuit panel affirmed that dismissal. Nonetheless, we are confident in the ongoing fight to vindicate our clients’ right to seek redress in federal court.

The importance of PLF’s federal case became even more apparent this week, when the Montana Supreme Court in a parallel state case struck down the Montana tax credit scheme.

Widespread support for PLF appeal of unlawful wetlands enforcement

This Monday several supporters filed six amici briefs asking the U.S. Supreme Court to grant cert in Joe Robertson’s Clean Water Act appeal in Robertson v. United States. The amici include a group of other PLF clients (The Hawkes Company, Duarte Nursery, and the Sacketts) who recently won cases in the Supreme Court; nationwide trade associations the National Federation of Independent Businesses and the National Association of Home Builders; and policy organizations the Cato Institute, the Center for Constitutional Jurisprudence, and Judicial Watch. Read more about their briefs at our blog post.

EPA issues lackluster new wetlands rules

PLF previously challenged the Obama-era “Waters of the United States” or “WOTUS” rule, arguing in Washington Cattlemen’s Association v. EPA that the rule illegally expanded federal control over land that was not subject to federal control. This week the EPA announced its long awaited proposal to revise the 2015 Obama administration regulation, which illegally defined millions of acres of dry land on private property as federally regulated “navigable waters.” Sadly, while the new EPA proposal contains a few common-sense reforms, it falls far short of the broad reform President Trump called for in his February 2017 Executive Order. Read more in our blog and news release.

The constitutional right to speak for yourself

PLF filed an amicus brief in the Massachusetts Supreme Judicial Court in support of non-union educators in Branch v. Commonwealth Employment Relations Board. The educators seek the right to have a voice in the terms of their own employment, rather than being “represented” by the union they refuse to join.

Our brief focuses on the need for courts to rigorously scrutinize infringements on the right of free association (and its corollary, the right not to associate) and the injustice that results when people are forced to associate with groups when they do not share—and even expressly oppose—those groups’ objectives.

Government cannot define away property rights

We filed this amicus brief asking the Minnesota Supreme Court to recognize the property rights of mining company Minnesota Sands, LLC, in the case of Minnesota Sands v. County of Winona. Minnesota Sands owns leases with various property owners giving it the exclusive right to mine silica sand on those properties. But Winona County’s recent zoning ordinance amendment, which bans such activities outright, rendered the leases worthless.

When government regulation eliminates the value of property rights, the government must compensate the property owner. But the Minnesota Court of Appeals held that Minnesota Sands did not really have a property right at all, since it did not take every step necessary to exercise the rights in its lease. The problem is, it cannot take those steps because of the new ban on silica sand mining.

The court below fundamentally misunderstood the nature of a property right. We weighed in to make sure the Minnesota Supreme Court gets it right. For more, see our blog post.

Washington Supreme Court grants Seattle’s petition to review PLF victory on first-in-time rule

As you may recall, PLF scored a major victory against Seattle earlier this year in Yim v. City of Seattle, a constitutional challenge to the city’s “first-in-time” rule that required landlords to rent to the first person who submitted an adequate application. The trial court agreed with us that this radical landlord-tenant law was an uncompensated taking for private use that violated due process and free speech. The city has now persuaded the state supreme court to review that trial court decision. We’re confident that we can persuade the supreme court that Seattle has gone several steps too far.