Weekly litigation report—December 2, 2017

• Motion for summary judgment to be filed in Minerva dairy — the better butter case
• PLF testifies before Congress on WOTUS  
• PLF files amicus brief in union free speech case
• Reply Brief filed in Markle; SCOTUS to consider case on January 5th
• Petition asks the government to protect homes by holding Coastal Commission accountable for illegal rule
• California Supreme Court upholds compulsory interest arbitration for agricultural employers 
• Supreme Court denies review in federal reserved water rights dispute
• Do property rights matter in Florida? 
• Court upholds sentence for alleged wetlands violator
• Arizona Supreme Court ignores voters’ intent

Motion for summary judgment to be filed in Minerva Dairy — the better butter case

We’ve filed this motion for summary judgment in Minerva Dairy v. Mueller. This case challenges Wisconsin’s requirement that all butter sold in the state be graded. Graded butter is essentially a state-mandated taste test which requires butter to meet a specific flavor profile mandated by the State of Wisconsin. There is absolutely no health concerns with selling ungraded butter, and our client, Minerva Dairy, has been selling its artisanal butter for 100 years. Wisconsin’s law cuts him off from the Wisconsin market because grading Minerva Dairy butter would ruin its brand equity and be cost prohibitive. We are challenging the constitutionality of the law under the dormant Commerce Clause, Due Process Clause, and Equal Protection Clause. Blog post here.

PLF testifies before Congress on WOTUS

PLF’s Reed Hopper testified before a congressional subcommittee on WOTUS rule reform. He noted that to address the concerns raised in the 2015 WOTUS rule, overzealous agency action must be restrained by statutory amendment or regulatory directive. In either case, the law must be clear and unambiguous. It must be understandable to ordinary citizens and consistently and fairly applied. To that end, the government should focus on protecting core water resources and not small, insubstantial threats. Faithful adherence to the Scalia plurality in Rapanos offers the most judicious approach to Clean Water Act enforcement.

PLF files amicus brief in union free speech case

The Supreme Court briefing in Janus v. AFSCME is underway. As you may recall that this Supreme Court case presents the First Amendment issue of whether public employee unions can garnish the wages of non-union members to support the union’s collective bargaining and other political activities, without those workers= consent. Mark Janus, a non-union public employee in Illinois, filed his opening brief on the merits earlier this week, and PLF, joined by an array of allies, filed an amicus brief today. The brief details how politicking pervades public employee union agendas, from collective bargaining (which involves the allocation of public resources – that is, tax dollars), to lobbying, to active participation in elections.

Reply Brief filed in Markle; SCOTUS to consider case on January 5th

Last week, PLF filed its reply brief in Markle Interests, LLC v. U.S. Fish & Wildlife Service, one of the Endangered Species Act-related PLF cases now pending before the Supreme Court of the United States. Under the Endangered Species Act, “critical habitat” includes only those areas “essential to the conservation of the species.” But in a preposterous display of rule-making, federal bureaucrats at the U.S. Fish and Wildlife Service decided to set aside 1500 acres of private land for the protection of the dusky gopher frog although the land is wholly unsuitable as habitat. Our client owns the land and we have challenged the designation on its behalf. With all the briefing submitted in the case, we expect the Supreme Court to conference the case and perhaps decide on whether to hear it on January 5, 2018. For more on the case, read our blog post here.

Petition asks the government to protect homes by holding Coastal Commission accountable for illegal rule

On behalf of the Coastal Rights Coalition, PLF recently filed a petition with California’s Office of Administrative Law, asking the agency to hold the California Coastal Commission accountable for an illegal rule that hurts coastal homeowners.  When coastal property owners seek permits for new residential homes, or significant remodels, the California Coastal Commission requires them to agree never to build a seawall to protect the structure from storms and erosion.  This policy undermines constitutional protections for property owners, and it was imposed illegally, without public notice, hearings, and opportunity for public comment, as required by the California Administrative Procedure Act. PLF is asking the Office of Administrative Law, which is supposed to enforce the Administrative Procedure Act against other California agencies, to hold the Coastal Commission accountable. If the agency fails, we will take the Coastal Commission to court. For more information, see our blog post here.

California Supreme Court upholds compulsory interest arbitration for agricultural employers

On Monday, in  Gewaran Farming, Inc. v. Agricultural Labor Relations Board, the state high court ruled that California’s Mandatory Mediation and Conciliation process does not violate the Equal Protection Clause or California’s non-delegation doctrine.  Under California’s Agricultural Labor Relations Act, unions can force employers into “mediation” and, if the parties do not come to an agreement, a “mediator” can impose the terms of an employment agreement on the employer.  Gewaran Farming, a family-run fruit processor and packer, challenged this regime successfully in the court of appeal.  But Monday’s decision from the California Supreme Court rejected Gewaran’s arguments (as well as those advanced in our amicus brief), concluding that the process does not necessarily treat agricultural employers arbitrarily, and does not delegate too much law-making power to unelected government functionaries.  For more analysis, check out our blog post.

Supreme Court denies review in federal reserved water rights dispute

On Monday, in Desert Water Agency v. Agua Caliente Band of Cahuilla Indians, the U.S. Supreme Court denied review of a Ninth Circuit decision from earlier this year holding that the doctrine of federal reserved rights applies to groundwater.  The dispute arose from a lawsuit brought by the Tribe against several water districts, seeking money damages for the groundwater that these districts had used for their own purposes that instead purportedly belonged to the Tribe.  The Ninth Circuit held that the Tribe holds two sets of groundwater rights:  one right by virtue of being an overlying owner (the same that the water districts have), and a second federal reserved right, which the Tribe enjoys by virtue of the late-nineteenth-century executive order creating the Tribe’s reservation.  What makes the second right particularly potent (and troublesome for neighboring water users) is that it purports to trump any other competing uses, without the obligation of providing any compensation.  Our amicus brief supporting review pointed out the concerning takings implications of such a “right.”  For additional thoughts, please see this blog post.

Do property rights matter in Florida? 

PLF has asked all the judges of Florida’s Second District Court of Appeal to reconsider the court’s initial three-judge panel decision in favor of the government and against the property rights of our client Tom Finney in P.I.E., LLC v. DeSoto County. In this case, our client Tom Finney relied upon officials with DeSoto County when they told him the property he wished to purchase for mining to support his family business was zoned for mining and would be approved for his plan. But after he spent millions on the plan, the County pulled the rug out from under him and vetoed the very land use plan officials previously approved. Three judges of the appellate court said that was just fine and not unlawful, but PLF disagrees. Thus, we have asked all the judges of the court to hear the case en banc. For more on the case, check out our blog post at this link.

Court upholds sentence for alleged wetlands violator

This week the Ninth Circuit Court of Appeals in U.S. v. Robertson affirmed Joseph Robertson’s criminal conviction under the Clean Water Act for repairing two ponds without permission from the United States Army. As our blog post explains, Robertson argued that the Clean Water Act is unconstitutionally vague and as such cannot be enforced criminally. The Ninth Circuit ruled that it had removed any confusion surrounding where the Act applies by previously ruling that the Act should be interpreted in the vaguest available way. PLF filed an amicus brief in support of Mr. Robertson’s appeal.

Arizona Supreme Court ignores voters’ intent

Two weeks ago the Arizona Supreme Court issued its decision in Biggs v. Betlach, a case brought by a group of Arizona legislators challenging the imposition of a hospital charge to pay for state Medicaid expansion. The charge at issue, which was passed by a simple majority of the Arizona Legislature, requires hospitals to pay an “assessment” on hospital revenues, discharges, and bed days. Yet Article IX Section 22 of the Arizona Constitution requires a 2/3 vote before the state legislature can impose any new taxes. Unfortunately, the court decided to narrowly define “tax” and upheld the hospital charge. There is sure to be future litigation that will continue to define the scope of Article IX Section 22. Hopefully, over time, future cases will become more aligned with the voter’s intent in imposing the supermajority requirement.