Weekly litigation report — Holding federal agencies accountable

December 08, 2018 | By JAMES BURLING
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Judicial review essential to hold federal agencies accountable

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The New Mexico Meadow Jumping Mouse critical habitat designation is unwarranted

On December 7, PLF filed a complaint on behalf of New Mexico ranchers in Northern New Mexico Stockman’s Association v. Fish and Wildlife Service (FWS). This new lawsuit comes on the heels of our latest Supreme Court victory last week in Weyerhaeuser v. United States Fish and Wildlife Service, in which a unanimous Supreme Court decision reaffirmed that agencies’ actions are subject to judicial review.

The new lawsuit challenges a 2016 rule in which FWS officials designated a critical habitat for the New Mexico meadow jumping mouse, a small rodent found mostly in New Mexico. However, they failed to follow the law during the review process and in designating the critical habitat.

As the Supreme Court held last week, federal bureaucrats can and should be held accountable for such errors—and judicial review is a critical tool for accountability.

Lawyer’s challenge to mandatory bar membership moves forward

In Fleck v. Wetch, North Dakota lawyer Arnold Fleck seeks to be free from his forced association with the State Bar Association of North Dakota.

After considering his petition for writ of certiorari at eight consecutive conferences, on Monday, the Supreme Court granted the petition, vacated the decision below, and remanded to the Eighth Circuit for reconsideration in light of the Supreme Court’s decision in Janus v. AFSCME earlier this year.

As Debbie La Fetra explains on the blog and in the Daily Journal, this is a very important development because Fleck raises issues that were alluded to, but not decided, in Janus.

Strengthening property rights requires rethinking Penn Central

Forty years ago, in Penn Central Transp. Co. v. City of New York (1978), the U.S. Supreme Court explained that regulatory takings cases are “essentially ad hoc, factual inquiries” in which courts are instructed to consider a number of case-specific factors, including the economic impact, the owner’s expectations, and the character of the government action.

The idea was to provide courts with the flexibility to respond to “the nearly infinite variety of ways in which government actions or regulations can affect property interests,” as the Supreme Court decided in Arkansas Game & Fish Commission v. United States (2012).

But in practice, the court’s ad hoc approach has resulted in standards that are vague, impossible to apply in a consistent manner, and an invitation to judicial subjectivity. And more often than not, these vague standards work to the detriment of property owners. PLF is currently involved in two cases asking the U.S. Supreme Court to bring some balance and predictability to Penn Central.

For more on these cases, including Kelleher v. New York Department of Environmental Conservation and Colony Cove Properties v. City of Carson, see our blog post here.