7 months ago

Weekly litigation report — February 10, 2017

By James S. Burling Vice President for Litigation

Fighting for a road in Michigan

We filed our Notice of Appeal in the Sixth Circuit Court of Appeals  in Marquette County Road Commission v. Environmental Protection Agency in the upper peninsula of Michigan to appeal the U.S. EPA’s decision to unjustifiably block construction of an important local road project. The EPA is blocking a road that would cut emissions, save fuel, reduce traffic, and dramatically increase safety, presumably because it touches some wetlands that the county has agreed to mitigate many times over. It could also be that EPA has an agenda to stop the road because the road would be used by ore trucks from a nearby mine. For more on the case see our blog post here and our press release here.

Court allows lawsuit against union “walk-around” rule to proceed

In National Federation of Independent Businesses v. Occupational Safety and Health Administration, the United States District Court for the Northern District of Texas denied (in part) OSHA’s motion to dismiss our lawsuit challenging the agency’s “union walkaround” rule. Filed back in September, our lawsuit challenges the so-called “Fairfax Memo,” issued by OSHA in 2013. The Fairfax Memo grants union operatives the ability to accompany OSHA inspectors when they undertake worksite inspections, even if the employees are non-unionized. In effect, the Fairfax Memo gives union recruiters a free pass to proselytize to non-union workers under the guise of “contributing positively” to a worksite inspection. The problem, as explained further in our blog, is that OSHA’s directive was not filed in accordance with federal law. For more, see our case page here, our press release here,  and our blog post here.

Outrageous tax liens upheld in Michigan

The Sixth Circuit ordered the dismissal of a lawsuit, Wayside Church v. Van Buren County, that was filed by a group property owners who not only lost their homes through foreclosure but also lost all value in the homes in excess of the taxes. For example, Wayside Church lost a piece of land that was sold at auction for $206,000. After deducting outstanding tax debts, interest, penalties, and fees of $16,750, Van Buren County made $189,250 in profit. Another landowner who owed $25,000 in taxes had her property sold at the same auction for $68,750, resulting in a windfall to the county of $43,750. Finally, another landowner owed $5,900 for property that was auctioned off for $47,750, allowing the county to rake in $41,850 in surplus proceeds.

Of course, local governments have every right to auction off property when there is an unpaid tax lien, but making a huge windfall profit in the process just isn’t right — it’s a taking. The Sixth Circuit, however, found that the case should have been filed in state court because it involved a takings claim — despite the fact that state law allows no relief in such cases. PLF filed an amicus brief supporting Wayside Church, explaining that Michigan’s tax scheme violates the Takings Clause of the U.S. Constitution. We are working with the landowners and considering their further options. For more information, see our blog post here.

WOTUS argument rescheduled for October

Oral argument before the Supreme Court has been rescheduled from April to October in our challenge to the “Waters of the United States” rule. See our blog post here.

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