Weekly litigation report — February 18, 2017

February 18, 2017 | By JAMES BURLING

Absent Gopher Frog headed to Supreme Court

Image result for dusky gopher frog

Have you seen this frog? Fish & Wildlife Services thinks it can appear magically in Louisiana by decreeing “critical habitat” on land where the frog isn’t and can’t be.

The Fifth Circuit in an 8 to 6 decision declined to rehear the case of the frog that isn’t there, Markle Investments v. United States Fish & Wildlife Service. The problem in this case is that the Fish & Wildlife Service insists in designating large swaths of property in Louisiana as “critical habitat” for the gopher frog, which is costing the affected landowners millions of dollars in costs. There are a few problems, however, with calling these lands critical habitat: the frog doesn’t live on the land in question, it hasn’t been seen in the area for over a half-century, even if the frogs hopped back over to Louisiana they wouldn’t survive because the land isn’t suitable for the frogs, and no one has any intention of taking bulldozers to the land to create new frog habitat. Six members of the court issued a stinging dissent, beginning with these words:

The protagonist in this Endangered Species Act …  case—the dusky gopher frog—is rumored to “play dead,” “cover its eyes,” “peak [sic] at you[,] and then pretend to be dead again.” …. The panel majority regrettably followed the same strategy in judicial review—play dead, cover their eyes, peek, and play dead again.

Our next stop will be the Supreme Court. We’ll be asking the Court to be a bit more lively than the appellate court and take the case so it can put some limits on the Fish &Wildlife Service’s fantasy exercises in creative critical habitat. For more, see our blog post here.

Argument before the 9th Circuit in San Francisco shake-down case

PLF attorneys previously won their challenge to a San Francisco ordinance that required landlords to pay exorbitant fees to tenants when the landlords decided to get out of the rental housing business. See our write-up of Levin v. San Francisco here. San Francisco then rescinded the ordinance and adopted a new, somewhat less onerous ordinance (that is subject to another challenge). San Francisco then appealed. Oral argument was heard on February 14th. The arguments revolved around the question of whether San Francisco could in fact bring an appeal of an injunction against an ordinance that no longer exists.

Victory in the 11th Circuit “Docs for Glocks” case

The 11th Circuit issued this 90 page opinion in Wollschlaeger v. Governor of the State of Florida, better known as the “Docs for Glocks” case. (Actually, there were two opinions on this full “en banc” decision from the entire court.) This is the case where Florida passed a law prohibiting doctors from asking their patients about firearms in their homes. Supposedly this law was to support gun rights, but what it really did was restrict the First Amendment rights of doctors. We had filed this amicus brief in 2016. A doctor, like anyone else, should be able to talk with a patient about whatever the doctor and patient wish to talk about. Both opinions from the 11th Circuit agreed that this restriction on free speech went too far. You can check out our post-argument blog post here, but you can also check out our blog on Friday for an update.