9 months ago

Weekly litigation report — January 21, 2017

By James S. Burling Vice President for Litigation
  • “Cap and Trade” argument set for Tuesday
  • Supreme Court turns down free speech case
  • The public trust doctrine in Washington State
  • Sea urchin filing
  • School choice victories in Florida!
  • School choice brief filed in Georgia
  • Reply brief in Jaguar case filed

“Cap and Trade” argument set for Tuesday

The California Court of Appeal will hear our challenge to A.B. 32, California’s cap and trade program that has morphed into a billion dollar tax on industry in violation of California’s constitution. Our case, Morning Star Packing Company v. State Air Resources Board, combined with California Chamber of Commerce  v. State Air Resources Board, will be argued together so the court can determine whether our state constitution’s requirement for a two-thirds majority before taxes can be raised means what it says means. For more, visit our web page here and our blog post here.

Supreme Court turns down free speech case

We received disappointing news that the Supreme Court denied our cert petition in Bennie v. Munn. PLF attorneys represent Bob Bennie, a financial analyst and Tea Party leader in Nebraska. Bennie was targeted for retaliation by state financial regulators because he expressed political viewpoints that they didn’t like. Although the lower court believed that Bennie had been targeted for his views, it didn’t find that a “person of ordinary firmness” would have been deterred from speaking out — even though Bennie lost his job. The Court of Appeals in turn declined to give an independent look at the application of that “ordinary firmness” standard. Although our petition received a lot of support, the Court let the lower court ruling stand. For more, see our blog post here.

The public trust doctrine in Washington State

We filed this brief in Chelan Basin Conservancy v. GBI Holdings, a case where some environmentalists are arguing that the so-called “public trust doctrine” should interfere with the development of long-standing property rights. PLF’s brief argues that the environmentalists’ argument, if credited, would threaten the social and economic resources throughout the State. Much of downtown Seattle, after all, is built on fill, including the stadium district, railroad terminal, and Ferris wheel. And over 30,000 acres of agricultural land located in the regions breadbasket was reclaimed from tidal inundation by a system of pumps, seawalls and dikes. The environmentalist argument to expand the public trust would directly threaten those and other resources throughout the state. Oral argument is scheduled for next month. For more, see our blog post here.

Sea urchin filing

We filed this reply brief in our California Sea Urchin Commission v. Bean case. This is the case where the Fish and Wildlife Service transplanted otters to the Southern California coast with the promise to keep them away from some important sea urchin fishing grounds. After the Service reneged, we sued on behalf of the fisherman who are very concerned because sea otters can tear through sea urchin beds like a vacuum cleaner. For more, see our web page here.

School choice victories in Florida!

This week, the Florida Supreme Court rejected a union’s lawsuit challenging Florida’s tax credit scholarship program, and a Florida appellate court rejected a school district’s claim that charter schools violate the state constitution.

Last year, PLF filed a friend-of-the-court brief in the Fourth District Court of Appeal in School Board of Palm Beach County v. Florida Charter Educational Foundation, arguing that the School Board of Palm Beach County illegally denied an application to start a new charter school. This week the appellate court rejected the union’s claim that charter schools are unconstitutional, but it didn’t decide whether the board’s decision was illegal because the state board failed to make an adequate record.  See our blog post here.

These decisions protect K-12 students across the state.

School choice brief filed in Georgia

We filed this amicus brief in Gaddy v. Georgia Department of Revenue. We’re arguing that Georgia’s school choice tax credit program is immensely helpful to all school children in Georgia and doesn’t violate the state constitution.

Reply brief in Jaguar case filed

In 2014, the federal government designated thousands of acres in New Mexico as “critical habitat” for the jaguar. The designation is absurd, because as cat-lovers know, jaguars prefer the wet, tropical climates of Central and South America forests, to the dry, arid wilderness of the Southwest. The designation should also trouble liberty-lovers, because it violates the limits of the Endangered Species Act. That’s why PLF sued the U.S. Fish and Wildlife Service on behalf of New Mexico Farm & Livestock Bureau, New Mexico Cattle Growers’ Association, and New Mexico Federal Lands Council. Friday, we filed our reply brief in New Mexico Farm and Livestock Bureau v. Department of Interior which explains why legal precedent and the statutory text require the court to overturn the illegal designation. Our blog post is here.

 

learn more about

Chelan Basin Conservancy v. GBI Holding Company

Along the shore of Washington’s Lake Chelan, a large fill known as “Three Fingers” has been in place since 1961. The placement of this fill was retroactively authorized by the state’s Shoreline Management Act, which grants consent and authorizes impairment of public rights of navigation, fishing, and recreation caused by fill placed in navigable waters prior to December 4, 1969. An environmental group, Chelan Bay Conservancy, sued the owner of Three Fingers to remove the fill on the basis that it allegedly violates the public trust doctrine. The Washington Supreme Court issued a decision largely adopting the legal principles espoused in PLF’s amicus brief in favor of the property owner and remanded the public trust question for trial.

Read more

What to read next