July 22, 2017

Weekly litigation report — July 22, 2017

By James S. Burling Vice President for Litigation
  • A case to tweet about!
  • Pushing back against an unfair Clean Water Act prosecution
  • PLF files input letter on GMO labeling law
  • Gnatcatcher notice of intent to sue letter submitted
  • Minnesota Supremes invite tort abuse

A case to tweet about!

On Thursday, PLF filed a lawsuit, American Federation of Aviculture v. U.S. Fish and Wildlife Service,  in federal court to force the U.S. Fish and Wildlife Service to obey the law and issue a decision on the American Federation of Aviculture’s petition to remove the golden parakeet from the list of protected species under the Endangered Species Act. Three years ago, the AFA petitioned the government to delist the golden parakeet, or downlist it from endangered to threatened and remove counterproductive restrictions that make it hard for US breeders to maintain genetically diverse flocks. The federal government is more than one year late issuing a decision on the petition. Read more here.

Pushing back against an unfair Clean Water Act prosecution

This week, PLF filed an amicus brief, on behalf of its clients Mike and Chantell Sackett, as well as John Duarte and Duarte Nursery, supporting the defendant in a Ninth Circuit case known as United States v. Joseph David Robertson. Mr. Robertson found himself charged and then convicted with polluting into waters of the United States, even though he did nothing more than create ponds on his private property, more than sixty miles away from the nearest navigable river. The federal government used an expansive reading of the Rapanos precedent to convince a jury that Robertson’s ponds had a ‘significant nexus’ to that distant river. PLF argues in its brief that the lower court should have applied the Scalia plurality opinion test from the Rapanos decision, rather than the Kennedy concurrence ‘significant nexus’ test, in determining whether Robertson violated the Clean Water Act. Since the Sacketts’ case and the Duartes’ case are pending in district courts within the Ninth Circuit’s jurisdiction, and the decision as to whether to apply the Scalia test or the Kennedy test will impact the outcomes of both cases, PLF filed an amicus brief making clear that the Ninth Circuit should use the Robertson case to adopt the Scalia opinion as the controlling opinion in that 4-1-4 Rapanos decision. For more on the Robertson case and our argument, see our blog post here.

PLF files letter on GMO labeling law

We filed this letter asking the Department of Agriculture to abandon its plans to require GMO labeling on food products. The First Amendment protects both your right to speak and your right not to speak. When the government wants to compel speech, it must prove that doing so would directly serve a substantial governmental interest, such protecting public health and safety. Yet there is broad scientific and regulatory consensus that genetically engineered foods do not pose any unique threat to human health. In addition, many companies are voluntarily informing their consumers of whether their food contains genetically engineered ingredients. Merchants, not the government, are in the best position to cater to the preferences of their consumers. For more, see our blog post here.

Gnatcatcher notice of intent to sue letter submitted

This week, we submitted a notice of intent to sue the U.S. Fish and Wildlife Service over the agency’s denial last year of our petition to delist the coastal California gnatcatcher from the Endangered Species Act.  Submitted on behalf of a broad coalition of home builders, sound science, and property rights advocates, the notice argues that the Service’s denial violates the Endangered Species Act because it fails to articulate any definition or standard for determining why the gnatcatcher purportedly constitutes its own subspecies.  The notice also alleges that the Service violated the Federal Advisory Committee Act when it failed to give the public notice or an opportunity to participate in the privately convened peer review panel, the final report of which heavily influenced the agency’s decision to reject our petition.

Minnesota Supremes invite tort abuse

A sharply-divided Minnesota Supreme Court held, 4-3, that any “close” tort case must go to a jury. In Montemayor v. Sebright Products, the court considered whether a worker who ignores posted warnings and crawls into an industrial machine nicknamed “the smasher” without checking to see whether it is unplugged, can sue the manufacturer when a co-worker starts the machine with him inside, causing his legs to be crushed. The court held that whether this chain of events was foreseeable was a “close call” and therefore should be decided by a jury. Three justices vehemently dissented. Along the lines of PLF’s amicus brief, they opined that as a matter of law, “[I]t  is  not  reasonable, as a matter of law, common sense, or public policy, to expect a manufacturer to  foresee—absent  any  admissible  evidence—that  the  safety  device  it  installed  on  the  machine would be disabled and that an employer would violate multiple safety regulations in using the machine.” Limiting liability to cases where the product is actually defective, not merely capable of being egregiously misused, underscores the fact that society generally favors the manufacture and use of products. The majority decision ignores these important policy considerations, ultimately to the detriment of Minnesota manufacturers, consumers, and workers.

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American Federation of Aviculture v. U.S. Fish and Wildlife Service

Thanks to the efforts of private breeders, the golden parakeet is no longer threatened with extinction. Although the federal government acknowledges the bird’s tenfold increase in numbers, it has refused to comply with a law that requires it to make a final decision to delist or downlist the parakeet within 12 months of that finding. On behalf of a coalition of breeders and bird owners, the American Federation of Aviculture, PLF is suing the U.S. Fish and Wildlife Service to force it to comply with the law, reclassify the golden parakeet, and lift onerous restrictions that prevent breeders from selling to all other breeders.

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