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Weekly litigation report — June 10, 2016

June 13, 2016 | By JAMES BURLING

Another Supreme Court Victory!

About two years ago, we filed a petition for certiorari in Kent Recycling v. U.S. Army Corps of Engineers, a case out of the Fifth Circuit where we were challenging a district court ruling that held that our clients could not challenge a wetlands jurisdictional determination in court. Unfortunately, the Supreme Court denied that petition. Then, about a week later, we had the opposite and favorable ruling from the 8^th Circuit in U.S. Army Corps of Engineers v. Hawkes. We then petitioned the Court for reconsideration of our cert petition in light of the fact that there was now a conflict in the circuits – with the Fifth (Kent Recycling) and the Ninth (Fairbanks North Star Borough – a case brought by PLF several years ago) on one side and the Eighth Circuit on the other.

Normally, we think petitions for reconsideration of a cert denial are worthless endeavors, but we thought this one had a chance. The Court asked for further briefing, and then did nothing for over a year. In the meantime, the government petitioned in Hawkes, which the Court granted and gave us last month’s unanimous decision. In light of that decision, the court has now granted our petition for rehearing in Kent Recycling, granted the petition for cert, vacated the Fifth Circuit opinion in light of Hawkes, and sent the case back down to the lower court for further review.

This is a very big deal. The Court virtually never grants a petition for a rehearing like this. In fact, we’ve polled court watchers if they’ve ever seen a similar scenario and so far no one has remembered one. In sum, this is another Supreme Court victory by PLF, making it our ninth in a row! Reed Hopper and our entire team pulled a decisive victory straight out of the jaws of defeat. Here’s the blog post.

A win for property rights in North Carolina

The North Carolina Supreme Court handed down a victory for property rights in Kirby v. North Carolina Department of Transportation, a case Pacific Legal Foundation tracked closely for several years. The facts of the case are straightforward, as we explained in our amicus brief supporting the property owners, the government of North Carolina thought it could freeze about 4,500 different properties, with a value of around $600 million dollars, indefinitely, and then decide when to build its highway through those properties on the government’s own clock, any time in the next 60 years. Meanwhile, the state would buy the properties frozen by the Map Act, and the Act’s transportation corridors, at the government’s convenience and on its own time-table. On this egregious set of facts, the landowners had no choice but to ask the courts to intervene. PLF argued in its amicus brief that the impact on the use and value of the owners’ property amounts to an unconstitutional taking of that property, and North Carolina’s High Court agreed. For more, see our blog post here.

Fighting to keep public lands open to all

We filed our final trial court briefs in Granat v. USDA, PLF’s challenge to the Forest Service’s mass road and trail closure on the Plumas National Forest in northeastern California. Our case focuses on the agency’s decision to close to all motor vehicle access nearly 700 miles of existing, legally authorized roads and trails without any onsite field verification of the “data” purportedly supporting the closures. Essentially, the Forest Service converted a transportation plan update into an opportunity to effect a dramatic shutdown of the forest to public access. We represent a coalition of forest access advocates and local governments, including mobility-impaired individuals who can no longer reach their favorite spots because of the Service’s mass closure. A hearing on the case is scheduled for July 28 in Sacramento.

Adverse decision on free speech case

we received an adverse decision in our Young v. Ricketts case. Leslie Young provides advertising services for people who want to sell their homes without the help of a licensed real estate broker—also called for sale by owner (FSBO) advertising. Nebraska law calls her advertising business the practice of real estate brokerage, and requires a license for it. We argued that the licensing requirement abridges Leslie’s right to free speech, and that it violates due process because the real estate broker licensing requirements have nothing to do with her business of advertising. Indeed, it would be irrational to force her to get a license when even licensed brokers cannot advertise FSBO homes.

The Eighth Circuit held that the law did not implicate the First Amendment because Leslie meets the definition of real estate broker. Of course, we argued engaging in a “listing agreement” is entering into a contract to advertise. Placing a “listing” on a MLS is putting an advertisement on a certain medium. And using self-descriptive terms is self-titling, which has long been analyzed under First Amendment scrutiny. As a side note, the Fifth Circuit recently struck down a self-titling law in Texas under the First Amendment, and held that the plaintiff could call herself a “psychologist” even though she was not a licensed psychologist. The Eighth Circuit panel did not cite or distinguish this case.

As for our due process claims, the court held that the law was facially valid.

For more, see our blog post.

PLF’s cert petition on water quality buffers draws support

A month ago PLF asked the Supreme Court to hear Common Sense Alliance v. San Juan County, a case against an ordinance that unconstitutionally takes portions of shoreline properties as community storm water filters. The issue in the case is whether Supreme Court decisions that limit government power to demand property in return for a permit approval apply to property exactions imposed by a legislative body, or just when a planning committee imposes an ad hoc exaction.

Today, we are pleased that several organizations have filed friend of the court briefs also encouraging the Supreme Court to take the case. The Southeastern Legal Foundation, joined by National Federal of Independent Business Small Business Legal Center, filed this brief emphasizing the importance of resolving a growing dispute among lower courts over whether Nollan v. California Coastal Commission, Dolan v. City of Tigard, and Koontz v. St. Johns River Water Management District, apply to legislative exactions.

And our friends at the Cato Institute and Reason Foundation, joined by the National Association of Home Builders, filed a brief emphasizing the fact that the unconstitutional conditions doctrine, on which Nollan, Dolan, and Koontz are based, is commonly applied to legislative exactions in the Fifth Amendment context, and had its origin in cases applying the doctrine to legislative limits on First Amendment rights.

The Supreme Court will consider whether to hear the case during its June 23 conference. Our blog post is here.