June 10, 2017

Weekly litigation report — June 10, 2017

By James S. Burling Vice President for Litigation
  • Letter sent to school board in Florida on First Amendment violation
  • Brief filed over EPA’s road ban
  • Butter ban ruling sought
  • California union-inspired anti-free speech rule appealed
  • Free enterprise loses in Oregon
  • Golden parakeet feathers to fly!
  • Caribou decision years behind schedule
  • Victory for Wildlife Sanctuary’s Due Process Rights

Letter sent to school board in Florida on First Amendment violation

On behalf of our clients J.P. Krause and his mother, Angela Krause, we submitted this letter to the Superintendent and School Board of Indian River County regarding the Vero Beach High School principal’s decision to disqualify J.P. from the senior class presidency election. After J.P. won the vote, the school principal disqualified him because he contends a humorous campaign speech J.P. gave – watchable here – “humiliated” his fellow candidate for office. First, the video did not humiliate the other candidate even remotely. Second, the First Amendment protects J.P.’s right to engage in pure political speech and PLF believes the school needs to reconsider its rash and poorly considered decision and reinstate J.P. to the presidency. We agree with the Supreme Court, which has recognized that students do not lose their rights at the schoolhouse door. For more see our blog post here.

Brief filed over EPA’s road ban

We filed our principal brief asking the Sixth Circuit Court of Appeals to hold that federal courts can review EPA vetoes of state-approved Clean Water Act Section 404(j) permits in a case known as Marquette County Road Commission v. EPA, et al.  In our brief, we argue that the Administrative Procedure Act (APA) gives the courts jurisdiction to review EPA decisions to block state-approved projects impacting federal waters of the United States in circumstances where the state is authorized to approve § 404 permits. If this APA argument sounds familiar, it’s because we relied on this same argument to win the Sackett and Hawkes cases. We anticipate making it three in a row. For more see our blog post here.

Butter ban ruling sought

We filed a motion for preliminary injunction this week in Minerva Dairy v. Brancel,  our challenge to Wisconsin’s artisanal butter ban. Since February of this year—when Wisconsin began enforcing its fifty-year old statute for the first time—Minerva Dairy butter has been prohibited in Wisconsin stores. The quinquagenary statute prohibits ungraded butter from being sold in the state, but Minerva Dairy butter is an Amish-churned artisanal product that should not be graded.  Butter grading is a way for the government to ensure all butter tastes the same, and Minerva Dairy butter does not want to conform to the government-mandated taste test.  Moreover, non-Wisconsin-based companies like Minerva Dairy, butter grading is an arduous and expensive process, which would require it to contract with the USDA and pay the travel costs for a United States government official to come to Ohio and grade each separate batch of butter. Wisconsin-based companies, in contrast, can have their butter graded through a streamlined Wisconsin process that is relatively cost-free.  Undoubtedly, Wisconsin’s artisanal butter ban is a poorly disguised ruse to help in-state butter makers and to keep out-of-state artisanal butters. Thus, it violates the Constitution’s dormant Commerce Clause.  Because Minerva Dairy’s constitutional rights are being violated continually, and because it continues to lose profits and customers because of the ban, we have asked the federal court to issue a preliminary injunction.

California union-inspired anti-free speech rule appealed

This week PLF filed its opening brief in the Ninth Circuit in Associated Builders and Contractors-California Cooperation Committee v. Becerra, which challenges a California law that threatens to cut funding to speech contrary to unions’ policy preferences.

The lawsuit targets California SB 954, which changed the way employers can distribute money under California’s prevailing wage law.  Formerly, contractors could satisfy their requirement to pay the prevailing wage by paying a combination of wages and benefits, including by donating money to “industry advancement funds.”  SB 954 changed the law so that only union-backed industry advancement funds may now receive prevailing wage contributions.  This threatens the survival of groups like ABC-CCC, which advocate against union interests and rely on prevailing wage contributions to fund their speech.  PLF is arguing that the discriminatory law discriminate against open-shop speech in violation of the First Amendment. For more, read our blog post.

Free enterprise loses in Oregon

The Oregon Supreme Court delivered an adverse opinion in our Twist Architecture case, which appealed a ruling by the Oregon Board of Architects that our client practiced unlicensed architecture when he created marketing drawings.  These drawings were not “blueprints” or “plans”—they were meant to help a property development company attract retailers to developments by showing pretty pictures of what the buildings might look like.  We argued that, given that the drawings had no nexus to construction, such a broad interpretation was unwarranted by the statute and raised serious constitutional concerns.  The Supreme Court disagreed, citing the broad wording of the statute. Read our blog post here.

Golden parakeet feathers to fly!

In April, we sent the Service a letter warning that we will sue on behalf of our client, the American Federation of Aviculture (AFA), unless the agency issues a finding on the AFA’s petition to either delist the golden parakeet or exempt US breeders from permit requirements that actually harm breeders’ conservation efforts. Under the deadlines imposed by the Endangered Species Act, the agency should have issued this so-called 12-month finding more than one year ago. On Wednesday, the U.S. Fish and Wildlife Service responded, assuring us that the 12-month finding is a “priority” and that it would complete it by the end of September 2018—only 29 months late! Assuming this is true, the forthcoming lawsuit will be called American Federation of Aviculture v. U.S. Fish and Wildlife Service. Blog post here.

Caribou decision years behind schedule

We sent the US Fish and Wildlife Service this 60-day Letter of Intent to Sue on behalf of Bonner County, Idaho, and the Idaho State Snowmobile Association (ISSA). This signifies the third lawsuit that we will file in an effort to compel the Service to follow the law with regard to the Southern Selkirk Mountain caribou population. Three years ago, the Service agreed with our petition that the Southern Selkirk Mountain population of caribou is illegal, but it is now two years past due making a final rule to that effect, in violation of the Endangered Species Act. Meanwhile, the residents of Bonner County continue to endure adverse economic effects that directly result from the illegal listing. For more details, read the blog post.

Victory for Wildlife Sanctuary’s Due Process Rights

This week, the Supreme Court of North Carolina vindicated the due process rights of a wildlife sanctuary dogged by a city council’s blatant attempts to shut it down. We had filed an amicus brief to support the substantive due process rights of the sanctuary. On the false pretext of protecting the water supply, the Town of Beech Mountain had passed a law forbidding animal cages and other habitats near a local lake. The law affected only the Genesis Wildlife Sanctuary, and city council minutes made it clear that the Town meant to target the sanctuary and chase it off. The sanctuary had operated for years under a valid lease with the town. The sanctuary sued, claiming that the Town’s arbitrary and hostile targeting of the sanctuary violated due process. The North Carolina Supreme Court has now offered the sanctuary a rare win for property owners’ substantive due process rights. To learn more, take a look at our previous blog post on the case.

 

learn more about

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.

Read more

What to read next