March 17, 2018

Weekly litigation report — March 17, 2018

By James S. Burling Vice President for Litigation
  • Washington limits the reach of the public trust doctrine.
  • Congress gets an earful on the problems with the federal permitting process
  • Amicus Brief Filed in Challenge to San Francisco’s Discriminatory Sign Ban
  • Santa Barbara inspection case headed to a hearing

Washington limits the reach of the public trust doctrine.

Yesterday, the Washington Supreme Court issued its final decision in the public trust case, Chelan Basin Conservancy v. GBI Holding Co.  Broadly stated, the public trust doctrine holds that lands under navigable waters are open to the public for commerce, navigation, fishing, and recreation, regardless of who owns the submerged lands. Over the years, however, environmentalists have tried to convince courts to expand the doctrine in order to give the public (i.e., activist groups) a right to veto any private activity that could potentially impact water. PLF filed amicus brief detailing the history and purpose of the public trust doctrine, arguing that it cannot be construed to transfer control over private property to the public without violating the Takings Clauses of the State and U.S. Constitutions. The Supreme Court agreed with much of PLF’s argument and rejected the environmentalists’ lawsuit. For more, see our blog post here.

Congress gets an earful on the problems with the federal permitting process

 On Thursday, the U.S. House of Representatives Committee on Oversight and Gov’t Reform‘s Subcommittee on Interior, Energy, and Environment held a hearing and received testimony on how the Clean Water Act permitting process, and NEPA, aka “environmental impact statement” process, create delays that kill some projects and delay others for decades. Jim Iwanicki, the Engineer-Manager for PLF’s client Marquette County Road Commission, testified about the hurdles the EPA and U.S. Army Corps of Engineers put in front of County Road 595 in the Upper Peninsula of Michigan, hurdles that ultimately killed off this valuable planned road project. We currently are waiting for the Sixth Circuit to rule on our appeal challenging the federal government’s veto of County Road 595, but while we wait please read Jim Iwanicki’s congressional testimony here. For more, including a PLF video about the case, see our blog post at this link.

Amicus Brief Filed in Challenge to San Francisco’s Discriminatory Sign Ban

On Friday March 16, we filed this Amicus Brief supporting the petition for certiorari in Contest Promotions. v. San Francisco, a First Amendment challenge to the City’s total ban on “Off-Site Signage.” In our brief, we explain that San Francisco’s ban is a content-based restriction of speech, since it allows signs if they advertise a location’s “primary business” but not if they advertise anything else (even if the sign is exactly the same size and shape). San Francisco’s sign code thus has the effect of discriminating against out-of-city businesses, which is exactly the type of concern that led the Supreme Court to create a bright-line rule in Reed v. Town of Gilbert that all content-based speech restrictions must be subject to strict scrutiny by the courts. (Reed was a recent case where the Supreme Court struck down an Arizona town’s restriction on signs advertising church services). In other words, such restrictions should be found to violate the First Amendment unless the government can show some compelling reason for the restriction that cannot be achieved in some other less speech-infringing way. Nonetheless, both the Northern District of California and the Ninth Circuit upheld the sign code under the more lenient Central Hudson intermediate scrutiny standard, on the grounds that Reed did not explicitly apply its holding to commercial speech. Our brief urges the Court to take this case and clarify that Reed’s rule applies to all speech, regardless of subject matter. For more, read our blog post here or read the full amicus brief here.

Santa Barbara inspection case headed to a hearing

On March 15, the Santa Barbara Superior Court issued this tentative ruling on the SLAPP Motion and Demurrer filed by defendants in our case representing the Santa Barbara Association of Realtors vs. the City of Santa Barbara.  The anti-SLAPP (Strategic Litigation Against  Public Participation), which argued that the Santa Barbara Realtors were attempting to silence criticism of the City government, was denied.  The demurrer (that’s what California courts call a motion to dismiss), however,  was granted, with leave to amend.  A hearing will be heard on both rulings on Monday, March 19th.

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