May 19, 2018

Weekly litigation report — May 19, 2018

By James S. Burling Vice President for Litigation
  • Is plowing a field “dredging and filling” under the Clean Water Act?
  • Food and Drug Administration wants Texas business owner to litigate her civil rights case in D.C.
  • Eleventh Circuit vindicates Chmielewski family’s property rights
  • PLF urges Supreme Court to take up hair braiders’ case
  • Supreme Court strikes down anti-gambling law because it commandeers unwilling states

Is plowing a field “dredging and filling” under the Clean Water Act?

Today PLF asked the federal court to dismiss the Army’s Clean Water Act case against our client Jack LaPant in United States v LaPant. The federal government is suing Jack on behalf of the Army for farming his land without permission from the Army Corps of Engineers. Now, we think the law is clear that the Clean Water Act does not require Army permits for normal farming practices, but there is an even more basic problem with the government’s case. Under the Clean Water Act, the only thing the Army can sue for is an alleged violation of a permit they have issued. If someone is alleged to have illegally discharged without a permit, then only the EPA (or the United States on behalf of the EPA) can sue. Since EPA is not suing Jack, we argue that the court lacks jurisdiction and the case cannot go forward. You can read more at our blog.

Food and Drug Administration wants Texas business owner to litigate her civil rights case in D.C.

The so-called “deeming rule” extends the Tobacco Control Act to products, like vaping hardware and vaping liquids, that do not contain tobacco. The rule is unconstitutional because it was enacted by a low-level official with no authority to do so and because it prohibits vape retailers from conveying truthful information about their product. As a nationwide public interest organization, PLF has filed three cases in which it represents ten different plaintiffs residing in six different states. All of the plaintiffs are entitled to litigate their case in the places in which they were harmed, but the FDA wants to combine their cases and force them to litigate in D.C. Today we’ve filed our latest brief in opposition of the FDA’s efforts to funnel our clients’ cases to D.C. We emphasized the appropriate deference that courts give to a plaintiff’s choice to litigate her civil rights claims in the place in which she was harmed and the Supreme Court’s preference that novel constitutional issues “percolate” among the lower courts before they are resolved in appellate review.

Eleventh Circuit vindicates Chmielewski family’s property rights

This week, the U.S. Court of Appeals for the Eleventh Circuit issued an excellent opinion in Chmielewski v. City of St. Pete Beach. In this case, the City of St. Pete Beach, through a series of actions, authorized and encouraged the public to use the private property around the Chmielewski family’s home, without paying for it.  PLF submitted this amicus brief, arguing that the government must pay just compensation when it causes the public to invade private property.  Government may not evade constitutional protections by claiming that it was merely public trespassers, and not the government taking property. The Eleventh Circuit agreed, holding that the City’s actions violated the Chmielewski’s constitutional property rights. For more, read our blog post.

PLF urges Supreme Court to take up hair braiders’ case

We filed an amicus brief urging the Supreme Court to consider Niang v. Tomblinson, a case from the Institute for Justice where Missouri hair braiders are challenging the requirement that they be licensed as cosmetologists or barbers. State law requires hair braiders to undergo thousands of hours of training at a cost of thousands of dollars, pass an exam, and complete a background check before they may lawfully braid hair. But neither the training nor the exam actually teach or test hair braiding topics. The lower courts denied the braiders’ challenge, essentially rubber-stamping the law and deferring to the government under an overly deferential version of the rational basis test. Our brief methodically shows that the lower courts have misapplied the rational basis test, and urges the Supreme Court to take up the case to clarify the test. More details are available on our blog.

Supreme Court strikes down anti-gambling law because it commandeers unwilling states

The Supreme Court issued a decision in Murphy v. NCAA, the case where New Jersey challenged a federal law which prohibited the state from decriminalizing sports betting. The Court held that the federal government could not tell the lawmakers in Trenton how to vote. If the state decides to stop regulating something, it isn’t the business of the federal government to force the state to keep regulating. In a nutshell, it’s one thing if the federal government wants to directly regulate an activity that affects commerce, it is quite another to “commandeer” the states to enforce those regulations. PLF had filed an amicus brief in support of New Jersey. As our blog post notes here, the implications of this case extend far beyond gambling regulations.





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Vaping Litigation

Electronic nicotine delivery systems—vaping devices and e-cigarettes—first hit U.S. stores in 2007. It didn’t take long for vaping to jump from zero to a $5 billion domestic industry, as entrepreneurs quickly recognized a market hungry for an alternative to traditional cigarettes. In 2016, just as the burgeoning vaping industry was getting off the ground, the Food and Drug Administration (FDA) stepped in with a rule that deems e-cigarettes as tobacco products, and brand new, severe regulations that will only harm the industry and perhaps overall public health—contrary to the agency’s very mission. Using a unique legal theory, Pacific Legal Foundation is suing the FDA in three separate federal courtrooms—at the same time—on behalf of vape store owners and a harm reduction organization in several states who want to promote a more healthy alternative to smoking. The unconstitutional rule burdens these individuals and organizations in unique ways, but all are united in opposition to its continued enforcement. The FDA’s regulations are not only expensive and onerous, and prevent vaping entrepreneurs from fulfilling what they believe is a humanitarian mission of helping people, but the rule was illegal the second it hit the Federal Register.

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