November 4, 2017

Weekly litigation report — November 4, 2017

By Mark Miller Senior Attorney

PLF asks Supreme Court to bury Williamson County

This week we filed this petition for writ of certiorari, asking the Supreme Court to revisit its oft-criticized Williamson County decision. In that case, the Supreme Court announced a ripeness doctrine that closes federal courthouse doors to property owners who allege takings claims against state governments by requiring them to seek compensation in state courts first. Rose Mary Knick owns 90 acres in Scott Township, Pennsylvania. The township passed an ordinance that authorized city officials to come on her property to search for ancient burial grounds and required any discovered cemeteries be kept open for public access. Ms. Knick sued in state court, which told her that she needed to wait for the township to sue her instead. She then sued in federal court, which told her she couldn’t sue until she had finished state court litigation. Williamson County helps governments that violate the constitution by creating nearly insurmountable hurdles on plaintiffs who have been injured. It’s time for the Supreme Court to revisit and overturn the Williamson County doctrine. Read more about Knick v. Scott Township, Pennsylvania in our blog post here.

Sharing Economy Roadblock: Seattle attempts to force unionization on Uber/Lyft Drivers

We filed this amicus brief in the U.S. Court of Appeals for the Ninth Circuit opposing the Seattle City Council’s attempt to force independent contractors associated with ride share services to unionize. Brought by our friends at the National Right to Work Legal Defense Foundation, the facts of Clark v. Seattle are at best Orwellian: At the behest of the Teamsters union,  the Seattle City Council passed a first-in-the-nation ordinance allowing unions to insert themselves as exclusive representatives for independent contractors associated with ride-sharing apps including Uber and Lyft. Dan Clark and ten other drivers sued, alleging that the Ordinance is preempted by the National Labor Relations Act and the Drivers’ Privacy Protection Act, and violates the First Amendment. Our amicus brief focuses on the First Amendment right of these drivers to not be forced to associate with a union against their will, and argues in favor of preserving the market flexibility upon which the new sharing economy depends.

Important coastal land rights case on appeal in California

On Tuesday we filed an opening brief on appeal in Beach and Bluff Conservancy v. City of Solana Beach, an important case involving coastal property rights and the limits of local governments’ authority to restrict or take them without compensation. More than 1,000 homes sit on roughly two miles of coastal bluffs in the Southern California town, protected from erosion by seawalls. In 2014, the City enacted a land use ordinance that prohibits or restricts bluff-top homeowners from building, repairing, or replacing those seawalls, putting both homes and the public at risk. We sued to strike down those restrictions and won a judgment in the trial court earlier this year invalidating two (of seven challenged provision) and upholding five. Our appeal aims to secure a more complete victory. For more information, see our blog post.

The Administrative State strikes again

We take on the Chevron doctrine once again in Berninger v. FCC. The Federal Communications Commission recently issued its (misnamed) “open internet” order, which effectively treats internet-service providers (ISPs) as old-fashioned “common carriers” subject to substantial regulation. This order reverses the FCC’s previous policy; contradicts Congressional policy of an internet “unfettered” by regulation; and, by forcing ISPs to carry speech with which they disagree, violates the First Amendment. The D.C. Circuit, applying the U.S. Supreme Court’s decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., deferred to the FCC’s statutory “interpretation” and upheld the “open internet” order. A host of challengers has petitioned the Supreme Court; joined by NFIB Small Business Legal Center and Southeastern Legal Center, we filed a supporting amicus brief and asked the Court to reverse the D.C. Circuit. Specifically, we argue that the Court (1) should take this opportunity to reconsider its Chevron jurisprudence, which effectively—and unconstitutionally—gives administrative agencies extensive power to rewrite the laws; and (2) hold that the FCC’s order constitutes a compelled-speech violation of the First Amendment. This case has already drawn a lot of attention, and we expect that the Court will grant cert.  You can read more here at our blog.

PLF files complaint to require the U.S. Fish and Wildlife Service to define “subspecies”

This week we filed a complaint in CESAR v. DOI challenging the denial of the delisting petition for the coastal California gnatcatcher. The complaint, filed on behalf of a broad coalition of property rights, sound science, and home building industry advocates, alleges that the U.S. Fish and Wildlife Service violated the law when it denied a delisting petition for the gnatcatcher. First, the complaint alleges that the Service is required to define a key term, “subspecies,” upon which the petition denial rests. Second, the complaint alleges that the Service violated the Federal Advisory Committee Act by failing to give notice and opportunity for the public to participate in expert panel deliberations. For more on this case, see our blog post here.

PLF appeals Alaska “wetland” case

On Tuesday, we filed an appeal in Tin Cup LLC v. U.S. Army Corps of Engineers. In this case, we represent a small, family-owned pipe fabrication company in Alaska which wishes to relocate to a new site for its expanding business. At issue is whether some 200 acres of permafrost on the new property is a “wetland” under the Corps’ jurisdiction. The Corps’ 1987 Wetlands Delineation Manual states that permafrost is excluded from the definition of “wetland” and a 1993 law directs the Corps’ to use the 1987 Manual until the Corps adopts a “final wetland delineation manual.” The Corps’ has yet to adopt a new manual, and has adopted instead various regional supplements that contradict the 1987 Manual. Unfortunately, the district court held that the Corps is allowed to rely on the regional manuals like the Alaska Supplement when determining jurisdiction. The fight continues at the Ninth Circuit.

Judge rejects First Amendment challenge to democracy-voucher program

On Friday, a Washington state trial court granted Seattle’s motion to dismiss our First Amendment challenge to the city’s democracy-voucher program in Elster v. City of Seattle. The trial court held that forcing property owners to pay for private residents’ campaign contributions does not burden property owners’ speech rights. We plan to vindicate that principle on appeal. For more on the case, see our blog post here.

…And that’s the week that was at PLF. Another week of fighting bureaucrats behind us, many more in front.

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