Weekly litigation report — September 1, 2018

September 01, 2018 | By JAMES BURLING
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It’s time to finally settle the legislative exactions question

Earlier this week, PLF attorneys filed this reply brief in support of the U.S. Supreme Court petition in Dabbs v. Anne Arundel County. Interestingly, the County’s opposition brief did not disagree with our argument that review should be granted to settle the nationwide conflict whether legislative exactions should be subject to the same scrutiny as all other exactions. Instead, it tried to argue that the Connecticut court did not address the question whether legislatively mandated impact fees are subject to Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994). That, however, will be a hard sell where Connecticut’s high court unequivocally ruled that “[i]mpact fees imposed by legislation applicable on an area-wide basis are not subject to Nollan and Dolan scrutiny.” We are hopeful that the Supreme Court will see past the County’s dodge when it conferences on the petition on September 24, 2018.

California Court of Appeal holds that agencies must consider public trust impacts when issuing groundwater permits

In an opinion that will likely have significant negative impacts for property owners in California, a Court of Appeal affirmed in full a trial court decision requiring the County of Siskiyou and State Water Resources Control Board to consider any impacts on public trust uses before issuing groundwater well permits. The opinion, in Environmental Law Foundation v. State Water Resources Control Board, seems devoid of any limiting principle, since the court did not even limit the public trust doctrine to uses of water, but to any activity that could potentially impact public trust uses of a navigable water. As we had noted in our amicus brief, all manner of human activities have complicated impacts—both positive and negative—on navigable waterways. We will continue following to see if Siskiyou County asks for review from the California Supreme Court. Read more on the PLF blog.

New brief filed in gnatcatcher challenge

On Monday, we filed our reply brief in our challenge to the Endangered Species Act listing for the coastal California gnatcatcher. Our lawsuit, Center for Environmental Science, Reliability and Accuracy v. United States Department of Interior,  contends that the Fish and Wildlife Service improperly denied our petition to delist the gnatcatcher. That petition argued that the gnatcatcher should be delisted because it does not qualify as a separate subspecies (a key element to the bird’s listing, given the plentiful gnatcatcher populations in Baja California). The Service rejected the petition, claiming to find inadequacies in the peer-reviewed gnatcatcher genetic studies we had submitted. But the agency never actually explained what definition of “subspecies” it was using to affirm the gnatcatcher’s listing. This was despite its admission that there is no commonly accepted definition among avian taxonomists for diagnosing subspecies. Our reply brief filed this week points out the shortcomings in the Service’s arguments, in particular its claim to have relied on the best available data. Whether it relied on good data is simply irrelevant to whether the agency has a clear, consistent, and rational definition of “subspecies” which then can be applied to the best available data. For more on our arguments, see this blog post.

Full Ninth Circuit asked to rehear 1st Amendment challenge to California’s union-speech favoritism

This week we filed a petition for rehearing en banc in ABC-CCC v. Becerra, our First Amendment challenge to S.B. 954, a California statute that targets open-shop advocacy. Under prior law, employers could obtain a credit against their state-imposed prevailing wage obligation by donating to any qualified industry advancement fund. But S.B. 954 narrowed that credit to donations made to advancement funds that are mentioned in a collective bargaining agreement—in other words, to pro-union funds. Our client is an open-shop fund whose revenue has dried up, thanks to S.B. 954. “Who cares?” ruled the Ninth Circuit panel in upholding the law. In the panel’s view, S.B. 954 doesn’t regulate speech; it merely limits availability to a gratuitous subsidy while reasonably furthering the Legislature’s goal of ensuring collective employee consent to the terms of employment. Our rehearing petition points out that the panel’s decision undercuts speech protections by failing to grasp how S.B. 954 effectively punishes speech by using a facially viewpoint-neutral proxy. For more on the case, please see our blog post here.

Seattle defends unconstitutional first-in-time rule

This week, Seattle filed its opening brief on appeal in Yim v. City of Seattle, seeking to overturn a trial court decision invalidating its oppressive first-in-time rule. First-in-time required landlords to rent to the first qualified applicant to walk in the door. Earlier this year, PLF secured a trial court victory in which the court held that the first-in-time rule violated takings, due process, and free speech rights.