Weekly litigation report — September 2, 2016

September 03, 2016 | By JAMES BURLING
  • School choice in Montana
  • Endangered species — gnatcatcher petition rejected
  • Tort reform and warning overreach

School choice in Montana

We filed our opening brief in Armstrong v. Kadas in the Ninth Circuit Court of Appeals. In this case we are challenging the decision by the Montana Department of Revenue not to certify any schools with a religious affiliation for that state’s school choice voucher system. The District Court thought that because there was an unrelated suit pending in state court, it could not hear our case. But, as our brief points out, when religious discrimination is alleged to violate the First Amendment, federal courts can and should hear the case, regardless of whether there is another suit pending in the state court system. For more, see our blog post here.

Endangered species — gnatcatcher petition rejected

The United States Fish & Wildlife service rejected our petition to delist the so-called California Gnatcatcher as a threatened subspecies. We say “so-called” because our petition relied on new DNA evidence calling into question the assumption that this is in fact a separate subspecies of gnatcatchers. The Service relied on a collective of appointed scientists who are second-guessing the DNA science. What this shows is that it takes very little science to get a species on the list, but an almost insurmountable amount to remove it. We are reviewing our options.

Tort reform and warning overreach

We filed this amicus brief in Montemayor v. Sebright Products, arguing that a manufacturer’s duty to warn does not require a specific warning against obvious dangers. Here it was obviously dangerous to step inside an industrial extruder, used  to separate liquids from a mass of wet material, while it was still plugged in. As bad luck would have it, another worker turned the machine on unaware that someone was inside. This caused severe injuries. As was appropriate, the farming operation where the injury occurred was fined for not properly training and supervising its employees. But we don’t think the manufacturer should be held liable for injuries that were not due to any defect in the machine, that were obviously avoidable, that were not foreseeable, and for which no duty to warn for this specific injury existed. For more, see our blog post here.


Our friends at the National Association of Manufacturers filed a petition for writ of certiorari with the Supreme Court of the United States, asking that Court to overrule the 6th Circuit’s decision that challenges to the administration’s Waters of the United States or WOTUS rule must be brought in the courts of appeals instead of the district courts. The WOTUS rule  attempts to vastly expand the federal reach and regulatory control over wetlands and a lot of not-so-wet lands. We will file a supporting brief urging the High Court to address the venue issue.  In the meantime, we are litigating the case on the merits in the 6th Circuit Court of Appeals along with 30 states and scores of industry challengers.

Our challenge to the rule in the District Court of Minnesota is on hold pending a decision on a motion to dismiss filed by the government that argues the court should defer to the litigation in the 6th Circuit.