Weekly litigation report — September 30, 2017

• Government workers have another chance to declare independence!
• Supreme Court asked to restore Utah prairie dog conservation program—and constitutional limits on federal power
• Neither legislative bodies nor government bureaucrats can steal property
• National Forest lands should be accessible to all — not just a few hearty backpackers
• PLF asks the Supreme Court to stop government theft in Wayside Church 
• Loss in Alaska permafrost case

Government workers have another chance to declare independence!

On Thursday, Sept. 28, the Supreme Court granted certiorari in Janus v. AFSCME, to determine whether non-union public employees can be forced to subsidize union politicking against their will, as is currently the case pursuant to a 1977 Supreme Court decision called Abood v. Detroit Board of Education. Abood allows unions to garnish the wages of non-union workers to support lobbying for collective bargaining and other work-related issues. The First Amendment protects the right to refrain from speaking and associating and Abood has been significantly weakened by strong First Amendment cases in the past five years. The time is right for the Abood blot on individual rights to be overruled, restoring full First Amendment rights to nonconsenting public employees. PLF filed an amicus brief supporting the petition for writ of certiorari and will file another brief on the merits.

Supreme Court asked to restore Utah prairie dog conservation program—and constitutional limits on federal power

We filed a petition asking the Supreme Court to hear People for the Ethical Treatment of Property Owners’ challenge to an Endangered Species Act regulation pitting people against prairie dogs. The regulation is flatly unconstitutional, exceeding Congress’ Commerce Clause power because it regulates noneconomic activity affecting a species with no tie to commerce. This constitutional violation is no trivial matter. For decades, the regulation has forbidden Utah residents from doing things the rest of us take for granted in our own communities, like build homes in residential neighborhoods or protect parks, an airport, and a cemetery from the disruptive, tunneling rodent. Everything changed in 2015 when a federal court struck down the regulation, allowing state biologists to recover the species by moving them from residential areas to conservation lands where they could be permanently protected. That success story was cut short when the Tenth Circuit recently restored the federal regulation in a decision authorizing unlimited federal power. We’re asking the Supreme Court to undo this rejection of the Constitution and restore Utah’s successful conservation program. For more see our blog post.

Neither legislative bodies nor government bureaucrats can steal property

There is no legislative exception to the doctrine of unconstitutional conditions. PLF filed this amicus brief with the Arizona Court of Appeals, in the case American Furniture Warehouse v. Town of Gilbert.  The brief argues that the Fifth Amendment of the U.S. Constitution broadly prohibits the government from taking private property without payment of just compensation, no matter what arm of government demands the property. In other words, it’s just as unconstitutional for a city council to demand property in exchange for a permit as it is for a low-level bureaucrat perched behind a permit desk. We argue that legislatively imposed exactions—just like all other exactions—are subject to heightened constitutional scrutiny under the “essential nexus” and “rough proportionality” tests established by Nollan v. California Coastal Commission (1987), Dolan v. City of Tigard (1994), and PLF’s recent victory in  Koontz v. St. Johns River Water Management District (2013)

National Forest lands should be accessible to all — not just a few hearty backpackers

PLF filed its reply brief in Granat v. USDA, where we ask the court to review the U.S. Forest Service’s decision to close thousands of previously available roads and trails to motorized travel in Plumas National Forest. We represent individuals, recreational groups, and two local counties who challenge the Service’s decision that severely restricts access to what is after all a public forest. Federal law requires the Forest Service, before deciding to close roads in national forests, to consider meaningful alternatives and to coordinate with local governments about things such as emergency road-use. As we explained in our opening brief, however, the Service’s “alternative” analysis failed to consider more than 700 of the then-existing 1,100 miles of roads and trails in Plumas. Further, the Service’s idea of “coordination” with our clients Plumas and Butte Counties was—as the Service itself acknowledged—nothing more than allowing the counties to participate in “public-involvement opportunities.” Ultimately, the Service argues that its discretionary authority to reduce forest access trumps all other concerns. But the law says that the Service’s discretion includes the obligations to consider meaningful alternatives and to coordinate with the local counties. In other words, the Service’s discretion does not include the authority to evade its legal obligations. Please check out our case page here, and our previous blog posts on this case here, here, here, and here.

PLF asks the Supreme Court to stop government theft in Wayside Church 

On Thursday, we filed a reply brief asking the Supreme Court to review Wayside Church v. Van Buren County.  This case began in 2014, when Van Buren County, Michigan foreclosed and auctioned properties belonging to Wayside Church, Myron Stahl, and Henderson Hodgens.  Each property sold for  tens of thousands of dollars more than each party’s debts, but the County did not refund the surplus proceeds to the former owners.  Instead, the County pocketed the extra money from each sale as a windfall at the expense of our clients, as required by Michigan law.  In response to our petition, the County argues that these kinds of takings are really “voluntary” because the former property owners should have sold their property, or leveraged it for a loan, before the government took it.  We explain in our reply brief that the County’s characterization is wrong and the Supreme Court has already rejected similar arguments in other takings cases.  We hope the Court grants review of our clients’ case and rejects the County’s argument here, too.  Read more about the case and our reply here.

Loss in Alaska permafrost case

We received this week an adverse decision in Tin Cup LLC v. U.S. Army Corps of Engineers, in which we challenged the Corps’ authority to regulate permafrost under the Clean Water Act.  We had argued that, because the Corps is required to use its 1987 Wetlands Manual when delineating wetlands, and given that permafrost cannot qualify as a wetland under the manual, therefore the Corps had no jurisdiction over the 200 or so acres of permafrost on our client’s Fairbanks property.  Unfortunately, the district court ruled that the Corps is not required to use its 1987 Manual and, even if it were, the agency can regulate permafrost thereunder.  For more, see our blog post.