April 28, 2018

Weekly litigation update — April 28, 2018

By James S. Burling Vice President for Litigation

Markle Interests’ brief filed with High Court in Weyerhaeuser v. U.S. Fish & Wildlife Service

This week we filed our merits brief in the Supreme Court supporting the landowers in Weyerhaeuser Co. v. United States Fish & Wildlife Service. Earlier this year, the Court granted review and we expect to hear soon from the Court when oral argument will occur. In this case, we represent a number of private landowners who, along with Weyerhaeuser, found their property designated critical habitat for an endangered gopher frog not seen anywhere near their property for over fifty years. That designation will effectively prohibit our clients from reasonably developing their property at any time in the future. Therefore, along with Weyerhaeuser, we challenged that designation as both a violation of the Constitution and an abuse of the Endangered Species Act. For more see our blog post here.

San Francisco Tries to Take Property – Again.

This week PLF filed its opening brief in Pakdel v. City of San Francisco. This case asks whether a challenge to a San Francisco Ordinance that requires property owners to give their tenant a lifetime lease in their condominium can be heard in federal court. In too many cases, landowners have been stopped from bringing claims to vindicate constitutional protected property rights in federal court. We hope to change that rule in this case and in Knick v. Scott Township, a case we currently have pending before the Supreme Court. For more on this case see our blog post here.

Challenge to bias In public contracting continues

On Thursday, we filed a petition for rehearing in Quad Knopf v. Public Utilities Commission, our challenge to the preferences provided to minority- and woman-owned businesses in California.  The State Public Utilities Commission (PUC) denied our rulemaking petition, which explained that the statutes and the PUC’s Order allowing preferences violate Proposition 209.  Proposition 209 was adopted by the voters was added to the State Constitution in order to prevent government entities, in part, from providing preferences on the basis of race or gender.  Although we know that the PUC lacks authority to revise the contracting laws adopted by the legislature and enforced by the PUC, we are required to a petition for rehearing by the PUC in order to preserve our right to file in an appellate court, which has the authority to strike down unconstitutional laws.

PLF files brief emphasizing that federal agencies must follow the law

Last week, PLF filed a reply brief at the Ninth Circuit in Tin Cup, LLC v. U.S. Army Corps of Engineers, a case that asks whether permafrost is a “navigable water” within the meaning of the Clean Water Act. In 1993, Congress directed the Corps of Engineers to use a manual that states that permafrost is not covered by the Clean Water Act. But the Corps ignored that command. Instead of adopting a new manual after consulting with the public, which the 1993 act allows, the Corps chose to do what it thought was best and expand the scope of the Clean Water Act. But government agencies only have the power that Congress gives them, so the Corps acted unlawfully when it determined that the permafrost on Tin Cup’s land was under the Corps jurisdiction. The Ninth Circuit will hear the case on June 13th.

SCOTUS avoids the administrative elephant in the room

Earlier this week, the US Supreme Court issued its decision in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, upholding by a 7-2 margin then so-called “inter partes” review process which authorizes the Patent Trial and Appeal Board to invalidate already-issued patent claims. At issue was whether the constitution provides that a patent holder defending against a claim of invalidity has a right to a trial before a federal court, rather than a politically staffed administrative agency. Although intellectual property is not a common topic at PLF, the Foundation filed an amicus brief to defend the rights of property owners to have their rights determined by an independent judiciary—a right that could be eroded if the Court addressed the patent issue in broad terms. Although the Court upheld the administrative process, it did so on the narrow grounds of patent law. The decision, however, exposed a broader dispute among the Justices whether Congress can constitutionally require that individuals litigate matters affecting traditional liberty and property rights to administrative agencies. For more, see our blog post here.

Seattle appeals PLF’s victory in first-in-time case

On Thursday, Seattle filed a notice of appeal in Yim v. City of Seattle, our legal challenge to Seattle’s first-in-time rule. Under first-in-time, landlords were forced to offer rental units to the first person to walk in the door with an adequate application. The rule also dictated what landlords could and could not say in their advertisements. We challenged the rule as violating property rights, due process rights, and speech rights. The trial court agreed. We’re confident that the appeals court will agree, too. See our blog post about the appeal here

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