Weekly litigation update — August 5, 2017

August 05, 2017 | By JAMES BURLING


  • Farmer explains excessiveness of seeking 2.8 million dollar fine for planting wheat
  • PLF asks court to dismiss lawsuit challenging use of Congressional Review Act
  • Amicus brief in support of Maine property owners trying to conserve seaweed
  • Sea otter dispute enters its final chapter
  • Government agency really wants to propound oppressive discovery

Farmer explains excessiveness of seeking 2.8 million dollar fine for planting wheat

On Monday, in Duarte Nursery v. Corps of Engineers, PLF and its co-counsel filed John Duarte and Duarte Nursery’s brief for the upcoming trial in the case. Mr. Duarte and Duarte Nursery face $2.8 million dollars in fines, and millions more in potential mitigation credits, for planting wheat on the Nursery’s property. As the brief demonstrates, and as the evidence at trial will show, the government’s suggested penalties are grossly disproportional to what actually occurred on the Duarte property in 2012. Instead of imposing a fine that will put the business and its employees at risk, Mr. Duarte and Duarte Nursery have asked that the court impose only  a nominal penalty.

PLF asks court to dismiss lawsuit challenging use of Congressional Review Act

In Center for Biological Diversity v. Zinke, PLF filed a brief in support of the federal government’s motion to dismiss and defending the use of the Congressional Review Act. In the brief, PLF and its clients explained that a resolution that passes both houses of Congress and is signed by the President is constitutional, despite Center for Biological Diversity’s arguments to the contrary. CBD’s case challenges Congress’ use of the Congressional Review Act to overturn the Department of the Interior’s Refuges Rule, a regulation that severely restricted the use of land in Alaska’s National Wildlife Refuges. Hopefully, the case will soon be dismissed.

Amicus brief filed in support of Maine property owners trying to conserve seaweed

We and the Property and Environment Research Center filed this amicus brief in the Maine Supreme Court asking the Court to reject an expansion of the state’s public trust doctrine for the sake of property owners and the environment. In the case, a company seeks the right to harvest seaweed from private property over the objection of the owner, who is concerned that harvesting is unsustainable and damages the ecosystem. Our brief explains the importance of secure property rights to resolving conflicts over limited resources and protecting the environment. Although property rights are often treated as if they are in tension with conservation, the reality is that they are the best means of protecting environmental values. For more, see our blog post.

Sea otter dispute enters its final chapter

On Monday, we filed our reply in California Sea Urchin Commission v. Johnson, bringing the briefing to a close. After many years of litigation, including two parallel cases and three appeals, the Ninth Circuit will finally reach the merits of this case. On behalf of a coalition of Southern California fishermen, lobster trappers, and sea urchin divers, PLF took on the Fish and Wildlife Service’s decision to abandon its obligations under a statutory compromise. Public Law 99-625 authorized the Service to establish a new population of sea otters on the condition that it would maintain protections for the surrounding fisheries and those who work in them—most importantly an exemption from the incidental take prohibitions of the Endangered Species and Marine Mammal Protection Acts. Without that exemption, fishermen are at risk of being punished for simply getting too close to a sea otter while working. But many years after accepting the terms of the compromise, the Service backed out of its end of the bargain—violating the law and leaving fishermen vulnerable to losing their livelihoods. PLF hopes that the Ninth Circuit upholds the simple principle that federal agencies, like everyone else, are not above the law.

Government agency really wants to propound oppressive discovery.

This week, in California Cattlemen’s Association v. California Department of Fish and Wildlife, on behalf of the California Cattlemen’s Association, we filed a reply to the California Department of Fish and Wildlife’s opposition to our motion to amend the petition for writ of mandate. This is the case where we are challenging the Department’s failure to conduct 5-year status reviews of 233 species listed under the California Endangered Species Act. We’ve been arguing we have an adequate interest to bring this lawsuit under California’s tests for standing” — the requirement that a person filing a lawsuit have either a beneficial interest or a  public interest in the outcome. After the court  recognized that our clients have public interest standing, the Department sent over 2500 interrogatories, probing into the bases for our claim of beneficial interest standing. We’ve now asked the court to permit us to amend the complaint to remove allegations of beneficial interest standing, thus rendering irrelevant the 2500 interrogatories. This would not only streamline the case, but it would prevent the time and expense (for all parties) of having to deal with all those discovery requests. And California courts permits simple amendments like this virtually as a matter of course. Nevertheless, the Department opposed our request. PLF will be in San Diego Superior Court next Friday to argue the motion.