January 13, 2018

Weekly litigation update—January 13, 2018

By James S. Burling Vice President for Litigation

PLF files motion to intervene to defend public land access for all

On Thursday, PLF filed a motion to intervene in Utah Diné Bikéyah v. Trump in order to defend President Trump’s decision to downsize the Bears Ears National Monument from 1.35 million acres, as originally designated by President Obama, to 200,000 acres. PLF filed the motion on behalf of Brandon Sulser, a disabled recreationist; Sandy and Gail Johnson, ranchers that were impacted by the original designation; BigGame Forever; Sportsmen for Fish & Wildlife; the Utah Wild Sheep Foundation; the Utah Bowmen’s Association; and Utah state representative Michael Noel. The case, brought by outerwear retailer Patagonia, environmental groups, and other organizations, alleges that presidents do not have the authority to reduce previously designated monuments. But as research from PLF’s Todd Gaziano and PLF Trustee John Yoo has shown, Patagonia’s claims are meritless.

Supreme Court relists Markle, the absent frog case

Last week, the U.S. Supreme Court considered our Petition for Writ of Certiorari in Markle Interests, LLC v. U.S. Fish & Wildlife Service, an Endangered Species Act-related PLF case now pending before the Court.  This is the case where valuable land is being cordoned off as “critical habitat” for the dusky gopher frog even though the frog lives nowhere near the property and could not survive on the property even if it was moved there. Earlier this week, we learned that the Court would take a closer look at the case when it ‘relisted’ the case for further consideration. We anticipate learning whether the Court will hear the case on the merits next week. For more on the case, including a Fox News primetime report about it, read our blog post here.

PLF asks Michigan Supreme Court to stop theft by tax collectors

Yesterday, we filed the reply brief in Rafaeli v. Oakland County—asking the Michigan Supreme Court to hear our challenge to Michigan’s unjust property tax law. Under the tax law, Uri Rafaeli’s small business—Rafaeli, LLC—lost a valuable Southfield, Michigan home to pay an $8 debt to Oakland County.  Andre Ohanessian lost 2.7 acres of valuable land in Orchard Village to pay a $6,000 debt.  Michigan’s property tax law allowed Oakland County to sell the properties, collect the debts owed, and then pocket tens of thousands of dollars in additional profits from the sale of each of these properties. The County argues that the theft of this extra money is justified because Rafaeli and Ohanessian’s failure to pay their property was “contrary to the welfare of the state.”  Certainly, everyone should pay their property taxes in full and on time.  But failing to do so does not justify the theft of a home’s entire equity, any more than paying a parking ticket late justifies the theft of your car, or failing to shovel snow off the sidewalk in your front yard justifies the government’s theft of your land.  We hope the Michigan Supreme Court agrees and grants review. Read more here.

Defeat for hair braiders and judicial engagement

We received an adverse decision from the Eighth Circuit in Niang v. Carroll, a case where African-style hair braiders in Missouri challenged the state’s requirement that braiders be licensed as cosmetologists or barbers. Despite the fact that the Missouri cosmetology board admitted that the costly and time-consuming cosmetology and barbering curriculum did not teach or test hair braiding, the court upheld the license requirement under the so-called “rational basis test.” PLF’s amicus brief sought to clarify to the court that the rational basis test is not properly applied as a rubber stamp on government action, but the court endorsed this lax interpretation of the test.  This case was brought by our friends at the Institute for Justice and our blog post discusses the case and decision further.

Supreme Court denied review in Utah prairie dog case

On Monday, we got the disappointing news that the Supreme Court declined review in People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service. Although the case will not reach the high court, it accomplished a great deal. PLF obtained the first ever federal court win on a constitutional challenge to federal overreach under the Endangered Species Act. Thanks to that decision, the federal government was barred from enforcing its counterproductive regulation and Utah made real progress in recovering the Utah prairie dog, without imposing harsh and unfair burdens on Utah residents. By improving habitat and moving prairie dogs to conservation lands that could provide a permanent home, Utah achieved the two highest population counts for the species since surveys began 40 years ago. Although the federal regulation was restored by the Tenth Circuit last summer, the U.S. Fish and Wildlife Service has proposed a conservation plan that would allow those recovery efforts to resume, to the benefit of both prairie dogs and property owners. Without this case, Utah property owners would still be stuck in the same quagmire of federal bureaucracy that they experienced for decades before PLF came to their aid.

 Supreme Court denied review in challenge to California’s suction dredge mining ban

Monday was doubly disappointing because we also learned that the Supreme Court would not review Rinehart v. California. In Rinehart, PLF challenged California’s illegal ban on suction dredge mining on federal lands, despite Congress’ explicit encouragement of that activity. PLF continues to pursue that issue as amicus in the Ninth Circuit and is monitoring several other cases challenging similar state bans, so the Supreme Court’s decision not to review the case will not be the final word.

 

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