March 24, 2018

Weekly litigation update — March 24, 2018

By James S. Burling Vice President for Litigation

PLF demands that government consider the costs of its regulations

According to the Regulatory Flexibility Act, a government agency that issues a regulation must prepare a report that describes the rule’s economic impacts on small businesses and the steps the agency took to minimize those impacts. In 2016, the U.S. Fish and Wildlife Service designated over 1.8 million acres in California as critical habitat for three frog and toad species. This rule restricts the use of public and private lands for grazing and timber harvesting and threatens the livelihood of farmers, ranchers, landowners, and local enterprises dependent on these activities. Despite these significant economic impacts on individuals and small businesses, the Wildlife Service refused to prepare the report required by the Regulatory Flexibility Act. Why? According to the Wildlife Service, the critical-habitat rule does not regulate small business that rely on the newly protected land. Rather, it argues, the rule regulates only other federal agencies, which are now obligated to enforce the rule’s restrictions. We sued to enforce the Regulatory Flexibility Act and to challenge the dangerous notion that government can avoid admitting that it is imposing costs on regulated small businesses by (falsely) claiming to regulate only itself. The government has asked the court to dismiss our lawsuit, and this week we filed our Opposition Brief. We expect the court to rule in our favor, and we look forward to prosecuting this case. Please check out our case page, our previous post on this case, and our opposition brief.

Sixth Circuit permits EPA to veto Michigan road project

On Tuesday, the U.S. Sixth Circuit Court of Appeals affirmed a district court’s decision to deny the Marquette County Road Commission access to the courts to challenge the EPA and U.S. Army Corps of Engineers’ veto of a state-approved road project planned for the upper peninsula of Michigan. The timing of the decision is cruel: last week, Congress invited the Road Commission’s Jim Iwanicki to testify about the delays and obstruction his agency faced when dealing with the EPA on the project; this week, the Sixth Circuit said those delays do not amount to a court-remediable injustice—that instead, the Road Commission should just seek another permit over the course of another few years and hundreds of thousands of dollars. That the feds have made it clear they won’t ever permit this project is irrelevant. The Court goes on to say that after applying again for the permit and spending more money in that fruitless permit hunt, then the Road Commission can sue the EPA and Corps. Everyone knows the feds will find a different excuse to deny the road permit at that juncture, and most likely the courts will continue to look the other way and rubber stamp that injustice, too. But at least the Sixth Circuit will know it did not disturb the bureaucrats’ process. While the Road Commission considers its options, you can learn more about the case here.

Warrantless owner-occupied inspection case goes to hearing

A hearing was held on Monday in Santa Barbara Association of Realtors v. City of Santa Barbara. That’s our case challenging the City’s demand to conduct warrantless inspections of single-family, owner-occupied homes at the time the homes are put up for sale. The City is seeking to have the case tossed and is further suggesting that the point of our suit was to chill the free speech rights of the City (they call it a Strategic Lawsuit Against Public Participation or SLAPP suit).  The judge issued a tentative ruling tossing out the suit but denying that the suit meant to chill the speech of the City.   Both sides presented their arguments and asked the judge to reconsider the tentative rulings.  She did not say when the final decision will be issued.

 

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