October 27, 2018

Weekly litigation update — October 27, 2018

By James S. Burling Vice President for Litigation

This road to the Supreme Court takes PLF through the U-P

Image result for marquette county road commission
The new route would cut trip distances in half, keep industrial mining trucks out of towns and traffic, and save 450,000 gallons of fuel a year. But the EPA obstructs.

This week Pacific Legal Foundation filed its latest Petition for Writ of Certiorari at the Supreme Court of the United States challenging federal agency overreach in Marquette County Road Commission v. EPA. We’re taking on the EPA’s 2012 decision to veto a road project in Michigan that would have improved the economy and environment in the Upper Peninsula of Michigan. The people of the Upper Peninsula want the road. The Marquette County Road Commission (our client in the case), wants the road. The state government wants the road. The Michigan Department of Environmental Quality approved the road. But the EPA, citing vague and arbitrary environmental concerns that would not hold up in court if tested, refused to allow the project to go forward. We believe our wins in Sackett v. EPA and Army Corps of Engineers v. Hawkes Company allow our client to challenge the EPA’s objections in court, but the EPA—and the lower courts—have disagreed. Now we’ll see what the Supreme Court thinks about the lower courts giving short shrift to its unanimous decisions in Sackett and Hawkes. Want to know more? Check out our blog post here and our case page here.

Ninth Circuit rejects overcriminalization of Endangered Species Act

This week, the Ninth Circuit ruled in our favor in WildEarth Guardians v. Department of Justice. In that case, WildEarth Guardians sought to worsen overcriminalization by expanding the criminal reach of the Endangered Species Act. It would have forced federal prosecutors to bring prosecutions they don’t want to bring, by eliminating the requirement that the government prove defendants knew their actions would harm a particular species. According to the group, mere accidents can result in imprisonment and large criminal fines. The Ninth Circuit rejected this gambit by ruling the group lacks standing, since there’s no evidence imprisoning people for mere accidents would achieve any environmental benefit. Although we’re grateful for the win, we note in our blog post that we look forward to a future case in which the Ninth Circuit wrestles with the underlying merits and outright rejects WildEarth Guardians’ cruel interpretation of this criminal law.

Appeal in Minnesota dance case underway

This week we filed our opening brief in the Eighth Circuit appealing the denial of a preliminary injunction in D.M. & Z.G. v. MSHSL. We represent two Minnesota high school boys who love to dance. Unfortunately, Minnesota prohibits boys from participating in competitive dance, but we are challenging this blatant sex discrimination as a violation of the 14th Amendment’s Equal Protection Clause and Title IX. In addition, we have asked the court to issue a preliminary injunction to allow the boys to try out for their schools’ dance teams this year. For more on the case, check out our blog post.

PLF asks the Supreme Court to reverse federal circuit bar to takings claims

Last Friday, PLF filed this amicus brief in support of a group of landowners in Louisiana that were unfairly denied just compensation by the Federal Circuit. On appeal from a victory in the Court of Federal Claims, the Federal Circuit created a new rule prohibiting takings claims that are based on government inaction. But here, in St. Bernard Port v. Violet Dock Port, the plaintiffs had shown that a complex history of government actions and inactions had caused severe flooding during Hurricane Katrina that would not otherwise have happened. We argued that government should always be required to pay compensation when they take property—after all, the harm to the landowner is identical. We also noted that many actions can also be reclassified as omissions—and vice-versa. We urged SCOTUS to accept the case to correct the error of the Federal Circuit. Read more in this blog post.

 

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D.M. & Z.G. v. Minnesota State High School League

When 16-year-old Dmitri Moua discovered dancing, he also found a new way to be a part of a team, and build his self-confidence. But when he wanted to join his high school’s competitive dance team, he was denied because he is a boy. Dmitri’s school is in the Minnesota High School League—whose bylaws declare competitive dance a “girls only” sport. On behalf of Dmitri, Pacific Legal Foundation has filed a federal lawsuit challenging the rule’s constitutionality.

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