October 6, 2018

Weekly litigation update — October 6, 2018

By James S. Burling Vice President for Litigation

A shy frog becomes the center of attention at the Supreme Court

This week the Supreme Court of the United States heard oral argument in our Endangered Species Act case known as Weyerhaeuser Company v. United States Fish & Wildlife Service. The Court accepted the case to consider two questions. First, whether the federal government can designate critical habitat for an endangered species—the dusky gopher frog, who lives exclusively in Mississippi—on private property held by our clients in Louisiana where that species does not live and cannot live unless drastic change is undertaken to the Louisiana property. And second, whether the government’s decision not to exclude our clients’ property from that critical habitat designation, despite no tangible benefit to the frog, and a $34 million in cost to our clients, was judicially reviewable per the Administrative Procedure Act. We anticipated the Court struggling to overcome the well-known ideological split on that first question, and the justices did not disappoint. On the second question, we thought the justices would recognize that the APA obviously allows for a court to review an administrative decision like the one in the case for an abuse of the agency’s discretion. Unfortunately, it appeared the justices forgot they granted that second question for argument; they showed little interest in that question as the lawyers argued both sides. It’s often difficult to predict an outcome following oral argument and here predictions are made all the more difficult by the fact that the Court was shorthanded when it heard the case on Monday. Don’t be surprised if the Court decides to have the case re-argued after a ninth justice is confirmed. For more on the case, check out our blogpost here.

Oral argument in Knick

The Supreme Court held oral argument in Knick v. Scott Township on Wednesday. It was a lively bench with PLF arguing on behalf of the Ms. Knick, the Assistant Attorney General Noel Francisco on behalf of the United States (in support of Ms. Knick) and Scott Township arguing for the town. The Court seemed split over the issue of whether Williamson County should be overturned. Some members of the Court understood well the injustice that this rule has created, while others seemed concern that a ruling allowing landowners to sue for a taking in federal court could increase the workloads of those courts. Since we had an eight-justice Court, it is always possible that the Court will hear additional arguments when and if a ninth justice is confirmed.

Oral argument in Gundy

The Court also heard argument this week in Gundy v. United States. This case addressed the non-delegation doctrine, the first time the Court has tackled that doctrine in over 80 years. At issue is whether Congress can delegate its law-making power to the executive branch. In this particular case, the Court was deciding whether Congress can delegate to the Attorney General the task of deciding whether to make a criminal registration statute apply retroactively to crimes committed before the new registration law was adopted. The Court seemed very concerned with the potential violation of the doctrine of separation of powers that occurs when the Attorney General both creates and enforces the same law.

Seattle’s targeted ban on rent-bidding websites flunks First Amendment basics

This week, PLF responded to Seattle’s defense of its website ban in Rentberry v. City of Seattle. A few years ago, several new start-ups launched rental housing websites that allow tenants to bid on advertised rentals. The Seattle City Council, which views itself as a gatekeeper for any new tech in the city, slapped a ban on these websites while the city “studies” them. This “ban first, ask questions later” approach flouts free speech. Communication on the internet fits squarely within First Amendment speech protections, and government cannot restrict speech until it can prove that the speech at issue poses a serious risk to the government’s interests.

Utah land stewards explain why monument reduction is legal

This week individuals and non-profit organizations that recreate, work, and volunteer on the public lands in Utah, filed a brief arguing that Utah Diné Bikéyah v. Trump should be dismissed. The case filed by, among others, the outdoor gear retailer Patagonia, argues that President Trump’s reduction of the Bears Ears National Monument is illegal. But the Antiquities Act, which gives the President the power to establish monument, also allows the President to reduce monuments. In fact, the Antiquities Act requires presidents to keep monuments confined to the smallest area necessary to manage the objects being protected. Therefore, in many situations, like with the Bears Ears National Monument, the President has the duty to reduce monument boundaries. Eight previous presidents have understood that the Chief Executive could reduce monuments, and we hope the court recognizes that too.

Comment letter submitted—County can’t require farmers to stay farmers forever
We submitted the latest in a series of public comment letters regarding proposed amendments to the Local Coastal Program in Marin County, CA. The amendments threaten to work a substantial reduction in the development rights of farmers and ranchers in the county, and would require owners of each new farmhouse in to remain “actively and directly engaged in agricultural use,” apparently forever. The problematic provisions are closely related to those involved in our ongoing litigation against the County, Benedetti v. County of Marin. The County Planning Commission will meet on October 11th to listen to public comments before recommending action to the Board of Supervisors. PLF will be there to urge the Commission to remove these potentially unconstitutional provisions before asking the Board to take any further action. See our blog post here for more details.

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