September 29, 2018

Weekly litigation update — September 29, 2018

By James S. Burling Vice President for Litigation

PLF attorney gives congressional testimony on ESA reform

This week, PLF attorney Jonathan Wood testified before the House Natural Resource Committee, urging Congress to improve the Endangered Species Act to reduce unnecessary conflict and provide better incentives to restore habitat and recover species. Based on Jonathan’s testimony, Congressman Westerman proposed an amendment to preserve the public’s access to courts and provide a voluntary, market-based solution to the persistent backlog of petitions to list or delist endangered species. Jonathan’s written testimony is available here.

PLF files reply brief urging Supreme Court to overturn agency deference

Today, we filed a reply in support of our petition for certiorari in California Sea Urchin Commission v. Combs, a case that could help to rein in the administrative state. In fact, 17 states filed a brief supporting us, urging the Supreme Court to use the case to overturn the controversial (and unconstitutional) Chevron deference doctrine. The Ninth Circuit’s decision in this case should concern everyone. Contrary to the rule that agencies only have that power Congress chooses to give them, the Ninth Circuit held that courts should defer to agencies as long as Congress hasn’t specifically forbidden the power they assert. This is literally an open invitation for agencies to seize whatever power they wish. The Supreme Court should not allow such a sweeping change to administrative law to pass reviewed.

PLF comments on Administration’s proposed unoccupied critical habitat rule changes

On behalf of our clients in the Weyerhaeuser v. US Fish & Wildlife Service case and in the California Cattlemen’s Association v. U.S. Fish and Wildlife Service, this week we filed a comment letter with the government informing it of the strengths and weaknesses in its proposed changes to the critical habitat rule. The Administration proposes that before designating unoccupied critical habitat it will consider whether there’s a “reasonable likelihood” that the property will contribute to the conservation of the species. That change may be well intended but it fails to meet the text of the Endangered Species Act itself, which provides that designated unoccupied critical habitat for an endangered species must be essential for the conservation of the species. In other words, the agency claims for itself a power beyond the power Congress delegated—the ability to claim control over more property than Congress allowed—and PLF expects the Administration to fix this error should it move forward with changes to the rule, as it should. Our letter also highlights that the Administration’s failure to perform an economic analysis of the changes and how they will affect small businesses—as the Regulatory Flexibility Act requires—will be fatal to the rule, should the rule become final. The Fish & Wildlife Service does not have authority to pick and choose what laws it will follow, and in this case the Service has refused to obey the plain text of the Regulatory Flexibility Act and perform a required economic analysis—just as we have argued in our California Cattlemen’s case in regards to the current critical habitat rule, which suffers from the same flaw. You can read our letter at this link.

Seattle’s ban on criminal background checks for housing violates free speech and common sense

Seattle’s “Fair Chance Housing Ordinance” bans an important conversation between landlords and rental applicants that begins like this: “Have you ever committed a crime?” Even if a rental applicant volunteered this information, Seattle’s law says landlords can’t reject an applicant because of a past crime, however egregious. Federal law actually requires landlords of federally assisted housing to ask this question and deny anyone who answers “yes” for certain offenses. But private landlords in Seattle have to plunge into long-term lease relationships with blinders on, unable to protect their property, themselves, and their other tenants from risky individuals. Ironically, Seattle can’t stomach being subject to its own law—the “Fair Chance” ordinance exempts all federally assisted housing from this gag rule, i.e., housing managed by the Seattle Housing Authority. Today, we filed our  motion for summary judgment in Yim v. City of Seattle, arguing that this ordinance is anything but fair and violates the free speech rights of landlords to inquire after and access important information about applicants.

Utah land stewards join fight to defend monument reduction

On Monday, a court in D.C. granted PLF Clients’ request to join Utah Diné Bikéyah v. Trump. The clients, individuals and non-profit organizations that recreate, work, and volunteer on the public lands in Utah, filed a motion in January to join the case and help defend President Trumps’ decision to reduce the Bears Ears National Monument by several hundred thousand acres. The original monument designation would have significantly impaired the clients’ ability to use the land and the President’s decision to reduce the size of the monument was lawful. In fact, eight previous presidents have reduced the size of national monuments to ensure that they comply with Congress’ requirement that monuments are no larger than necessary to protect significant cultural and archeological objects.

Arguments in three cases next week

The Supreme Court will hold oral argument in three important cases next week. On Monday it will hear arguments in Weyerhaeuser v. United States, the case of the critical habitat for the absent dusky gopher frog. We are representing the main landowner in that case. On Tuesday it will hear Gundy v. United States. This is a criminal case where we filed a friend of the court brief on the issue the limits on the ability of Congress to delegate the power to make laws to the executive branch. And on Wednesday it will hear oral argument in Knick v. Scott Township. That’s the case where we are representing a landowner who wants her day in federal court to argue the town’s ordinance that gives the public a right to traipse across her property is a taking of her property.

 

 

 

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Gundy v. United States

The Constitution gives Congress the power to make laws, but not to delegate that power to the Executive Branch. Doing so allows unelected, unaccountable bureaucrats to make rules in violation of the Non-Delegation doctrine. In Gundy, the U.S. Supreme Court will review whether Congress violated the Non-Delegation doctrine by empowering the Attorney General to unilaterally make law. PLF’s supporting brief urges the Court to revive the Non-Delegation doctrine, so Congress can no longer dodge accountability by sloughing off its lawmaking responsibilities.

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