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Briefs Recently Filed

Knick v. Township of Scott 

In Knick v. Township of Scott the Supreme Court will decide whether to overturn Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985). In that case the Court held that before a takings claim may be brought in federal court, landowners must comply with state law procedures and remedies enacted to provide just compensation. The State and Local Legal Center (SLLC) amicus brief urges the Court to keep Williamson County.

The Township of Scott adopted an ordinance requiring cemeteries, whether public or private, to be free and open and accessible to the public during the day. Code enforcement could enter any property to determine the “existence and location” of a cemetery.

The Constitution’s Takings Clause states that “private property [shall not] be taken for public use, without just compensation.” Rose Mary Knick sued the county in federal (rather than state) court claiming the ordinance was invalid per the Takings Clause after code enforcement went onto her property without a warrant looking for a cemetery.

The Third Circuit agreed with the Township that Knick failed to comply with Williamson County because she filed her case in federal court instead of pursuing it under Pennsylvania’s Eminent Domain Code. 

Knick argues that the Supreme Court should overturn Williamson County because it “deprives property owners of reasonable judicial access for a takings claim, impedes the orderly development of takings law, and causes a tremendous waste of judicial and litigant resources.”

The SLLC amicus brief argues the Supreme Court should not overturn Williamson County. The brief explains how lower courts have ensured that the state-compensation requirement is not “gamed to deprive property owners of their day in court.” It also explains why state courts are a better forum for deciding these cases than federal courts. State courts are much more familiar with state property law and “are far more expert in the state statutory issues that so often accompany takings claims.”

The Supreme Court has repeatedly and recently refused to hear petitions arguing Williamson County should be overturned. This case will provide Justice Gorsuch his first opportunity to participate in takings case on the Supreme Court. It remains to be seen whether Judge Kavanaugh will be on the bench by October 3 to participate in oral argument.

Matt Zinn, Andrew Schwartz, and Laura Beaton, Shute, Mihaly & Weinberger LLP, wrote the SLLC amicus brief which was joined by the National Governors Association, National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association.

Mt. Lemmon Fire District v. Guido

The legal issue in Guido v. Mount Lemmon Fire District could not be simpler; but the law is tricky. In this case the Supreme Court will decide whether the federal Age Discrimination in Employment Act (ADEA) applies to state and local government employers with less than 20 employees. The State and Local Legal Center (SLLC) amicus brief argues it should not.

John Guido was 46 and Dennis Rankin was 54 when they were terminated by the Mount Lemmon Fire District due to budget cuts. They claim they were terminated because of their age in violation of the ADEA. They were the oldest of the district’s 11 employees. 

The fire district argues that the ADEA does not apply to it because it employs fewer than 20 people.

The term “employer” is defined in the ADEA as a “person engaged in an industry affecting commerce who has 20 or more employees.” The definition goes on to say “[t]he term also means (1) any agent of such a person, and (2) a State or political subdivision of a State.”

Guido argued, and the Ninth Circuit agreed, that “employer” means “[A—person] and also means (1) [B—agent of person] and (2) [C—State-affiliated entities].” The clause describing state-affiliated entities contains no size requirement.

The Ninth Circuit opined that the word “also” supports its interpretation. “The word ‘also’ is a term of enhancement; it means ‘in addition; besides’ and ‘likewise; too.’” As used in this context, ‘also’ adds another definition to a previous definition of a term—it does not clarify the previous definition.”

Notably the Sixth, Seventh, Eighth, and Tenth Circuits have come to the opposite conclusion—that the 20-employee minimum applies to state and local governments.

The SLLC amicus brief points out that small special districts, like the Mount Lemmon Fire District, are very common. Particularly in rural areas there are “few alternatives to layoffs and terminations when budget cuts must be made,” making small special districts particularly vulnerable to age discrimination lawsuits.

The brief also argues the Ninth Circuit decision is inconsistent with principles of federalism. “Small state and local government entities must have the latitude to staff their projects as they see fit, responsive to local needs and in line with particular project goals. The fact that these needs differ is illustrated by the different age discrimination statutes enacted by the States with a variety of minimum employee thresholds.”

Collin O’Connor Udell of Jackson Lewis wrote the SLLC amicus brief which was joined by the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, the International Municipal Lawyers Association, the National Public Labor Relations Association, and the International Public Management Association for Human Resources.  

Weyerhaeuser Company v. U.S. Fish and Wildlife Service

Per the Endangered Species Act (ESA), the U.S. Fish and Wildlife Services (FWS) may designate land a “critical habitat” for an endangered species. The ESA mandates that FWS consider the economic impact of specifying an area as a critical habitat. FWS may exclude an area if the benefits of excluding it outweigh the benefits of including it.

In its amicus brief in Weyerhaeuser Company v. U.S. Fish and Wildlife Service the State and Local Legal Center (SLLC) argues courts may review FWS decisions not to exclude an area from a critical habitat because of the economic impact of the designation.

FWS designated land in Louisiana owned by the Weyerhaeuser Company a critical habitat for the dusky gopher frog. The Weyerhaeuser Company holds a timber lease on all of the land through 2043.

Only about 100 adult dusky gopher frogs are known to exist in the wild. Historically, the frog was found in parts of Louisiana, Mississippi, and Alabama. Today, the frog exists only in Mississippi.

FWS concluded the economic impacts on the land “are not disproportionate.” The Weyerhaeuser Company claims the potential loss of development value in the land is up to $33.9 million over twenty years. It also claims because the land isn’t currently habitable by the dusky gopher frog it provides no benefit.

The Fifth Circuit agreed with FWS that once it has fulfilled its statutory obligation to consider economic impact, a decision to not exclude an area is discretionary and not reviewable in court. “[I]f no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for ‘abuse of discretion.’”

The SLLC amicus brief argues there are standards for reviewing a decision not to exclude land from a critical habitat because the statute provides a standard for determining when to exclude land (if “the benefits of exclusion outweigh the benefits of designation”). As a practical matter the brief points out that without judicial review, FWS has no incentive to listen to the expertise of state and local government officials “who are experts in the land-use issues that exclusion decisions most affect.”

To designate unoccupied areas a critical habitat, FWS must determine that they are “essential for the conservation of the species.” The Weyerhaeuser Company sued the Service claiming that the land in question does not meet the definition of critical habitat because it is currently “uninhabitable” by the frog “barring a radical change in the land’s use by its private owners.” The Fifth Circuit ruled in favor of FWS concluding the definition of critical habitat includes no habitability requirement and no requirement the frog can live on the land in the foreseeable future.

The SLLC amicus brief takes no position on whether the Fifth Circuit’s interpretation of critical habitat is correct, only that FWS economic analysis may be reviewed by a court.  

Bryan K. Weir, Thomas R. McCarthy, and J. Michael Connolly of Consovoy McCarthy Park, and the Antonin Scalia Law School Supreme Court Clinic, wrote the SLLC amicus brief which was joined by the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association.