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National Law Journal Article about the SLLC

Center Advocates for State and Local Governments discusses the SLLC’s mission, history, current amicus activity

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Briefs Recently Filed

Virginia Uranium v. Warren

The State and Local Legal Center (SLLC) filed a Supreme Court amicus brief in Virginia Uranium v. Warren arguing that Virginia’s ban on uranium mining isn’t preempted by the Atomic Energy Act (AEA).

Virginia has the largest known uranium deposit in the United States. Since its discovery in the 1980s the Virginia legislature has banned uranium mining. Unsurprisingly the land owner, Virginia Uranium, wants to mine. It sued the state arguing the ban is preempted by federal law.

The AEA allows states to “regulate activities for purposes other than protection against radiation hazards.” Virginia and Virginia Uranium agree uranium mining isn’t an “activity” per the AEA so states may regulate it for safety reasons. Uranium-ore milling and tailings storage are “activities” under the AEA so states can’t regulate them for safety reasons. Milling is the process of refining ore and tailings storage refers to the remaining (radioactive) material which must be stored.

Before the lower court, Virginia argued, and the Fourth Circuit agreed, that its ban on uranium mining isn’t preempted because it doesn’t mention uranium milling or tailings storage. Virginia Uranium pointed out “no one would want to undertake the pointless expense of constructing a mill and tailings-management complex in Virginia and transporting out-of-state uranium [ore] into the Commonwealth.” Virginia Uranium also argued the AEA preempts the mining ban because its purpose and effect is to regulate milling and tailings storage for safety reasons. But the Fourth Circuit refused to “look past the statute’s plain meaning to decipher whether the legislature was motivated to pass the ban by a desire to regulate uranium milling or tailings storage” when Virginia banned uranium mining.

The SLLC amicus brief points out that Virginia Uranium “seek[s] to compel a state to allow uranium minimum on nonfederal land based on federal preemption, even though the federal act in question is silent as to uranium mining on nonfederal land, mining is historically subject to state police power, and a statute in the state in question bans uranium mining.” According to the brief, “[s]uch extraordinary relief would not be subject to a limiting principle.” The brief also notes that Virginia Uranium’s argument involves “divining the subjective intent of a state legislature rather than relying on the plain text of the state’s legislation.” The SLLC amicus brief describes how “peering behind statutory text in search of some unexpressed actual motive is a fruitless endeavor.”

John J. Korzen, Wake Forest University School of Law Appellate Advocacy Clinic wrote the SLLC amicus brief which was joined by the the National Conference of State Legislatures, the National League of Cities, and the International City/County Management Association.

Nieves v. Bartlett

The Supreme Court decides numerous difficult cases each term. It may be surprising that no issue has vexed the Court like whether probable cause to arrest someone means they can’t bring a First Amendment retaliation case. In Nieves v. Bartlett the State and Local Legal Center (SLLC) argues in an amicus brief (for the third time) that probable cause defeats First Amendment retaliation claims.   

Russell Bartlett was attending Arctic Man, an Alaskan snowmobile race, when he declined to talk to Police officer Luis Nieves who was patrolling the large outdoor party. Officer Nieves later observed Bartlett yelling at a separate officer, Bryce Weight, and Weight pushing Bartlett away. Believing Bartlett posed a danger to Officer Weight, Officer Nieves arrested Bartlett. Bartlett alleges that Nieves said “bet you wish you had talked to me now” in the process of the arrest.

Bartlett sued Officer Nieves claiming Nieves arrested him in retaliation for his refusal to initially speak to Nieves in violation of the First Amendment. The district concluded there was probable cause to arrest Bartlett. All federal circuit courts to decide this issue except the Ninth Circuit have held that to bring a First Amendment retaliatory arrest case plaintiffs must be able to prove the absence of probable cause to arrest them, which Bartlett could do not in this case.

But in the Ninth Circuit a plaintiff will win a First Amendment retaliatory arrest claim if he or she can “demonstrate that the officers’ conduct would chill a person of ordinary firmness from future First Amendment activity” and the evidence “ultimately [proves] that the officers’ desire to chill his [or her] speech was a but-for cause” of the arrest.

The SLLC filed an amicus brief in this case arguing that the Court should reject the Ninth Circuit test and hold that in general probable cause defeats First Amendment retaliation claims.  According to the brief, a no-probable-cause rule gives law enforcement clear guidance in the field, will better weed out frivolous retaliatory-arrest claims early on, and will dissuade plaintiffs from asserting meritless claims at all. The brief also points out the 50 state constitutions also protect free speech. State courts may interpret state constitutions more broadly than the federal constitution.

In Reichle v. Howards (2012) the Supreme Court failed to decide whether to adopt the no-probable-cause rule in First Amendment retaliatory arrest claims. Instead it gave qualified immunity to Secret Service agents who arrested Steven Howards for touching Vice President Dick Cheney and lying about it. Howards told Cheney his “policies in Iraq are disgusting.”

In Lozman v. Riviera Beach (2018) the Court held that Fane Lozman, who was arrested at a city council meeting for refusing to stop talking, was not barred from bringing a First Amendment retaliatory arrest claim even though the city had probable cause to arrest him. Lozman claimed the city council arrested him as part of a strategy to intimidate him because he filed a lawsuit against the city. The Court declined to decide as a general rule whether probable cause is required to bring a more typical retaliatory arrest cases like Nieves.

Sean Gallagher, Bennett Cohen, and Britton St. Onge of Polsinelli wrote the SLLC amicus brief which the following organizations joined:  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.

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.