Public BLAWG Blog

The U.S. Forest Service Gets a Mixed Bag from the U.S. Supreme Court

March 19, 2013, by Dawn McIntosh

On Monday, the U.S. Supreme Court agreed to review the process by which the federal government measures the environmental impact of its land use plans, granting the U.S. Forest Service's appeal of a controversial Ninth Circuit decision which found a forest plan deficient for failing to analyze its impact on area fish species.  (See United States Forest Service et al. v. Pacific Rivers Council et al., 689 F.3d 1012 (2012), cert. granted and motion granted 2013 U.S. LEXIS 2177 (U.S., Mar. 18, 2013).)  The Forest Service argued that it had been held to an unfair standard because a broad programmatic environmental impact statement conducted for the proposed changes covering 11.5 million acres near the Sierra Nevada isn't required to go into as detailed an analysis as a study tied to a specific project..  The Forest Service also asserted that requiring such detailed analysis for a programmatic environmental document would increase compliance costs and slow the review process. 

Potential Signature Gatherers Challenge Elections Code Prohibition

March 12, 2013, by Jennifer E. Faught

A 9th Circuit panel has found that the Libertarian Party of Los Angeles County and two signature gatherers had standing to challenge the Elections Code requirement that signature gatherers must be voters in the political subdivision as the candidate.  Libertarian Party v. Bowen (March 6, 2013)

Court Finds 482 Page Biological Opinion for Pesticide Registration Is Not Long Enough

March 6, 2013, by Dawn McIntosh

The Fourth Circuit Court of Appeals has vacated the National Marine Fisheries Service’s (“NMFS”) 482 page biological opinion finding that the EPA’s proposed process for reregistration of pesticides would jeopardize the continued existence of 27 species of Pacific salmonids.  See Dow Agrosciences LLC v. National Marine Fisheries Service, 2013 U.S. App. LEXIS 3650 (4thCir.

Federal Circuit Finds No Foul From Fish Flows

March 1, 2013, by Dawn McIntosh

The Federal Circuit Court of Appeals has upheld a decision from the Court of Federal Claims finding that appropriative water rights in California are property interests only to the extent the water is put to beneficial use.  See Casitas Municipal Water District v. United States, Court of Appeals Case No. 2012-5033 (Fed. Cir. 2013).  Casitas Municipal Water District claimed that the National Marine Fisheries service had forced it to build a fish ladder and divert flows from the Ventura River for the benefit of the endangered Southern California Steelhead, which resulted in a taking of its water right.  The District has a license from the State Water Resources Control Board allowing it to divert a maximum of 107,800 acre feet per year for storage and authorizing it to use 28,000 acre feet per year for beneficial use.  The court explained that storage itself is not a beneficial use under California law, so there can be no taking unless and until diversions for the endangered fish result in an impact to the District’s maximum allowable water deliveries of 28,500 acre feet per year. 

Ninth Circuit Permits Plaintiffs One More Chance to Amend Retiree Healthcare Lawsuit

March 1, 2013, by Arthur A. Hartinger, Matthew C. Lewis

The Ninth Circuit has reversed the District Court's dismissal of a lawsuit brought by retired employees against their former employer seeking to avoid the reduction of retiree healthcare benefits.

In Sonoma County Ass'n of Retired Employees v. Sonoma County, No. 10-17873 (9th Cir. Feb. 25, 2013), the Ninth Circuit cited and relied on the California Supreme Court's recent holding that a public agency may form a contract with implied terms with its employees under specified circumstances.  (See Retired Employees Ass'n of Orange Cnty., Inc. v. Cnty. of Orange (REAOC II), 52 Cal. 4th 1171, 1176 (2011).)

You Don’t Need a Peg Leg or an Eye Patch to be a Pirate

February 27, 2013, by Dawn McIntosh

The Ninth Circuit Court of Appeals has held that the Sea Shepherd Conservation Society committed acts of piracy when it attacked Japanese vessels engaged in legal whaling under the auspices of a research permit issued by Japan.  Sea Shepherd vessels rammed the vessels of the Institute of Cetacean Research, hurled glass containers of acid, dragged metal reinforced ropes through the water to damage rudders and propellers, launched smoke bombs and flares with hooks and pointed high powered lasers at the ships, with the intent to damage and sink the vessels.  The court found that these acts of piracy violated several international agreements regarding conduct on the high seas and issued a permanent injunction against Sea Shepherd.  See Institute for Cetacean Research v. Sea Shepherd Conservation Society, United States Court of Appeals No. 12-35266 (9thCir. 2013).

First Amendment “Content-based” Sign Analyses Get a Little Trickier

February 27, 2013, by Dawn McIntosh

The law regarding sign regulations is a murky, fact specific and dynamic area and the latest Ninth Circuit decision, Reed v. Town of Gilbert, Arizona (Reed II), 2013 U.S. App. LEXIS 2715 (9thCir. 2013), does not disappoint.  On a previous appeal in the same case, Reed v. Town of Gilbert, Arizona (Reed I), 587 F.3d 966 (9thCir. 2009), the Court of Appeal upheld the Town’s sign ordinance against a variety of constitutional challenges raised by plaintiffs Clyde Reed and the Good News Community Church, but remanded for the district court to consider whether the ordinance’s treatment of different categories of non-commercial speech was an improper content-based restriction.  The Court warned that municipalities may distinguish between the relative value of different categories of commercial speech, but do not have the same latitude with regard to non-commercial speech, citing Metromedia v. City of San Diego, 453 U.S. 490 (1981).

Second Appellate District Rules that Charge for “Single-Use” Bags is not a Tax, Does Not Require Voter Approval

February 26, 2013, by Sky Woodruff

In a decision addressing changes to the California Constitution approved by Proposition 26 (2010), the Second District Court of Appeal ruled on February 21, 2013 that a 10-cent per bag charge for recyclable paper bags, as part of a comprehensive plan to limit the use of “single-use” or “disposable” bags, is not a tax that requires voter approval.

Under the definition added by Proposition 26, a local tax requiring voter approval means “any levy, charge, or exaction of any kind imposed by a local government,” subject to seven exceptions.

U.S. Supreme Court to Determine the Meaning of "Changing Clothes"

February 26, 2013, by Edward L. Kreisberg, Matthew C. Lewis

The U.S. Supreme Court has agreed to hear a private sector "donning and doffing" case. In Sandifer v. United States Steel, the plaintiff steel factory employees assert that the FLSA requires they be paid for time spent changing into and out of protective gear, specifically "flame retardant pants and jacket, work gloves, metatarsal boots, a hard hat, safety glasses, ear plugs, and a snood." (678 F.3d 590 (2012).) Section 203(o) of the FLSA (found at 29 U.S.C. § 203(o)) specifically provides that an employer is not required to compensate employees for time spent "changing clothes or washing at the beginning or end of each workday" unless required by the "express terms or by custom or practice" under a collective bargaining agreement. The issue is whether the type of protective gear at issue in the case constitutes clothing under Section 203(o). Although Sandifer does not involve police officers or other public sector workers, the Court’s decision could modify the state of the law in regards to all employees, including those in the public sector.

Court Approves Pregnancy Discrimination Action Under FEHA Even After Exhaustion of Required PDLL Leave

February 25, 2013, by Arthur A. Hartinger, Matthew C. Lewis

In a case of first impression, the Court of Appeal (Second District) found that an employee who has exhausted all permissible leave available under the Pregnancy Disability Leave Law (PDLL), may nevertheless state a cause of action for discrimination under the California Fair Employment and Housing Act (FEHA).  (Sanchez v. Swissport, Inc., 2013 Cal. App. LEXIS 131 (Cal. Ct. App. 2d Dist. Feb. 21, 2013).)

Plaintiff Ana Sanchez was diagnosed early in her first trimester with a high-risk pregnancy, requiring bedrest through her delivery date.  Sanchez requested and was granted a temporary leave of absence.  Sanchez proceeded to exhaust all of her vacation time in addition to the time provided under the PDLL (for a total of more than 19 weeks of leave).  When that leave ran out, however, she still had more than three months before her scheduled delivery date.  Because she was unable to return to work when she ran out of leave, Swissport fired her.

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