February 2013

Return of the Mountain Devil?

On February 4, 2013, the U.S. Fish and Wildlife Service (USFWS) issued a proposed rule to designate the U.S. populations of the wolverine, known as the “mountain devil,” as a threatened species under the Endangered Species Act.  A key factor leading to the proposed listing is the loss of habitat due to climate change; however, the USFWS is only proposing prohibitions on trapping and killing the animals, not the regulation of activitiesthat may berelatedto climate change. 

The wolverine is a ferocious and tenacious predator.  Once found in the Sierra Nevada range in California, the population is believed to have been extirpated in the early 1900’s as part of a widespread pest eradication campaign.  The USFWS is not proposing the designation of critical habitat at this time, but it is looking at restoring populations within the historic range of the animal, including the Sierra Nevada range, as a possible option to help the population recover. 

Local Governments May Regulate Cultivation of Marijuana

Attorney Authors: 

On February 6, 2013, in Browne v. County of Tehema (C068800) the Third District Court of Appeal upheld the County of Tehema’s ordinance ("Ordinance") regulating the cultivation of medical marijuana, finding that the Ordinance does not conflict with either the Compassionate Use Act ("CUA") or the Medical Marijuana Program Act ("MMPA").

State Supreme Court to Consider Whether Ballot Initiative Process Can Bypass CEQA

Attorney Authors: 

The California Supreme Court has unanimously decided to accept review of Tuolumne Jobs & Small Business Alliance v. Superior Court. The plaintiff alleges that the City of Sonora violated CEQA when it adopted a voter-sponsored initiative as an ordinance to approve expansion of a Wal-Mart into a 24-hour "supercenter" without submitting the measure to a popular vote and without completing environmental review. 

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

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.

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

Attorney Authors: 

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.

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

Attorney Authors: 

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.

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

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).

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

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).