High Court Must Review ESA Decision that Endangers Ability to Appeal Agency Actions

st_tammany_navA group of Louisiana landowners is asking the Supreme Court to review a US Court of Appeals for the Fifth Circuit decision that dramatically expands the scope of the Endangered Species Act (ESA).  Weyerhaeuser Co. and Markle Interests, L.L.C.. v. U.S. Fish and Wildlife Service.  Their concerns are well-justified; the appeals court upheld land-use restrictions imposed by the Fish and Wildlife Service (FWS) for the purpose of protecting an endangered species of frog—even though the frog does not exist in Louisiana and could not live on the Petitioners’ land unless they substantially modified it.

But Supreme Court review is warranted for an additional and perhaps more important reason: the Fifth Circuit agreed with FWS that the Service’s refusal to undertake a cost-benefit analysis of its actions was not subject to judicial review.  As Judge Edith Jones stated in dissent, that decision plays havoc with administrative law and significantly undercuts the “strong presumption” that the actions of federal administrative agencies are subject to judicial review.

Worse still, the appeals court established a double-standard.  It permits environmental groups to seek judicial review when FWS invokes cost considerations as a reason not to impose land-use restrictions, but it denies landowners the right to go to court when FWS reaches the opposite conclusion.  That denial is particularly troubling, given that FWS’s own studies indicated that its land-use restrictions could cost landowners up to $34 million while providing no discernable benefit to the endangered frog. Continue reading

USPTO Again Finds State University-Owned Patent Immune From Patent Challenge

brinkerhoffGuest Commentary

By Courtenay C. Brinckerhoff,* a Partner at Foley & Lardner LLP, and editor of the firm’s PharmaPatentsBlog.

In January 2017, the Patent Trial and Appeal Board (“PTAB”) of the U.S. Patent and Trademark Office (“USPTO”) ruled in three parallel decisions that state university-owned patents could not be challenged in inter partes review proceedings.  See, e.g., Covidien LP v. Univ. of Florida Research Foundation Inc., Case IPR2016-01274 (PTAB Jan. 25, 2017). I authored a Legal Opinion Letter on that decision for WLF, which is available here. Continue reading

Supreme Court’s Presumption-of-Innocence Decision Should Inspire Asset-Forfeiture Reformers

supreme courtIn a US Supreme Court term filled with cases that “only a lawyer could love,” the justices did issue at least one decision in October Term 2016—Nelson v. Colorado—that any TV crime-drama viewer can understand. The decision turned on the bedrock principle that the accused is innocent until proven guilty. While Justice Ginsburg’s opinion applies directly to a Colorado law, it could prove highly influential in the ongoing debate over civil-asset forfeiture, a controversial law-enforcement practice. Continue reading

No “Genericide” for Google: Ninth Circuit Upholds Company’s Trademark Against Cybersquatter’s Challenge

trademarkBy Jillian Beatty, a 2017 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

Suppose you just bought a house. In the first few years as a home-owner, you revamp the backyard, remodel the master bathroom, and decorate in that mid-century modern style you had always loved. You have done a little maintenance on the pipes and replaced the garbage disposal in the kitchen, all costing you a pretty penny. But that’s ok. This is an investment. Then, just as your home is reaching its pinnacle, as the calls from Better Homes and Gardens and Architectural Digest start pouring in, a man knocks on the door and asks for the keys and the deed. You have done too good of a job maintaining this home and now you are going to lose it. You will receive no compensation. Continue reading

US Food Security and Farmers’ Livelihoods at Stake in “Waters of the US” Rule Rewrite

Lawrence KoganGuest Commentary

By Lawrence A. Kogan*

For decades, federal agencies have incrementally extended their control over agricultural lands by expanding the definition of “waters of the US” (WOTUS) under the Clean Water Act (CWA) and asserting broad legal jurisdiction over WOTUS-adjacent “wetlands.” Those efforts triggered intense legal conflicts, facilitated the CWA’s growth into a “regulatory hydra,” and caused a “reversal of terms [in our unique relationship with government] that is worthy of Alice in Wonderland.”1

President Trump recently issued Executive Order 13778 as the first step aimed at curtailing this government juggernaut.  The order directs the heads of the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (the Corps) to review for substantial revision or rescission their jointly issued 2015 CWA regulation that expanded the definition of “WOTUS.”  Presumably, EPA’s review of this regulation will be undertaken while the October 9, 2015 federal court-issued stay of its implementation remains in place.2 Continue reading

A Q&A with Federal Regulation Scholar Susan Dudley on Reconsidering Regulations

dudleysusan-2015_crop_webSusan E. Dudley is Director of the George Washington University Regulatory Studies Center, which she founded in 2009, and a distinguished professor of practice in the Trachtenberg School of Public Policy and Public Administration. From 2007 to 2009, she served as the Administrator of the Office of Information and Regulatory Affairs (OIRA) in the U.S. Office of Management and Budget.

WLF Legal Pulse: As promised, Congress and the Administration have quickly gotten to work reconsidering and removing a host of federal regulations while also setting the stage for a much different approach to regulation.  Let’s first talk about what Congress is doing.

Professor Dudley: Under the Congressional Review Act of 1996 (CRA), Congress has 60 legislative days after a regulation is published to vote to disapprove it.  The procedures for disapproval are streamlined (including requiring a simple majority in the Senate) and if a rule is disapproved, the agency cannot issue something substantially similar. Continue reading

The Federal Circuit Must Now Decide the Fate of AIG’s Largest Shareholder

federal circuit*Michelle Stilwell, the Mary G. Waterman Fellow at WLF, significantly contributed to this post.

In what is poised to become an extremely influential case, the US Court of Appeals for the Federal Circuit is currently deciding what to do after the federal government unlawfully took over the equity and leadership of one of America’s largest private insurance companies, American International Group, Inc. (AIG), during the 2008 financial crisis.  The government, in order to prevent AIG from declaring bankruptcy, offered it the customary Federal Reserve Act § 13(3) loan in the extraordinary sum of $85 billion.  However, in a virtually unprecedented move, the government conditioned this loan on receiving 80% of AIG’s equity via preferred stock.  This was an offer AIG couldn’t refuse, and it effectively diluted AIG’s shares and all but eliminated the voting and equity rights of the existing shareholders.  So what did AIG’s shareholders receive in return for the extreme devaluing of their shares? Nothing.  Not yet anyway.  The lower court below held, in a lawsuit brought by AIG’s largest shareholder at the time, that the government’s action was illegal, but that no damages would be awarded.  It is now up to the Federal Circuit to provide justice for AIG’s shareholders—and to make sure that the government has an incentive to obey the law in future financial crises. Continue reading