Shortly before the election, we obtained a first Temporary Restraining Order (TRO) and then a longer-lasting preliminary injunction against four Orange County cities. These cities continued to enforce restrictions on independent expenditure committees ruled unconstitutional in our Lincoln Club v. Irvine litigation. After the PI was granted, two of the cities have settled and repealed their unconstitutional ordinance, and the remaining to appear close to doing so. Case: The Lincoln Club of Orange County, et al. v. City of Anaheim, et al. U.S. District Court, Central District of California.
In September, we filed a brief in the Pledge of Allegiance case, urging the Ninth Circuit to review the case en banc. The motion for leave to file was denied last month (as were similar motions by all other amici), but our arguments appear to have had an impact--the panel has now ordered briefing on a procedural issue that will allow it to extricate itself from its earlier decision.
My client, Rancho Viejo LLC, is a home builder attempting to move some dirt on this property that has been determined to be potential habitat for the arroyo toad--a species listed by the federal government as endangered (despite the fact that there are countless arroyo toads in Northern Mexico). We challenged the government's refusal to issue a grading permit, contending that the listing of the arroyo toad exceeded Congress's powers under the interstate commerce clause, since the toad is not an article of commerce. We had oral argument before the D.C. Circuit Court of Appeals on Tuesday, November 12, before Chief Judge D. H. Ginsberg and Circuit Judges Harry Edwards and Merrick Garland. We expect a ruling sometime this winter.
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