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UPDATE: U.S. Supreme Court asked to review feds’ prairie dog regulation

 

On March 29, in the case of People For the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service, et al., the U.S. Court of Appeals for the Tenth Circuit issued a unanimous decision that the Endangered Species Act (ESA) and its implementing regulations can, consistent with the Commerce Clause in the U.S. Constitution, regulate the “take” of the Utah prairie dog, a threatened and purely intrastate species, even when it is located in nonfederal land.

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On March 24, the Texas Third District Court of Appeals (sitting in Austin) issued an important decision regarding the application of the state’s statute of limitations in a class action lawsuit. The case is Asplundh Tree Expert Co. v. Abshire, at al. The Court of Appeals affirmed the District Court’s order denying Asplundh Tree Expert Co.’s (Asplundh) motion for summary judgment, confirming that the Texas two-year statute of limitations set forth in Tex. Civ. Prac. & Rem. Code § 16.003 was tolled by the filing of a class action, as contemplated in the 1974 U.S. Supreme Court’s decision in American Pipe and Construction Co. v. State of Utah.

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This is the first post in an ongoing series of posts on real estate and construction lending. Check back soon for more posts in our series.

In New York, contractors must be careful to file the correct type of lien to ensure they will be paid for their labor and/or materials. State law provides for two distinct liens: (1) a mechanic’s lien for labor or materials provided for private real property, and (2) a public improvement lien for labor or materials provided for public improvements. Knowing which lien applies is important at the beginning of the filing process, as there are significant differences in the coverage and requirements for each.

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In Payment Practices and Performance Reporting, New UK rules aimed at tackling late payment of suppliers and vendors will require large businesses to report on their payment practices and performance, Pillsbury partner Tim Wright discusses draft regulations published by the Department for Business, Energy and Industrial Strategy (BEIS) on February 2 requiring certain companies to publish information about their payment practices and policies, and their performance by reference to those practices and policies, and BEIS’ guidance on the regulations. The new regulations are expected to become effective on April 6, 2017.

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On March 22, in the case of Delaware Riverkeeper Network, et al., v. FERC, the U.S. District Court for the District of Columbia dismissed the plaintiffs’ complaint that the statutory requirement that the Federal Regulatory Energy Commission (FERC) recover its annual operating costs directly from the entities it regulates results in perceived or actual bias against plaintiffs who contest applications for needed certificates from FERC. Because of this bias, the plaintiff asked the District Court either to declare FERC’s reimbursement mechanism to be unconstitutional or declare its power of eminent domain or authority to preempt state and local laws to be unconstitutional. Holding that the plaintiffs have failed to state a claim because allegations of actual bias cannot create structural bias where the court determines there is none, and the law does not on its face create an unconstitutional funding mechanism, the District Court granted FERC’s motion to dismiss.

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The California Contractors State License Board (CSLB) recently announced that it has launched a series of interactive forms to help simplify the contractor license application process as well as the process that licensees are to use to change or update to their existing licenses. The upgrade includes “easy-fill” forms available on the CSLB’s Forms and Applications webpage. CSLB confirmed that the new forms will alert applicants and licensees if certain errors are made when entering information, e.g., conflicting responses to questions have been entered into the form, blank fields, etc., and prompt that other forms may need to be submitted. The new easy fill forms include the application for original contractor license, application for an additional license classification, application to replace the qualifying individual, certification of work experience, and application for home improvement salesperson registration. Once the forms are completed, they must be printed, signed, and sent to CSLB; CSLB currently does not accept electronic submissions.

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On March 21, 2017, the U.S. Supreme Court decided the case of NLRB v. SW General, Inc., dba Southwest Ambulance. This case concerns the operation and application of the Federal Vacancies Reform Act of 1998 (FVRA).

Section 3345(a) of the FVRA permits three categories of Government officials to perform acting service in a vacant office requiring Presidential appointment and Senate confirmation (PAS office). Subsection (a)(1) prescribes the general rule that, if a vacancy arises in a PAS office, the first assistant to that office“shall perform” the office’s “functions and duties temporarily in an acting capacity.” Subsections (a)(2) and (a)(3) provide that, “notwithstanding paragraph (1),” the President “may direct” a person already serving in another PAS office, or a senior employee in the relevant agency, to serve in an acting capacity instead. However, Section 3345 makes certain individuals ineligible for acting service. Subsection (b)(1) specifically states: “Notwithstanding subsection (a)(1),a person may not serve as an acting officer for an office under this section” if the President nominates him for the vacant PAS office and, during the 365-day period preceding the vacancy, the person “did not serve in the position of first assistant” to that office or “served in [that] position . . . for less than 90 days.”

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Two especially interesting decisions were released last Friday by the Texas Supreme Court.

In Engelman Irrigation District v. Shields Brothers, Inc., the Court affirmed the ruling of the Thirteenth Court of Appeals (sitting in Corpus Christi) that a decades-old (circa 1998) final judgment against a government entity—the Engelman Irrigation District—could not be declared void on the grounds that a 2006 ruling of the Texas Supreme Court on government immunity should be given retroactive effect in this instance. The Court refused to permit a collateral attack on a final judgment that became final several years before the 2006 decision was issued.

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On March 14, U.S. Federal Judge Royce Lamberth granted Halliburton’s motion for summary judgment and dismissed Mr. Barko’s claims against Halliburton, filed under the False Claims Act (FCA), which, along the way, resulted in important rulings protecting the attorney client privilege. The case is United States of America ex rel. Harry Barko v. Halliburton Company, et al. As a result of Judge Lamberth’s ruling, this long and protracted litigation may be nearing an end after twelve years and several decision by the federal district court and the U.S. Court of Appeals for the District of Columbia Circuit.

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Below is a brief summary of the Office of Management and Budget’s recently issued “America First, A budget Blueprint to Make America Great Again.”  The Blueprint only provides details on discretionary spending proposals. The full budget, to be released later this spring, will include specific tax proposals and a “full fiscal path.”

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