NFIB Legal Center’s Winning Streak Continues with Three Victories in Two Days!

This has been a historic year for the NFIB Legal Center. In April SCOTUS Blog listed NFIB Legal Center as one of the top-ten most influential organizations in the Supreme Court—in terms of bringing the Court’s attention to important issues. In May we closed out a remarkably successful Supreme Court term helping to secure victories in several major employment law and property rights cases. In November we filed our 50th amicus brief of the year (a new record for NFIB Legal Center). And we are continuing to churn right along, filing another important amicus brief today—this time defending small business free speech rights in New Orleans.

This week has been especially exciting because we received three victories in 48 hours! Here is a quick run-down of the action:

  • DR Horton v. National Labor Relations Board – In this case NFIB Legal teamed up with Pacific Legal Foundation to secure a win for employers who wish to have disputes with employees settled through arbitration. Once again we defeated NLRB, preserving the right of employers to use arbitration—which is much less costly and more efficient than going through the courts. This victory—also a win for the freedom of contract—will help small businesses control legal costs.
  • Arkansas Game & Fish Commission v. United States – We previously filed an amicus brief in the U.S. Supreme Court, helping to secure a win for property rights in this case. At issue here is the question of when a government agency will be required to pay a landowner for causing damage to his or her land. In this case, Army Corp. destroyed thousands of dollars in timber in the course of flooding private property. After securing a victory in the Supreme Court, we then filed a follow up brief in the U.S. Federal Court of Appeal for the Federal Circuit—as we knew that the federal government would seek to downplay the pro-property rights decision from the Supreme Court.

We are pleased to say that—along with a coalition of other interested groups—we convinced the Federal Circuit that there was no way for Army Corp. to wiggle out of paying for the damage it caused in this case. The decision is important because it made clear that government incurs a duty to compensate a landowner when temporary physical invasions (like a flood) cause the landowner to lose “customary use” of his or her land. That much was taken straight from the Supreme Court’s opinion above. But the important thing here is that the Federal Circuit affirmed that while “it may often be difficult to say, in the abstract, whether a particular intrusion is severe or only incremental in nature[,]” the reality is that in practice it will be apparent whether the flood or other intrusion has substantially interfered with the use of private property. “[C]onsideration of the effects of the intrusion on the property owner will often make that distinction easier to draw.” This provides strong support for what we have been saying all along: government must compensate landowners when it causes damage to the land or to structures or other forms of property.

  • White Trust v. City of Elk River – This was a case of great importance to small business property owners in Minnesota. The case raised the question of whether government could revoke your right to continue using a commercial property. Specifically, the landowner in this case challenged the City of Elk River’s decision to revoke a conditional use permit that had been issued to the family, allowing it to continue to run its commercial campground in 1983. But, the family had run the campground since the late 1970s, since before the City even adopted its zoning code. As such, we argued to the Minnesota Supreme Court that the family had a constitutionally protected right to continue using their property, and that they never needed to obtain a permit to do so. Accordingly, we argued that the City simply lacked the power to revoke the family’s right to continue operating their long-established business in 2011. And we are pleased to say that the Court embraced our arguments.
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About Luke Wake

Luke A. Wake is a staff attorney at the NFIB Small Business Legal Center. Wake has particular expertise on environmental and land use issues, and has worked on numerous other constitutional issues and matters of importance to small business owners. He is an ardent defender of private property rights, which he believes are essential to the free enterprise system and the foundation of American liberty. As a strong advocate of individual rights and economic liberties, he has built his career defending small business interests. Since joining the NFIB Legal Center, Wake has focused on a whole host of issues, from employment law matters to regulatory compliance. In addition to serving as a resource for small business owners, Wake remains committed to the Legal Center’s pledge to ensure that the voice of small business is heard in the nation’s courts. As an appellate practitioner, Wake has focused particularly on informing the courts on matters of administrative law and on issues under the Fifth Amendment’s Takings Clause. He is also working to advance small business interests in law review articles, and was recently published in the Berkeley Journal of Law & Ecology. See R.S. Radford & Luke A. Wake, Deciphering and Extrapolating: Searching for Sense in Penn Central, 38 Ecology L.Q. 731, 746-747 (2011). Before joining the Legal Center’s team, Wake completed a prestigious two-year fellowship as an attorney in the Pacific Legal Foundation’s (PLF) College of Public Interest Law. Wake is a graduate of Case Western Reserve University School of Law in Cleveland Ohio, and is a member of the California Bar. He completed his undergraduate studies at Elon University in North Carolina in 2006 where he focused on political theory and corporate communications.
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