Date: September 23, 2013 Last Edit: November 09, 2016

Related Content: Legal - Cases Legal


Kagan v. New Orleans – Free Speech Rights
U.S. Supreme Court – cert petition

The City of New Orleans requires tour guides to obtain a license when speaking on points of interest in the city. We argue that this constitutes a subject matter restriction, which is reviewed under strict scrutiny. Since the licensing requirement only applies when individuals charge a fee for speaking on points of interest in the city, the Legal Center’s brief argues that the City is improperly treating commercial actors as second-class citizens—with lesser free speech rights than ordinary citizens. Accordingly, our brief encourages the Supreme Court to take the case because individuals to not surrender their constitutional rights upon going into business.


Kent Recycling v. Army Corps of Engineers – Regulatory Reform
U.S. Supreme Court – cert petition

In this case the Fifth Circuit Court of Appeal held that a landowner does not have standing to pursue a challenge Army Corps or EPA’s assertion of Clean Water Act jurisdiction over their property. Specifically, the Court held that the only way to bring such a challenge a CWA jurisdictional determination is to either (a) apply for a permit that the owner does not believe is needed, and to appeal a denial of that application; or (b) proceed with development plans without a permit, at which point the owner could raise a jurisdictional challenge as an affirmative defense to a federal enforcement action. In our amicus brief, we urge the Supreme Court to take the case because small business owners have a right to challenge any final agency action that has an immediate affect on the business’ rights. As we argue, a decision to assert CWA jurisdiction over a specific property has immediate consequences because it means the owner cannot make any use of the property without obtaining a costly permit.


South LaFourche Levee Dist. v. Jarreau – Legal Reform
Louisiana Supreme Court

In this case a Louisiana Levee District issued an order prohibiting a landowner from excavating dirt from his property. This necessarily interfered with his excavation business and resulted not only in depreciation in value to the surface value of the land, but in the loss of value to the dirt that the owner would have otherwise sold. Accordingly, the owner maintains that he should be compensated for both the surface value and the value of that soil. In response, the Levee District argues that it is never acceptable to compensate a landowner for lost revenue resulting from the exercise of eminent domain. As amicus, NFIB joined with Pacific Legal Foundation in arguing that full and fair compensation requires the District to pay for everything that it has taken—including the value of the soil.

Status: PENDING. Amicus brief filed 9/29/16.


St. Bernard Parish v. Army Corps of Eningeers – Property Rights

Court of Appeals for the Federal Circuit

In this case small business landowners seek just compensation for flooding damages caused—or at least exacerbated—by a federal public works project. They argue that Army Corps of Engineers was negligent in its construction and maintenance of a canal. More specifically, they contend that the agency should have known that in failing to properly armor the banks of the canal, it would create conditions that would eventually lead to flooding during major storm events. NFIB Legal Center joined as amicus in arguing that the government should pay just compensation under the Fifth Amendment to the extent the owners can prove that they suffered damage as a result of a government induced (or exacerbated) flooding event. 

Status: PENDING. Amicus brief filed 3/24/17.


Violet Docks v. St. Bernard Port Authority – Property Rights

Louisiana Supreme Court

Invoking the power of eminent domain, the St. Bernard Port Authority seeks to take private docking facilities—owned and operated by an independent business—to give to a competitor. NFIB Legal Center filed an amicus brief arguing that both the federal and Louisiana Constitution prohibit the taking of private property for purely anti-competitive purposes.

Status: PENDING. Amicus brief filed 3/10/17.


If you have a case that impacts small business, please contact us at 1-800-552-NFIB or email us at [email protected] as we are actively looking for opportunities to weigh in on important issues in this state. NFIB Small Business Legal Center is involved in many cases that impact this state and others; to see our complete list of Supreme Court cases click on Washington, DC on the interactive map.

Thank You


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