Briefing complete in the green sturgeon case

August 19, 2016 | By DAMIEN SCHIFF

This week, we filed our reply brief to our request to the United States Supreme Court to review the Ninth Circuit Court of Appeals’ decision in Building Industry Association of the Bay Area v. United States Department of Commerce. We have asked the High Court to review the Ninth Circuit’s ruling that landowners and other affected parties have no right to challenge the federal government’s decision not to exclude areas from critical habitat designation under the Endangered Species Act (friends of PLF will know that questions of judicial review have been an important part of PLF’s recent Supreme Court docket). One of the feds’ arguments against our petition is that critical habitat designation is no big deal. Thanks to the great amicus testimony to the contrary from Alabama and 22 other states, as well as property rights organizations such as The Cato Institute, National Association of Home Builders, and Mountain States Legal Foundation, we were able to argue strongly against that erroneous contention in our reply brief. Next step will be the Court’s consideration of our petition during the so-called Long Conference, scheduled for September 26.  Generally speaking, having a petition considered during the Long Conference is not great news (lots of petitions build up over the summer while the Court is in recess, the law clerks for the new Term tend not to like to recommend granting a lot of cases early on in the Term, etc.). But given that September 26 is the Feast of Sts. Cosmas and Damian, perhaps the luck will run the other way!