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Separation of Powers

Gunnison Sage-Grouse Endangered Species Act Litigation

Drawing a line on federal power under the Endangered Species Act

Colorado and two if its counties challenged the listing of the Gunnison sage-grouse as “threatened” for lack of evidence, and challenged the designation of critical habitat as overbroad. For years, the affected states, counties, and landowners partnered to conserve the species while maintaining economic viability but the federal governm ...

Center for Environmental Science, Accuracy & Reliability, et al. v. U.S. Department of Interior, et al.

Flocks of California gnatcatchers need no federal protection

The federal government has expanded its reach using the Endangered Species Act to cover spurious “subspecies.” The ESA does not define “subspecies” and the Fish and Wildlife Service has offered no definition of its own. Instead, it simply announces when it has determined a “subspecies” to exist and, relying on th ...

California Sea Urchin Commission v. Combs

Separation of powers at stake in battle over agency otter rule

When the U.S. Fish and Wildlife Service asked Congress for permission in the 1980s to introduce sea otters into Southern California waters, Congress agreed but required protections for lawful fishing activity. In 2012, the Service declared that they would no longer honor the fishing industry protections. On behalf of sea urchin and abalone divers, ...

Brott v. United States

Jury trial sought in rails-to-trails regulatory takings case

Kevin Brott owns land in Muskegon, Michigan. In 1886, a railroad obtained a right-of-way easement across his land. When the railroad ceased operation, the easement terminated and full ownership of the land returned to the owner. The federal government, however, invoking the National Trails System Act and related regulations, nullified Brott’s ...

WildEarth Guardians v. Department of Justice

Unintentional, accidental “take” of species should not be a crime

A radical environmental group challenged the government’s interpretation of the Endangered Species Act. Because the ESA’s criminal penalties apply only you “knowingly” take a protected species, the government reasonably interprets this to mean that you must know that your actions will cause take and the identity of the speci ...

State of Wyoming v. Zinke

Bureau of Land Management threatens to end fracking boom

The Bureau of Land Management (BLM) purports to regulate all “hydraulic fracturing” – fracking – on federal lands based on the potential impacts of fracking to underground drinking water sources, despite the fact that Congress’s Energy Policy Act lets states, not federal agencies, decide how best to regulate fracking’s p ...

Epic Systems, Inc. v. Lewis

Victory! Supreme Court rules for freedom of contract

Under its terms of employment, Epic Systems, Inc. required that employees agree to handle any workplace dispute individually. This meant waiving any future class-action or collective arbitration—a freedom of contract protected by the Federal Arbitration Act (FAA). Lower courts disagreed, saying the company’s one-on-one arbitration agreement ...

Cascadia Wildlands v. Oregon Department of Fish & Wildlife

Oregon properly withdrew special protected status for thriving wolf packs

The Oregon Department of Fish and Wildlife and the Oregon Fish and Wildlife Commission removed the Canadian timber wolf subspecies of gray wolf from the state’s endangered species list in late 2015. Three environmentalist groups opposed this decision and sued to invalidate the delisting. On behalf of the Oregon Cattlemen’s Association a ...

National Restaurant Association v. Department of Labor

The outer reaches of a statute are bookends, not blank pages

The Fair Labor Standards Act (FLSA) restricts the tipping practices of companies that  use  tips  as  a  supplement  to  reach  their  federal minimum  wage  obligations—the so-called tip credit. The FLSA forbids companies from requiring tip-earning employees—such as waiters—to share tip money with untipped staff—such as line coo ...