July 23, 2014

Delta smelt rehearing denied

By Jonathan Wood Attorney

This morning, the Ninth Circuit denied a rehearing before the entire court, leaving March’s panel decision in place. The denial sets the case up for a petition to the U.S. Supreme Court. Longtime Liberty Blog readers will recall that PLF previously sought Supreme Court review of the case on our Commerce Clause challenge. Although that issue is no longer live, there should be plenty of issues remaining to interest the judges.

First, the case squarely sets up reconsideration of the Supreme Court’s infamous TVA v. Hill decision. In that case, the court held that the protection of every endangered species is the highest priority of the federal government, regardless of the cost. The result has been a heavy-handed, top-down bureaucracy that frustrates human interests and species conservation.

The Ninth Circuit relied on TVA v. Hill in upholding a BiOp that it acknowledged was “not just a little bit of a mess, but, at more than 400 pages, a big bit of a mess.” It was “a jumble of disjointed facts and analyses.”  A “ponderous, chaotic document, overwhelming in size, and without the kinds of signposts and roadmaps that even trained, intelligent readers need in order to follow [its] reasoning.”

The other significant issue that may grab the court’s attention is what consequences  flow from an agency decision so scrambled and indecipherable. Administrative law presumes that highly specialized, technical agencies are intrusted to make wise decisions outside of the normal political process and subject only to deferential review by courts.

The BiOp doesn’t provide evidence of that, to say the least. The Service’s own peer-review panel pulled no punches in criticizing the documents, concluding ultimately that “most readers would have a difficult time.” This case may allow the Supreme Court to revisit whether agencies receive the deference they do because they clearly and rationally explain why they make particular decisions. Or whether agencies get deference even if a decision is supported only by a mind-boggling confused and disorganized report.

The parties have 90 days to request Supreme Court review. What do you think? Should this case demand the court’s attention?

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