November 29, 2018

Will Idaho case lead to reining in of unaccountable federal agencies?

By Kaycee Royer Attorney

Should federal executive branch agencies be accountable to Congress? For most people, the common-sense answer to that question is “yes.” Yet PLF attorneys regularly go head-to-head with government lawyers who seem to believe their agencies should be immune from such basic accountability.

Case in point: Today, PLF was in federal court in Idaho for oral argument in Tugaw Ranches, LLC v. U.S. Department of Interior. This case concerns the controversial federal land-use plans intended to protect the threatened sage grouse population. These plans threaten the livelihood of ranchers who have worked the land for decades; they have been the center of conflict since they were adopted in 2015.

Our clients, three brothers whose family ranch is impacted by the rules, challenged the rules because the Bureau of Land Management and the U.S. Forest Service failed to send the rules to Congress, as required by the Congressional Review Act (CRA).

In response, the government has asked the court to dismiss the case. The government argues that the court cannot review the agencies’ failure to send the sage grouse rules to Congress as required by the CRA. Instead, the government asserts that the courts have no business enforcing the statute.

But that argument goes against the strong presumption of judicial review under the Administrative Procedures Act—a presumption that was reinforced earlier this week by the U.S. Supreme Court’s unanimous decision in Weyerhaeuser v. U.S. Fish and Wildlife Service, which incidentally is PLF’s 11th High Court victory.

In considering the government’s request to dismiss the case, the court pointed out that the government’s position is that the agencies are a fourth branch of government that cannot be held responsible to the other three branches. Congress clearly intended to hold agencies responsible when it enacted the CRA, so the fact that the court appears open to questioning the government’s position may be an encouraging sign.

We’re hopeful the court will agree that courts should have the power to hold agencies responsible for failing to follow the clear demands of Congress. This will be a major step forward in the fight to hold agencies accountable to Congress and to the American people.

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Kansas Natural Resource Coalition v. Department of Interior

A buffalo rancher by trade, Ken Klemm also uses his 4,000-acre ranch in Kansas for conservation efforts. In fact, Klemm works with the Kansas Natural Resource Coalition (KNRC) to implement a conservation plan for the lesser prairie chicken. The U.S. Fish and Wildlife Service considers such local collaboration for determining endangered listings under its 2003 rule called the Policy for Evaluating Conservation Efforts When Making Listing Decisions (PECE Rule). Unfortunately, the rule is not lawfully in effect because the Service never submitted the PECE Rule to Congress as required by the Congressional Review Act (CRA). On behalf of KNRC, PLF has filed a lawsuit demanding that the Service submit its rule to Congress so it can legally take effect and allow good conservation work to continue.

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