Weekly litigation report — January 26, 2019

Wolf listing upheld

This week the San Diego County Superior Court ruled that the California Fish and Game Commission acted legally when it listed a single transient wolf as endangered under California’s Endangered Species Act. Our clients, the California Cattlemen’s Association and California Farm Bureau Federation, challenged the state listing because it prevents northern California ranchers from protecting their cattle from wolves using means that do no harm to the wolves. Listing as endangered by the state subjects them to criminal liability for anything that impedes wolves killing their livestock. Read more at our blog.

Judicial deference challenged

This week PLF filed this amicus brief in the Supreme Court in Kisor v. Wilkie, in which the Court will decide whether to end Auer deference, the decades-long practice of judicial deference to executive agency interpretations of their own regulations. In this case dealing with the denial of benefits to a disabled Vietnam War vet, PLF argues that the Court should overturn Auer. In short, judges are constitutionally bound to independently determine the meaning of statutes and regulations, not allow executive agency bureaucrats to dictate the meaning of the law to judges and the public. Judicial deference allows already over powerful agencies to bend the rules in their favor through creative “reinterpretation” that evades both congressional and judicial checks and balances. One of the most important legislative checks on agencies is the Congressional Review Act, which requires bureaucrats to send all of their rules to Congress for review and potential disapproval before they can be enforced. But agencies routinely flout this obligation for precisely the types of informal guidance memos to which they argue the courts owe deference. PLF’s unique and groundbreaking work on the CRA bore additional fruit in this brief, as PLF was the only organization among dozens of other amici to bring this aspect of the problem to the Court’s attention. Read more at our blog.