July 7, 2018

Weekly litigation report — July 7, 2018

By James S. Burling Vice President for Litigation

17 states urge the Supreme Court to grant PLF case and overrule Chevron deference

 On Thursday, Texas—joined by 16 other states—filed an amicus brief supporting our petition in California Sea Urchin Commission v. Combs. The states’ brief explains that “the time has come to reconsider Chevron deference, and this case provides an appropriate vehicle.” This controversial doctrine forbids courts from being neutral judges in cases concerning government agencies. Instead, they must defer to agency’s interpretations of the law unless patently absurd. Texas’ brief explains the doctrine’s myriad shortcomings: Chevron upends the Constitution’s separation or powers, frustrates Due Process protections, and undermines federalism.  Our case has also drawn support from our friends at the Cato Institute, Goldwater Institute, and Cause of Action Institute; the Buckeye Institute; and the Landmark Legal Foundation. For more, see our blog post.

Court sanctions agency’s failure to review endangered species listings

The California Endangered Species Act requires that the Department of Fish and Wildlife review every five years the status of every plant and animal found on the state’s endangered species list. Today, in California Cattlemen’s Association v. Department of Fish & Wildlife,  the San Diego Superior Court issued an unfavorable decision in a case involving the Department of Fish and Wildlife’s failure to conduct 231 status reviews as required by California law. In so doing, the Court credited the Department’s speculation that performing the status reviews will deprive the Department of the resources it needed. The Department’s resource estimates, however, were based not on five-year status reviews, but on the more complex initial one-time 12-month status reviews found in a different part of the California Endangered Species Act. Unfortunately, the court’s decision deprives California of the information necessary to administer CESA and excuses the Department’s failure to follow the law. We are considering our next steps.

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California Sea Urchin Commission v. Combs

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, lobster trappers, and other fishermen, PLF asked the U.S. Supreme Court to review the case to enforce the separation of powers in the Constitution. The Supreme Court denied the petition on October 29, 2018.

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