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U.S. Supreme Court Will Revisit Auer Deference

On December, 10, 2018, the United States Supreme Court granted a petition for writ of certiorari in Kisor  v. Wilkie (No. 18-15), which raises the issue of whether Auer deference should be overruled.  Auer deference (also known as Seminole Rock deference) requires courts to defer to an agency’s reasonable interpretation of its own ambiguous regulations.  Auer deference … Continue Reading

Supreme Court Rules ESA Critical Habitat Must Be Habitat For Listed Species

On November 27, 2018, the U.S. Supreme Court ruled that an area is eligible to be designated as “critical habitat” under the Endangered Species Act (ESA) only if the area is habitat for the relevant threatened or endangered species.  Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, Dkt. No. 17-71.  The Court vacated the U.S. … Continue Reading

U.S. Supreme Court Passes on Otter Case with Chevron Implications

Yesterday, the U.S. Supreme Court denied certiorari in California Sea Urchin Commission v. Combs (“Combs”), Docket No. 17-1636, an appeal from a Ninth Circuit decision regarding endangered Southern sea otters (Enhydra lutris nereis) and deference to the decisions of the U.S. Fish and Wildlife Service (“Service”).  As we reported here last month, the case was … Continue Reading

Endangered Species Act Litigation Round-Up

The last several days have seen a flurry of activity in the federal courts in matters involving the Endangered Species Act (ESA): In Crown Indian Tribe v. United States, CV 17-89-M-DLC, the U.S. District Court for the District of Montana vacated (pdf) a June 30, 2017 final rule issued by the U.S. Fish and Wildlife … Continue Reading

Endangered Species Case Sparks Chevron Deference Debate

As the U.S. Supreme Court prepares for its upcoming October 2018 term, one petition concerning an endangered sea otter relocation program is attracting a lot of attention as a potential vehicle for the Court to consider the broader issue of Chevron deference, the legal doctrine that requires courts to defer to an agency’s reasonable interpretation … Continue Reading

California Poised to Waive Protections for Endangered Fish as Tribes Seek to Shutdown Klamath Irrigation Project in an Effort to Save the Species

In late May 2018, the Klamath Tribes filed a complaint in the United States District Court for the Northern District of California seeking to shut down the Bureau of Reclamation’s Klamath Irrigation Project, which supplies water to thousands of family farms in northern California and southern Oregon. The gravamen of the Tribes’ complaint is that two fish … Continue Reading

Ninth Circuit Affirms Injunction Order for Federal Columbia River Power System to Prevent Harm to Listed Salmonids

On April 2, 2018, the U.S. Court of Appeals for the Ninth Circuit affirmed (pdf) a district court order directing that the National Marine Fisheries Service (NMFS), U.S. Army Corps of Engineers (Corps) and U.S. Bureau of Reclamation (Bureau) (collectively, the “Federal Agencies”) conduct spill operations and fish monitoring at dams and related facilities in the … Continue Reading

Fish and Wildlife Service Makes 12-Month Findings, Denies ESA Protections for 25 Species

On Thursday, October 5, 2017, the U.S. Fish & Wildlife Service (“Service”) announced 12-month “not warranted” findings on petitions to list 25 species as endangered or threatened under the Endangered Species Act (“ESA”).  It is likely that the Service’s “not warranted” findings represent the Trump administration’s departure from the previous administration’s  90-day determinations wherein the Service … Continue Reading
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