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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

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

What Might Justice Kavanaugh Mean for the ESA?

On July 9, 2018, President Trump nominated Judge Brett Kavanaugh, who currently sits on the U.S. Court of Appeals for the District of Columbia Circuit, to replace retiring Associate Justice Anthony Kennedy on the U.S. Supreme Court. While much of the public discourse about Judge Kavanaugh’s nomination has focused on hot-button issues like abortion and … Continue Reading
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