Endangered Species Law & Policy

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 seen as a potential vehicle for the Court to take up the broader issue of Chevron deference, the legal doctrine that requires courts to defer to an agency’s interpretation of an ambiguous statute so long as that interpretation is reasonable.

Combs arose from a dispute over the Service’s decision to shutter its endangered sea otter translocation program in California.  Fishing groups had sued the Service and lost in the Ninth Circuit, which upheld the Service’s decision as a reasonable interpretation of the Marine Mammal Protection Act.  The petitioners in Combs then took the fight to the Supreme Court, arguing the Ninth Circuit had expanded Chevron deference and asking the Court to consider whether an agency is entitled to deference under Chevron when a statute is silent on potential agency action, neither authorizing nor forbidding it.

While some commentators have argued that it is only a matter of time before the Court takes up a case to clarify Chevron deference, Combs will not be that case.  The case failed to garner the support of four Justices, which is necessary for the Court to grant a petition for certiorari.