Endangered Species Law & Policy

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 of an ambiguous statute. The petition has also created odd bedfellows, as the Department of Justice under the Trump Administration finds itself arguing alongside several national environmental non-profit organizations that the Court should not grant the petition.

The petition in question is California Sea Urchin Commission v. Combs, Docket No. 17-1636, which involves an appeal of a Ninth Circuit ruling that affirmed a 2012 decision by the U.S. Fish and Wildlife Service (Service) to shut down its endangered sea otter translocation program. Under that program, the Service had established management zones surrounding certain sea otter populations wherein fishermen who incidentally harmed sea otters would be exempt from liability under the Endangered Species Act and the Marine Mammal Protection Act. After the Service shut down the program, a California state commission and several fishing industry groups sued the Service. The Ninth Circuit upheld the Service’s decision under the Chevron doctrine, finding that the agency’s interpretation of the underlying statute was reasonable.

The fishing industry groups have focused on the underlying Chevron question in their petition for a writ of certiorari, presenting the issue to the Court as: [i]f a statute neither authorizes nor forbids an agency action, does that statutory silence trigger Chevron deference? In comparison, the government and the environmental non-profits have tried in their recently filed opposition briefs to reframe the issue away from a broader Chevron question and focused more on the Service’s actions as consistent with its authority under the statutes.

We will continue to track this case as the Supreme Court decides whether or not to grant the petition. Be sure to check back with us for further updates on whether the Court decides to take the case.