Hinson Gravelle & Adair LLP partner Eric Adair recently published a paper in the March 2012 California Water Law & Policy Reporter, in collaboration with Rebecca Akroyd of Kronick Moskovitz Tiedemann & Girard. The paper discusses a 2009 Ninth Circuit decision, Tucson Herpetological Society v. Salazar, 566 F.3d 870 (9th Cir. 2009), and its progeny. From the introduction to the paper:
With its 2009 decision in Tucson Herpetological Society v. Salazar, 566 F.3d 870 (9th Cir. 2009), the U.S. Court of Appeals for the Ninth Circuit signaled that courts should not blindly defer to scientiﬁc decisions made by federal agencies when those agencies fail to adequately explain or justify those decisions. The signiﬁcant deference afforded federal agencies notwithstanding, Tucson Herpetological established a judicial willingness to look behind the decision-making process to ensure that agency decisions are consistent with and supported by the best available science.
In the three years since Tucson Herpetological, courts have taken this direction seriously. Six recent Administrative Procedure Act (APA) cases reﬂect a new trend in case law that gives teeth to the concept that federal agencies must explain their scientiﬁc decisions regarding endangered or threatened species. These cases conﬁrm a move away from blind deference to agency decisions and a move toward transparency. In this article, we consider the implications of recent jurisprudence on this topic, particularly for resources users who are in the position of challenging federal agency decision making pertaining to listed species.
To continue reading the paper, please click here.