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National Law Journal Article about the SLLC

Center Advocates for State and Local Governments discusses the SLLC’s mission, history, current amicus activity

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Recent Court Rulings

Weyerhaeuser Company v. U.S. Fish and Wildlife Service

In a decision difficult to understand without context the Supreme Court held that “critical habitat” under the Endangered Species Act (ESA) must also be habitat. In Weyerhaeuser Co. v. United State Fish and Wildlife Service the Court also held a federal court may review an agency decision not to exclude an area from critical habitat because of the economic impact. The State and Local Legal Center (SLLC) filed an amicus brief on the latter issue arguing in favor of the result the Court reached.

The United State Fish and Wildlife Service (Service) listed the dusky gopher frog as an endangered species. It designated as its “critical habitat” a site called Unit 1 in Louisiana owned or leased by Weyerhaeuser Company, a timber company. The frog hasn’t been seen at this location since 1965. As of today Unit 1 has all of the features the frog needs to survive except “open-canopy forests,” which the Services claims can be restored with “reasonable effort.”

Weyerhaeuser argued Unit 1 could not be a “critical habitat” for the frog because it could not survive without an open-canopy forests. The Fifth Circuit disagreed holding that the definition of critical habitat contains no “habitability requirement.”

The Supreme Court held unanimously that “critical habitat” must be habitat. The ESA states that when the Secretary lists a species as endangered he or she must also “designate any habitat of such species which is then considered to be critical habitat.”

According to the Court: “[o]nly the ‘habitat’ of the endangered species is eligible for designation as critical habitat. Even if an area otherwise meets the statutory definition of unoccupied critical habitat because the Secretary finds the area essential for the conservation of the species [the statute] does not authorize the Secretary to designate the area as critical habitat unless it is also habitat for the species.”

The Service argued that habitat includes areas like Unit 1 one which “require some degree of modification to support a sustainable population of a given species.” The Supreme Court sent this case back to the lower court to “interpret the term ‘habitat.’”

The ESA requires the Secretary to consider the economic impact of specifying an area as a critical habitat and authorizes the Secretary to “exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat.” Weyerhaeuser Company claims the Service failed to fully account for the economic impact of designating Unit 1. The lower court refused to review the Service’s decision-making process.

The Supreme Court concluded it is reviewable. It “involves the sort of routine dispute that federal courts regularly review: An agency issues an order affecting the rights of a private party, and the private party objects that the agency did not properly justify its determination under a standard set forth in the statute.”

The SLLC amicus brief argued the Court should hold that judicial review is possible in this case. Without it the Service has no incentive to listen to the expertise of state and local government officials “who are experts in the land-use issues that exclusion decisions most affect.”

Bryan K. Weir, Thomas R. McCarthy, and J. Michael Connolly of Consovoy McCarthy Park, and the Antonin Scalia Law School Supreme Court Clinic, wrote the SLLC amicus brief which was joined by the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association.

Mt. Lemmon Fire District v. Guido 

In its first opinion of the term in Mt. Lemmon Fire District v. Guido the Supreme Court ruled 8-0 that the federal Age Discrimination in Employment Act (ADEA) applies to state and local government employers with less than 20 employees. The State and Local Legal Center (SLLC) filed an amicus brief arguing that it should not apply. State and local governments often rely on small special districts to provide services they don’t provide.  

John Guido was 46 and Dennis Rankin was 54 when they were laid off by the Mount Lemmon Fire District. They claim they were terminated because of their age in violation of the ADEA. They were the oldest of the district’s 11 employees. 

The fire district argued that the ADEA does not apply to it because it employs fewer than 20 people. The Ninth Circuit disagreed.  

The term “employer” is defined in the ADEA as a “person engaged in an industry affecting commerce who has 20 or more employees.” The definition goes on to say “[t]he term also means (1) any agent of such a person, and (2) a State or political subdivision of a State.”

The Supreme Court, in an opinion written by Justice Ginsburg, held that the phrase “also means” adds a new category to the definition of employer (that contains no size requirement) rather than clarifies that states and their political subdivisions are a type of person contained in the first sentence. The Court reasoned that “also means” is “additive” rather than “clarifying.” The Court noted the phrase is common in the U.S. Code and “typically carrying an additive meaning.” Finally, the statute pairs states and their political subdivisions with agents, “a discrete category that, beyond doubt, carries no numerical limitation.”

The SLLC amicus brief pointed out that small special districts, like the Mount Lemmon Fire District, are very common. Particularly in rural areas there are “few alternatives to layoffs and terminations when budget cuts must be made,” making small special districts particularly vulnerable to age discrimination lawsuits.

The brief also argued the Ninth Circuit decision is inconsistent with principles of federalism. “Small state and local government entities must have the latitude to staff their projects as they see fit, responsive to local needs and in line with particular project goals. The fact that these needs differ is illustrated by the different age discrimination statutes enacted by the States with a variety of minimum employee thresholds.”

The Court rejected the Fire District’s policy argument that “applying the ADEA to small public entities risks curtailment of vital public services such as fire protection.” “Experience suggests otherwise. For 30 years, the Equal Employment Opportunity Commission has consistently interpreted the ADEA as we do today. And a majority of States forbid age discrimination by political subdivisions of any size; some 15 of these States subject private sector employers to age discrimination proscriptions only if they employ at least a threshold number of workers. No untoward service shrinkages have been documented.”

Collin O’Connor Udell of Jackson Lewis wrote the SLLC amicus brief which was joined by the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, the International Municipal Lawyers Association, the National Public Labor Relations Association, and the International Public Management Association for Human Resources.