When Did Chevron Become a Dirty Word?

Last week the 9th Circuit Court of Appeals rejected arguments that the Fish and Wildlife Service may only issue permits under the Migratory Bird Treaty Act for the “scientific use” of a species where the use will benefit the species being used.  The facts are interesting, if you enjoy nature red in tooth and claw. The Northern Spotted Owl is endangered and it appears that it is being outcompeted by the Barred Owl.  The FWS wanted to investigate whether the Northern Spotted Owl would do better if the Barred Owl were removed from its habitat.

The Court of Appeals carefully disposed of plaintiffs’ various arguments that the Migratory Bird Treaty Act unambiguously precluded the FWS from issuing the permit under the so-called “same species theory.”

What’s really interesting about the opinion is its handling of the Chevron issues that the case seems so obviously to present.  The FWS argued that, if the Court found the MBTA to be ambiguous, it should prevail under Chevron, because its interpretation of the statute is entitled to deference.  The Court, however, explicitly refused to rely on Chevron.

Because the plain text of the MBTA and the Conventions do not compel a same-species limitation, however, we need not consider the question of deference to the agency’s interpretation.

However, this seems to me to miss the point.  The Court also did not find that the statute precluded the plaintiffs’ interpretation; it specifically found that FWS could adopt the same species theory if it so chose.  That being so, where the statute does not unambiguously preclude either interpretation, it seems to me that the case very clearly becomes an issue of Chevron deference – was the FWS interpretation reasonable?

I still don’t understand fuss about Chevron.

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