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Ellen Paul

Update on MBTA litigation

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On 24 May 2018, the National Audubon Society, Center for Biological Diversity, Defenders of Wildlife, and American Bird Conservancy filed suit against the Dept. of the Interior challenging as unlawful and arbitrary and capricious the December 22, 2017 Solicitor’s Memorandum M-37050, which was issued by the office of the Solicitor of the Department of the Interior (“DOI”) and reverses Defendants DOI’s and the U.S. Fish and Wildlife Service’s (“FWS” or “Service”) longstanding interpretation and implementation of the Migratory BirdTreaty Act of 1918, 16 U.S.C. § 703(a) (“MBTA” or “Act”). A copy of the lawsuit is attached.

STATUS: on 13 July 2018, the court held a pretrial conference. At that conference, the government was ordered to submit a brief on its motion to dismiss the litigation ( as described in the attached letter notifying the court that such motions would be filed) no later than 17 August 2018. The plaintiffs were ordered to submit their separate reply briefs by 17 October 2018 and their joint reply brief no later than 20 November 2018.

In addition, there is an earlier-filed case brought by the Natural Resources Defense Council and the National Wildlife Federation (Civil 1:18-cv-4596). The court has not yet consolidated the two cases but is likely to do so if the two cases survive the motion to dismiss.

It is not known if the court will decide the motion on the briefs or if oral argument will be heard.




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UPDATE 11 Feb 2019:

The government's brief supporting its motion to dismiss the case was to have been filed by 22 Feb 2019. However, on 3 Jan 2019, the court ordered that the Government's reply in support of its motion to dismiss, however, remains STAYED consistent with the Chief Judge's order, unless funding was restored to the Department of Justice by January11, 2019. If funding is restored by January 11, 2019, then the Government's reply brief remains due on February 22, 2019.

Of course, funding was not restored by 11 Jan 2019.

The court further ordered that if funding for the Department of Justice was restored after January 11,2019 (which it was) then the Government's reply brief will be due seven weeks after the funding is restored. As funding was restored on on 25 Jan 2019, the government's reply brief would be due on or about 18 March.

It remains to be see how a second shutdown would affect this schedule, but presumably, the time for the reply brief would again be stayed and the remaining four weeks would begin to run when the second shutdown ends.


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The government has now filed its reply brief responding to the plaintiffs' (several states, in one case, and several conservation organizations in the other case) brief opposing the government's motion to dismiss the case.

No hearing date has been set; it is possible that the court (the U.S. District Court for the Southern District of New York) will decide the motions without oral arguments. If the cases survive the government's motion to dismiss, the case will go forward in the U.S. District Court. If not, it would be up to the plaintiffs to file an appeal in the U.S. Circuit Court.

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