2024:

U.S. SUPREME COURT OVERRULES “CHEVRON”

and what it means for you

Too often, since the post WW2 rise of the federal regulatory state and burgeoning of governance via unelected and often unaccountable agencies, federal and state agencies interpret the statutes that they administer in ways that are unauthorized and go far beyond the authority granted by the Congress or a state legislature. In January 2024, however, in the matter of Loper v. Raimondi, this all changed at the federal level when the U.S. Supreme Court reined-in the practice.

The case arose when herring fishermen challenged the agency’s interpretation of a 1983 Act aimed in part at preventing overfishing in the 200-mile zone of coastal waters. The agency administering the Act interpreted it to allow it to require herring fishermen to pay over $700 per day per vessel to cover the cost of having an observer on each of their boats. The high court accepted the case for review to consider one question: whether it was permissible for the lower federal courts to continue their practice of approving agency interpretations of law and statutory gap-filling under a doctrine known as “Chevron”. The federal courts were using Chevron to approve federal agency interpretations of statutes rather than the courts, themselves, engaging in a legal statutory analysis to discern whether the statute permitted the challenged agency action.

In Loper, the Supreme Court said Chevron deference is not permissible, and the Court restored the duty and power to the federal courts to interpret federal statutes and decide the scope of agency decision-making that was authorized by Congress. The decision ended the decades long, improper and extralegal granting of powers by the Court to federal administrative agencies. The federal courts had been permitting agencies to create law, when this is the exclusive function of the legislative branch. The agencies did this by filling in gaps and interpreting ambiguity in the statutes they administered, when such statutory interpretation and gap-filling is the exclusive province of the judicial branch. The federal courts had given up their power during the period of reliance on “experts,” as they were under pressure to defer to the agencies as experts.

For many years, Chevron critics and many Constitutional scholars wrote extensively criticizing the doctrine and admonishing the federal courts for following Chevron. From 2016 up until 2024, as the Court studied the issue, it declined to follow its own case. Now, with the Loper decision, the court has finally made clear that:

Loper ends what the Court describes as a “40-year misadventure with Chevron deference,” as the type of deference required by Chevron violates the Constitution.
Chevron should be viewed as a fundamental disruption of the separation of powers, as the doctrine improperly stripped courts of judicial power by simultaneously increasing the power of executive agencies.
A key aspect of our separation of powers has been restored.
The Administrative Procedures Act (APA) is the law that litigants challenging government action properly use “as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices,” and that establishes the contours of judicial review.

What does this mean for you?

There is now a far clearer legal path for challenging impermissible regulatory agency action at the federal level, and we expect this decision to have a positive effect at the state level, too. Legal challenges to rein-in federal and state regulatory agencies’ impermissible interpretations of law and claimed expansions of power are often critical to a business’s -- or even to an entire industry’s -- survival. Such legal challenges are also often necessary to safeguard civil liberties against agencies’ impermissible demands for sensitive business and personal information without statutory authorization or other legal justification.

We are prepared to assist you by bringing needed challenges to agency action and interpretations at the federal and state levels. Please call Attorney Dean at 860-676-0033 or email her at mdean@mdeanlaw.com if you have a matter that you would like to discuss.

August 16, 2024

Petition for Writ of Certiorari filed with U.S. Supreme Court in case challenging local zoning (effective ban on outdoor shooting range). (Link to briefing: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/24-178.html)

May 24, 2022

Court rules Granby officials had no right to block gun club’s rifle ranges

By Jim Russell | Special to The Republican

GRANBY, MA — Town officials had no business forbidding Granby Bow & Gun Club’s 1,000-yard and 500-yard shooting ranges, according to a state Land Court decision. The court, in a ruling last week, annulled cease-and-desist orders issued by the Granby Zoning Board of Appeals dating back to 2017. The court determined the zoning board had wrongly denied the club grandfather rights to build rifle ranges on its property at 85 Chicopee St., which covers 278 acres on the border with Belchertown. It said the club was formed 75 years ago, in 1947, prior to when zoning bylaws were enacted in Granby, and that the shooting ranges therefore constitute a preexisting, nonconforming use that is entitled to be grandfathered. Neighbors in Granby and Belchertown complained to officials in both towns about noise and potential safety issues after the 1,000-yard range was built in 2016. Their complaints resulted in the zoning board’s cease-and-desist orders against the club in 2017 and in 2020. The board in 2017 determined the 1,000-yard range constituted an “expansion” of the grandfathered use, saying new permits were needed. The gun club then sued the town, filing an action in Land Court in Boston. Judge Howard P. Speicher’s May 18 decision in the case says in part: “At least as early as the 1960s, the rifle range was comprised of various targets placed at different distances and locations, including 100-, 600-, 900-, and 1,000-yard targets.” The club’s President Andy Mercier, in a written statement, said: “At last, we can get back to allowing our members to develop proficiency in the safe use of firearms on our beautiful property and well-run ranges, offering premier shooting competitions, and growing our membership to sustain the Club for future generations.” The statement was issued by Connecticut attorney Martha Dean, one of the lawyers retained by the club. Also representing the club has been Connecticut attorney Nathaniel Schindler and the Worcester law firm Raphaelson and Raphaelson. Attorney Justin Raphaelson told The Republican on Tuesday that the zoning board has “a 30-day appeal period, and we are waiting to see if they take that route.” The Granby board is represented by attorneys Ben Coyle and Ryan O’Hara of Bacon Wilson PC in Springfield and Northampton. The newspaper reached out to the firm to see if an appeal is planned.

https://www.masslive.com/news/2022/05/court-rules-granby-officials-had-no-right-to-block-gun-clubs-rifle-ranges.html

2021 - Oakland appellate (6th Cir.) press release

CINCINNATI, OH (June 8, 2021) — Today, Firearms Policy Coalition (FPC) announced the filing of an opening brief in the appeal of Oakland Tactical Supply, LLC v. Howell Township, Michigan, which challenges zoning restrictions imposed by the Township that prohibit shooting ranges for long guns. The appellants are represented by attorneys Joseph Greenlee, FPC Law’s Director of Constitutional Studies, Adam Kraut, FPC Law’s Senior Director of Legal Operations, Peter A. Patterson of Cooper & Kirk, PLLC, Martha A. Dean, and Roger L. Myers. The brief can be found at FPCLegal.org.

Howell Township regulates approximately 20,000 acres of unincorporated land in Livingston County, Michigan, under its zoning ordinance, which specifies the uses allowed in each zoning district while prohibiting any that are not listed. Oakland Tactical wanted to build an outdoor, long-distance shooting range on land in an Agricultural Residential District that was formerly a rock quarry. Howell, however, does not permit such ranges in any district, resulting in a prohibition on training with constitutionally protected arms within the township.

In September, the district court granted the Township’s motion to dismiss the lawsuit, saying that the plaintiffs failed to state a Second Amendment claim and that “the ordinance appears on its face to allow shooting ranges in districts other than those designated AR.” As a result, the plaintiffs appealed.

The appeal’s opening brief argues that “[t]he Second Amendment guarantees law-abiding citizens the right to train in the use of ‘Arms,’ including at shooting ranges and including with long guns, for lawful purposes,” and “[b]ecause training with long guns and for lawful purposes in Howell Township requires outdoor, long-distance shooting ranges, such ranges cannot be banned.”

Additionally, the brief argues that “at the time of the Founding, keeping and bearing arms included training with long guns for lawful purposes,” noting that “Americans’ success in the Revolutionary War was widely attributed to their familiarity and training with arms,” with one example being that “[t]he Continental Congress used Americans’ firearms training to warn King George III that Americans would make for a formidable foe.”

“Firearms training is not only protected by the Second Amendment, but it is essential to the exercise of other rights protected by the Second Amendment,” explained Greenlee. “The right to defend yourself, your family, and your community with firearms would mean little if it did not include the right to maintain proficiency with those very arms. We are hopeful that the Court will recognize the importance of this right, reverse the lower court’s decision, and remand the case for further proceedings consistent with the Second Amendment.”

https://www.firearmspolicy.org/fpc-files-opening-brief-appeal-challenging-ban-on-shooting-ranges

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