Admin. Law--Best Model Answers?

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kykiske
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Admin. Law--Best Model Answers?

Postby kykiske » Thu Nov 07, 2013 1:27 pm

I have tried to look for model answers, and even though I have found some, I'm still trying to find more.

Admin. law will likely be my toughest final.

Can you guys point me to a good site--that you really trust--for finding model answers to an admin. law exam?

portaprokoss
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Re: Admin. Law--Best Model Answers?

Postby portaprokoss » Fri Nov 08, 2013 10:08 pm

BUMP

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Carlo Von Sexron
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Re: Admin. Law--Best Model Answers?

Postby Carlo Von Sexron » Fri Nov 15, 2013 2:53 pm

Old ad law exams were pretty hard to find, IIRC. I don't know where to point you, other than other law schools' websites, but you'll probably need a password to even see if they exist there. Your law library probably has some ad law supplements with hypos. Sorry that's not much help.

kykiske
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Re: Admin. Law--Best Model Answers?

Postby kykiske » Sat Nov 16, 2013 11:47 am

Also, does anyone have a suggestion as to the format of an issue checklist?

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kalvano
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Re: Admin. Law--Best Model Answers?

Postby kalvano » Sat Nov 16, 2013 12:41 pm


rtb2008x
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Re: Admin. Law--Best Model Answers?

Postby rtb2008x » Tue Nov 19, 2013 10:33 am

kalvano wrote:http://sdrv.ms/11K6sdv

http://sdrv.ms/16EGi1G




THANK YOU

kykiske
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Re: Admin. Law--Best Model Answers?

Postby kykiske » Tue Nov 19, 2013 2:08 pm

kalvano wrote:http://sdrv.ms/11K6sdv

http://sdrv.ms/16EGi1G


THANK YOU!!

anomalouslawyer27
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Re: Admin. Law--Best Model Answers?

Postby anomalouslawyer27 » Fri Nov 22, 2013 4:37 pm

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Last edited by anomalouslawyer27 on Mon Nov 25, 2013 12:59 am, edited 2 times in total.

kykiske
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Re: Admin. Law--Best Model Answers?

Postby kykiske » Fri Nov 22, 2013 6:07 pm

anomalouslawyer27 wrote:Your Florida-based firm represents the (fictitious) Ampian Tribe of Indians. The tribal reservation includes a series of isolated Keys in the middle of Florida Bay, and a large land tract in the middle of the Everglades connected to I-95 and Ampian Trail by a dirt road. The tribal lands are also habitat to dozens of federally endangered and threatened species. Tribal members share a common cultural belief in the right of species to exist, and the tribe owns and operates an airboat and fishing guide operation that depends on revenues from the eco-tourism community. A few years ago, the Miccosukee Tribe (a real tribe) partially prevailed in litigation (a real case) against the federal government opposing the way it counted and protected birds in the Everglades. The Ampian Tribe says a new rule being proposed by the U.S. Fish & Wildlife Service (FWS) will reverse that outcome. Your senior partner remembers that you took Administrative Law, and sends you the following e-mail:

The Endangered Species Act, Section 9, prohibits the “take” of endangered species, and defines take to include killing, harming, or harassing. In addition, ESA Section 7 requires federal agencies to “consult” with FWS to determine whether a project will jeopardize the continued existence of a species. The consultation process culminates with a “biological opinion” that includes an “incidental take statement” defining how much “take” of a species can be allowed by a federal permitted project. FWS says that sometimes it cannot give an exact number for take, so it intends to use “surrogate” tools to measure incidental take, as stated in a proposed rule on the subject. See 78 Fed. Reg. 54437 (Sept. 4, 2013)(proposing 50 C.F.R. 402.14(i)(1)(i) and (i)(3)); see also, http://www.fws.gov/endangered/improving_ESA/ITS.html. Assume that FWS adopts the proposed rule as final, and publishes it in the Federal Register.

The Tribe has retained our firm to challenge this rule. Please focus on the proposed amendment to how the FWS determines the limits for incidental take of endangered or threatened species, and the use of a “surrogate” for take. The Ampian Tribe is not interested in the “programmatic consultation” process in the proposed rule. They believe this rule will hurt hard-to-find Eastern Indigo Snakes and Cape Sable Seaside Sparrows. In the first two pages or less, summarize the rule, and then provide your analysis of (1) whether the Ampian Tribe can establish standing to challenge the “surrogate” rule in court; and assuming it can establish standing, (2) how much deference are the courts likely to give to FWS and its new rule?
----
I am working on this hypo in preparation for my final admin law exam, and would like to receive some help (there's no example answer). I know the question asks for (1) Standing and (2) Deference.

Can someone provide feedback on this hypo? What would be the proper way in a memo to discuss both Standing (Article III and Prudential), and Deference (Chevron/Mead)? Does someone have an example memo that touches upon these 2 issues in depth? Thx.


I will type up my answer to this hypo.

Hopefully we can bounce back and forth feedback and thoughts.

I'll try and get something up tonight.

anomalouslawyer27
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Re: Admin. Law--Best Model Answers?

Postby anomalouslawyer27 » Sat Nov 23, 2013 1:15 am

.
Last edited by anomalouslawyer27 on Mon Nov 25, 2013 12:59 am, edited 1 time in total.

kykiske
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Re: Admin. Law--Best Model Answers?

Postby kykiske » Sat Nov 23, 2013 1:43 am

anomalouslawyer27 wrote:
kykiske wrote:
anomalouslawyer27 wrote:Your Florida-based firm represents the (fictitious) Ampian Tribe of Indians. The tribal reservation includes a series of isolated Keys in the middle of Florida Bay, and a large land tract in the middle of the Everglades connected to I-95 and Ampian Trail by a dirt road. The tribal lands are also habitat to dozens of federally endangered and threatened species. Tribal members share a common cultural belief in the right of species to exist, and the tribe owns and operates an airboat and fishing guide operation that depends on revenues from the eco-tourism community. A few years ago, the Miccosukee Tribe (a real tribe) partially prevailed in litigation (a real case) against the federal government opposing the way it counted and protected birds in the Everglades. The Ampian Tribe says a new rule being proposed by the U.S. Fish & Wildlife Service (FWS) will reverse that outcome. Your senior partner remembers that you took Administrative Law, and sends you the following e-mail:

The Endangered Species Act, Section 9, prohibits the “take” of endangered species, and defines take to include killing, harming, or harassing. In addition, ESA Section 7 requires federal agencies to “consult” with FWS to determine whether a project will jeopardize the continued existence of a species. The consultation process culminates with a “biological opinion” that includes an “incidental take statement” defining how much “take” of a species can be allowed by a federal permitted project. FWS says that sometimes it cannot give an exact number for take, so it intends to use “surrogate” tools to measure incidental take, as stated in a proposed rule on the subject. See 78 Fed. Reg. 54437 (Sept. 4, 2013)(proposing 50 C.F.R. 402.14(i)(1)(i) and (i)(3)); see also, http://www.fws.gov/endangered/improving_ESA/ITS.html. Assume that FWS adopts the proposed rule as final, and publishes it in the Federal Register.

The Tribe has retained our firm to challenge this rule. Please focus on the proposed amendment to how the FWS determines the limits for incidental take of endangered or threatened species, and the use of a “surrogate” for take. The Ampian Tribe is not interested in the “programmatic consultation” process in the proposed rule. They believe this rule will hurt hard-to-find Eastern Indigo Snakes and Cape Sable Seaside Sparrows. In the first two pages or less, summarize the rule, and then provide your analysis of (1) whether the Ampian Tribe can establish standing to challenge the “surrogate” rule in court; and assuming it can establish standing, (2) how much deference are the courts likely to give to FWS and its new rule?
----
I am working on this hypo in preparation for my final admin law exam, and would like to receive some help (there's no example answer). I know the question asks for (1) Standing and (2) Deference.

Can someone provide feedback on this hypo? What would be the proper way in a memo to discuss both Standing (Article III and Prudential), and Deference (Chevron/Mead)? Does someone have an example memo that touches upon these 2 issues in depth? Thx.


I will type up my answer to this hypo.

Hopefully we can bounce back and forth feedback and thoughts.

I'll try and get something up tonight.


K, lmk what your thoughts are. And, is it less complex than I am experiencing?


I'm sorry, I don't think I'll get an answer posted tonight. It's taking longer than I thought. Without a formal outline, I have to keep bouncing between note sections. And my brain is not functioning at top capacity at this hour haha.

But to your comment about this fact pattern's complexity, to be honest, this question is very different from the hypos. my professor has given us. I'm sure the analysis in the end will be very similar, but it has taken me some time to break down the call-of-the-question.

I will post an answer hopefully by morning.

kykiske
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Re: Admin. Law--Best Model Answers?

Postby kykiske » Sat Nov 23, 2013 1:47 pm

Okay, so below is my analysis. As a disclaimer though, I haven't really started to study for Admin. I do not have a formal outline, so I am basing my analysis from my notes and from what I remember in class. So, do not expect that it is anywhere near an A+ answer. Also, feel free to correct me, or edit the response. I'd love to get additional thoughts.

Answer:

i. Summary of the Rule

Federal agencies, under the Endangered Species Act, Section 7, are required to consult with the FWS, and through that process, form a biological opinion that includes an "incidental take statement" which defines how much "take" of a species can be allowed by a federal-permitted project. "Take" under ESA Section 9 includes the "killing, harming or harassing" of endangered species. Simply put, the agency and the FWS must go through a process to determine how endangered species will be affected by the proposed federal project, i.e. whether the project will kill, harm, or harass endangered species, and to what extent.

FWS recognizes the hardship in calculating an exact number for take. So, it intends to use "surrogate" tools to measure incidental take. Simply put, these tools would give a statistical snapshot at take on the endangered species in the proposed project area. For FWS, it likely serves as some sort of efficiency tool.

ii. The Ampian Tribe has standing to challenge the surrogate rule because they fall within the "zone of interests" the ESA was designed to protect.

a. The zone of interest test is likely the best test to show standing.

Here, the Ampian Tribe has standing because it can show how it is a party with an interest that falls within the "zone of interest" that Congress intended to have protection under the ESA. It does so by proving how since endangered animals live on the Tribe’s land, by protecting the Tribe’s land against overly harmful federal projects, it would also include protecting the endangered animal’s habitats on the Tribe’s land. And with that, the ESA would also be protecting the Tribe’s cultural belief, and revenue stream from eco-tourism.

Under ESA Section 7, federal agencies must work with the FWS whenever a proposed federal project arises that may harm endangered species in the area. Congress in enacting the ESA, showed intent to protect those species on federal lands. Here, the Tribe resides on federal Native American land; they have a cultural belief that all animals have a right to exist, and they derive revenue from the eco-tourism community that likely favors protecting the habitats of endangered animals on federal tribal lands. Those interests fall within the “zone of interest” under the ESA, and the Tribe’s interests are more than “marginally related.” Though not explicit, Congress likely impliedly intended that if a federal project were to overly harm endangered species in the area, the project would not go forward. This is shown because the ESA requires the agency to consult with the FWS to form a biological opinion that includes a statement on the harm the project may pose to endangered species. Impliedly, Congress is saying that if a federal project would cause too much killing, harming, and harassing to endangered species, such project will not go forward. Here for the Tribe, if endangered animals were to be harmed, that hurts the Tribe in two ways: (1) it hurts their cultural belief of co-existence, and (2) it will hurt their revenue from the eco-tourism community. It is plausible that in enacting the ESA, Congress took into cultural values of protecting endangered species, which here the Tribe has due its longstanding cultural belief of peaceful co-existence. In addition, ancillary to protecting endangered species is the Tribe’s revenue stream. In protecting those endangered species, the ESA would also be protecting their habitat. Since the animal’s habitats fall under some of the Tribe’s land, impliedly, Congress has demonstrated an intent for that land to remain free from things like industrial harm. The Tribe’s revenue stream comes from eco-tourism; those tourists do not cause harm to the endangered species. Instead, they fish and go airboating. So, due to that, the Tribe’s revenue stream also falls under the zone of interest protection because unlike potential federal projects, the activities giving rise to the Tribe’s revenue do not unduly harm endangered species. And since the Tribe owns some of the land where those endangered species exist, they are free to what they wish, as long as it does not cause harm to the endangered species.

iii. The best path to argue against deference is through: (1) arguing how notice and comment has not been met, and (2) and showing how the FWS acted in a manner that is arbitrary, capricious, and contrary to law.

The facts do not state how the FWS came to develop the surrogate tool. They do not mention whether the tool came as a result of an evidentiary hearing on the record. So the rule likely was not created through formal rulemaking.

But the facts do state how the surrogate tool is a stated “proposed” rule in the federal register, and has not been codified in the CFR. So, this analysis will go forward assuming that the surrogate tool rule was crafted through informal rulemaking, using the notice-and-comment process, and has been published in the Fed. Reg.

a. The Notice-and-Comment Process was not met by the FWS, making the rule invalid.

The facts do not state whether the FWS gave a sufficient notice-and-comment process under APA § 553 before adopting it as final in the Fed. Reg. Under 553(b) the FEW must have given general notice about the rule, which it did when it proposed the rule into 78 Fed. Reg. 54437. But where it failed § 553 is during the comment process. Nowhere in the facts does it state whether the FWS gave interested parties, like Native American Tribes, the chance to submit written data, views, or argument, and with a chance to present orally their view on how the rule may affect their tribal lands. All the facts give is how the FWS adopted the proposed rule, and published it.

Thus, if the FWS violated the notice-and-comment procedure under APA § 553, the rule is invalid. A Court owes zero deference to an invalid rule.

b. The surrogate rule is struck down if it is arbitrary, capricious, and contrary to law.

To show how this rule is arbitrary, capricious, and contrary to law, the Tribe must show how the FWS committed a “clear error in judgment” by acting unreasonably or without “rational means” when enacting the surrogate rule. See Overton v. Volpe.

An unreasonable error could occur because the FWS, by applying the surrogate tool, does not further any congressional intent: to prevent federal projects from harming endangered species. The Tribe would have to show how the surrogate tool inaccurately measures the take on such species, and how that inaccuracy harms endangered species. To do so, the Tribe would have to show how the statistical data given by the tool, the “incidental take” does not reflect the actual damage to the endangered species in the tribal lands. That inaccuracy then leads to projects that would otherwise never be approved, which then causes harm to the very endangered species the ESA was designed to protect. In addition to this argument, the Tribe could cite to earlier case concerning the Miccosuke Tribe. There, like here, the Miccosuke challenged and won in litigation against the federal government because the Government promulgated an erroneous counting method for protecting birds on federal land. That logic applies here. The surrogate tool, like the methods to count birds, erroneously counts and tracks the endangered species, which leads to undue harm to them.

On the flipside, the FWS could respond to the Tribe by citing how it does have rational means to promulgate the surrogate rule. As the facts state, it is hard to track down and count every member of an endangered species. The FWS likely promulgated the surrogate rule as an efficient means to track the number of endangered species in a particular area. It could argue that it is furthering congressional intent. Through this rule, it gets a quicker snapshot as to how much “take” occurs when a federal project is pursued. And even though it is not a perfect snapshot, it gives a quicker snapshot, which prevents a delay in federal projects.

Here, a Court will likely wrestle with the two conflicting views. It could rely on the Miccosuke precedent, and simply hold that an ineffective or inaccurate measuring system is wrong, and strike down the surrogate rule. Or it could hold that since the FWS does have some rational means for its surrogate rule, it will defer to the FWS.

iv. In the alternative, however, by applying Chevron, a Court could rule in favor of the FWS, and give deference to the surrogate rule.

If the FWS met the notice-and-comment process, a Court would owe deference to its surrogate tool when the surrogate tool is used to acquire the take on “hard-to-find” species, like the Indigo Snakes or Cape Sable Sparrows. Simply put, the FWS has the authority pursuant to the ESA to measure the “take” of endangered species. It is reasonable/permissible interpretation for the FWS to apply the surrogate tool to “hard-to-find” species as well.

Whether “hard-to-find” species fall under is ambiguous. Congress did not specifically state whether hard to find species are all endangered as well. Due to that, we must go the second run of Chevron:

But, if Congress has not directly spoken on it, the Reviewing Court still cannot impose its own construction on the statute, but rather with respect to the precise issue, the Court must determine whether the agency’s answer is based on a permissible/reasonable construction of the statute. If the agency interpretation is reasonable/permissible, then the reviewing court must defer to agency's interpretation of the underlying statute.

Here, even if the reviewing court agrees with the Tribe that the surrogate tool cannot apply to “hard-to-find” species, it cannot substitute its construction for the FWS’s. It is permissible for the agency to apply tools derived to handle endangered species to “hard-to-find” species as well because it would be difficult, with the facts given, to give such a narrow distinction. And with such ambiguity, the Court is even less equipped to deal with the issue. A court would likely think it’s best to defer to the FWS on this issue, because it has the expertise to properly handle these issues of wildlife.

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kalvano
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Re: Admin. Law--Best Model Answers?

Postby kalvano » Sat Nov 23, 2013 2:53 pm

You guys need to buy this book now and read it and learn it and know it and love it.


http://www.amazon.com/Inside-Administra ... rative+law

kykiske
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Re: Admin. Law--Best Model Answers?

Postby kykiske » Sat Nov 23, 2013 2:57 pm

kalvano wrote:You guys need to buy this book now and read it and learn it and know it and love it.


http://www.amazon.com/Inside-Administra ... rative+law


Are you recommending this book because you think my analysis is off?

It's perfectly fine if you think it's wrong.

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kalvano
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Re: Admin. Law--Best Model Answers?

Postby kalvano » Sat Nov 23, 2013 3:08 pm

No, I'm recommending that book because it will get you a good grade on your Admin Law exam. I used it and I think other people here did too (based on my recommendation) and I'm pretty sure everyone who has used it has been happy with their grade.

kykiske
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Re: Admin. Law--Best Model Answers?

Postby kykiske » Sat Nov 23, 2013 3:14 pm

kalvano wrote:No, I'm recommending that book because it will get you a good grade on your Admin Law exam. I used it and I think other people here did too (based on my recommendation) and I'm pretty sure everyone who has used it has been happy with their grade.


You wouldn't by chance be willing to look over my answer to this hypo. and evaluate it would you?

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kalvano
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Re: Admin. Law--Best Model Answers?

Postby kalvano » Sat Nov 23, 2013 3:54 pm

It's been a long time since I took Admin Law. Just read the book and use my outline that I posted earlier. I think that will be more helpful, because I don't remember enough of it to offer a very good answer.




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