24-HOUR OPEN-BOOK TAKE-HOME
This is a 24-hour take-home open-book examination, with length limits on the answers. Certain special rules about citation apply if you rely on, or make reference to, materials other than the casebook and class notes. Please remember to use your blind grading number on the exam.
"Open book," defined. This exam is "open world": you may consult any reference source except other human beings. The exam has, however, been designed so that excellent answers can be crafted without reference to any source other than the casebook and class notes. Your instructor believes that reference to external sources is unnecessary, and bordering on unwise (if only as a waste of your limited time). The use of sources other than the casebook and class notes will probably require that you apply the special citation rule below. For obvious reasons, you are expected to refrain from discussing the contents of the exam with anyone from the time you pick up the exam until the end of the examination period. A memo discussing the exam answers will be available from my secretary in early June.
Citation rules. Citations to cases and materials in the book may be in any short form that is understandable, e.g. Overton Park. In citing materials other than cases, clarity is usually achieved by including a page reference as part of the citation.
While you are free to consult other materials, it is neither necessary nor recommended. If you do so, and if you rely on those materials for any material part of your answer, you are required to provide a full citation to the source, just as if you were writing an academic paper (no penalties for improper Blue Book style will be levied). This rule applies whether or not you are quoting from the source. Failure to give proper citations will, if detected, be considered a serious Honor Code violation.
Length Limits. Each question on this exam has a length limit. I will not read beyond the length limit. If you type (please type!), the following safe harbor rule will apply: each typed page with 1" margins on all four sides, which is printed in Courier 10cpi, Times Roman 12pt or Helvetica 12pt, with double-spaced text, will be presumed to have 250 words so long as there are no excessive textual footnotes. NOTE that the word limits are not the same for all questions.
Remember to use your blind grading number.
Some exam tips:
Read the questions carefully and think about your answer before beginning to write. Organization will count in your favor. Unless the question directs otherwise, don't forget to explain why you reject seemingly sensible options as well as why you select them.
Do NOT make up facts. If you would need additional facts to resolve an issue, state what facts you would need (and, if relevant, how you might get them), and how those facts would affect the result of your analysis.
There are three (3) questions on this exam. You must answer all three questions. Questions one and two each count for 40% of your exam grade. Question three counts for 20% of your exam grade.
There is a length limit of 1000 words (4 standard pages) each for questions one and two; there is a length limit of 500 words (2 standard pages) for question three. Given the complexity of the subject matter, this is a very short limit. You will thus need to be concise and well-organized to answer the questions well.
Good luck, and thanks for a superb class.
Please start each answer on a new page. If you do not submit a typed exam, please retain a copy of the handwritten version and submit a typed copy as soon as you can.
The [entirely fictional] Large Mammal Protection Act was enacted into law in 1966. In 1983 Congress repassed it, unchanged, as part of a codification and reorganization of the nation's environmental laws. At that time Congress amended several sections of the Clean Air and Clean Water Acts, but left the Large Mammal Protection Act unchanged except for renumbering the sections. Currently 25 species of mammal are protected under the regulations promulgated pursuant to the Act. The Act reads, in relevant part, as follows:
§1. Congressional findings and declaration of policy
(1) certain species of large mammals are, or may be, in danger of extinction as a result of man's activities;
(2) measures should be taken to replenish, and protect, the population stocks of large mammals that have been diminished below their optimum sustainable population.
§2. Prohibition on taking of large mammals
Except as otherwise provided by regulation, it is unlawful to take any large mammal in lands under the jurisdiction of the United States. For each unlawful taking of a large mammal, a person shall be subject to a civil penalty of up to $10,000, or imprisonment of up to one year, or both.
§3. Definitions
(1) The term "person" includes not only individuals, but also corporations, partnerships, and other commercial entities.
(2) The term "take" means to hunt, capture, or kill, or attempt to hunt, capture, or kill a large mammal.
§4. Regulations
(1) The Secretary of Commerce, on the basis of the best scientific evidence available, shall prescribe such regulations as he or she deems necessary and appropriate to clarify and carry out the provisions of this Act.
(2) Regulations prescribed to carry out this Act must be made after the opportunity for a hearing.
§5. Judicial review
Any person, as defined in section 3, may obtain judicial review of any regulation under the Act that is of nationwide scope and application, by filing a petition for review in the United States Court of Appeals for the District of Columbia within 90 days after the date of issuance of the regulation in question.
The Cute Wolf is a mammal with a natural habitat that includes the states of Washington, Oregon, and several Canadian Provinces. A full-sized male Cute Wolf weighs as much as 100 pounds, and lives off a diet of small animals such as rabbits; packs of Cute Wolves have been known to kill and eat goats, sheep, and the occasional tourist. Commercial ranchers in the Pacific Northwest consider the Cute Wolf to be a "pest". The Cute Wolf reproduces fairly slowly. It is much prized for its soulful dark eyes from which it gets its name.
In 1991, the Secretary of Commerce became aware that the Cute Wolf was falling farther and farther below its optimum sustainable population level. The Secretary directed agency personnel to come up with information that would enable the Secretary to take necessary and appropriate action to preserve and protect the species.
In response, a two-year study was initiated in 1992, which focused on the effects of the shooting of Cute Wolves by commercial sheep, goat, and ostrich ranchers, and the feeding of Cute Wolves by humans during the Cute Wolves' spring breeding season. Such feedings have become a popular tourist attraction.
In 1994, upon completion of the study, the Secretary proposed in the Federal Register to make two amendments to the preexisting regulations. The Secretary proposed amending the definition of "large" and the definition of "take".
The definition of "large" was proposed to be altered as follows. The new language is bold.
16 C.F.R. § 3420 -- Definitions
(f) The term "large" means (i) average weight at maturity of one hundred and twenty pounds or more or (ii) belonging to a species determined by the Secretary to have an average weight at maturity falling in the upper 25% by weight of the taxonomic family to which the species belongs.
Strangely, the Large Mammal Protection Act contains no definition of "large" nor is there a universally accepted biological or zoological definition of "large mammal". However, the Senators and Congresspersons who debated the bill at the time of passage referred to a number of potentially endangered species including the Grizzly Bear, the American Brown Bear, and the American Bison, all of which considerably exceed 120 lbs. average weight at maturity.
The old regulatory definition of "take" simply tracked the statutory definition. The new regulatory definition (with the proposed amendment in bold) would be as follows:
16 C.F.R. § 3420 -- Definitions
(n) The term "take" means to hunt, capture, or kill, or attempt to hunt, capture, or kill any large mammal. This includes offering, giving, or attempting to give food to Cute Wolves in Oregon and Washington.
In support of the proposed rulemaking, the Secretary included the following statements in the Federal Register:
The 120lb rule provided an arbitrary and unnecessarily constricted definition of "large." Large is a relative term, not an absolute. There is no scientifically accepted definition of what constitutes a large mammal; for example different zoos classify the same species as "large" or "small." Many zoologists choose to use terms such as "large cats" or "large carnivores" showing that they define a "large" mammal in relation to other similar species. Defining a "large" mammal as a species that is large in relation to other species in the same family will thus better allow the Department to effectuate the policies animating the Large Mammal Protection Act....
Although much is still unknown about Cute Wolves our study does show that human feeding alters the behavior of these mammals insofar as the Cute Wolves are attracted to the feedings. We conclude from this that feeding Cute Wolves affects their ability to cope and live in the wild. Cute Wolves that learn to approach vehicles may also increase their interactions with man and vehicles. This could result in injury to the Cute Wolves because they could be involved in vehicular accidents.
Written comments on the proposed rule were received from bus tour operators and customers, state wildlife agencies, conservation groups, scientists, the commercial sheep and ostrich farming industries, and the general public. In addition, oral comments were received at public hearings held in Portland, Eugene, and Walla-Walla during 1995.
One commentator favoring the rule stated that, in her experience, Cute Wolves in recent years have indeed approached tour buses in increasing numbers. Several others wrote in to say that they loved the species, and supported any move to protect it.
On the other hand, many commentators opposed the rule.
Several ranching industry commentators noted that Cute Wolves threaten their animals and do not deserve protection. They also noted that a full-grown Cute Wolf rarely exceeds ninety pounds, and that the Large Mammal Protection Act had never before been applied to an animal with a maximum weight under 120 pounds. No one disputed that the Cute Wolf falls within the upper quarter by weight of the taxonomic family, Canidae (i.e. the canines, the family including dogs, wolves jackals and foxes), to which its species belongs.
Dr. Sara Frobisher, a zoologist, submitted a comment noting that taxonomic classification uses the following categories: Kingdom, Phylum, Division, Class, Order, Family, Genus, and Species.
The Kingdoms are animal, vegetable and mineral.
A Phylum is a broad, principal division of the animal Kingdom.
A Phylum is divided into Divisions; the vertebrates are one such division.
A Class is a group of relatively closely related animals having a common basic structure. "Mammals" (Class Mammalia) are a class of warm-blooded, usually hairy, vertebrates who share other common characteristics.
An Order is an intermediate grouping. For example "primates," "carnivores," and "rodents" are each an order in Class Mammalia. Wolves are in Order Carnivora.
A Family is usually a group of closely rated Genera, although some families contain only one Genus. The Canines are all in Family Canidae. There are 11 families in Order Carnivora.
A Genus is a group of closely related species, although some genera [e.g. the genus Homo to which Homo Sapiens belongs] have only one (living) species. All dogs and wolves are Genus Canis, which is just one of the 14 genuses in Family Canidae.
A Species is, ordinarily, a population of organisms that usually interbreed only among themselves. There are seven other species in Genus Canis. There are 4,630 species in Class Mammalia.
Dr. Frobisher stated that she conducted a statistical analysis of the 25 species, in various Orders, previously found to be endangered by the Secretary and found that, with three exceptions she termed "aberrations or errors," every one of the 25 species currently protected by the Large Mammal Protection Act falls within the top two percent by weight of the 4,630 species currently recognized in the Class Mammalia. Dr. Frobisher also submitted evidence showing that the Cute Wolf did not meet this standard.
Another commentator, Niki Newlin, opposed the rule and noted that "feeding Cute Wolves in the wild is the only chance for many people to interact with them in their natural environment rather than in captivity. Feeding promotes an interest in the environment." In addition, Dr. Jonathan Rauch, a biologist, commented on the lack of firm evidence that human feeding has contributed in any way to the decline in the Cute Wolves population levels. Dr. Rauch, citing to the rapid reflexes of Cute Wolves, also disputed that feeding Cute Wolves increases the chances of colliding with cars or other vehicles.
In the final rulemaking, published in the Federal Register on March 20, 1996, the Secretary concluded that the rule should be issued as originally proposed, except for one change. Stating that she was persuaded by commentators that determining size by relative weight within the taxonomic family was unreasonable, the Secretary revised the definition to read as follows:
(f) The term "large" means belonging to a species determined by the Secretary to have an average weight at maturity falling in the upper ten percent of the Class Mammalia.
The Secretary acknowledged that the effect of this change would be to greatly increase the number of species potentially regulated under the Act (although she also noted that, as revised, the increase was less than her original proposal), but she said that she was now convinced that "mammals" were the relevant population that Congress sought to protect, and that the top ten percent of an animal population was a conservative definition of what constituted a "large" animal.
The Secretary also acknowledged that "scientists generally will state that our level of knowledge of Cute Wolves is very low," but found the proposed no-feeding rule necessary and appropriate since, "in the absence of more information, it is wise to adopt a cautious attitude toward management of these mammals." To those commenators who objected that Cute Wolves threatened their livestock, the Secretary responded that the act did not direct her to make a cost/benefit judgment as to the economic consequences of protecting an endangered species, but rather to consider only the viability of the species.
In addition, despite comments urging that the no-feeding rule be broadened in geographic scope and applied to other species, the Secretary determined in the final rulemaking that the new feeding rule would be limited to Cute Wolves, and would apply only to the Pacific Northwest region.
Finally, the Secretary determined in the final rulemaking that, in view of the impending spring breeding season, there was good cause to make new regulatory definition of "take" immediately effective upon publication. In addition, the Secretary issued a finding that the Cute Wolf as a species was in the upper 10% by weight of the Class Mammalia, was endangered, and was therefore protected by the Large Mammal Protection Act.
You are a lawyer in Portland, Oregon. Two days after the rule is issued, you agree to represent a "Dancing with Cute Wolves" tour bus operator who believes her business, which includes guiding tour groups that feed Cute Wolves, would be threatened by the new rules and instructs you to attempt to have the new protected status of the Cute Wolf declared invalid and to overturn the feeding ban. You may assume that this client has standing to bring any court challenge that may be appropriate.
Write a memo to your client evaluating her chances of prevailing in a court challenge to the new rules. Be sure to identify and evaluate the best possible arguments and to give your honest estimate of their chance of success.
IMPORTANT NOTE: in discussing any substantive review that may be relevant for this question, pretend that the Endangered Species Act (ESA) does not exist. (E.g., don't say "the ESA pre-empts this regulation"!) Do not, however, ignore any cases relating to administrative procedure that happen to have been decided regarding the ESA.
Length Limit 1000 words (4 standard typed pages)
The 1996 National Health Care Act ("the Act") provides for a national "safety net" system of medical care.
Under the terms of the Act, any person desirous of medical care may apply to the National Health Department. If the applicant satisfies certain criteria relating to maximum allowable income and the genuineness of their medical problems, the person is entitled to either free medical care from a physician selected by the National Health Department, or to have 50% of their reasonable medical expenses paid as and when billed by the physician of their choice.
According to § 38 of the Act, once accepted into the program,
...a covered person remains eligible for continuing coverage until the covered person is cured by a treating physician UNLESS:
1) the Secretary or his designee determines that the annual income of the covered person exceeds the maximum levels established by regulation, or $30,000 per annum, whichever is less; OR
2) the Secretary or his designee determines that the covered person has materially failed to comply with the recommended course of treatment, is malingering, feigning illness, or otherwise failing to make reasonable efforts to regain health.
Section 45 of the Act provides,
No person applying for, entitled to, or receiving, benefits under this Title [the entire Act] shall be entitled to or receive a hearing prior to the reduction, termination, or refusal of benefits unless the Secretary or his designee in his sole discretion shall determine that the illness for which treatment is sought or provided is acute, grievous, and life-threatening.
Section 46 of the Act states,
Notwithstanding Section 45, the Secretary may, in his sole discretion, provide by regulation for hearings for good cause shown.
Section 1103 of the Act gives the Secretary general rulemaking power, subject to the APA.
Shortly after the Act passed, the Secretary, adhering scrupulously to the informal rulemaking procedure of the APA, promulgated a list of "dangerous diseases" that would be considered to be acute, grievous, and life-threatening. He also issued rules defining the procedure to be used in hearing applications for benefits, or appeals against termination of benefits, when the patient was found to have a disease on the "dangerous diseases" list. To date, no rule issued by the Secretary gives patients or would-be patients any right to a hearing except in the case of "acute, grievous, and life-threatening illness," in which case patients are entitled to a hearing before an ALJ before a decision is made in their case.
Alice contracted Virulent Plague, which is listed by the Secretary as a "dangerous disease." Her application for National Health Care was accepted, and she was treated for three weeks by a physician selected by the National Health Department. After three weeks, during which she made no improvement, the Department abruptly stopped Alice's benefits. The written explanation of her termination states that the Department has concluded that Alice failed to disclose part of her income and that the Department now believes she was never eligible for benefits in the first place.
While travelling in the South Pacific, Bob visited a physician in Pago Pago, who diagnosed a case of Frumious Malady. Bob immediately returned to Miami and applied for National Health Care. Frumious Malady is a very rare disease even in the South Pacific, and it is almost unheard of in the U.S.A. Although the patient looks healthy at first, the disease is always fatal unless treated. Frumious Malady is not on the Secretary's list of "dangerous diseases." The Department denied Bob's application for benefits on the grounds that it had concluded he was not genuinely ill. The denial notice also stated that Bob had no right to a hearing because he was not in fact ill, and even if he had been ill, Frumious Malady is not listed as an acute, grievous, and life-threatening illness. Having spent all his money on his world tour and his one-way ticket back to Miami, Bob is now completely broke. He has no insurance.
Carol contracted Wurzel Gummage, a disease which is not listed on the "dangerous diseases" list. Wurzel Gummage is not usually life-threatening, but is in fact extraordinarily dangerous to people like Carol who have had a severe case of mononucleosis in the past three years. Carol's application for National Health Care was accepted, and she began to respond to treatment. Her benefits were abruptly cancelled, however. The letter she received notifying her of this termination stated that the Department believed Carol had been smoking cigarettes and drinking alcohol. Smoking and drinking are known to greatly increase the danger of a Wurzel Gummage relapse. (Carol swears the charges of smoking and drinking are false.) The Department's letter stated that she was not offered a pretermination hearing because Wurzel Gummage is not life threatening.
As the law stands today, what rights, if any, do Alice, Bob and Carol have regarding their National Health Care Act benefits?
Length Limit 500 words (2 standard typed pages)
If you had the power to do so, which single provision (i.e. sub-section, phrase, or word) of the portions of the APA we have studied this semester would you change, and why? Be sure to specify the exact language you would delete and/or add.