Reply Brief — California Sea Urchin Commission, et al., Petitioners v. Susan Combs, Acting Assistant Secretary for Fish, Wildlife, and Parks, et al.

No. 17-1636

In The

Supreme Court of the United States

____________________

CALIFORNIA SEA URCHIN COMMISSION, et al.,

Petitioners,

v.

SUSAN COMBS, et al.,

____________________

Respondents.

CALIFORNIA SEA URCHIN COMMISSION, et al.,

Petitioners,

v.

SUSAN COMBS, et al.,

____________________

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

____________________

REPLY IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

____________________

JONATHAN WOOD

DAMIEN M. SCHIFF

Counsel of Record

Pacific Legal Foundation

TODD F. GAZIANO

930 G Street

Pacific Legal Foundation

Sacramento, California 95814

3100 Clarendon Blvd., Ste. 610

Arlington, Virginia 22201

ETHAN W. BLEVINS

Telephone: (202) 888-6881

Pacific Legal Foundation

Email: jwood@pacificlegal.org

10940 NE 33rd Pl., Suite 210

Bellevue, Washington 98004

Counsel for Petitioners

i

Table of Contents

Table of Authorities .................................................... ii

Introduction ................................................................ 1

Argument .................................................................... 3

I.

II.

The Ninth Circuit’s Reliance on

Statutory Silence Merits Review ................. 3

A.

The Ninth Circuit expanded Chevron

beyond this Court’s cases ..................... 4

B.

This question has divided the courts

of appeals .............................................. 5

The Ninth Circuit’s Step-Two Analysis

Further Supports Review ............................ 7

III. The Fishermen Have Standing ................. 10

Conclusion ................................................................. 13

ii

Table of Authorities

Cases

Abbott Labs. v. Gardner,

387 U.S. 136 (1967) .......................................... 12-13

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1997) ........... 12

Americans for Clean Energy v. EPA,

864 F.3d 691 (D.C. Cir. 2017) ................................. 6

Anna Jacques Hospital v. Burwell,

797 F.3d 1155 (D.C. Cir. 2015) ............................... 7

Chevron, U.S.A., Inc. v. Natural Res.

Def. Council, 467 U.S. 837 (1984) ....................... 1, 3

Entergy Corp. v. Riverkeeper,

556 U.S. 208 (2009) ................................................. 4

Environmental Protection Agency v.

EME Homer City Generation, L.P.,

572 U.S. 489, 134 S. Ct. 1584 (2014) ...................... 5

Global Tel*Link v. FCC,

866 F.3d 397 (D.C. Cir. 2017) ................................. 7

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ............................................... 12

Marlow v. New Food Guy, Inc.,

861 F.3d 1157 (10th Cir. 2017) ............................ 4-6

Massachusetts v. EPA, 549 U.S. 497 (2007)............. 12

Michigan v. EPA, 135 S. Ct. 2699 (2015) ............... 3, 8

iii

Nat’l Ass’n of Home Builders v.

Defenders of Wildlife,

551 U.S. 644 (2007) ................................................. 9

Pereira v. Sessions, 138 S. Ct. 2105 (2018) ................ 2

Ry. Labor Execs.’ Ass’n v. Nat’l Mediation Bd.,

29 F.3d 655 (D.C. Cir. 1994) ................................... 6

Sackett v. EPA, 566 U.S. 120 (2012) ........................ 13

United States v. Home Concrete & Supply,

566 U.S. 478 (2012) ................................................. 5

Util. Air Reg. Gp. v. EPA,

134 S. Ct. 2427 (2014) .......................................... 5-6

Zuni Public Sch. Dist. No. 89, v. Dep’t of Educ.,

550 U.S. 81 (2007) ................................................... 8

Statute

Pub. L. No. 99-625,

100 Stat. 3500 (1986) .............................. 1-2, 4, 7-10

Other Authorities

132 Cong. Rec. S17321-22 (Oct. 18, 1986) ................. 8

Goldenberg Decl., Cal. Sea Urchin Comm’n v.

Bean, 13-cv-05517, Doc. No. 93-4

(filed Nov. 11, 2016) ......................................... 10-12

Harrington Decl., Cal. Sea Urchin Comm’n v.

Bean, 13-cv-05517, Doc. No. 93-5

(filed Nov. 11, 2016) ......................................... 10-12

iv

Pl.’s Combined Reply and Opposition to

Cross-Motions for Summ. J., Cal Sea Urchin

Comm’n v. Bean, 14-cv-08499, Doc. No. 44

(filed Aug. 5, 2015) ................................................ 11

Stipulated Settlement Agreement,

The Otter Project v. Salazar, 09-cv-4610,

Doc. No. 66 (N.D. Cal. Nov. 22, 2010)................... 12

1

Introduction

This case presents a question that merits review:

whether a statute that “does not speak” to an issue “at

all” triggers deference to an agency’s otherwise

unauthorized assertion of power. Here, the Ninth

Circuit held that it does in a decision that expands

Chevron deference beyond this Court’s cases and

conflicts with those of several other circuits. Pet. 2630; see Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, 467 U.S. 837 (1984). This split concerns a

question of national importance as exemplified by the

17 states and other amici urging review. 1

This case concerns a short and straightforward

statute. In the 1980s, the U.S. Fish and Wildlife

Service wished to establish an otter population in

Southern California but the Marine Mammal

Protection Act forbade it. Pet. 8. After negotiating a

compromise between the agency and relevant

stakeholders, Congress passed a two-and-a-half-page

bill authorizing the Service to relocate otters but

requiring that it also implement unique protections

for the surrounding fishery. Id. at 8-9. Congress

delegated a few discrete details to the agency, like the

number of otters relocated and the means used. But

most of the statute concerns what the Service must do.

Pub. L. No. 99-625, § 1(b), 100 Stat. 3500 (1986) (the

Service “must” issue a regulation that “shall” contain

1 See Br. of the States of Texas, Alabama, Arizona, Arkansas,

Kansas, Louisiana, Michigan, Missouri, Montana, Nebraska,

Oklahoma, South Carolina, Utah, West Virginia, Wisconsin, and

Wyoming, and Paul R. LePage, Governor of Maine; Br. for the

Cato Institute, Goldwater Institute, and Cause of Action

Institute; Br. of the Buckeye Institute for Public Policy Solutions;

Br. of Landmark Legal Foundation.

2

the fishery protections), § 1(c) (incidental take “may

not” be treated as a violation of the Endangered

Species Act), § 1(d) (the Service “shall implement” the

plan). Importantly, this statute contains no general

delegation authorizing the Service to take any action

deemed appropriate.

Despite initial obstacles, the otter population

established under the law has endured for 30 years, is

growing at an impressive rate, and has pushed the

species over its recovery goal. Pet. 12-15.

Nevertheless, the Service has announced that it will

no longer honor the mandatory obligations that

Congress imposed on its creation. Id. The Ninth

Circuit

upheld

the

Service’s

self-serving

interpretation despite concluding that no text in the

statute authorizes the agency to dispense with these

requirements. App. A-17. Instead, the Ninth Circuit

relied exclusively on silence—that Congress did not

explicitly prohibit this precise action—under

Chevron’s step one.

Chevron deference has grown increasingly

controversial among the members of this Court,

scholars, and the public. See Pet. 30-35; Br. of States

of Texas, et al., at 3-19. This case reinforces these

concerns. The “reflexive deference” the Ninth Circuit

applied here elevates agency policy preferences over

the Constitution’s separation of powers. See Pereira v.

Sessions, 138 S. Ct. 2105, 2120-21 (2018) (Kennedy, J.,

concurring); see also Br. of the States of Texas, et al.,

at 5-6. A decision with such serious consequences for

federal administrative law should not stand without

this Court’s careful consideration.

3

Argument

Federal Respondents and Intervenors ask the

Court to overlook the Ninth Circuit’s holding in favor

of alternative arguments that were rejected or not

addressed below. These arguments only highlight that

the decision below is wrong. And they do nothing to

prevent the Ninth Circuit’s holding from doing great

mischief. That holding expands Chevron deference

beyond this Court’s cases, conflicts with the decisions

of several other circuits, and worsens Chevron’s

already significant separation-of-powers concerns. See

Pet. 18-34.

I.

The Ninth Circuit’s Reliance

on Statutory Silence Merits Review

According to Chevron’s two-step framework,

courts begin with a statute’s text. Chevron, 467 U.S.

at 842-43. Only if that text is ambiguous do they

consider whether the agency’s interpretation

reasonably resolves that ambiguity. See Michigan v.

EPA, 135 S. Ct. 2699, 2708 (2015). Even in the best of

circumstances, this framework raises significant

constitutional concerns. Thus, no expansion of it

should occur without this Court’s scrutiny. See Pet.

30-34. The Ninth Circuit’s reliance on statutory

silence at Chevron step one is such an expansion.

The Ninth Circuit rejected Federal Respondents’

argument that the statute’s text authorizes the

Service’s action. App. A-17. For good reason: Federal

Respondents misconstrue the statute’s authorization

to proceed with otter relocation notwithstanding the

4

Marine Mammal Protection Act’s prior prohibition.

See Pet. 8. The use of the word “may” in this one

sentence does not convert all of the “shalls” and

“musts” that follow into permissive suggestions, as

Federal Respondents again urge in opposing review.

Pub. L. No. 99-625, §§ 1(b), 1(c), 1(d).

Instead, the Ninth Circuit’s Chevron step-one

analysis turns entirely on statutory silence. App. A17. According to the Ninth Circuit, if Congress neither

gives an agency power nor explicitly withholds it,

courts should proceed to step two and defer so long as

the agency’s decision reflects a defensible policy.

A. The Ninth Circuit expanded Chevron

beyond this Court’s cases

The Ninth Circuit expanded Chevron beyond this

Court’s cases. See Pet. 21-26. Federal Respondents

cite several cases in which this court in passing

referred to silence in addressing deference. But these

cases only prove that “when th[is] Court has spoken of

[] silences or gaps, it has been considering undefined

terms in a statute or statutory directive to perform a

specific task without giving detailed instructions.”

Marlow v. New Food Guy, Inc., 861 F.3d 1157, 1163

(10th Cir. 2017); see Pet. 21-26.

In Entergy Corp. v. Riverkeeper, the Clean Water

Act directed EPA to set standards based on the “best

technology available.” 556 U.S. 208, 212-15 (2009).

Because this phrase is undefined, the Court deferred

to the agency’s determination that it could consider

costs of different technologies. Id. at 218-23.

5

In Environmental Protection Agency v. EME

Homer City Generation, L.P., the Clean Air Act

charged EPA with regulating interstate emissions,

without resolving how to allocate reductions where

multiple states contribute to a downwind problem.

572 U.S. 489, 134 S. Ct. 1584, 1594-95 (2014). Thus,

the Court deferred on whether the agency could

consider relative costs among states. Id. at 1603-04.

Federal Respondents also cite Home Concrete &

Supply, LLC, and Utility Air Regulatory Group, in

which this Court denied deference despite the

statute’s lack of an explicit prohibition against the

challenged action. United States v. Home Concrete &

Supply, 566 U.S. 478, 489-90 (2012); Util. Air Reg. Gp.

v. EPA, 134 S. Ct. 2427, 2445 (2014).

Departing from these cases, the Ninth Circuit did

not rely on any undefined term or ambiguous

statutory directive; it relied “instead on the absence of

any statutory directive to the contrary.” Marlow, 861

F.3d at 1164; see Pet. 22-24. This is a significant

expansion of Chevron. If it is a correct interpretation,

Chevron should be reconsidered. See Pet. 25-26; Br. of

the States of Texas, et al., 3-19.

B. This question has divided the

courts of appeals

The Ninth Circuit conflicts with every other

circuit to consider the question. Pet. 26-30; Br. of the

States of Texas, et al., 19-20. A conflict on such an

important and controversial issue merits attention.

Federal Respondents deny the existence of this

conflict, although their reasoning is less than pellucid.

6

They appear to argue that, because Chevron considers

statutory context, there can be no broadly applicable

rule concerning the role of statutory silence. Thus,

courts can only be in conflict on narrow, statutespecific questions.

This argument can easily be rejected. This Court

has long recognized broadly applicable rules in

deference cases. Chevron itself is such a rule. So is the

“major questions” doctrine. See Util. Air Reg. Gp., 134

S. Ct. at 2444 (absent clear guidance from Congress,

courts should not defer to agencies on questions of

vast economic and political significance). If a court of

appeals issued a holding contrary to either rule, it

would present a clear conflict.

The same analysis applies here. The Ninth Circuit

held that statutory silence satisfies Chevron step one.

Every other circuit to consider the question has

adopted the opposite rule. See, e.g., Marlow, 861 F.3d

at 1164 (“[S]ilence . . . is no ‘gap’ for an agency to fill.”);

Ry. Labor Execs.’ Ass’n v. Nat’l Mediation Bd., 29 F.3d

655, 671 (D.C. Cir. 1994) (denying “that Chevron step

two is implicated any time a statute does not expressly

negate the existence of a claimed administrative

power”).

Federal Defendants cite several D.C. Circuit cases

to suggest the conflict is illusory. But these citations

only prove that the D.C. Circuit, like this Court, defers

only on “undefined terms in a statute or a statutory

directive to perform a specific task without giving

detailed instructions.” Marlow, 861 F.3d at 1163; see,

e.g., Americans for Clean Energy v. EPA, 864 F.3d 691,

733 (D.C. Cir. 2017) (deferring to an agency’s

interpretation of a provision authorizing it to waive

7

renewable fuel requirements); Anna Jacques Hospital

v. Burwell, 797 F.3d 1155, 1164 (D.C. Cir. 2015)

(deferring to an agency’s interpretation of an

authorization to adjust geographic boundaries for

hospital regulation).

Finally, Federal Respondents seek to distinguish

this case from those where an agency claims atextual

regulatory power. This attempt to narrow the Ninth

Circuit’s statutory silence theory is both inconsistent

with the Ninth Circuit’s approach and fails to

distinguish this case. Here, for instance, the Service

claims authority to regulate incidental take of otters

straying from San Nicolas Island without text

authorizing it to do so. See Pub. L. No. 99-625, § 1(c)

(the Service “may not” regulate this activity).

II.

The Ninth Circuit’s Step-Two

Analysis Further Supports Review

Federal Respondents assert that review is

unnecessary because the Service’s decision is

reasonable. For this argument, they conflate

Chevron’s two steps and further muddy the doctrine.

In fact, their argument only proves that the

statutory silence theory eliminates step two as “a

meaningful limitation on the ability of administrative

agencies to exploit statutory ambiguities, assert

farfetched interpretations, and usurp undelegated

policymaking discretion[,]” Global Tel*Link v. FCC,

866 F.3d 397, 418 (D.C. Cir. 2017) (Silberman, J.,

concurring).

8

Instead, the theory “license[s] interpretive

gerrymanders under which an agency keeps parts of

statutory context it likes while throwing away parts it

does not.” Michigan, 135 S. Ct. at 2708. This raises

nondelegation doctrine concerns by requiring

deference where Congress did not expressly delegate

a power much less identify the intelligible principle

governing its exercise. Pet. 36. Finally, it “create[s]

the impression that agency policy concerns, rather

than the traditional tools of statutory constructions,

are shaping the judicial interpretation of statutes.”

Zuni Public Sch. Dist. No. 89, v. Dep’t of Educ., 550

U.S. 81, 107 (2007) (Kennedy, J., concurring).

For instance, Federal Respondents imagine a

hypothetical wherein the Service had never

reintroduced sea otters into Southern California. Not

only does the hypothetical bear no relation to reality

but also it is too farfetched to affect the statute’s

interpretation. Pet. 12-13. The Service developed the

idea to relocate otters, asked Congress to approve it,

and participated in Congress’ negotiation of the

compromise bill. Pet. 8-9; 132 Cong. Rec. S17321-22

(Oct. 18, 1986). In these circumstances, the use of the

discretionary term “may” in the sentence setting aside

the Marine Mammal Protection Act’s prior prohibition

against moving otters does not justify ignoring that

every operative provision thereafter says “shall,”

“must,” or “may not.” Pub. L. No. 99-625, § 1(b), § 1(c),

§ 1(d).

Hoping to anchor the Ninth Circuit decision in

some text, Federal Respondents also note the phrase

“experimental population” to describe the San Nicolas

Island population. However, the definition contains no

9

text undermining the mandatory nature of the fishery

protections. See Pub. L. No. 99-625, § 1(a)(3). Nor has

the Service ended the “experimental population”; the

healthy San Nicolas Island population remains.

Instead, the Service has twisted this unrelated use of

“experimental” to justify ending the protections that

Congress required to establish this population.

Federal Respondents also cite the statute’s

references to the Endangered Species Act, ignoring

that one of those references makes that statute

inapplicable to implementation of Public Law No. 99625’s fishery protections. Pub. L. No. 99-625, § 1(f).

Even absent that exemption, the statute’s mandatory

language would preclude the Endangered Species

Act’s application. Nat’l Ass’n of Home Builders v.

Defenders of Wildlife, 551 U.S. 644, 666-67 (2007).

Besides, there is no such conflict since the San Nicolas

Island population is healthy and the statute limits

removal of otters to the use of “feasible, nonlethal

means.”

Federal Respondents also observe that otters from

the mainland wandered into the protected fishery a

decade after the new population was established

without identifying any relevance the statute assigns

to this fact. Notably, the Service has not proposed

trimming the management zone but has eliminated

protections for the entire fishery. In fact, Public Law

99-625 anticipates this development and gives it the

opposite effect as the Service claims. The statute

declares that all sea otters found in the protected

fishery would be treated alike regardless of where

they wandered from. Pub. L. No. 99-625, § 1(b).

10

Finally, Federal Respondents appeal to a selfserving view of the statute’s purpose, claiming that

Congress would want the fishery protections

discontinued if it would benefit the otter. The

legislation, however, balances multiple goals: otter

recovery and fishery protection. See Pub. L. No. 99625, § 1(b). That balance has been achieved by a

healthy and growing otter population coexisting with

a healthy fishery. Pet. 12-13. The Service’s decision

upends that balance.

In each of these step-two arguments, the statutory

silence theory is used to elevate the agency’s policy

preferences over the text of the statute enacted by

Congress, thereby upsetting the Constitution’s

separation of powers.

III.

The Fishermen Have Standing

Attempting to cloud the issues, Federal

Respondents also imagine a variety of vehicle

problems related to the Fishermen’s standing. These

arguments were correctly rejected by the district court

and the Ninth Circuit. They need not trouble this

Court.

The Fishermen easily satisfy standing. The

Service’s decision injures them by eliminating any

check on otter expansion into the fishery, which will

deplete shellfish populations they depend on for their

livelihoods. App. A-15; see Goldenberg Decl., Cal. Sea

Urchin Comm’n v. Bean, 13-cv-05517, Doc. No. 93-4

(filed Nov. 11, 2016); Harrington Decl., Cal. Sea

Urchin Comm’n v. Bean, 13-cv-05517, Doc. No. 93-5

11

(filed Nov. 11, 2016); AR4365; AR5228; AR5245. 2 The

Service’s action also undermines the Fishermen’s

work to recover Southern California’s abalone fishery

because otters preclude abalone populations reaching

levels needed for sustainable fishing. Harrington

Decl. ¶¶ 8-11.

The Service’s action forces the Fishermen to

choose between leaving an area upon encountering

otters or risk significant civil and criminal penalties

for any inadvertent harm or disturbance. Id. ¶ 24;

Goldenberg Decl. ¶ 9. Incidental take is, by its nature,

unintended. Therefore, no reasonable precautions

exist other than to abandon productive fishing

grounds in search of other areas.

As the San Nicolas Island population continues its

healthy growth, these injuries will increase. The relief

the Fishermen seek will “remove” a “substantial legal

roadblock” to the protection of their interests, thus

redressability is satisfied. App. A-14-15. 3

2 The Fishermen do not rely on mere allegations but unrebutted

evidence corroborated by the administrative record.

The Fishermen have not conceded a standing problem as

Federal Respondents suggest. When Intervenors asserted that

the Fishermen would require the lethal removal of otters from

the fishery, the Fishermen responded that “[o]n its face, the

statute only requires the Service to catch and remove otters if

there are feasible, non-lethal means of doing so.” Pl.’s Combined

Reply and Opposition to Cross-Motions for Summ. J., Cal Sea

Urchin Comm’n v. Bean, 14-cv-08499, Doc. No. 44 (filed Aug. 5,

2015). This faithfulness to the statute’s text does not deny the

Fishermen standing to enforce that text.

3

Similarly misleading is Federal Respondents’ reference to a

consent decree joined by some of the Fishermen. That decree

12

Federal Respondents attack standing because

complete relief depends on the Service’s future

judgment whether “feasible, nonlethal means” exist to

relocate wandering otters. The Ninth Circuit correctly

rejected this argument. App. A-14-15. The D.C.

Circuit has denounced the argument as “a

breathtaking attack on the legitimacy of virtually all

judicial review of agency action” because such cases

routinely involve remands to agencies. Akins v. FEC,

101 F.3d 731, 738 (D.C. Cir. 1997). This Court too has

rejected “the erroneous assumption that a small

incremental step, because it is incremental, can never

be attacked in a federal judicial forum” which “would

doom most challenges to regulatory action.” See

Massachusetts v. EPA, 549 U.S. 497, 524 (2007).

Although further inquiry is unnecessary, the

Fishermen also have standing as the “objects” of the

challenged action. Pet. 16 n.8; see Lujan v. Defenders

of Wildlife, 504 U.S. 555, 561-62 (1992). The Service’s

decision is “directed at them in particular; it requires

them to make significant changes in their everyday

business practices; [and] if they fail to observe [the

regulation] they are quite clearly exposed to the

imposition of strong sanctions.” Abbott Labs. v.

Gardner, 387 U.S. 136, 154 (1967); see Goldenberg

Decl. ¶ 9; Harrington Decl. ¶ 24. The Ninth Circuit

asserted an additional requirement for those

challenging agency action: proof of a history of

enforcement or an individualized threat of

enforcement (despite the likelihood that, as here, the

expressly preserved this challenge. See Stipulated Settlement

Agreement, The Otter Project v. Salazar, 09-cv-4610, Doc. No. 66,

¶¶ 8, 10 (N.D. Cal. Nov. 22, 2010).

13

rule may have only just issued). That requirement

finds no support in this Court’s cases. See Abbott

Labs., 387 U.S. at 151-52; see also Sackett v. EPA, 566

U.S. 120, 125-26 (2012). This troubling dicta

compounds the need for this Court’s review.

Conclusion

The petition for certiorari should be granted and

the Ninth Circuit’s decision reversed.

DATED: September, 2018.

JONATHAN WOOD

DAMIEN M. SCHIFF

Counsel of Record

Pacific Legal Foundation

930 G Street

TODD F. GAZIANO

Pacific Legal Foundation

Sacramento, California 95814

3100 Clarendon Blvd., Ste. 610

Arlington, Virginia 22201

ETHAN W. BLEVINS

Telephone: (202) 888-6881

Pacific Legal Foundation

Email: jwood@pacificlegal.org

10940 NE 33rd Pl., Suite 210

Bellevue, Washington 98004

Counsel for Petitioners