Amicus Curiae Brief — Weyerhaeuser Company, Petitioner v. United States Fish and Wildlife Service, et al.

Supreme Court briefApr 30, 2018

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No. 17-71

IN THE

___________

WEYERHAEUSER CO.,

Petitioner,

UNITED STATES FISH AND WILDLIFE SERVICE, ET. AL.,

Respondents.

___________

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

__________

BRIEF FOR THE CATO INSTITUTE AND

NEW ENGLAND LEGAL FOUNDATION

AS AMICI CURIAE SUPPORTING PETITIONER

__________

Martin J. Newhouse

John Pagliaro

NEW ENGLAND LEGAL

FOUNDATION

150 Lincoln Street

Boston, MA 02110

(617) 695-3660

April 30, 2018

Ilya Shapiro

Counsel of Record

Trevor Burrus

Meggan DeWitt

CATO INSTITUTE

1000 Mass. Ave. N.W.

Washington, D.C. 20001

(202) 842-0200

ishapiro@cato.org

tburrus@cato.org

mdewitt@cato.org

QUESTIONS PRESENTED

The petition presents two questions for review:

1. Can 1,500 acres of private land that isn’t used or

occupied by a species really be considered “critical

habitat” that is “essential to the conservation” of

that species under the Endangered Species Act?

2. If so, what part of the Constitution authorizes that

sort of thing?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF THE AMICI CURIAE ....................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT.......................................................... 2

ARGUMENT ............................................................... 4

I. THE COURTS BELOW SHOULD NOT HAVE

DEFERRED TO THE GOVERNMENT’S

INTERPRETATION OF THE ESA ...................... 4

A. The FWS Interpretation of “Essential” Is

Unreasonable ................................................... 5

B. When a Statutory Construction Has Major

Political and Economic Consequences, the

Court Requires a Clear Statement from

Congress before It Will Apply Chevron ........... 9

II. THE CONSTITUTION PERMITS NEITHER

CONGRESS NOR AN EXECUTIVE AGENCY

TO REGULATE EITHER “MR. FILBURN’S

IMPOSSIBLE FARM” OR UNIT 1 ..................... 14

A. Unit 1 Isn’t Habitat for the Frog, So It’s

Noncommercial under the ESA ..................... 14

B. The Regulation of Unit 1 Is Neither

Necessary Nor Proper .................................... 17

1. The Regulation Is Not Necessary............. 18

2. The Regulation Is Not Proper ................. 20

CONCLUSION ......................................................... 22

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Bond v. United States, 134 S. Ct. 2077 (2014) .......... 20

Chevron, U.S.A., Inc. v. NRDC, Inc.,

467 U.S. 837 (1984) .............................................. 6, 8

City of Arlington v. FCC, 569 U.S. 290 (2013) ......... 4-5

Clinton v. City of New York, 524 U.S. 417 (1998)....... 4

Dep’t of Transp. v. Ass’n. of Am. R.R.,

135 S. Ct. 1225 (2015) .............................................. 4

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ................................................ 10

Gonzalez v. Oregon, 546 U.S. 243 (2006) .................. 10

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016) ................................ 5

King v. Burwell, 135 S. Ct. 2480 (2015) ................ 6, 11

Markle Interests, L.L.C. v. U.S. Fish & Wildlife

Serv., 827 F.3d 452 (2016) ............................. passim

Markle Interests, LLC v. U.S. Fish & Wildlife Serv.,

848 F. 3d 635 (5th Cir. 2017) (en banc) ......... passim

McCulloch v. Maryland,

17 U.S. 316 (1819) ...................................... 18, 19, 20

MCI Telecomm. Corp. v. AT&T Co.,

512 U.S. 218 (1994) ................................................ 10

Michigan v. EPA, 135 S. Ct. 2699 (2015) ................ 5, 8

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ........................................ passim

Octane Fitness, LLC v. ICON Health & Fitness, Inc.,

134 S. Ct. 1749 (2014) .............................................. 6

Printz v. United States, 521 U.S. 898 (1997) ............ 18

Raich v. Gonzales, 545 U.S. 1 (2005) ........................ 20

Sandifer v. U.S. Steel Corp.,

134 S. Ct. 870 (2014) ................................................ 6

Solid Waste Agency of N. Cook Cty. v. U.S. Army

Corps of Engineers, 531 U.S. 159 (2001) ......... 13, 16

United States v. Comstock,

560 U.S. 126 (2010) ...................................... 3, 19, 20

United States v. Lopez, 514 U.S. 549 (1995) ....... 16, 21

United States v. Morrison, 529 U.S. 598 (2000) ....... 15

Utility Air Reg. Group v. EPA,

134 S. Ct. 2427 (2014) ............................................ 10

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ................................................ 13

Wickard v. Filburn, 317 U.S. 111 (1942) ........ 3, 14, 16

Constitutional Provisions

U.S. Const. art. I, § 8 ........................................... 15, 17

Statutes

16 U.S.C. § 1532(5)(A)(i) .............................................. 7

16 U.S.C. § 1532(5)(A)(ii) ............................................. 7

16 U.S.C. § 1533(b)(2) ................................................ 11

Regulations

77 Fed. Reg. 35118 (June 12, 2012) .......................... 11

81 Fed. Reg. 7414 (Feb. 11, 2016) ............................. 13

Other Authorities

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) ................. 6

Gary Lawson & Patricia Granger, The “Proper

Scope” of Federal Power: A Jurisdictional

Interpretation of the Sweeping Clause,

43 Duke L. J. 267 (1993) ........................................ 20

Indus. Econ., Inc., Economic Analysis of Critical

Habitat Designation for the Dusky Gopher Frog,

http://bit.ly/2hPhQrF ............................................. 11

John Marshall, A Friend to the Union No. 2, in

John Marshall’s Defense of McCulloch, v.

Maryland (Gerald Gunther ed., 1969) ............. 18-19

Pet. for Writ of Cert., Markle Interests v. U.S. Fish

and Wildlife Service (2017) (No. 17-74) ......... passim

Stephen Breyer, Judicial Review of Questions of

Law and Policy, 38 Admin. L. Rev. 363 (1986) ....... 9

The Federalist No. 33 (Hamilton) ............................. 18

The Federalist No. 47 (Madison) ................................. 4

The Federalist No. 51 (Madison) ............................. 2, 4

William N. Eskridge Jr., Interpreting Law:

A Primer on How to Read Statutes and the

Constitution (2016).................................................. 9

INTEREST OF THE AMICI CURIAE1

The Cato Institute is a nonpartisan public-policy

research foundation established in 1977 and dedicated

to advancing the principles of individual liberty, free

markets, and limited government. Cato’s Robert A.

Levy Center for Constitutional Studies helps restore

the principles of limited constitutional government

that are the foundation of liberty. Toward those ends,

conducts conferences, files briefs, and publishes books,

studies, and the annual Cato Supreme Court Review.

The New England Legal Foundation (NELF) is a

nonprofit, nonpartisan, public-interest law firm incorporated in Massachusetts in 1977 and headquartered

in Boston. Its membership consists of corporations,

law firms, individuals, and others who believe in

NELF’s mission of promoting balanced economic

growth in New England and the nation, protecting the

free-enterprise system, and defending individual economic rights and the rights of private property.

This case concerns amici because it implicates the

ability of government to burden private citizens’ property rights through actions that violate the Constitution. If the decision below stands, “vast portions of the

United States could be designated as ‘critical habitat’

because it is theoretically possible, even if not probable, that land could be modified to sustain the introduction or reintroduction of an endangered species.”

Markle Interests, L.L.C. v. U.S. Fish & Wildlife Serv.,

827 F.3d 452, 481 (2016) (Owen, J., dissenting).

1 Rule 37 statement: All parties filed blanket consents. No party’s

counsel authored this brief in any part and nobody but amici

funded its preparation or submission.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Framers created a system of government that

would protect the people by limiting the power of government through structural design. As Madison put it:

“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to

each subdivided among distinct and separate departments. Hence a double security arises to the rights of

the people.” The Federalist No. 51 (Madison).

The U.S. Fish and Wildlife Service (FWS) disregarded both of these liberty-protecting structural safeguards when it designated petitioner’s property (Unit

1) as “critical habitat” of the “dusky gopher frog.”

While Congress delegated the FWS power to designate

critical habitat in the Endangered Species Act (ESA),

that power is not unlimited. The ESA defines the criteria by which the FWS may designate property as

critical habitat of a listed species. This includes property that is both occupied and unoccupied, but the

ESA’s plain meaning still requires the property to be

the species’ habitat. Unit 1 is by no means the frog’s

habitat and thus cannot be its “critical habitat.”

The FWS’s interpretation of habit that is “essential

to the conservation” of a species is unmoored from all

bounds of reason. The agency has rewritten the ESA

to enlarge its power to reach property Congress never

gave it power to reach. This aggrandizement of the

FWS’s power—and the precedent it sets for land regulation—will have major economic and political consequences. The Constitution does not let executive agencies amend statutes in this way.

Further, if the FWS’s expansive definition of “critical habitat” is deemed a valid exercise of administrative discretion, then that expansive statutory reading

goes beyond the strictures of the Commerce and Necessary and Proper Clauses. Allowing federal agencies

to take jurisdiction over essentially any piece of land

pursuant to the ESA would be an improper expansion

of federal power into unrestrained land-use regulation,

a traditional state activity. The Commerce Clause currently supports the comprehensive ESA scheme—and

critical-habitat designation can be reasonably connected to that scheme as a necessary and proper

means of effectuating it. But how far can that go? Can

we link one power to another in an endless “house that

Jack built” until there’s federal regulation of land that

is not critical habitat? United States v. Comstock, 560

U.S. 126, 150 (2010) (Kennedy, J., concurring). No: the

regulation here is neither necessary nor proper. It’s

not necessary because Unit 1 doesn’t play any role in

the frog’s conservation, and it’s not proper because it

infringes on state land-use regulation.

The mere existence of land does not constitute “economic activity” under the Commerce Clause. Otherwise, Congress would have jurisdiction over all land in

the country qua land, regulating the states in the same

way it regulates federal enclaves. Instead, it’s the activities that take place on the land, such as Roscoe Filburn’s farming, that determine whether Congress can

regulate. Wickard v. Filburn, 317 U.S. 111 (1942). The

proper analogy here would be to the question whether

Congress could regulate land that Mr. Filburn wasn’t

farming and couldn’t farm—a non-habitat for wheat, if

you will—pursuant to a comprehensive scheme of ag-

ricultural regulation. Such a regulation of “Mr. Filburn’s Impossible Farm” would be both unnecessary

and improper, just as the regulation of Unit 1 is here.

In sum, the courts below sanctioned a rewriting of

the ESA when it granted Chevron deference to the

FWS. This Court should reaffirm that the federal government cannot disregard the Constitution’s structural limits and accordingly reverse the ruling below.

ARGUMENT

I. THE COURTS BELOW SHOULD NOT HAVE

DEFERRED TO THE GOVERNMENT’S INTERPRETATION OF THE ESA

The “accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly

be pronounced the very definition of tyranny.” The

Federalist, No. 47 (Madison). To protect against this

accumulation of power, the Constitution vests distinct

powers in three separate branches, see Dep’t of Transp.

v. Ass’n. of Am. R.R., 135 S. Ct. 1225, 1240 (2015)

(Thomas, J., concurring in the judgment), and each

branch has “the necessary constitutional means and

personal motives to resist encroachments of the others.” The Federalist, No. 51 (Madison). This Court has

repeatedly confirmed these basic maxims. See, e.g.,

Clinton v. City of New York, 524 U.S. 417, 450 (1998)

(Kennedy, J., concurring) (“Liberty is always at stake

when one or more of the branches seek to transgress

the separation of powers.”).

Yet administrative agencies like the FWS regularly

evade many of these constitutional checks and wield

vast power “over our economic, social, and political activities.” City of Arlington v. FCC, 569 U.S. 290, 313

(2013) (Roberts, C.J., dissenting) (citations omitted).

Many observers, including members of this Court, believe that Chevron deference plays a major part in this

breakdown in constitutional design. See e.g., Michigan

v. EPA, 135 S. Ct. 2699, 2712 (2015) (Thomas, J., concurring) (“Interpreting federal statutes—including

ambiguous ones administered by an agency—calls for

. . . exercise of independent judgment. Chevron deference precludes judges from exercising that judgment,

forcing them to abandon what they believe is the best

reading of an ambiguous statute in favor of an agency’s

construction.”) (internal quotation marks and citation

omitted); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142,

1149 (10th Cir. 2016) (Gorsuch, J., concurring) (noting

that judicial deference doctrines “permit executive bureaucracies to swallow huge amounts of core judicial

and legislative power and concentrate federal power in

a way that seems more than a little difficult to square

with the Constitution of the framers’ design”).

Neither petitioners nor amici ask the Court to overturn Chevron here. By ignoring key parts of the ESA

in regulating Unit 1 as the gopher frog’s “essential”

critical habitat, however, the FWS stretched an already overextended Chevron deference past its limits.

The lower courts then abdicated their responsibility to

enforce the limits of deference, demonstrating how deference to agencies frustrates the separation of powers.

A. The FWS Interpretation of “Essential” Is

Unreasonable

While the Court has allowed Congress wide latitude in delegating its authority to executive agencies,

it is also axiomatic that, for Chevron deference to apply, a court must first review an agency’s construction

of the statute to determine whether Congress has directly spoken to the precise question at issue. Because,

“[i]f the intent of Congress is clear, that is the end of

the matter; for the court, as well as the agency, must

give effect to the unambiguously expressed intent of

Congress.” Chevron, U.S.A., Inc. v. NRDC, Inc., 467

U.S. 837, 842-843 (1984). Otherwise, administrative

agencies would be unconstitutionally making law.

The reviewing court must use “traditional tools of

statutory construction,” Chevron, 467 U.S. at 843 n.9,

to determine whether a statute is ambiguous. This

Court has repeatedly held that “in all statutory construction, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Octane Fitness, LLC v. ICON Health &

Fitness, Inc., 134 S. Ct. 1749, 1756 (2014) (cleaned up);

see also Sandifer v. U.S. Steel Corp., 134 S. Ct. 870,

876 (2014) (noting that applying the plain-meaning

rule is a “fundamental canon of statutory construction”). Moreover, the ordinary meaning of a statute is

found not only through its words, but also through the

context in which those words are used within the statutory framework. See King v. Burwell, 135 S. Ct. 2480,

2489 (2015) (“[O]ftentimes the meaning . . . of certain

words or phrases may only become evident when

placed in context . . . [so] we must read the words in

their context and with a view to their place in the overall statutory scheme.”) (internal quotation marks and

citations omitted); Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 167

(2012) (“The text must be construed as a whole.”).

Both the district court and panel majority below ignored the context in which the ESA defines “critical

habitat.” The ESA defines critical habitat in two ways:

(i) the specific areas within the geographical

area occupied by the species, at the time it is

listed in accordance with the provisions of section 1533 of this title, on which are found those

physical or biological features (I) essential to the

conservation of the species and (II) which may

require special management considerations or

protection; and

(ii) specific areas outside the geographical area

occupied by the species at the time it is listed in

accordance with the provisions of section 1533

of this title, upon a determination by the Secretary that such areas are essential for the conservation of the species.

16 U.S.C. § 1532(5)(A)(i)–(ii) (emphasis added). While

both definitions are distinct in that both identify different subsets of land—occupied and unoccupied—

they have something very important in common: both

require the designated property to be habitat of the

species. It is then, and only then, that habitat can become critical. See Pet. for Writ of Cert., Markle Interests v. U.St. Fish & Wildlife Serv. at 18-24 (2017) (No.

17-74); Markle Interests, L.L.C. v. U.S. Fish & Wildlife

Serv., 848 F. 3d 635, 639-652 (5th Cir. 2017) (en banc)

(Jones, J., dissental). By reading out of the statute this

“habitability requirement”—one of the key limiting

features of the ESA—the courts below have turned

this provision into little more than a blank slate for the

FWS to fill in its jurisdiction.

If the panel majority and district court below would

have adhered to these foundational principles of statutory construction, this case could have been easily

disposed of by simply interpreting the text, context,

and structure of the ESA. But both courts below focused on a narrow provision of the ESA to find ambiguity—and, in the process, sanctioned a definition of

“essential” that went beyond any bounds of reason.

Chevron mandates that courts accept an agency’s

reasonable construction of an ambiguity in a statute

that the agency is responsible for administering. 467

U.S. at 842–43 . But “[e]ven under this deferential

standard . . . agencies must operate within the bounds

of reasonable interpretation.” Michigan, 135 S. Ct. at

2707 (internal quotation marks and citation omitted).

The government argues—and both courts below accepted—that the term “essential” in the ESA gives it

authority to regulate private land that is neither occupied by the frog nor contains all the essential features

necessary for the species to occupy the land. See Pet.

Writ of Certiorari, Markle Interests v. U.S. Fish &

Wildlife Serv. at 23 (2017) (No. 17-74). But how can

something with no connection to a species’ conservation be “essential”? As the en banc and panel dissents

point out, this is simply an implausible reading of the

statutory text—and any definition of the word “essential.” See Markle, 848 F. 3d, at 646–52 (Jones, J., dissental); see also, Markle 827 F. 3d at 484 (Owen, J.,

dissenting) (noting that the FWS’s interpretation of

“essential” “goes beyond the boundaries of what ‘essential’ can reasonable be interpreted to mean.”).

If the FWS is free to define private land as “essential” for species conservation when that land is “not occupied by the endangered species and has not been for

more than fifty years; is not near areas inhabited by

the species; cannot sustain the species without substantial alterations and future annual maintenance . .

. and does not play any supporting role in the existence

of current habitat for the species,” there is no meaningful limit on FWS jurisdiction under the ESA. See

Markle, 827 F.3d at 481 (Owen, J., dissenting).

B. When a Statutory Construction Has Major

Political and Economic Consequences, the

Court Requires a Clear Statement from

Congress before It Will Apply Chevron

This case could and should have been resolved by

simply applying the text of the ESA to strike down the

FWS regulation of Unit 1. Chevron deference should

have never applied because the statute’s plain meaning is clear, and the FWS interpretation of “essential”

is unreasonable. But there is another fundamental

reason this Court should overrule the lower court’s application of Chevron: if the ESA allows the FWS to define private land that has—at best—hypothetical de

minimis connection to the species as “essential,” Congress would have made that clear.

When determining whether to apply Chevron deference to agency interpretations of statutes, this Court

has withheld deference where the agency is regulating

beyond mere “interstitial matters” without clear congressional approval. In these situations, non-delegation is presumed because Congress is “more likely to

have focused upon, and answered, major questions.”

Stephen Breyer, Judicial Review of Questions of Law

and Policy, 38 Admin. L. Rev. 363, 370 (1986); see also,

William N. Eskridge Jr., Interpreting Law: A Primer

on How to Read Statutes and the Constitution 288

(2016) (“[The] Supreme Court has carved out a potentially important exception to delegation, the major

questions cannon. Even if Congress has delegated an

agency general rulemaking or adjudicatory power,

judges presume that Congress does not delegate its authority to settle or amend major social and economic

policy decisions.”).

Several of this Court’s precedents have confirmed

this “major questions” doctrine over the past 25 years:



MCI Telecomm. Corp. v. AT&T Co., 512 U.S.

218, 231 (1994) (withholding deference where it

was “highly unlikely that Congress would leave

the determination of whether an industry will

be entirely, or even substantially, rate-regulated to agency discretion.”).



FDA v. Brown & Williamson Tobacco Corp., 529

U.S. 120, 160 (2000) (withholding deference

where the Court was “confident that Congress

could not have intended to delegate a decision of

such economic and political significance to an

agency in so cryptic a fashion”).



Gonzalez v. Oregon, 546 U.S. 243, 267 (2006)

(withholding deference because “[t]he idea that

Congress gave the Attorney General such broad

and unusual authority through an implicit delegation in the [Controlled Substances Act]’s registration provision is not sustainable”).



Utility Air Reg. Group v. EPA, 134 S. Ct. 2427,

2444 (2014) (“When an agency claims to discover in a long extant statute an unheralded

power to regulate a significant portion of the

American economy, we typically greet its announcement with a measure of skepticism. [The

Court] expect[s] Congress to speak clearly if it

wishes to assign to an agency decision of vast

economic and political significance.”) (internal

quotations and citations omitted).



King v. Burwell, 135 S. Ct. 2480, 2483 (2015)

(withholding deference and holding that where

the issue was “a question of deep economic and

political significance[,] . . . had Congress wished

to assign that question to an agency, it surely

would have done so expressly.”).

While there has been no set standard for when this

“major questions” principle applies, from these cases a

broad theme has emerged for determining when deference to an agency interpretation is inappropriate.

Thus, where a regulation implicates questions of “vast

economic or political significance,” or where an agency

relies on novel interpretations of long standing statutory provisions to justify a transformative expansion of

its regulatory authority, and Congress has not clearly

spoken, deference should be withheld. This case is the

poster-child for applying this doctrine.

The ESA requires the FWS to conduct a cost-benefit analysis and “take into consideration the economic

impact . . . of specifying any particular area as critical

habitat.” 16 U.S.C. § 1533(b)(2). During the FWS analysis of Unit 1, it considered “lost economic efficiency

associated with residential and commercial development and public projects and activities.” 77 Fed. Reg.

35118 (June 12, 2012). After concluding its analysis,

the government recognized the Unit 1 landowners

“have invested a significant amount of time and dollars into their plans to develop this area.” Indus. Econ.,

Inc., Economic Analysis of Critical Habitat Designation for the Dusky Gopher Frog, http://bit.ly/2hPhQrF

(last visited August 1, 2017); see Pet. for Writ of Cert.,

Markle at 11-12 (No. 17-74). This regulation alone, the

FWS found, could cost the Unit 1 landowners $33.9

million over 20 years. See id. at 13.

If the regulation of one small area in Louisiana

could have an economic impact of $33.9 million on one

set of landowners, one can only imagine how many billions of dollars this expansive view of critical habitat

could cost landowners nationwide. Indeed, if the FWS

definition of “essential” stands—that private land

needs to contain only a single instance of a multitude

of possible “primary constituent elements” (PCEs)—

then vast portions of the country’s private land will be

subject to prohibitive devaluation. See id. at 33; see

also, Markle, 848 F. 3d at 651 (en banc) (Jones, J., dissental) (noting that the panel majority’s decision gives

the government “virtually limitless” power to regulate

private land as critical habitat); Markle, 827 F.3d at

483 (Owen, J., dissenting) (“The Government’s, and

the majority opinion’s, interpretation of ‘essential’

means that virtually any part of the United States

could be designated as “critical habitat.”). This is because, as the Fifth Circuit en banc dissent points out,

there is an extensive list of PCEs that could potentially

subject private land—which traditionally is regulated

by state governments—to federal regulation.

These potential PCEs include, but are not limited

to: “individual trees with potential nesting platforms,”

“forested areas within 0.5 mile[s] . . . of individual trees

with potential nesting platforms,” “aquatic breeding

habitat,” “upland areas,” and “natural light regime[s]

within the coastal dune ecosystem.” Markle, 848 F. 3d

at 651 (en banc) (Jones, J., dissental). Further, if the

FWS is allowed to use only one of these PCEs to designate private land, “there is no obstacle to the Service

claiming critical habitat wherever ‘forested areas’ or ‘a

natural light regime’ exist.” Id. at 652. Under the FWS

interpretation of the ESA, “the Service has the authority to designate as critical habitat any land unoccupied

by and incapable of being occupied by a species simply

because it contains one of those features.” Id. At bottom, this aggrandizing interpretation “threatens to expand the Service’s power in an ‘unprecedented and

sweeping’ way.” Id. This is not some alarmist parade

of horribles. Indeed, the government, after the Fifth

Circuit ruling, codified this single PCE standard into

a generally applicable rule to list land as critical habitat. See Listing Endangered and Threatened Species

and Designating Critical Habitat; Implementing

Changes to the Regulations for Designating Critical

Habitat, 81 Fed. Reg. 7414, 7427 (Feb. 11, 2016); see

also Pet. for Writ of Cert., Markle at 35-36 (No. 17-74).

This unprecedented power grab allows the federal

government to expand its jurisdiction to regulate private land by interpreting a single word—“essential”—

in a statute that has been on the books for over 40

years. Has this power just lain dormant all that time?

If so, it is truly an “elephant” hiding in a “mousehole.”

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468

(2001); see also Solid Waste Agency of N. Cook Cty.

(“SWANCC”) v. U.S. Army Corps of Engineers, 531

U.S. 159, 172 (2001) (“Where an administrative interpretation of a statute invokes the outer limits of Congress’ power, we expect a clear indication that Congress intended that result.”).

Whether the FWS ignores or reinterprets key ESA

terms to reach non-covered property, what it’s really

doing is creating an expansive law that Congress

never passed. By sanctioning this aggrandizement of

power in a 40-year-old statute, the courts below have

allowed the executive branch to effectively rewrite the

ESA. This will have major adverse economic and political consequences for property owners in this country.

II. THE CONSTITUTION PERMITS NEITHER

CONGRESS NOR AN EXECUTIVE AGENCY

TO REGULATE EITHER “MR. FILBURN’S

IMPOSSIBLE FARM” OR UNIT 1

As mentioned supra, “Mr. Filburn’s Impossible

Farm” is a hypothetical piece of land that Roscoe Filburn (of Wickard v. Filburn fame) doesn’t—and can’t—

farm. Similarly, Unit 1 is a piece of “critical habitat”

that the dusky gopher frog doesn’t live on and that

“cannot sustain the species without modification.” See

Pet. for Writ of Cert., Markle at 23 (No. 17-74). Both

pieces of land are outside Congress’s jurisdiction under

the Commerce and Necessary and Proper Clauses.

The FWS interpretation of the ESA doesn’t just

stretch Chevron to the breaking point, it oversteps constitutional limits. An agency’s interpretation of a statute passed pursuant to the Commerce and Necessary

and Proper Clauses is of course cabined by those

clauses’ reach. Just as it would be improper to allow

an agency to interpret the statutory phrase “essential

to health care” so as to allow for a regulatory individual mandate, Nat’l Fed’n of Indep. Bus. (“NFIB”) v.

Sebelius, 567 U.S. 519, 559-61 (2012), it would be improper to allow the FWS to interpret “essential to the

conservation of the species” as to allow the regulation

of land that is not in fact habitat.

A. Unit 1 Isn’t Habitat for the Frog, So It’s

Noncommercialeconomic under the ESA

The ESA regulates land and activities that are necessarily and properly connected to the central object of

the statute: the species themselves. The ESA cannot

constitutionally reach beyond those limits. Otherwise,

it would be a general land-use-regulation statute, unmoored from any constitutional foundations. Unit 1 is

not habitat for the frog and so is beyond the ESA’s regulatory reach under the Commerce and Necessary and

Proper Clauses. For the same reasons that the Agricultural Adjustment Act of 1938 could not constitutionally reach Mr. Filburn’s Impossible Farm, the ESA

cannot reach Mr. Frog’s Impossible Habitat.

The Constitution allows Congress to “regulate

Commerce . . . among the states,” as well as do those

things “necessary and proper for carrying into Execution” the power to regulate commerce. U.S. Const. art.

I, § 8. While this Court has broadly construed those

powers, see, e.g., Wickard v. Filburn, 317 U.S. 111

(1942), the clause has limits. This Court made that

clear in Lopez. There, the Court outlined “three broad

categories of activity that Congress may regulate under its commerce power.” United States v. Lopez, 514

U.S. 549, 558-59 (1995). These categories include: 1)

the regulation of the channels of interstate commerce;

2) the regulation of the instrumentalities of, objects in,

and persons engaged in interstate commerce; and 3)

the regulation of activities that have substantial effects on interstate commerce. Id. Focusing on prong

three, the Lopez majority struck down a federal statutory provision banning the mere possession of a gun in

a school zone, holding that the “possession of a gun in

a local school zone is in no sense an economic activity

that might, through repetition elsewhere, substantially affect any sort of interstate commerce.” Id. at

567; see also United States v. Morrison, 529 U.S. 598,

613 (2000) (overturning the Violence Against Women

Act because “[g]ender-motivated crimes of violence are

not, in any sense of the phrase, economic activity.”).

Thus, the connection between the regulated intrastate

“activity” and interstate commerce must be “economic.” See id; see also NFIB, 567 U.S. at 550 (2012)

(“The power to regulate commerce presupposes the existence of commercial activity to be regulated.”).

A piece of land’s mere existence does not constitute

“economic activity” under the Commerce Clause. Otherwise, the Constitution would allow comprehensive

land-use regulation without any connection to interstate commerce. As the Court said—or at least

strongly implied—in SWANCC, 531 U.S. 159, merely

using property, with little connection to interstate

commerce, is not regulable economic activity under the

Commerce Clause. In that case, similar to what the

FWS has done here, the U.S. Army Corps of Engineers

claimed jurisdiction over non-federal property (an

abandoned gravel and sand pit with permanent and

seasonal ponds) as a “water of the United States” due

to the presence of migratory birds. In avoiding the constitutional question, this Court operated under the

“assumption that Congress does not casually authorize

administrative agencies to interpret a statute to push

the limit of congressional authority” by allowing the

Corps to claim “jurisdiction over petitioner’s land because it contains water areas used as habitat” by migratory waterfowl and nothing more. Id. at 172-73,

173; Pet. Brief at 37. The Court was concerned that

“[p]ermitting respondents to claim federal jurisdiction

over ponds and mudflats falling within the ‘Migratory

Bird Rule’ would result in a significant impingement

of the States’ traditional and primary power over land

and water use.” SWANCC, 531 U.S. at 174.

The FWS claim of jurisdiction over Unit 1 is similarly expansive in that it seeks jurisdiction over something that is not economic activity. Even if land-use

alone could be considered economic activity, it would

not have a substantial effect on interstate commerce

because that commerce—the frog, the original object of

regulation—has no connection to Unit 1: the land is

“not near areas inhabited by the species; cannot sustain the species…and does not play any supporting

role in the existence of the current habitat for the species.” Markle, 827 F.3d at 481 (Owen, J., dissenting).

Apparently recognizing this flaw in the FWS jurisdictional claim, the court below relied on the comprehensive-scheme approach to uphold the regulation of

Unit 1. See Markle, 827 F.3d at 476–78. But the comprehensive-scheme test has never been used to regulate noneconomic, noncommercial activity that might

have an effect on interstate commerce such as land use

in general. See, e.g., NFIB, 567 U.S. at 548–61 (holding

that the comprehensive Affordable Care Act did not

authorize the individual insurance mandate as a regulation of noneconomic, noncommercial activity under

the commerce power). If the government has that

power, the Necessary and Proper Clause is the only

constitutional provision that allows it—but neither of

the courts below addressed that clause in any detail.

B. The Regulation of Unit 1 Is Neither Necessary Nor Proper

Under the Constitution, Congress can “make all

Laws which shall be necessary and proper for carrying

into Execution” its enumerated powers. Art. I, § 8, cl.

18. Although “this power gives Congress authority to

legislate on that vast mass of incidental powers which

must be involved in the constitution, it does not license

the exercise of any great substantive and independent

power[s] beyond those specifically enumerated.” NFIB,

567 U.S. at 559 (cleaned up). Instead, it is “merely a

declaration, for the removal of all uncertainty, that the

means of carrying into execution those [powers] otherwise granted are included in the grant.” Id.

As this Court noted in NFIB, its jurisprudence under this clause has been “very deferential to Congress’s

determination that a regulation is ‘necessary,’” but it

has also “carried out [its] responsibility to declare unconstitutional those laws that undermine the structure of government established by the Constitution.”

Id. “Such laws,” moreover, “which are not consist[ent]

with the letter and spirit of the constitution, are not

proper [means] for carrying into execution Congress’s

enumerated powers.” Id. And when these laws are not

in that spirit, the Court noted, they are, “in the words

of The Federalist, ‘merely acts of usurpation’ which

‘deserve to be treated as such.’” Id. (citing Printz v.

United States, 521 U.S. 898, 924 (1997) (quoting The

Federalist No. 33 (Hamilton)).

1. The Regulation Is Not Necessary

In McCulloch, the first case to address the meaning

of the Necessary and Proper Clause, Chief Justice

John Marshall’s opinion outlined a broad definition of

necessity that later courts would take to mean “convenient, or useful.” McCulloch v. Maryland, 17 U.S.

316, 413 (1819). In responding to critics of his opinion,

however, Marshall denied that this was the case: “The

court does not say that the word ‘necessary’ means

whatever may be ‘convenient’ or ‘useful.’ And when it

uses ‘conducive to,’ that word is associated with others

plainly showing that no remote, no distant conduciveness to the object, is in the mind of the court.” John

Marshall, A Friend to the Union No. 2, in John Marshall’s Defense of McCulloch v. Maryland 78, 100 (Ger-

ald Gunther ed., 1969). Nevertheless, the broad, deferential interpretation of “necessary” has held its

ground. See NFIB, 567 U.S. at 558-60.

But members of this Court have questioned that

construction of necessity. In his concurring opinion in

Comstock, Justice Alito objected to the Court’s abdication of its judicial duty to fully analyze what “necessity” consists of: “Although the term ‘necessary’ does

not mean ‘absolutely necessary’ or indispensable, the

term requires an ‘appropriate’ link between a power

conferred by the Constitution and the law enacted by

Congress. . . . And it is an obligation of this Court to

enforce compliance with that limitation.’” Comstock,

560 U.S. at 158 (2010) (Alito, J. concurring) (quoting

McCulloch, 17 U.S. at 415); see also, id at 152 (Kennedy, J. concurring) (concluding that the necessary

prong of the Necessary and Proper analysis “can be put

into a verbal formulation that fits somewhere along a

causal chain of federal powers . . . the Constitution

does require the invalidation of congressional attempts to extend federal powers in some instances.”).

Nevertheless, even if the test gives great deference

to Congress’s power, this case does not pass muster.

Indeed, there is absolutely no need to regulate Unit 1

to advance the goals of the ESA or to conserve any of

the species it protects, much less a necessary one. It

would not be “useful” or “convenient” to regulate Unit

1, because it plays “no part in the conservation” of the

dusky gopher frog. See Markle, 827 F.3d at 480 (Owen,

J., dissenting). Moreover, Unit 1’s “biological and

physical characteristics will not support a dusky gopher frog population.” Id; see also, Markle, 848 F. 3d at

636-37 (en banc) (Jones, J., dissental) (“The panel

opinion . . . approved an unauthorized extension of

ESA restrictions to 1,500 acre-plus Louisiana land

tract that is neither occupied by nor suitable for occupation by nor connected in any way to the [dusky gopher frog].”). Thus, for the same reason that the FWS

statutory interpretation of “essential” is problematic—

as applied to Unit 1, or any other land with attenuated

connection to a species—the idea that it is necessary

to regulate Unit 1 to protect the frog is equally so.

2. The Designation of Unit 1 Is Not Proper

McCulloch also addressed the propriety prong of

the Necessary and Proper Clause. The means used to

carry out incidental powers “may not be otherwise

‘prohibited’ and must be ‘consistent with the letter and

spirit of the constitution.’” McCulloch, 17 U.S. at 421.

Thus, this analysis must consider whether the law—

or in this case, the regulation—infringes on state sovereignty. See Bond v. United States, 134 S. Ct. 2077,

2101 (2014) (Scalia, J., concurring) (“No law that flattens the principle of state sovereignty, whether or not

‘necessary,’ can be said to be ‘proper.’”); Comstock, 560

U.S. at 155 (Kennedy, J., concurring) (noting “[n]or is

[this] a case in which the exercise of national power

intrudes upon functions and duties traditionally committed to the State” in upholding the law as proper.)

(citing Lopez, 514 U.S. at 580-581); Raich v. Gonzales,

545 U.S. 1, 39 (2005) (Scalia, J., concurring) (“[A law is

not] proper for carrying into Execution the Commerce

Clause [w]hen [it] violates [a constitutional] principle

of state sovereignty.”) (internal quotation marks and

citation omitted); see also Gary Lawson & Patricia

Granger, The “Proper Scope” of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43

Duke L. J. 267, 301- 08 (1993).

If this regulation stands, most if not all of this country’s private land would be subject to federal regulation. The single PCE rule gives the federal government

almost “limitless power” to “regulate private, state,

and local land and water resources for species conservation without regard to established constitutional

limits on federal power.” See Pet. of Writ of Cert., Markle at 33 (No. 17-74). That’s because almost any land

or water will contain at least one of the PCEs the FWS

uses to evaluate critical habitat. Judge Owen’s warning in dissent from the Fifth Circuit panel’s majority

opinion bears repeating:

The Government’s, and the majority opinion’s,

interpretation of “essential” means that virtually any part of the United States could be designated as “critical habitat” for any given endangered species so long as the property could

be modified in a way that would support introduction and subsequent conservation of the species on it.

Markle, 827 F.3d at 481 (Owen, J., dissenting).

Accordingly, if this Court affirms the lower court,

then regulations will no doubt be forthcoming from the

new, generally applicable federal power to impinge on

the states’ traditional police power to regulate land

and water use. To say the least, that’s not a proper

means of carrying into execution the commerce power.

CONCLUSION

For the reasons set forth above, and those stated by

the petitioner and respondents in support of petitioner, the Court should reverse the judgment of the

Fifth Circuit.

Respectfully submitted,