# Amicus Curiae Brief — Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 45 (2018) (No. 17-71)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2018

## Text

US.

eme
FILED

AUG 1 1 2017

Nos. 17-71, 17-74

RECORD — —
' AND In The | |_ OFFICE OF THE CLERK
— Supreme Court of the Gnited States
2
WEYERHAEUSER COMPANY,
Petitioner,

Vv.

UNITED STATES FISH AND WILDLIFE SERVICE, e¢ ai.,
Respondents.

.

MARKLE INTERESTS, L.L.C., et ai.,

Petitioners,

Vv.
UNITED STATES FISH AND WILDLIFE SERVICE, et ai.,
Respondents.

°

On Petitions For Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit

+

AMICUS CURIAE BRIEF OF
MOUNTAIN STATES LEGAL FOUNDATION
IN SUPPORT OF PETITIONERS

+

STEVEN J. LECHNER

Counsel of Record
GINA M,. CANNAN
MOUNTAIN STATES LEGAL FOUNDATION
2596 South Lewis Way
Lakewood, Colorado 80227
(303) 292-2021
lechner@mountainstateslegal.com
gina@mountainstateslegal.com

Attorneys for Amicus Curiae

i

TABLE OF CONTENTS

ee CO BT Be I vesinctesescccesensesnsnnsevenses
IDENTITY AND INTEREST OF AMICUS CU-

FEPE PITS, cosy cencuvinsrcsvinceninnnniieieniinumesimvitanes

I.

IT.

CERTIORARI SHOULD BE GRANTED TO
DETERMINE WHETHER AN AGENCY IS
ENTITLED TO DEFERENCE WHEN ITS
INTERPRETATION OF THE STATUTE
PUSHES THE OUTER LIMITS OF THE
COMMERCE CLAUSE AND VIOLATES
PRINCIPLES OF FEDERALISM ................

CERTIORARI SHOULD BE GRANTED
BECAUSE THE PANEL MAJORITY’S AP-
PLICATION OF THE “SUBSTANTIAL EF-
FECTS” TEST WOULD PROVIDE
NO STOPPING POINT TO FEDERAL
AGENCIES’ REGULATORY AUTHORITY
CPP EE FI PORE ED BRITE vec cccesccccesoseceseveosenses

IE isas contuitoosnisecensndntstensiendionmiicniinedediond

il

TABLE OF AUTHORITIES

CASES

Arizona Cattle Growers Ass'n v. Salazar, 606
Re SEE IE CIEE... cocceupssisiintaidagibeadibassinntpenans 10

Bond v. United States, 134 S. Ct. 2077 (2014) ...6, 7, 12
Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837

SETI iain olitadelaviaihceesahaentudeliattachidlistieibaeiiiatagsbanblaioadeniil 8,9
Garcia v. Vanguard Car Rental USA, Inc., 540

ee ee CE Sie siccctsccnccessocsuscodioneneuueene 15
GDF Realty Investments, Ltd. v. Norton, 326

I I I oc cccasdniniietiodssnousibccienteemnses 17
GDF Realty Investments, Lid. v. Norton, 362

ee IE TI I erirsinccesinsonsicunensomenstoeds 18, 19
Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000) ... 16, 17, 18
Gonzales v. Raich, 545 U.S. 1 (2005) ...... cece eeeee. 8
Gregory v. Ashcroft, 501 U.S. 452 (1991) ....02.........208 12
Gulf Oil Corp. v. Copp Paving Co., Inc., 419 U.S.

ITT xyicevtsinspacndceiaticdhensdatebehaimapinisabasiseausnidaaabipielabvieetnidias 20
Home Builders Ass’n of N. Cal. v. U.S. Fish &

Wildlife Serv., 616 F.3d 983 (9th Cir. 2010)............ 10
L.S. Starrett Co. v. FE.R.C.,650 F.3d 19 (1st Cir.

SEIT scietinieehdeiatteieh epee sila isedeevelelaaiehiiagadieteaiaaghiatiaediietadaleesti 15
Marbury v. Madison, 5 U.S. (1 Cranch) 137

ED tiniisintcnatietitheesensiinnsdenantmeenaibinnionmibatnnes 8, 21

Markle Interests, LLC v. U.S. Fish and Wildlife
Serv., 40 F. Supp. 3d 744 (E.D. La. 2014) .........000..... 4

ill

TABLE OF AUTHORITIES ~ Continued
Page

Markle Interests, LLC v. U.S. Fish and Wildlife
Serv., 827 F.3d 452 (5th Cir. 2016).................. passim

Markle Interests, LLC v. U.S. Fish and Wildlife
Serv., 848 F.3d 635 (5th Cir. 2017)............ 4,5,10, 11

McCulloch v. Maryland, 17 U.S. (4 Wheat) 316
PanIIT iniiaiinacunsihdtintasbinitinintinindiphetictidlienibnsaibebinntniadsteitecsietes 7

Natl Ass’n of Home Builders v. Babbitt, 130 F.3d
I SE, SET cintrsccessnsisciseatesthbniatisiniadeesewaes 16, 18

Natl Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct.
ERE I ET eT So 2, 12, 13, 20, 21

New York v. United States, 505 U.S. 144 (1992)......... 12

NLRB v. Jones & Laughlin Steel Corp., 301 U.S.
CII P csniiccicssisidissasiananiactnainniniitanisenanitunetvenindenmeten 16

People for the Ethical Treatment of Property
Owners v. U.S. Fish and Wildlife Serv., 852

Se IG CE iciecsecckicacousesiinnsenietvcsocssees 2,17
Rancho Viejo v. Norton, 323 F.3d 1062 (D.C. Cir.
Span stiiciaheitesiiliclabcssacriahaniaeaspoistieieiininicbabisuctasdaeibiniaaipanne sedate 17

Rapanos v. United States, 547 U.S. 715 (2006) .....11, 12
San Luis & Delta-Mendota Water Authority v.

Salazar, 638 F.3d 1163 (9th Cir. 2011).........00.0000..... 2
Shuler v. Babbitt, 49 F. Supp. 2d 1165 (D. Mont.
SIE T iiiiinicdicicdiiecitinintitienacaedeniinmmeaseiiiianateiniiaitniaiaanieens 2

Solid Waste Agency of N. Cook County v. U.S. Army
Corps of Eng’rs, 531 U.S. 159 (2001)....... 9,10, 11,18

Taylor v. United States, 136 S. Ct. 2074 (2016) ......... 14

iv

TABLE OF AUTHORITIES — Continued

Page
United States v. Ho, 311 F.3d 589 (5th Cir. 2002)....... 15
United States v. Lopez, 514 U.S. 549 (1995)....... passim
United States v. McGuire, 178 F.3d 203 (3d Cir.

PTT iniilisdihcdamdistecdlinnusgetanebbtnntiadbiehinbébiesmeions 15, 22
United States v. Morrison, 529 U.S. 598 (2000).... passim
Wickard v. Filburn, 317 U.S. 111 (1942) ....0.00000000000.. 14
CONSTITUTIONAL PROVISIONS
en MS NI Th OE OE I incsancinsccoticosecomstensetianiane passim
STATUTES
Endangered Species Act, 16 U.S.C. § 1531 et seq.

ee ts Or NII sicininiccnsensennneeiiisserceuesdeverees 10

Se ls Oe IID inc, csehssinestdcidiendeneentninescineenseumniens 8
FEDERAL REGISTER
77 Fed. Reg. 35,118 (June 12, 2012). 00.0... eeeeeeee 3
81 Fed. Reg. 7,414 (Feb. 11, 2016)... eee 11
RULES
I CII BINED... sicicenticnceesenciiemennoniscoonnnnmnss 1
SN CAUNIDG NUIT BF I) cisciisscenccccecisicsccccescsstsacsvubss 1

SOUND GING BONNIE BPE SO ceitecsccsepscsnctictnchindssntiicectniansions 1

v

TABLE OF AUTHORITIES — Continued

OTHER AUTHORITIES

Arthur B. Mark, III, Currents in Commerce
Clause Scholarship Since Lopez: A Survey, 32

oS ST Cg Cees Fs

Brannon P. Denning & Glenn H. Reynolds, Rul-
ings and Resistance: The New Commerce
Clause Jurisprudence Encounters the Lower

Courts, 55 Ark. L. Rev. 1253 (2003)...................

Comment, Turning the Endangered Species Act

Inside Out?, 113 Yale L.J. 947 (2004) ................

Jonathan H. Adler, Judicial Federalism and the
Future of Federal Environmental Regulation,

90 Towa L. Rev. 377 (2006) ...<ccccocscescosceccoccveeseccss

Lee Pollack, The “New” Commerce Clause: Does
Section 9 of the ESA Pass Constitutional Mus-
ter After Gonzales v. Raich?, 15 N.Y.U. Envtl.

Lacs BO COT ) ..scscnctnsisijinintssddiaeindoienseidaiadiiaaiin

Richard A. Epstein, The Proper Scope of the

Commerce Power, 73 Va. L. Rev. 1387 (1987) ....

Page

seoes 22

1

AMICUS CURIAE BRIEF OF
MOUNTAIN STATES LEGAL FOUNDATION
IN SUPPORT OF PETITIONERS

Pursuant to Supreme Court Rule 37.2, Mountain
States Legal Foundation (““MSLF”) respectfully sub-
mits this amicus curiae brief, on behalf of itself and its
members, in support of Petitioners.’

+

IDENTITY AND INTEREST
OF AMICUS CURIAE

MSLF is a nonprofit, public-interest legal founda-
tion organized under the laws of the State of Colorado.
MSLF is dedicated to bringing before the courts those
issues vital to the defense and preservation of individ-
ual liberties, the right to own and use property, the free
enterprise system, and limited and ethical govern-
ment.

Central to the notion of a limited government is
the constitutional principle of enumerated powers:
those powers not explicitly delegated to the federal
government are reserved to the States and the people.
These limited powers include Congress’s power to

' Pursuant to Supreme Court Rule 37.2(a), all parties con-
sent to the filing of this amicus curiae brief and received notice at
least 10 days prior to the due date. Pursuant to Supreme Court
Rule 37.6, the undersigned further affirms that no counsel for a
party authored this brief in whole or in part, and no person or
entity, other than MSLF, its members, or its counsel, made a mon-
etary contribution specifically for the preparation or submission

of this brief.

2

make rules regulating interstate commerce, as con-
ferred by the Commerce Clause. U.S. Const. art. I, § 8,
cl. 3. Legislation that reaches beyond Congress’s con-
stitutional authority results in a federal government
that is no longer limited and ethical, and further
erodes individual liberty, the right to own and use
property, and the free enterprise system. Accordingly,
MSLF has been actively involved in litigation chal-
lenging Congress’s power under the Commerce Clause.
E.g., Nat'l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct.
2566 (2012) (“NFIB”) (amicus curiae).

MSLF has also been actively involved in the
proper interpretation and application of the Endan-
gered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. E.g.,
Shuler v. Babbitt, 49 F. Supp. 2d 1165 (D. Mont. 1998)
(successfully represented livestock operator charged
with unlawfully taking a grizzly bear). More specifi-
cally, MSLF has sought to prevent the ESA from reach-
ing activities on private land and purely intrastate
species. See, e.g., People for the Ethical Treatment of
Property Owners v. U.S. Fish and Wildlife Serv., 852
F.3d 990 (10th Cir. 2017) (“PETPO”): San Luis & Delta-
Mendota Water Authority v. Salazar, 638 F.3d 1163
(9th Cir. 2011).

If the panel majority’s expansive interpretation of
the U.S. Fish and Wildlife Service’s (“FWS”) authority
under the ESA is allowed to stand, nothing will be be-
yond the reach of federal regulation, and the principles
of federalism enunciated by this Court’s distinction be-
tween “what is truly national and what is truly local”

3

in United States v. Lopez, 514 U.S. 549, 567-68 (1995)
will be a dead letter.

J

STATEMENT OF THE CASE

On June 12, 2012, the FWS designated 1,544 acres
of private land in Louisiana, owned and controlled by
Petitioners, as critical habitat for the dusky gopher
frog, an endangered species found solely in Mississippi.
Markle Interests, LLC v. U.S. Fish and Wildlife Serv.,
827 F.3d 452, 459 (5th Cir. 2016); 77 Fed. Reg. 35,118
(June 12, 2012). This designation was made despite the
land being unoccupied and uninhabitable by the dusky
gopher frog, as the land only contained one of the three
“primary constituent elements” (/.e., biological or phys-
ical features) necessary for the frog’s survival. 77 Fed.
Reg at 35,131, 35,135. For the frog to survive on Peti-
tioners’ uninhabitable land (“Unit 1”), significant mod-
ifications would be required, including burning down
the existing loblolly forest, which is currently used for
timber harvest, and replanting a long leaf pine forest.
Id. at 35,132, 35,135. The FWS admits that Petitioners
are not inclined to take such action, and cannot be
forced to do so. Id. at 35,123, 35,129. The designation
of Unit 1, by the FWS’s own estimation, will cost the
Petitioners up to $34 million in lost revenue. Jd. at
35,141. Despite this heavy financial burden and
knowledge of Petitioners’ unwillingness to cease tim-
ber development, burn down the existing forest, and
replant a new forest; FWS refused to exclude Unit 1
from the designation of critical habitat in favor of the

4

unquantifiable biological benefits that may occur if Pe-
titioners were to change their minds. /d.; Markle Inter-
ests, 827 F.3d at 466.

Petitioners challenged the critical habitat desig-
nation, arguing, inter alia, that the designation was
not a constitutional application of Congress’s authority
under the Commerce Clause. Markle Interests, LLC v.
U.S. Fish and Wildlife Serv., 40 F. Supp. 3d 744, 758
(E.D. La. 2014). After stating that the “Court is
tempted to agree” that the FWS exceeded its constitu-
tional authority by the “odd .. . agency action” of des-
ignating uninhabitable lands, the district court
deferred to the agency action and therefore found itself
“without power” to overturn it. Jd. at 758-59.

On appeal, a divided pane! of the Fifth Circuit af-
firmed, finding that the “regulated activity in question
is the designation of Unit 1 as critical habitat,” and
therefore, all critical habitat designations may be ag-
gregated to find a substantial effect on interstate com-
merce. Markle Interests, 827 F.3d at 476. Determining
that the ability to designate critical habitat in general
is essential to the ESA, which it found to be an “eco-
nomic regulatory scheme[,)” the panel upheld the
constitutionality of the designation of Unit 1. Id. at
476-79. Judge Owen dissented on the basis that, inter
alia, land cannot statutorily be “essential” to the con-
servation of the species if it is uninhabitable by that
species. Id. at 481, 483-85.

Petitioners filed a petition for rehearing en banc,
which was denied by a sharply divided court. Markle

5

Interests, LLC v. U.S. Fish and Wildlife Serv., 848 F.3d
635 (5th Cir. 2017). Judge Jones, writing in dissent for
the six-judge minority, explained that there are simply
no “real limiting principles” in the panel majority’s
opinion: “[I}f critical habitat designation of unoccupied
areas depends only on the existence of one feature es-
sential to a species’ conservation, then . . . the Service
has free rein to regulate any land that contains any
single feature essential to some species’ conservation.”
Id. at 645, 649.

°

SUMMARY OF ARGUMENT

The absence of a limiting principle in the panel
majority's opinion violates the Commerce Clause of the
U.S. Constitution and necessitates this Court’s review.
According to the panel majority, the FWS may regulate
any land that could, with enough time, money, and ef-
fort, be transformed into critical habitat. This interpre-
tation would turn the FWS’s already substantial power
to protect threatened or endangered species and their
habitats into a general police power akin to that re-
served to the states. This Court has repeatedly held
that, however broadly the Commerce Clause may be
construed, it may not be read so as to eviscerate the
distinction between what is truly national and what is
truly local. There are outer boundaries to Congress’s
powers under the Commerce Clause, and, when an
agency pushes the limits of those boundaries, its inter-
pretation of the statute at issue is not accorded defer-
ence. The panel majority both failed to suggest a

6

convincing limiting principle to its holding and im-
properly deferred to the FWS’s interpretation of its
own power.

The panel majority compounded its flawed analy-
sis by determining that the FWS’s designation of Unit
1 fell within Congress’s Commerce Clause power be-
cause, in the aggregate, critical habitat designations
generally have a substantial effect on interstate com-
merce. By holding that the regulated activity to be ag-
gregated is the regulation itself, the panel majority
effectively insulated all species listings and critical
habitat designations under the ESA from Commerce
Clause challenges. Because the implications of shield-
ing federal agency actions from judicial scrutiny under
the Commerce Clause are far-reaching, this Court
should grant certiorari.

S

ARGUMENT

I. CERTIORARI SHOULD BE GRANTED TO
DETERMINE WHETHER AN AGENCY IS
ENTITLED TO DEFERENCE WHEN ITS
INTERPRETATION OF THE STATUTE
PUSHES THE OUTER LIMITS OF THE
COMMERCE CLAUSE AND VIOLATES
PRINCIPLES OF FEDERALISM.

Our federal government is one of limited, enumer-
ated powers; “the States and the people retain the re-
mainder.” Bond v. United States, 134 8S. Ct. 2077, 2086

7

(2014). The States have “broad authority to enact leg-
islation for the public good — what we have often called
a ‘police power.’ The Federal Government, by contrast
has no such authority and ‘can exercise only the pow-
ers granted to it.’” Jd. (quoting Lopez, 514 U.S. at 567,
and McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 405
(1819)). Congress has the enumerated power “|t|o reg-
ulate Commerce with foreign Nations and among the
several States, and with the Indian Tribes.” U.S. Const.
art. I, § 8, cl. 3. The Commerce Clause power is limited
in scope and “is subject to outer limits.” Lopez, 514 U.S.
at 557. One such limitation inherent in the Commerce
Clause is that federal regulation may not reach activ-
ity that is purely local, lest Congress’s “authority un-
der the Commerce Clause [be converted] to a general
police power of the sort retained by the States.” Jd. at
567-68 (There must be “a distinction between what is
truly national and what is truly local.”). Although some
of this Court’s decisions “have taken long steps” down
that road in “giving great deference to congressional
action|,|” id., this Court has maintained that the
“Founders denied the National Government” a general
police power. United States v. Morrison, 529 U.S. 598,
618 (2000).

In derogation of this essential limitation on fed-
eral power, the panel majority determined that, under
the ESA, the FWS could regulate private land located
miles away from a species and its existing or potential
habitat. Markle Interests, 827 F.3d at 466-67. Unit 1
bears no relation to the species sought to be protected,

8

other than that it contains, at most, one element nec-
essary for survival of the species —- “ephemeral ponds.”
Id. Even worse, the panel majority reached this conclu-
sion by deferring to the FWS’s reading of the ESA — a
reading that interprets the ESA’s requirement that
critical habitat be “essential for the conservation of the
species” to include non-habitat. Jd. at 467-68 (citing
Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)); 16
US.C. § 1532(5)(A)(ii). The panel majority’s opinion is
so deeply flawed that it crashes headlong into the outer
limits of Commerce Clause authority, breezing by any
federalism concerns in the process.

Since at least the time of Marbury v. Madison, 5
U.S. (1 Cranch) 137 (1803), this Court has recognized
that Congress’s enumerated powers, granted by the
Constitution, place discernable limitations on its
power to legislate, and when such legislation results in
excessive federal encroachment, it is repugnant to the
Constitution and must be stricken down. /d. at 177. In
the context of the enumerated Commerce Clause
power, this Court has repeatedly emphasized that the
ability to regulate interstate commerce is a limited
power, and is not analogous to the States’ general po-
lice power. Lopez, 514 U.S. at 566. This Court “en-
force{[s] the ‘outer limits’ of Congress’s Commerce
Clause authority not for |its} own sake, but to protect
historic spheres of state sovereignty from excessive
federal encroachment and thereby to maintain the dis-
tribution of power fundamental to our federalist sys-
tem of government.” Gonzales v. Raich, 545 U.S. 1, 42

9

(2005) (O’Connor, J., dissenting) (quoting Lopez, 514
U.S. at 557).

Here, the panel majority's use of Chevron defer-
ence to accept the FWS’s interpretation of the ESA
pushes the boundaries of the Commerce Clause. In
Solid Waste Agency of N. Cook County v. U.S. Army
Corps of Eng’rs, 531 U.S. 159 (2001) (*SWANCC”), this
Court considered whether the agency’s interpretation
of “waters of the United States” as including seasonal
ponds was entitled to deference when such interpreta-
tion “invokes the outer limits of Congress’|s] power|.|”
Id. at 172-73. This Court determined that no deference
was owed to the agency’s interpretation because “the
administrative interpretation alters the federal-state
framework by permitting federal encroachment on a
traditional state power|,)” specifically, “impingement of
the States’ traditional and primary power over land
and water use.” Jd. at 173-74. Moreover, unless there
was “a clear indication that Congress intended” the
agency “to push the limit of congressional authority(,|”
the agency’s interpretation was not entitled to defer-
ence. /d. at 173. This Court then held the agency inter-
pretation unconstitutional because, in regulating
nonnavigable, isolated, intrastate waters, the agency
exceeded Congress’s powers under the Commerce
Clause. Id. at 172-73.

This case presents almost identical concerns.
Here, the FWS has interpreted its authority under the
ESA in such an “unprecedented and sweeping” manner
that “vast portions of the United States could be desig-
nated as ‘critical habitat’ because it is theoretically

10

possible, even if not probable, that the land could be
modified to sustain the introduction or reintroduction
of endangered species.” Markle Interests, 827 F.3d at
481, 485 (Owen, J., dissenting). Far from being a “clear
indication” from Congress that it intended to grant the
FWS the authority to designate non-habitat as critical
habitat, see SWANCC, 531 US. at 173, the “language
of the [ESA] does not permit such an expansive inter-
pretation and consequent overreach by the Govern-
ment.” Markle Interests, 827 F.3d at 481 (Owen, J.,
dissenting). In fact, other courts that have considered
the requirements for designation of unoccupied critical
habitat have concluded that Congress intended the
designation to be “more demanding,” and a “more on-
erous procedure” than designating occupied critical
habitat, which requires all of the physical or biological
features necessary for the species to inhabit the land.
See Arizona Cattle Growers Ass'n v. Salazar, 606 F.3d
1160, 1163 (9th Cir. 2009); Home Builders Ass’n of N.
Cal. v. U.S. Fish & Wildlife Serv.,616 F.3d 983, (9th Cir.
2010); see also 16 U.S.C. § 1532(5) Ai). Therefore, the
panel majority erred in deferring to the agency’s ex-
pansive interpretation that it “has the authority to
designate as critical habitat any land unoccupied by
and incapable of being occupied by a species simply be-
cause it contains one of those features [necessary for
the species’ survival].” Markle Interests, 848 F.3d at
652 (Jones, J., dissenting from denial of reh’g en banc).

The panel majority’s interpretation of the Com-
merce Clause also presents significant federalism con-
cerns. If the ESA grants the FWS the authority to

11

designate as critical habitat non-habitat with no pre-
sent relationship to the endangered or threatened spe-
cies other than containing, at most, one feature
essential for survival, then “the [FWS’s| critical habi-
tat designation power is virtually limitless.” Markle In-
terests, 848 F.3d at 651 (Jones, J., dissenting) (listing
physical and biological features the FWS regularly
deems essential to species’ conservation as including
such amorphous categories as “upland areas” and
“aquatic breeding habitat”). As this Court explained in
SWANCC, under the “federal-state framework” of fed-
eralism, states have “traditional and primary power
over land and water use.” 531 U.S. at 173-74; see also
Rapanos v. United States, 547 U.S. 715, 738 (2006) (plu-
rality) (“Regulation of land use .. . is a quintessential
state and local power.”). Similarly, in Rapanos, this
Court rejected an exercise of federal agency power that
would “authorize the [Army] Corps [of Engineers] to
function as a de facto regulator of immense stretches
of intrastate land — an authority the agency has shown
its willingness to exercise with the scope of discretion
that would befit a local zoning board.” Jd. at 738 (plu-
rality). Here, the FWS’s attempt to regulate private

* Similarly here, the FWS has already expanded upon the
panel majority decision by enacting a regulation asserting the au-
thority to designate as unoccupied critical habitat land which
does not contain any of the physical or biological features neces-
sary for a species’ survival. See 81 Fed. Reg. 7,414, 7,427 (Feb. 11,
2016). This unprecedented power grab confirms Judge Owen’s
concern, so quickly dismissed by the panel majority, that now “the
Secretary can designate unoccupied land as critical habitat even
if the land has no primary constituent physical or biological

12

land merely because it could, with enough taxpayer
money and the owners’ permission, be turned into crit-
ical habitat, is even more far-reaching than the issue
in Rapanos. It is simply incompatible with federalism
principles to hold that, under the ESA, the FWS may
regulate “immense stretches of intrastate land” uncon-
nected to the species that the FWS seeks to protect.°
Id.; see NFIB, 567 U.S. at 536-37 (The Commerce
Clause “must be read carefully to avoid creating a gen-
eral federal authority akin to the police power| |” be-
cause “ ‘federalism secures to citizens the liberties that
derive from the diffusion of sovereign power.’” (quoting
New York v. United States, 505 U.S. 144, 181 (1992))).

element (to use the Service’s vernacular) essential to the conser-
vation of the species.” Markle Interests, 827 F.3d at 489 (Owen, J.,
dissenting).

* The numerous rationales underlying our federalist system
of government demonstrate why the FWS has overstepped its
boundaries here. See Bond, 564 U.S. at 221 (“The federal structure
allows local policies ‘more sensitive to the diverse needs of a het-
erogeneous society, permits ‘innovation and experimentation, en-
ables greater citizen ‘involvement in democratic processes,’ and
makes government ‘more responsive by putting the States in com-
petition for a mobile citizenry.” (quoting Gregory v. Ashcroft, 501
U.S. 452, 458 (1991))). Here, the critical habitat designation, by
the FWS’s own estimate, could result in $34 million in lost devel-
opment value to Petitioners. 77 Fed. Reg. at 35,141. In stark con-
trast to the options available to Petitioners if such regulatory
action were taken by the state or local government, Petitioners
have no recourse to petition their government for relief when an
unelected federal agency is the regulating entity. See Markle In-
terests, 827 F.3d at 473-74 (Panel majority suggesting that “the
decision not to exclude [critical habitat] is unreviewable.”); but see
id. at 491 (Owen, J., dissenting) (agency’s decision is not entitled
to deference, much less unreviewable).

13

If there are indeed “[s]ome matters — those not within
the bounds of the enumerated powers — [that] are
simply beyond the reach of federal hands|,]” this must
be one of them. See Jonathan H. Adler, Judicial Feder-
alism and the Future of Federal Environmental Regu-
lation, 90 lowa L. Rev. 377, 389 (2005).

The panel majority’s deference to the FWS’s inter-
pretation of the ESA as conferring a boundless regula-
tory authority threatens the careful balance vetween
local and federal powers that this Court has sought to
achieve. Therefore, this Court should grant certiorari
to prevent the FWS from interpreting the ESA in such
a way that the Commerce Clause power would become
coextensive with the states’ police power.

II. CERTIORARI SHOULD BE GRANTED BE-
CAUSE THE PANEL MAJORITY’S APPLICA-
TION OF THE “SUBSTANTIAL EFFECTS”
TEST WOULD PROVIDE NO STOPPING
POINT TO FEDERAL AGENCIES’ REGULA-
TORY AUTHORITY OVER PRIVATE LAND.

As this Court recently explained, “[o)ur respect for
Congress's policy judgments ... can never extend so
far as to disavow restraints on federal power that the
Constitution carefully constructed.” NFIB, 567 U.S. at
538. In Lopez, this Court delineated three categories
of activity that Congress may regulate under its
Commerce Clause power: (1) the use of the channels
of interstate commerce; (2) the instrumentalities of
interstate commerce; and (3) those activities that

14

“substantially affect” interstate commerce. 514 U.S. at
558-59. At issue here is the third Lopez category,
whether the FWS’s designation of Unit 1 as critical
habitat for the dusky gopher frog regulates “activities
that substantially affect interstate commerce.” /d.;
Markle Interests, 827 F.3d at 475. This Court considers
whether the regulated activity at issue is an economic
one that, in the aggregate, substantially affects inter-
state commerce. Wickard v. Filburn, 317 U.S. 111, 128
(1942); Lopez, 514 U.S. at 561. The panel majority held
that the FWS’s designation of Unit 1 as critical habitat
fell within Congress’s Commerce Clause power by
looking to whether critical habitat designations, in the
aggregate, have a substantial effect on interstate com-
merce. 827 F.3d at 476 (finding that designation of
Unit 1 should be “aggregated with all other critical-
habitat designations nationwide”). In defining the reg-
ulated activity at issue as the regulation itself, the
panel majority further convoluted the already-con-
fused substantial effects jurisprudence among the cir-
cuits and landed at a conclusion that directly conflicts
with the limits this Court has placed on Congress’s
Commerce Clause authority.

The circuits have consistently used the “substan-
tial effects” test to circumvent any challenge to federal
regulation of intrastate activity. See Taylor v. United
States, 136 S. Ct. 2074, 2086-89 (2016) (Thomas, J.,
dissenting) (recognizing that the “substantial effects
approach is at war” with the principle that the “Con-
stitution requires a distinction between what is truly
national and what is truly local.”); Arthur B. Mark, III,

15

Currents in Commerce Clause Scholarship Since
Lopez: A Survey, 32 Cap. U. L. Rev. 671, 738-39 (2004)
(“Morrison and . . . Lopez| | have not been applied with
any degree of impact by lower federal courts....
[There is] a need for the Supreme Court to provide a
less malleable and more ‘rule-like’ standard for decid-
ing Commerce Clause cases.” (quoting Brannon P. Den-
ning & Glenn H. Reynolds, Rulings and Resistance:
The New Commerce Clause Jurisprudence Encounters
the Lower Courts, 55 Ark. L. Rev. 1253, 1308-10
(2003))). Examples of overreaching federal regulation
that the circuits have upheld under the substantial ef-
fects test are almost too numerous to choose from. See
Garcia v. Vanguard Car Rental USA, Inc., 540 F.3d
1242, 1250-53 (11th Cir. 2008) (determining that Con-
gress had the authority to abolish state tort liability
for car rental companies when a rental car is involved
in an accident because commercial leasing of cars has
a substantial effect on interstate commerce); United
States v. Ho, 311 F.3d 589, 602-04 (5th Cir. 2002) (ag-
gregating a single instance of improper asbestos re-
moval vio find a substantial effect on interstate
commerce due to air pollution under the Clean Air
Act); L.S. Starrett Co. v. FE.R.C., 650 F.3d 19, 28-29
(1st Cir. 2011) (agency had power under the Commerce
Clause to regulate a hydroelectric generator repair on
private land because, without the repair, the electricity
would come from an interstate grid); but see United
States v. McGuire, 178 F.3d 203, 210-11 (3d Cir. 1999)
(“Taking the ‘effects test’ to its logical extreme would
for all practical purposes grant the federal government
a general police power, the very danger the Lopez

16

Court warned us against.” (internal quotation omit-
ted)). As Justice Thomas has repeatedly warned, the
“rootless and malleable” substantial effects test results
in “Congress appropriating state police powers under
the guise of regulating commerce.” Morrison, 529 U.S.
at 627 (Thomas, J., concurring); Lopez, 514 U.S. at 584-
85 (Thomas, J., concurring) (“Unfortunately, we have
never come to grips with thle] implication|s] of our sub-
stantial effects formula. ... [I] want to point out the
necessity of refashioning a coherent test that does not
tend to ‘obliterate the distinction between what is na-
tional and what is local and create a completely cen-
tralized government.” (quoting NLRB v. Jones &
Laughlin Steel Corp., 301 U.S. 1, 37 (1937))).

Nowhere is the confusion regarding the substan-
tial effects test more apparent than in the ESA context.
In upholding agency regulation of private land and in-
trastate species under the ESA, the circuits have relied
on varied and conflicting rationales. In Nat7 Ass’n of
Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir.
1997), the fractured panel majority held that the take
of the Delhi Sands flower-loving fly substantially af-
fected interstate commerce but disagreed as to why.
One judge on the panel majority relied on the intercon-
nectedness of species and ecosystems and thus aggre-
gated the take of the fly with the take of all species. Id.
at 1058-59 (Henderson, J., concurring). The other judge
hypothesized that the loss of the fly could, in the ag-
gregate, have substantial commercial consequences
based on the loss of unknown genetic material and me-
dicinal potential. /d. at 1052-53. In Gibbs v. Babbitt,

17

214 F.3d 483 (4th Cir. 2000), the panel majority focused
on the economic impact of take of red wolves as a spe-
cies in the aggregate and concluded that, if eradicated,
“there will be no red wolf related tourism, no scientific
research, and no commercial trade in pelts.”* Jd. at 492.
In Rancho Viejo v. Norton, 323 F.3d 1062, 1072-73 (D.C.
Cir. 2003), the court looked to activities and motiva-
tions outside the take prohibition to find a substantial
effect on interstate commerce. Specifically, the court
determined that the regulated activity at issue was
“plaintiff’s construction project,” which it found, was a
commercial activity. Id. at 1072. In GDF Realty Invest-
ments, Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003), the
panel majority refused to aggregate either the future
potential scientific benefits of the species at issue or
take of the species with other endangered species, but
relied on Raich to salvage the regulation as an essen-
tial part of the ESA’s broad regulatory scheme, which
it determined was economic.® Jd. at 640. In sum, the
circuits have varyingly aggregated take of all species,
take of a single species, loss of potential scientific
knowledge, commercial activity that may result in the
take of a species, and none of the above in order to

* The dissent found “humorous” the suggestion that “the red
wolf pelt trade will once again emerge as a centerpiece of our Na-
tion’s economy|,|” but highlighted that language as exemplary of
the absurd lengths to which courts will go to uphold federal regu-
lation using the “substantial effects” test. Gibbs, 214 F.3d at 508-
09 (Luttig, J., dissenting).

® The Tenth Circuit took the same approach in PETPO, re-
jecting application of the substantial effects test entirely. 852 F.3d
at 1005-07.

18

uphold the regulation of intrastate species. These ex-
ercises in judicial gamesmanship seem a far cry from
this Court’s mandate in SWANCC to identify the “pre-
cise object or activity that, in the aggregate, substan-
tially affects interstate commerce.”’ 531 U.S. at 173.
The fact that the circuits’ ESA decisions have provoked
significant, vigorous dissents merely reinforces that
the “substantial effects” test is not working. See GDF
Realty Investments, Ltd. v. Norton, 362 F.3d 286, 287
(5th Cir. 2004) (Jones, J., dissenting from denial of
reh’g en banc) (describing the panel majority’s decision
as “craft|ing] a constitutionally limitless theory of fed-
eral protection” that “offers but a remote, speculative,
attenuated, indeed more than improbable connection
to interstate commerce.”); Nat? Ass’n of Home Build-
ers, 130 F.3d at 1065 (Sentelle, J., dissenting) (“A crea-
tive and imaginative court can certainly speculate on
the possibility that any object cited in any locality no
matter how intrastate or isolated might some day have
a medical, scientific, or economic value which could
then propel it into interstate commerce. There is no
stopping point.”); Gibbs, 214 F.3d at 508 (Luttig, J.,

* In fact, SWANCC expressly rejected attempts to define the
activity at issue outside the scope of the statute under which the
agency was authorized to regulate. 531 U.S. at 173 (“[The precise
activity at issue] is not clear, for although the [agency] has
claimed jurisdiction over petitioner’s land because it contains wa-
ter areas used as habitat by migratory birds, respondents now .. .
focus upon the fact that the regulated activity is petitioner’s mu-
nicipal landfill, which is ‘plainly of a commercial nature.’ But this
is a far cry, indeed, from the ‘navigable waters’ and ‘waters of the
United States’ to which the statute by its terms extends.” (inter-
nal quotation omitted)).

19

dissenting) (“[I|f the Supreme Court were to render to-
morrow the identical opinion that the majority does to-
day ..., both Lopez and Morrison would be consigned
to aberration.”).

The panel majority’s decision takes the “substan-
tial effects” test a step farther, effectively erasing any
limit on the FWS’s authority to regulate any land in
the United States. First, it determined that the regu-
lated activity to be aggregated is the regulation itself.
This circular conclusion effectively insulates all criti-
cal habitat designations — and species listings — from
Commerce Clause challenges.’ If the “regulated activ-
ity” at issue is always framed as the regulation itself,
whether a critical habitat designation or a species list-
ing (or any other regulation), then a court will always
be able to find that the designation of habitat or the

’ The panel majority's re!.ance on GDF Realty to find that
the ESA is a broad “economic regulatory scheme” under Raich fur-
ther highlights the importance of this Court’s review. See Markle
Interests, 827 F.3d at 476. The ESA is clearly directed at protect-
ing species and their habitat, not at regulating commerce, how-
ever broadly one may define that verm. Lee Pollack, The “New”
Commerce Clause: Does Section 9 of the ESA Pass Constitutional
Muster After Gonzales v. Raich?, 15 N.Y.U. Envtl. L.J. 205, 241-42
(2007) (“[A]ny commercial effects of the [ESA] would be purely
incidental to the core of the statutory scheme, which is to preserve
natural resources, a non-commercial topic clearly outside of Con-
gress’|s] power to regulate under the Commerce Clause.”); Com-
ment, Turning the Endangered Species Act Inside Out?, 113 Yale
L.J. 947, 952-53 (2004) (Arguing that GDF Realty erred in “mak-
ing [the ESA’s] master narrative a story about economics [be-
cause] the ESA is not about monetizing endangered species; it is
about preserving them in their natural state. ...The ESA's regu-
lation of interstate commerce is merely circumstantial|[.}”).

18

uphold the regulation of intrastate species. These ex-
ercises in judicial gamesmanship seem a far cry from
this Court’s mandate in SWANCC to identify the “pre-
cise object or activity that, in the aggregate, substan-
tially affects interstate commerce.”® 531 U.S. at 173.
The fact that the circuits’ ESA decisions have provoked
significant, vigorous dissents merely reinforces that
the “substantial effects” test is not working. See GDF
Realty Investments, Ltd. v. Norton, 362 F.3d 286, 287
(5th Cir. 2004) (Jones, J., dissenting from denial of
reh’g en banc) (describing the panel majority’s decision
as “craftling] a constitutionally limitless theory of fed-
eral protection” that “offers but a remote, speculative,
attenuated, indeed more than improbable connection
to interstate commerce.”); Nat'l Ass’n of Home Build-
ers, 130 F.3d at 1065 (Sentelle, J., dissenting) (“A crea-
tive and imaginative court can certainly speculate on
the possibility that any object cited in any locality no
matter how intrastate or isolated might some day have
a medical, scientific, or economic value which could
then propel it into interstate commerce. There is no
stopping point.”); Gibbs, 214 F.3d at 508 (Luttig, J.,

© In fact, SWANCC expressly rejected attempts to define the
activity at issue outside the scope of the statute under which the
agency was authorized to regulate. 531 U.S. at 173 (“[The precise
activity at issue] is not clear, for although the |agency| has
claimed jurisdiction over petitioner's land because it contains wa-
ter areas used as habitat by migratory birds, respondents now .. .
focus upon the fact that the regulated activity is petitioner's mu-
nicipal landfill, which is ‘plainly of a commercial nature.’ But this
is a far cry, indeed, from the ‘navigable waters’ and ‘waters of the
United States’ to which the statute by its terms extends.” (inter-
nal quotation omitted)).

19

dissenting) (“[I]f the Supreme Court were to render to-
morrow the identical opinion that the majority does to-
day ..., both Lopez and Morrison would be consigned
to aberration.”).

The panel majority’s decision takes the “substan-
tial effects” test a step farther, effectively erasing any
limit on the FWS’s authority to regulate any land in
the United States. First, it determined that the regu-
lated activity to be aggregated is the regulation itself.
This circular conclusion effectively insulates all criti-
cal habitat designations — and species listings — from
Commerce Clause challenges.’ If the “regulated activ-
ity” at issue is always framed as the regulation itself,
whether a critical habitat designation or a species list-
ing (or any other regulation), then a court will always
be able to find that the designation of habitat or the

' The panel majority's reliance on GDF Realty to find that
the ESA is a broad “economic regulatory scheme” under Raich fur-
ther highlights the importance of this Court’s review. See Markle
Interests, 827 F.3d at 476. The ESA is clearly directed at protect-
ing species and their habitat, not at regulating commerce, how-
ever broadly one may define that term. Lee Pollack, The “New”
Commerce Clause: Does Section 9 of the ESA Pass Constitutional
Muster After Gonzales v. Raich?, 15 N.Y.U. Envtl. L.J. 205, 241-42
(2007) (“[A|ny commercial effects of the [ESA] would be purely
incidental to the core of the statutory scheme, which is to preserve
natural resources, a non-commercial topic clearly outside of Con-
gress |s| power to regulate under the Commerce Clause.”); Com-
ment, Turning the Endangered Species Act Inside Out?, 113 Yale
L.J. 947, 952-53 (2004) (Arguing that GDF Realty erred in “mak-
ing [the ESA’s] master narrative a story about economics [be-
cause] the ESA is not about monetizing endangered species; it is
about preserving them in their natural state. ...The ESA’s regu-
lation of interstate commerce is merely circumstantial|.]”).

20

listing of the species substantially affects interstate
commerce in the aggregate. See Markle Interests, 827
F.3d at 475-76. This novel interpretation of the Com-
merce Clause “would open a new and potentially vast
domain to congressional authority.” NFIB, 567 U.S. at
552 (opinion of Roberts, C.J.).

Second, the panel majority’s decision ignores this
Court’s rule in Morrison that the link between the reg-
ulated activity and a substantial effect on interstate
commerce must not be so attenuated as to leave no log-
ical stopping point to the Commerce Clause power. 529
U.S. at 615 (rejecting “a method of reasoning that .. .
[is] unworkable if we are to maintain the Constitu-
tion’s enumeration of powers.”); see Gulf Oil Corp. v.
Copp Paving Co., Inc., 419 U.S. 186, 198 (1974) (Reject-
ing Commerce Clause theory that “has no logical end-
point|)” and where “/t]he universe of arguably
included activities would be broad and its limits nebu-
lous in the extreme.”). Under the panel majority’s de-
cision, “[ilt is easily conceivable that ‘the best scientific
data available’ would lead scientists to conclude that
an empty field that is not currently habitable could be
altered to become habitat for an endangered species.”
Markle Interests, 827 F.3d at 488 (Owen, J., dissenting).
The majority's attempts to “cabin|}|” the implications
of granting the FWS powers more befitting a local zon-
ing board fall short of providing a limiting principle.
Id. at 488-89 (explaining the majority’s contradictory
conclusions that one physical or biological feature is
necessary for designation, but that any land may be
designated so long as it can be modified to contain such

21

feature). Indeed, following the panel majority decision,
the FWS quickly implemented a regulation asserting
that the ESA authorizes it to designate as critical hab-
itat any unoccupied land it deems essential to the sur-
vival of a species, regardless of the presence of physical
or biological features necessary for survival. 81 Fed.
Reg. at 7,427. The FWS has thus unambiguously de-
clared the path it intends to follow under its newfound
authority — a path that “carr{ies] us [far] from the no-
tion of a government of limited powers.” See NFIB, 567
U.S. at 551 (opinion of Roberts, C.J.).

The ESA may be the “pitbull of all environmental
legislation,” but the Commerce Clause does not allow
the FWS to reach private lands unconnected to any en-
dangered or threatened species save for the presence
of, at most, only one of the biological features necessary
to sustain the species. This Court has emphasized that
the government may not “pile inference upon infer-
ence” to make the connection between a regulated ac-
tivity and interstate commerce. Lopez, 514 U.S. at 567.
To maintain a “distinction between national and local
authority[,]” Morrison, 529 U.S. at 615, the Commerce
Clause must not be construed to allow the FWS to reg-
ulate private land that is not habitable and has no pro-
spect of becoming so.

The Constitution must be interpreted to give effect
to all its clauses. See Marbury, 5 U.S. at 174 (“It cannot
be presumed that any clause in the constitution is in-
tended to be without effect; and therefore such a con-
struction is inadmissible, unless the words require
it.”); Lopez, 514 U.S. at 588 (Thomas, J., concurring)

22

(“After all, if Congress may regulate all matters that
substantially affect commerce,” then “many of Con-
gress’ other enumerated powers under Art. I, § 8[] are
wholly superfluous.”). However, under the “substantial
effects” test, “[e]ven such a seemingly parochial action
as borrowing a cup of sugar from a neighbor can be
viewed as part of the stream of commerce that extends
to refineries overseas.” McGuire, 178 F.3d at 210. Jus-
tice Thomas’s concern that the substantial effects test,
“if taken to its logical extreme, would give Congress a
‘police power’ over all aspects of American life[,]” is cer-
tainly borne out by the panel majority’s decision below.
See Lopez, 514 U.S. at 584 (Thomas, J., concurring);
Richard A. Epstein, The Proper Scope of the Commerce
Power, 73 Va. L. Rev. 1387, 1418 (1987) (explaining
that, in announcing the substantial effects test, “the
Court acted as though any exercise of the congres-
sional jurisdiction were benign”).

In sum, under the panel majority’s interpretation,
the “substantial effects” test is merely an exercise in
judicial imagination such that “one always can draw
the circle broadly enough to cover the activity|.|” Lopez,
514 U.S. at 601 (emphasis in original) (Thomas, J., con-
curring). Drawing that circle so large that a federal
agency may regulate any land in the United States un-
der the auspices of the ESA is simply more weight than
the Commerce Clause can bear. Therefore, this Court
should take the opportunity to clarify the “substantial
effects” test in order to place some limits on a federal
agency’s ability to regulate under the Commerce Clause.

¢

23

CONCLUSION

For the foregoing reasons, the Court should grant

certiorari.

Respectfully submitted,

STEVEN J. LECHNER

Counsel of Record
GINA M. CANNAN
MOUNTAIN STATES LEGAL FOUNDATION
2596 South Lewis Way
Lakewood, Colorado 80227
(303) 292-2021
lechner@mountainstateslegal.com
gina@mountainstateslegal.com

Attorneys for Amicus Curiae

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0771%3A14. Public record. Not legal advice.