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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0771%3A15

## Record

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

## Text

WEYERHAEUSER COMPANY,

Petitioner,
v.

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

MARKLE INTERESTS, L.L.C., ET AL.,

Petitioners,
v.

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

On Petitions for Writs of Certiorari To The United
States Court Of Appeals For the Fifth Circuit

BRIEF OF AMICI CURIAE
THE NATIONAL ASSOCIATION OF HOME
BUILDERS and AMERICAN FOREST
RESOURCE COUNCIL SUPPORTING

PETITIONERS
LAWSON E. FITE THOMAS J. WARD*
SARA GHAFOURI JEFFREY B. AUGELLO
AMERICAN FOREST NATIONAL ASSOCIATION

RESOURCE COUNCIL OF HOME BUILDERS
5100 S.W. Macadam 1201 15th Street, N.W.

Ave., Ste 350 Washington, D.C. 20005
Portland, OR 97239 (202) 266-8200
(503) 222-9505 * Counsel of Record
Library ef Congeum

Law Lavery

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Amicus
National Association of Home Builders (“NAHB”)
states that it is a non-profit 501(c)(6) corporation
incorporated in the State of Nevada, with its
principal place of business in Washington, D.C.
NAHB has no corporate parents, subsidiaries or
affiliates, and no publicly traded stock. No publicly
traded company has a ten percent or greater
ownership interest in NAHB.

Amicus American Forest Resource Council (“AFRC”)
is an Oregon non-profit corporation with its
principal place of business in Portland, Oregon.
AFRC has no corporate parents, subsidiaries or
affiliates and does not issue stock. No publicly-held
company has a ten percent or greater ownership of
AFRC.

TABLE OF CONTENTS

Page(s)
INTEREST OF AMICI CURIAE.............. a eaaesaiaie 1
SUMMARY OF ARGUMENT ........000000000000000....... 3
a cntsidnniingveustoene 4

I. THE COURT OF APPEALS’ APPROACH
IMPROPERLY APPLIES SCIENTIFIC
DEFERENCE TO A LEGAL QUESTION ... 4

Il. THE SERVICE’S DESIGNATION
OF UNINHABITABLE AREAS
AS CRITICAL HABITAT WILL INFLICT
SEVERE COSTS ON LANDOWNERS
AND THE AVERAGE CITIZEN WITH
NO CORRESPONDING BENEFITS TO
an tad ds cnstnidaacgnensesensaneenceccees 8

Ill. THESE PETITIONS RAISE
IMPORTANT QUESTIONS UNDER
THE NONDELEGATION DOCTRINE ..... 16

| cuiaatcswenvannenieusuctese 21

il
TABLE OF AUTHORITIES
Page(s)

Cases

Abbott Labs. v. Gardner,
387 U.S. 136 (1967), abrogated on other grounds
by Califano v. Sanders, 430 U.S. 99 (1977)........ 16

Air Wisconsin Airlines Corp. v. Hoeper,

ERIE AC RRTREE Taeee 5
Alliance for the Wild Rockies v. Lyder,

728 F.Supp.2d 1126 (D. Mont. 2010).................. 11
Bennett v. Spear, 520 U.S. 154 (1997).....0...0...... 3, 20

Cape Hatteras Access Pres. All. v.
U.S. Dep't of the Interior, 344 F. Supp. 2d 108

i eee eeentiaiaiapeies 4
Carpenters Indus. Council v. Zinke, 854 F.3d 1

I I la ca 14
Decker v. Northwest Envtl. Def. Ctr.,

ARE PES LS A 7
Gustafson v. Alloyd Co., 513 U.S. 561 (1995).......... 5
Heckler v. Chaney, 470 U.S. 821 (1985) .............. ae

Home Builders Ass'n of N. Cal. v. U.S. Fish &
Wildlife Serv., 616 F.3d 983 (9th Cir. 2010) ........ 7

Indus. Union Dep't, AFL-CIO v.
Am. Petroleum Inst., 448 U.S. 607 (1980).....18, 19

TABLE OF AUTHORITIES (cont.)

Page(s)

J.W. Hampton, -Jr., & Co. v. United States,
I a ceicasptiacedanaiia 18
Lincoln v. Vigil, 508 U.S. 182 (19983)................0.... 17

Loving v. United States, 517 U.S. 748 (1996) ....... 18

Markle Interests, L.L.C. v. U.S. Fish
& Wildlife Serv., 848 F.3d 635
REE a ee 8, 10, 15-16

Markle Interests, L.L.C. v. U.S. Fish
& Wildlife Serv., 827 F.3d 452

2 ES 6, 7, 9, 13, 15-16, 17
Marshall Field & Co. v. Clark,

a enaummomuibenein 18
Medina County Envtl. Action Ass’n v. Surface

Transp. Bd., 602 F.3d 687 (5th Cir. 2010) ........... 6
Taniguchi v. Kan Pacific Saipan, Ltd.,

566 U.S. 560, 132 S. Ct. 1997 (2012)..............0..... 5
Whitman v. Am. Trucking Ass’ns,

gL ce ST es a 18

Yakus v. United States, 321 U.S. 414 (1944) ... 18-19

lV

TABLE OF AUTHORITIES (cont.)

Page(s)

CONSTITUTIONAL,
STATUTORY, AND
REGULATORY PROVISIONS
Ee SIRE nae nN 3, 16, 18
5 U.S.C. § 701(a)(2) ......-.----------.- eae 16, 18, 19, 20
ee iis scctesinilelinpsiaiinlbenasiatie 4
ee a i i erscreniniseshomencateenaniavemens 4-5
5 ks ESE OEE TENTS rer 5
| RS. EERE ene eran eat 4
Cg Ee ETE
cs shnadichindebcial 17, 20
Oe I piiictiecenerinnspescstennnnvencsinn’ 11-12
nn a aera inmepenieesoanogions 20
I ii icc seetnedpastahsedemanninaccninil 12
H.R. REP. 95-1625 (1978), reprinted in

1978 U.S.C.C.A.N. 9453, 1978 WL 8486.............. 8
i ee 12

50 C.F.R. § 424.12(b)(5) (2012) 00... ecececececsceceseeceeee 4

Vv

TABLE OF AUTHORITIES (cont.)
Page(s)

Endangered and Threatened Wildlife and Plants;
Final Rule to Designate Critical Habitat for the
Santa Ana Sucker (Catostomus santaanae),

70 Fed. Reg. 426 (Jan. 4, 2005) ......00.00.000-ee. 7

Endangered and Threatened Wildlife and
Plants; Designation of Critical Habitat for
Dusky Gopher Frog, 77 Fed. Reg. 35,118
I edoemaail 6, 8, 9, 10, 13

Endangered and Threatened Wildlife and Plants;
Designation of Revised Critical Habitat for the
Northern Spotted Owl, 77 Fed. Reg. 71,876
AAS NAS OES EE Tere HP 13-15

MISCELLANEOUS

Amee B. Bergin, Does Application of the APA's
“Committed to Agency Discretion” Exception
Violate the Nondelegation Doct: »e?

28 B.C. ENVTL. AFF. L. REV. 363 (2001).............. 19

Paul Emrath, Government Regulation in the Price
of a New Home, Special Studies (May 2, 2016).. 11

Norman James and Thomas J. Ward, Critical
Habitat’s Limited Role Under the Endangered
Species Act and its Improper Transformation
into “Recovery” Habitat, 34 UCLA J. ENVTL. L.
GL A SCs pare 12-13

vl

TABLE OF AUTHORITIES (cont.)
Page(s)

Viktoria Lovei, Revealing the True Definition
of APA S 701(a)(2) by Reconciling “No Law
to Apply” with the Nondelegation Doctrine,
73 U. CHI. L. REV. 1047 (2006).......................00... 19

David Sunding, The Brattle Group, Economic
Incentive Effects of EPA’s After-the-Fact Veto
of a Section 404 Discharge Permit Issued to
Arch Coal (May 30, 2011) ..........................ccccc00.000. 12

Melinda Taylor, et. al., Protecting Species or
Endangering Development? How Consultation
Under the Endangered Species Act Affects
Energy Products on Public Lands, Kay
Bailey Hutchison Center for Energy, Law
& Business, Research Paper No. 2016-03
SIRES SERRE ET CRG NS ala SE Re 9

Andrew J. Turner and Kerry L. McGrath,
A Wider View of the Impacts of Critical
Habitat Designation, 43 ENVTL. L. REP.
NEws & ANALYSIS 10678 (August 2013) ............. 10

Institute for Water Resources, The Mitigation
Rule Retrospective: A Review of the 2008
Regulations Governing Compensatory
Mitigation for Losses of Aquatic Resources,
2015-R-03 (October 2015) ...........0......00cc cece. 12

Industrial Economics, Inc., Economic
Analysis of Critical Habitat
Designation for the Dusky Gopher Frog,
RE RS Seal Oat RS lA )

INTEREST OF AMICI CURIAE!

The National Association of Home _ Builders
(“NAHB”) is a Washington, D.C.-based trade
association whose mission is to enhance the climate
for housing and the building industry. Chief among
NAHB’s” goals is' providing and expanding
opportunities for all people to have safe, decent, and
affordable housing. Founded in 1942, NAHB is a
federation of more than 700 state and local
associations. About one-third of NAHB’s
approximately 140,000 members are home builders
or remodelers, and account for 80% of all homes
constructed in the United States.

Many of NAHB’s members, such as Petitioners, are
private landowners with reasonable expectations
regarding the lawful use of their property. Since a
predominant number of the species protected under
the Endangered Species Act (“ESA”) have the major
share of their habitat on private land, critical
habitat decisions significantly impact NAHB’s
members.

The American Forest Resource Council (““AFRC”) is
a regional trade association whose purpose is to
advocate for sustained-yield timber harvests on

' Counsel of record for all parties received notice at least
10 days prior to the due date of the amici curiae’s intention to
file this brief. Letters of consent are on file with the Clerk. No
counsel for a party authored this brief in whole or in part, and
no counsel or party made a monetary contribution intended to
fund the preparation or submission of this brief. No person
other than amici curiae, its members, or its counsel made a
monetary contribution to its preparation or submission.

2

public timberlands throughout the West to enhance
forest health and resistance to fire, insects, and
disease. AFRC promotes active management to
attain productive public forests, protect the value
and integrity of adjoining private forests, and assure
community stability. It works to improve federal and
state laws, regulations, policies and decisions
regarding access to and management of public forest
lands and protection of all forest lands. AFRC
represents over 50 forest product businesses and
forest landowners throughout California, Idaho,
Montana, Oregon, and Washington. Many of AFRC’s
members have their operations in communities
adjacent to federal and state forestlands, and the
management of these lands ultimately dictates not
only the viability of their businesses, but also the
economic health of the communities themselves.

AFRC’s members, and the communities in which
they work, have been affected by reductions in
timber harvest resulting from critical habitat
designations, on federal, state, and private land, for
species such as northern spotted owl, marbled
murrelet, and Canada lynx. AFRC members’ timber
contracts have been suspended, slowed or cancelled
as a result of overbroad critical habitat designations.
Overbroad designations also threaten AFRC
member interests in forest health, federal timber
supply, and private forest land because those
designations impede forest management projects
that promote forest health and provide timber

supply.

3

SUMMARY OF ARGUMENT

The Fifth Circuit upheld the Fish and Wildlife
Service's (“the Service”) designation of Unit 1 as
unoccupied critical habitat, even though the Service
recognized that the area was not suitable habitat for
the gopher frog. By deferring to the Service's
designation, the court below failed to heed the strict
statutory standards on the designation of critical
habitat.

Consequently, by allowing the Service to employ
such broad authority, the Fifth Circuit’s decision
will have enormous economic impacts on industries
like home building and forestry that rely on the use
of private and public lands.

Finally, the Fifth Circuit found that it could not
review the Service’s decision not to exclude the
Petitioner's property from its critical habitat
determination because, in its view, Congress failed
to provide a standard by which to review the
Service’s decision. The Fifth Circuit’s holding
conflicts with this Court’s decision in Bennett v.
Spear, 520 U.S. 154 (1997), and raises serious
constitutional questions under Article I.

For these reasons, amici respectfully request that
the Court grant certiorart.

4
ARGUMENT

1. THE COURT OF APPEALS’ APPROACH
IMPROPERLY APPLIES SCIENTIFIC
DEFERENCE TO A LEGAL QUESTION.

The Fifth Circuit’s decision is at odds with the
structure of the Endangered Species Act (“ESA”). As
such, it represents a troubling expansion of the
Service's narrow delegated authority, essentially
authorizing the Service, though the vehicle of
Chevron deference, to rewrite the statute. Certiorari
is warranted to establish a uniform standard for
critical habitat designation that is a permissible
construction of the statute.

The ESA allows the Service to designate critical
habitat that is either “occupied” or “unoccupied” by
the listed species. 16 U.S.C. § 1532(5)(A). Occupied
habitat must include “those physical or biological
features (I) essential to the conservation of the
species and (Il) which may require special
management considerations or protection[.|” 16
U.S.C. § 1532(5)(A)(G)?. The features in clause (1) are
called primary constituent elements or PCEs by the
Service. See Cape Hatteras Access Pres. All. v. U.S.
Dep't of the Interior, 344 F. Supp. 2d 108, 120-21
(D.D.C. 2004); 50 C.F.R. § 424.12(b)(5) (2012). On
the other hand, unoccupied critical habitat may be
designated only “upon a determination by the
Secretary that such areas are essential for the

2 Cf. 16 USC. § 1532(5)(C)(“Except in those
circumstances determined by the Secretary, critical habitat
shall not include the entire geographical area which can be
occupied by the threatened or endangered species.”).

5

conservation of the _ species.” 16 U.S.C. §
1532(5)(A)(i1).

Occupied critical habitat is a subset of the range of
the species at the time of listing; it includes “specific
areas within the geographical area occupied by the
species....”. 16 U.S.C. § 1532(5)(A)(i). Similarly,
unoccupied critical habitat is a subset of the area
outside the species’ range; it includes “specific areas
outside the geographical area occupied by the
species....” 16 U.S.C. § 1532(5)(A)(ii). Despite this
parallel structure, subsection (ii) does not recite the
specific requirements that are listed for occupied
critical habitat. Instead, the reference to “essential”
is legislative shorthand. And the use of “specific
areas’ in both sections carries with it the “cluster of
ideas” embodied in the definition of occupied habitat.
Cf., e.g., Air Wisconsin Airlines Corp. v. Hoeper, 134
S. Ct. 852, 861-62 (2014). That is, both types of
critical habitat must contain PCEs, those biological
or physical features essential to the conservation of
the species.

Moreover, “it is a normal rule of statutory
construction that identical words used in different
parts of the same act are intended to have the same
meaning.” Taniguchi v. Kan Pacific Saipan, Ltd.,
566 U.S. 560, 1382 S. Ct. 1997, 2004—05 (2012)
(citations and quotation marks omitted). Acts of
Congress “should not be read as a series of unrelated
and isolated provisions.” Gustafson v. Alloyd Co.,
Inc., 513 U.S. 561, 570 (1995). As such, the use of
“essential” in paragraph (A)(ii) carries the standards
listed in paragraph (A)(i) to guide the Secretary's
determination. If Congress wanted the Secretary to

6

have a freer hand, it would have said something—
anything—other than “essential.” But it did not.

The Service concedes that Unit 1 does not contain all
the PCEs of critical habitat, and no one contends
otherwise. Instead, it determined this unit was
“essential to the conservation of the species”

because this species is at high risk of
extirpation from stochastic events, such as
disease or drought, and from demographic
factors such as inbreeding depression. The
establishment of additional populations
beyond the single site known to be occupied at
listing is critical to protect the species from
extinction and provide for the _ species’
eventual recovery.

77 Fed. Reg. 35,118, 35,121 (Jume 12, 2012); see id.
at 35,132.

The Fifth Circuit gave the Service’s definition
controlling weight, combining Chevron deference
with the deference owed to an agency making
scientific determinations. Markle Interests, L.L.C. v.
U.S. Fish & Wildlife Serv., 827 F.3d 452, 464-65 (5th
Cir. 2016) (discussing Chevron, U.S.A., Inc. v. Nat.
Res. Def. Council, Inc., 467 U.S. 837 (1984)). It cited,
with hearty approval, to Medina County Envitl.
Action Ass'n v. Surface Transp. Bd., 602 F.3d 687,
699 (5th Cir. 2010) for the proposition that “[w]here
an agencys particular technical expertise is
involved, we are at our most deferential in reviewing
the agency’s findings.” Markle, 827 F.3d at 465
(emphasis added). In any further litigation
regarding impacts on gopher frog critical habitat,

7

the Service will get a third layer of deference as it
interprets its own critical habitat regulation. See,
e.g., Decker v. Northwest Envtl. Def. Ctr., 568 U.S.
597, 613-14 (2013); Home Builders Ass'n of N. Cal.
v. U.S. Fish & Wildlife Serv., 616 F.3d 983, 991 (9th
Cir. 2010).

This “super-deference” led the court astray. Instead
of evaluating whether the Service's interpretation of
the statute was reasonable, as a legal matter, it in
effect deferred to the Service’s _ scientific
determination in assessing whether the designation
survived Chevron step two. Markle, 827 F.3d at 464-
465. Applying scientific deference to statutory
interpretation takes Chevron too far. The Service's
disregard of the statutory standards for critical
habitat designation and the Fifth Circuit’s use of
Chevron to authorize amendment by regulation,
have national effects of significant importance.

As a policy matter, the Service’s use of a relaxed
threshold for unoccupied critical habitat, not
requiring presence of all the PCEs when outside the
species’ range may have some logic to it. Because of
the “jeopardy” protection for listed species,
designation of occupied critical habitat is arguably
redundant and therefore less important. Indeed, the
Service has stated in the past that “the designation
of statutory critical habitat provides little additional
protection to most listed species, while consuming
significant amounts of available conservation
resources.” Endangered and Threatened Wildlife
and Plants; Final Rule to Designate Critical Habitat
for the Santa Ana Sucker (Catostomus santaanae),
70 Fed. Reg. 426 (Jan. 4, 2005). But that is not the

8

way Congress wrote the statute. In keeping with its
intent that the agency be “exceedingly circumspect
in the designation of critical habitat outside of the
presently occupied area of the species,”* Congress
imposed specific requirements that the Service must
mect. The Fifth Circuit erred in allowing the Service
to disregard those requirements.

Il. THE SERVICE’S DESIGNATION
OF UNINHABITABLE AREAS AS
CRITICAL HABITAT WILL INFLICT
SEVERE COSTS ON LANDOWNERS
AND THE AVERAGE CITIZEN WITH
NO CORRESPONDING BENEFITS
TO SPECIES.

“Critical-habitat designation is consequential.”
Markle Interests, L.L.C. v. U.S. Fish & Wildlife
Serv., 848 F.3d 635, 638 (5th Cir. 2017) (dissenting
from denial of reh’g en banc) (“Markle Interests”).
The Fifth Circuit’s deference to the Service’s
interpretation of “essential” is problematic because
it allows designation of lands that “do not currently
contain the essential physical or biological features
of critical habitat.” See 77 Fed. Reg. 35,118, 35,135
(June 12, 2012); see also id. at 35,129 (noting that
Unit 1 is a “closed-canopy forest unsuitable as
habitat for dusky gopher frogs” that do not contain
the PCEs of critical habitat). As Judge Owen’s
dissenting opinion correctly observed, under this
definition of “essential,” then “vast” areas “could be
designated as ‘critical habitat’ because it is

s H.R. REP. 95-1625, at 18 (1978), reprinted in
1978 U.S.C.C.A.N. 9453, at 9468, 1978 WL 8486.

9

theoretically possible, even if not probable, that land
could be modified to sustain the introduction or
reintroduction of an endangered species.” Markle,
827 F.3d at 481 (Owen, J., dissenting).

For the Louisiana landowners, whose 1,544 acres
(“Unit 1”) have been designated unoccupied critical
habitat for the dusky gopher frog, the Service has
calculated a $33.9 million loss in residential and
commercial development opportunities. 77 Fed. Reg.
at 35,118, 35,141. This conservative figure does not
account for the lost option on foreseeable oil and gas
development, mineral development, timber harvest,
recreational use or hunting leases.‘ It also
understates the true costs of Section 7 consultation
and wholly fails to consider the expensive and time-
consuming pre-consultation process.5 A complete

‘ Landowners have offered the Service verifiable proof of
on-site untapped oil and gas reserves of $17.1 million, mineral!
deposits of up to $247,350, timber resources of $6.93 million
and annual hunting lease revenues of $9,844. Industrial
Economics, Inc., Economic Analysis of Critical Habitat
Designation for the Dusky Gopher Frog, 4-1, 4-5, 4-8, 4-9 (April
6, 2012) available at _ https://www.regulations.gov/
document?D=FWS-R4-ES-2010-0024-0157 (last visited Aug. 8,
2017).

Computation of only the time and level of effort spent
following the “official” start of consultation underrepresent the
true cost of the consultation process. A recent study out of the
University of Texas found that pre-consultation lasts 8 months
or more, depending on the scope of the project. Melinda Taylor,
et. al., Protecting Species or Endangering Development? How
Consultation Under the Endangered Species Act Affects Energy
Products on Public Lands, Kay Bailey Hutchison Center for
Energy, Law & Business, Research Paper No. 2016-03, p.8
(Aug. 2016) available at http://sites.utexas.edu/

10

picture would further have considered the costs of
actions likely to be undertaken by the landowners
outside of the consultation process, such as a
reduction in the development’s buildable envelope to
avoid the difficulties and expense of formal
consultation. See Andrew J. Turner and Kerry L.
McGrath, A Wider View of the Impacts of Critical
Habitat Designation, 43 ENvTL. L. REP. NEws &
ANALYSIS 10678 (August 2013) (discussing efforts
undertaken by landowners before and after
consultation to avoid the even greater costs and
burdens of formal consultation). Despite the
Service’s failure to quantify any direct monetary or
“biological” benefits to the frog flowing from the
designation, it found its “economic impact analysis
did not identify any disproportionate costs.” 77 Fed.
Reg. at 35,141. In contrast, the six judges who
dissented from denial of en banc review described
the findings of the impact analysis as “shocking,”
particularly so in light of the fact that “there is
virtually nothing on the [benefit] side of the
economic ledger.” Markle Interests, 848 F.3d at 653.
The Service’s flawed economic analysis clearly
merits further review.

As detailed above, the project-level toll of a critical
habitat designation can be immediate and
significant, “resulting in substantial additional
project costs, if not destroying the projects’ economic
viability.” Turner & McGrath at 10681. However,
the bigger story here is the regulatory trickle-down
to the consumer. A recent study by NAHB reveals

kbhenergycenter/files/2016/08/ESA-Report.pdf (last visiied
Aug. 7, 2017).

1]

that, on average, compliance with regulation during
lot development accounts for 14.6 percent of the final
price of a new single-family home. Equally
disturbing is the fact that the cost of regulation
during development, which is ultimately added onto
the lot price when a home is sold, is rising more than
twice as fast as the average American’s ability to pay
for it. Paul Emrath, Government Regulation in the
Price of a New Home, p. 5, 8, Special Studies (May 2,
2016), available at https://www-.nahbclassic.org/
generic.aspx?section! D=734&genericContentID=25
0611&channelI[D=311. The designation of backup
critical habitat that is presently uninhabitable but
that may “someday become useful to the [listed
species]” will only fuel this alarming trend. Alliance
for the Wild Rockies v. Lyder, 728 F.Supp.2d 1126,
1142-1143 (D. Mont. 2010). Absent an unoccupied
critical habitat designation, the ESA and the
avalanche of regulatory costs that follow would not
apply to private land.

Consider that the most common type of federal
permit requiring Section 7 consultation with wildlife
agencies is a permit authorizing the discharge of
dredge or fill material into waters of the United
States.© These permits are issued by the Army

6 Under Section 7(a)(2) of the ESA (16 US.C. §
1536(a)(2)), each federal agency must consult with the Service
to “insure that any action authorized, funded, or carried out by
such agency is not likely to jeopardize the continued existence
of any endangered species or [ . . . | result in the destruction or
adverse modification of [critical] habitat of such species.” 16

U.S.C. § 1536(a)(2). Agency regulations define federal agency
“action” to include the issuance of permits for projects carried

12

Corps of Engineers (“Corps”) and are authorized
under Section 404 of the Clean Water Act (“CWA”).
33 U.S.C. § 1344. They rank amongst the most
common, if not the most common, permit that
developers must obtain to provide housing for the
nation’s citizens. Annually, the Corps issues
approximately 72,000 Section 404 permits (13-year
average), and “over $220 billion of investment
annually is conditic xed on the issuance of these
discharge permits.” David Sunding, The Brattle
Group, Economic Incentive Effects of EPA’s After-
the-Fact Veto of a Section 404 Discharge Permit
Issued to Arch Coal, p. 1 (May 30, 2011);’? Institute
for Water Resources, The Mitigation Rule
Retrospective: A Review of the 2008 Regulations
Governing Compensatory Mitigation for Losses of
Aquatic Resources. 2015-R-03, p. 25-26 (October
2015).8

As highlighted by the designation of Unit 1, the
Service has become “increasingly aggressive in
exploiting the Section 7 consultation process to
control how land and water resources are used.”
Norman James and Thomas J. Ward, Critical
Habitat’s Limited Role Under the Endangered
Species Act and its Improper Transformation into

out by private development interests. 50 C.F.R. § 402.02
(2016).

7 Available at http://www.chamberlitigation.com/sites/
default/files/cases/files/20 1 1/Mingo%20Logan%20Coal%20Co
%20Inc%20v.%20EPA% 20% 28S unding% 20Economic%20Stud
y%29.pdf (last visited Aug. 8, 2017).

8 Available at http://www.iwr.usace.army.mil/Portals/
70/docs/iwrreports/20 15-R-03.pdf (last visited Aug. 7, 2017).

13

“Recovery” Habitat, 34 UCLA J. ENVTL. L. & POL’Y 1,
6-7 (2016). The Endangered Species Act does not
permit the Government to designate an area as
‘critical habitat,’ and therefore use that designation
as leverage against the landowners, based on one
feature of an area when that one feature cannot
support the existence of the species and significant
alterations to the area as a whole would be required.
Markle, 827 F.3d at 481 (Owen, J., dissenting).

However, the Service has done just that with Unit 1.
Through a CWA 404 permit nexus it has triggered
the ESA and federalized the entire property for
purposes of Section 7. With this, it has
“recommend{ed] that no development occur within
the unit” or, perhaps, may allow 40 percent of the
unit to be developed under the “hope to work with
the landowners to develop a strategy that will allow
them to achieve their objectives for the property and
protect the isolated, ephemeral ponds that exist
there.” 77 Fed. Reg. at 35,141; id. at 35,123.

Similarly, this “unprecedented and sweeping”
interpretation of unoccupied habitat is economically
disastrous for industries dependent on public
lands—like forest product manufacturers. A
quintessential example is the designation of critical
habitat for the northern spotted owl, one of the most
controversial wildlife species listed under the ESA.
In 2012, the Service designated 9,577,969 acres
(roughly twice the size of the State of New Jersey) of
forest land in California, Oregon, and Washington to
be set aside for the owl. Endangered and
Threatened Wildlife and Plants: Designation of
Revised Critical Habitat for the Northern Spotted

14

Owl, 77 Fed. Reg. 71,876 (Dec. 4, 2012); Carpenters
Indus. Council v. Zinke, 854 F.3d 1, 2 (D.C. Cir.
2017) (“[I]magine driving all the way up and then all
the way back down the New Jersey Turnpike, and
you will get a rough sense of the scope of the [2012
northern spotted owl] critical habitat designation
here. The critical habitat designation means that a
huge swath of forest lands in the Pacific Northwest
will be substantially off-limits for timber
harvesting.”).2 Of the lands designated as critical
habitat, more than 2.6 million acres are “matrix
lands,” which were set aside under the Northwest
Forest Plan to provide a steady supply of federal
timber to the local forest products-based economy.
77 Fed. Reg. at 71,876; id. at 71,880 (noting that
“matrix areas [are] where timber harvest would be
the goal.”) The Service’ estimated that
approximately 6.5 percent (roughly 622,000 acres) of
northern spotted owl critical habitat is likely to be
unoccupied. 77 Fed. Reg. at 72,028. The true
number is likely far higher.

In identifying unoccupied areas, the Service
concluded that the critical habitat should contain
“essential physical and biological features or is
otherwise essential because it has the highest
likelihood of meeting recovery objectives in the most
efficient manner... .” 77 Fed. Reg. at 71,916
(emphasis added). The Service acknowledged that
even though some unoccupied areas “lack| ] some

9 Carpenters Industrial Council, AFRC, Siskiyou
County, and several individual timber companies challenged
the Service’s final critical habitat rule for the northern spotted
owl, in part, because the designation was based on a flawed
modeling framework. Zinke, 854 F.3d at 1.

15

element of the physical or biological features, such
as large trees or dense canopies that are associated
with nesting habitat,” those lands “contain
proportionally greater areas of younger forests that
are essential for the conservation of the species,
because they can develop additional habitat
necessary to support viable northern spotted owl
populations in the future.” 77 Fed. Reg. 71,917
(emphasis added). Thus, like with the gopher frog,
the Service designated habitat that does not
currently contain the essential physical or biological
features of critical habitat essential for the owl.

The economic impacts resulting from overbroad
critical habitat designations — like the northern
spotted owl — are significant. The Service concluded
that “economic impacts to [Forest Service] timber
harvest are relatively more likely in unoccupied
matrix lands or approximately 1,158,314 acres of
2,629,031 total acres of all [Forest Service] matrix
lands.” 77 Fed. Reg. at 72,028. The resulting
decrease in timber supply is substantial. Id.

Without a more demanding and _ narrow
interpretation of unoccupied areas compared to
occupied areas, the Service is free to designate any
land that contains a trifling physical or biological
feature essential to a species conservation, or no
such feature — a boundless authority that is in
conflict with the plain language of the ESA. As
illustrated by the examples above, the potential
economic consequences of “virtually limitless”
authority to reach, and further encumber, “vast
portions of the United States” through
uninhabitable critical habitat designations will be

16

severe. Markle Interests, 848 F.3d at 651; Markle,
827 F.3d at 481.

Certiorart is warranted to avoid unnecessary and
significant economic burdens on private landowners
and industries that depend on public lands.

Ill. THESE PETITIONS RAISE
IMPORTANT QUESTIONS UNDER
THE NONDELEGATION DOCTRINE.

The Fifth Circuit determined that the Service's
decision not to exclude Unit 1 from its critical
habitat determination was unreviewable pursuant
to the Administrative Procedure Act (“APA”)
because Congress provided no manageable standard
to determine whether that decision was proper.
When Congress delegates its authority without
providing standards to which an agency must
conform, it raises serious constitutional concerns
under Article I. U.S. CONST. art. I. There is an
unresolved tension between Article | and APA
section 701(a)(2) when Congress fails to provide
standards to which an agency must conform its
action. This petition provides an excellent vehicle to
rectify this tension.

The APA “embodies the basic presumption of judicial
review.” Abbott Labs. v. Gardner, 387 U.S. 136, 140,
(1967), abrogated on other grounds by Califano uv.
Sanders, 430 U.S. 99 (1977). However, section
701(a)(2) of the APA provides that it does not apply
to “agency action [that] is committed to agency
discretion by law.” 5 U.S.C. § 701(a)(2). The Court
has interpreted section 701(a)(2) to mean that

17

judicial “review is not to be had’ in those rare
circumstances where the relevant statute ‘is drawn
so that a court would have no meaningful standard
against which to judge the agency's exercise of
discretion.” Lincoln v. Vigil, 508 U.S. 182, 191
(1993) (quoting Heckler v. Chaney, 470 U.S. 821, 830
(1985)).

The ESA provides that the Service must take “into
consideration the economic impact. . . of specifying
any particular area as critical habitat.” 16 U.S.C. §
1533(b)(2). Furthermore, Congress provided that
the Service “may exclude any area from critical
habitat if [it] determines that the benefits of such
exclusion outweigh the bencfits of specifying such
area as part of the critical habitat .. 2” Td.
Petitioners argued that the government acted
arbitrarily in deciding not to exclude Unit 1 from the
Service's critical habitat determination. The Fifth
Circuit never reached this argument, instead
holding that the APA precluded judicial review.
Markle, 827 F.3d at 474.

The Fifth Circuit explained that there “are no
manageable standards for reviewing the Service's
decision not” to exclude Unit 1 from the critical
habitat designation. Jd. at 473. It further stated
that 16 U.S.C. § 1533(b)(2) “establishes a
discretionary process by which the Service may
exclude areas from designation, but it does not
articulate any standard governing when the Service
must exclude an area from designation.” /d. at 474.
In other words, because the ESA provides no
standard to determine if the Service correctly
determined not to exclude Unit 1 from critical

18

habitat, that decision (according to the Fifth Circuit)

is unreviewable under section 701(a)(2)'s “no
meaningful standard” test.

Comparably, Article I of the Constitution vests all
legislative powers in the Congress of the United
States. “That congress cannot delegate legislative
power to the president is a principle universally
recognized as vital to the integrity and maintenance
of the system of government ordained by the
constitution.” Marshall Field & Co. v. Clark, 143
U.S. 649, 692 (1892); Indus. Union Dep't, AFL-CIO
v. Am. Petroleum Inst., 448 U.S. 607, 673 (1980)
(Powell, J., concurring). This is known as the
nondelegation doctrine. See Whitman v. Am.
Trucking Ass’ns, 531 U.S. 457, 472 (2001)
(explaining that Article | permits no delegation of
Congress’s legislative powers). However, “[ilf
Congress shall lay down by legislative act an
intelligible principle to which the person or body
authorized to [act] is directed to conform, such
legislative action is not a forbidden delegation of
legislative power.” E.g., J.W. Hampton, Jr., & Co. v.
United States, 276 U.S. 394, 409 (1928) (emphasis
added). “The intelligible-principle rule seeks to
enforce the understanding that Congress may not
delegate the power to make laws and so may
delegate no more than the authority to make policies
and rules that implement its statutes.” Loving v.
United States, 517 U.S. 748, 771 (1996).
Furthermore, the Court has explained that Congress
has failed to state an intelligible principle if “there
is an absence of standards for the guidance of [an
agency's] action, so that it would be impossible in a
proper proceeding to ascertain whether the will of

19

Congress has been oheyed ...” Yakus v. United
States, 321 U.S. 414, 426 (1944) (emphasis added);
Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst.,
448 U.S. 607, 686 (1980) (Rehnquist, C.dJ.,
concurring) (explaining that the intelligible
principle rule requires “ascertainable standards” by
which a court can test the exercise of delegated
legislative discretion).

Therefore, APA section 701(a)(2) provides that
judicial review is precluded if Congress fails to
provide a “meaningful standard” by which a court
can judge whether an agency properly exercised its
discretion. However, the nondeclegation doctrine
provides that if Congress fails to provide a standard
then it has failed to provide an “intelligible
principle” and such a delegation is unconstitutional.
As commentators have explained, “[i]f a statute is so
broad that it lacks a guiding policy, the statute may
lack an intelligible principle, in violation of the
nondelegation doctrine.” Viktoria Lovei, Revealing
the True Definition of APA § 701(a)(2) by Reconciling
"No Law to Apply" with the Nondelegation Doctrine?
73 U. CHI. L. REV. 1047, 1060 (2006); see Amee B.
Bergin, Does Application of the APA's "Committed to
Agency Discretion” Exception Violate _ the
Nondelegation Doctrine? 28 B.C. ENVTL. AFF. L. REV.
363, 396 (2001) (arguing that “[i]f a court finds that
a delegation lacks ‘law to apply, it follows
analytically that not only can the court find that the
delegation lacks an intelligible principle, but that it
must do so”). Thus, there is a clear tension between
the nondelegation doctrine and APA section
701(a)(2).

20

The Fifth Circuit found that 16 U.S.C. § 1533(b)
provides no meaningful standard to review the
Service’s decision not to exclude Unit 1 and therefore
precluded review under 5 U.S.C § 701(a)(2).
Accordingly, under the nondelegation doctrine
Congress also failed to provide an _ intelligible
principle, leading to the conclusion that such a
delegation is unconstitutional. The Fifth Circuit,
however, did not explore the consequences of its
reasoning on the constitutionality of Congress's
delegation to the Service.

Had the Fifth Circuit explored those consequences,
it would have found a ready answer in Bennett. In
Bennett, this Court addressed whether a challenge
to a critical habitat designation was properly
reviewed under the ESA citizen suit provision, 16
U.S.C. § 1540(g)(1)(C), which allows a plaintiff to
enforce a non-discretionary duty under section 1533
of the ESA. Id. at 171-72. The Court found the
designation was reviewable under section 1540 to
the extent it violated the “categorical requirement
that, in arriving at his decision, [the Secretary]
‘tak[e] into consideration the economic impact, and
any other relevant impact,’ and use ‘the best
scientific data available.” Jd. at 172 (quoting 16
U.S.C. § 1533(b)(2)). The Court qualified this by
stating “the Secretary's ultimate decision,” i.e. the
ultimate decision whether to exclude, “is reviewable
only for abuse of discretion,” that is, under the APA.
Id. at 172. This last statement immediately follows
a quotation of the Secretary's authority to exclude.
Id. Thus, this Court’s precedent and the avoidance
canon point in the same direction, which is to permit

21

review of the Service’s decisions on whether to
exclude habitat due to the impact of a designation.

These Petitions provide the Court with a valuable
opportunity to realign administration of the ESA
with the nondelegation doctrine and certiorari
should therefore be granted.

CONCLUSION

For the reasons above, amici respectfully request
that the Court grant the Petitions for certiorart.

August 14, 2017

Respectfully submitted,
LAWSON E. FITE THOMAS J. WARD*
SARA GHAFOURI JEFFREY B. AUGELLO
AMERICAN FOREST NATIONAL ASSOCIATION

RESOURCE COUNCIL OF HOME BUILDERS
5100 S.W. Macadam 1201 15th Street, N.W.

Ave., Ste 350 Washington, D.C. 20005

Portland, OR 97239 (202) 266-8200
(503) 222-9505 * Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0771%3A15. Public record. Not legal advice.