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

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No. 17-71

IN THE

Supreme Court of the Anited States

WEYERHAEUSER Co.,

Petitioner,

Vv.

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 AMICT CURIAE SUPPORTING PETITIONER

Martin J. Newhouse Ilya Shapiro

John Pagliaro Counsel of Record

NEW ENGLAND LEGAL Trevor Burrus

FOUNDATION Meggan DeWitt

150 Lincoln Street CATO INSTITUTE

Boston, MA 02110 1000 Mass. Ave. N.W.

(617) 695-3660 Washington, D.C. 20001

(202) 842-0200

ishapiro@cato.org

tburrus@cato.org

April 30, 2018 mdewitt@cato.org

QUESTIONS PRESENTED

The petition presents two questions for review:

. 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?

. Ifso0, what part of the Constitution authorizes that

sort of thing?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED............................002eeeeeeeees i

TR Ee BF Ce I oncnscnccsecccvscccseasccsceseeesesors iii

INTEREST OF THE AMICI CURIAE....................... l

INTRODUCTION AND SUMMARY OF

SUR SPREAD RE 2

TE teiiciathithinssietheniidiaciitethiiemneiiiibeiniandaaienantenetiness 4

|. THE COURTS BELOW SHOULD NOT HAVE

DEFERRED TO THE GOVERNMENT'S

INTERPRETATION OF THE ESA ......00000000........ 4

A. The FWS Interpretation of “Essential!” Is

ES RE SE RE a 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

Il. 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 .................-.....--+++e-es+++ 17

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

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

I cinsicinisshinisedavhediintubtsinnosetniatuisenicisouesenintis 22

ill

TABLE OF AUTHORITIES

Page(s)

Cases

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

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

eC ET i iiciansinastienunicincstionnieasiantaiishipisimadn 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.,

RTE aceon 4

FDA v. Brown & Williamson Tobacco Corp.,

Re Ee SG iesiicsitcevsininciictatdinnasiccstaliensitnennniiiigian 10

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

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016) .........0.0 00. .ccccccccceceeeee 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) ....................00000000 passim

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

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

McCulloch v. Maryland,

Be I ccicnsnccressnsinhantuntemsenneenuntbane 18, 19, 20

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

ee acces ccestibenisintbisnieititiastenvitntiviaietiaitchens 10

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

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

re I i cceviccnscenececscusstcsitnatustvdvinite passim

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

SG Ge, Fe ne i Rcvcirensctcnivensacnnstncnimasuhlamnsaieiiin 6

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

Raich v. Gonzales, 545 U.S. 1 (2005) ..000...0..ccccccceee 20

Sandifer v. U.S. Steel Corp.,

ee 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,

ae 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,

i ceseanunnaton 10

Whitman v. Am. Trucking Ass’ns,

ee 13

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

Constitutional Provisions

ce ec 15, 17

Statutes

ee 7

a 7

EE ee 11

Regulations

77 Fed. Reg. 35118 (June 12, 2012) 0000.0. 11

81 Fed. Reg. 7414 (Feb. 11, 2016) o.oo. 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,

FE ee 20

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

Habitat Designation for the Dusky Gopher Frog,

ST EL 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)....... 3)

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

SS ERR A Re a 3)

INTEREST OF THE AMICI CURIAE'

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 incor-

porated 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! eco-

nomic rights and the rights of private property.

This case concerns amici because it implicates the

ability of government to burden private citizens’ prop-

erty rights through actions that violate the Constitu-

tion. 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 proba-

ble, that land could be modified to sustain the intro-

duction 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).

' 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 gov-

ernment through structural design. As Madison put it:

“In the compound republic of America, the power sur-

rendered by the people is first divided between two dis-

tinct governments, and then the portion allotted to

each subdivided among distinct and separate depart-

ments. Hence a double security arises to the rights of

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

The U.S. Fish and Wildlife Service (FWS) disre-

garded both of these liberty-protecting structural safe-

guards when it designated petitioner's property (Unit

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

While Congress delegated the F WS power to designate

critical habitat in the Endangered Species Act (ESA),

that power is not unlimited. The ESA defines the cri-

teria by which the FWS may designate property as

critical habitat of a listed species. This includes prop-

erty 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

F'WS’s power—and the precedent it sets for land regu-

lation—-will have major economic and political conse-

quences. The Constitution does not let executive agen-

cies amend statutes in this way.

Further, if the FWS’s expansive definition of “criti-

cal habitat” is deemed a valid exercise of administra-

tive discretion, then that expansive statutory reading

goes beyond the strictures of the Commerce and Nec-

essary 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 cur-

rently supports the comprehensive ESA scheme—and

critical-habitat designation can be reasonably con-

nected 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 “eco-

nomic activity” under the Commerce Clause. Other-

wise, 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 ac-

tivities that take place on the land, such as Roscoe F'il-

burn’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. Fil-

burn’s Impossible Farm” would be both unnecessary

and improper, just as the regulation of Unit | 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 gov-

ernment cannot disregard the Constitution’s struc-

tural limits and accordingly reverse the ruling below.

ARGUMENT

I. THE COURTS BELOW SHOULD NOT HAVE

DEFERRED TO THE GOVERNMENT'S IN-

TERPRETATION OF THE ESA

The “accumulation of all powers, legislative, execu-

tive, 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 oth-

ers.” 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 ac-

tivities.” City of Arlington v. FCC, 569 U.S. 290, 313

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

Many observers, including members of this Court, be-

lieve that Chevron deference plays a major part in this

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

v. EPA, 135 8. Ct. 2699, 2712 (2015) (Thomas, J., con-

curring) (“Interpreting federal statutes—including

ambiguous ones administered by an agency—calls for

... exercise of independent judgment. Chevron defer-

ence 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 bu-

reaucracies 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 over-

turn 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 al-

ready overextended Chevron deference past its limits.

The lower courts then abdicated their responsibility to

enforce the limits of deference, demonstrating how def-

erence to agencies frustrates the separation of powers.

A. The FWS Interpretation of “Essential” Is

Unreasonable

While the Court has allowed Congress wide lati-

tude in delegating its authority to executive agencies,

it is also axiomatic that, for Chevron deference to ap-

ply, a court must first review an agency’s construction

of the statute to determine whether Congress has di-

rectly spoken to the precise question at issue. Because,

“li]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 con-

struction, unless otherwise defined, words will be in-

terpreted as taking their ordinary, contemporary, com-

mon 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 construc-

tion”). 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 stat-

utory 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 over-

all 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 ig-

nored 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 sec-

tion 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 Secre-

tary that such areas are essential for the conser-

vation of the species.

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

both definitions are distinct in that both identify dif-

ferent 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 be-

come critical. See Pet. for Writ of Cert., Markle Inter-

ests 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 stat-

utory construction, this case could have been easily

disposed of by simply interpreting the text, context,

and structure of the ESA. But both courts below fo-

cused on a narrow provision of the ESA to find ambi-

guity—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 ac-

cepted—that the term “essential” in the ESA gives it

authority to regulate private land that is neither occu-

pied 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’ conserva-

tion 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 “essen-

tial.” See Markle, 848 F. 3d, at 646—52 (Jones, J., dis-

sental); 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 ‘essen-

tial’ can reasonable be interpreted to mean.”).

If the FWS is free to define private land as “essen-

tial” for species conservation when that land is “not oc-

cupied 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 sub-

stantial alterations and future annual maintenance . .

. and does not play any supporting role in the existence

of current habitat for the species,” there is no mean-

ingful 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 mean-

ing is clear, and the FWS interpretation of “essential”

is unreasonable. But there is another fundamental

reason this Court should overrule the lower court’s ap-

plication of Chevron: if the ESA allows the FWS to de-

fine private land that has—at best—hypothetical de

minimis connection to the species as “essential,” Con-

gress would have made that clear.

When determining whether to apply Chevron def-

erence to agency interpretations of statutes, this Court

has withheld deference where the agency is regulating

beyond mere “interstitial matters” without clear con-

gressional approval. In these situations, non-delega-

tion 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 poten-

tially 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 au-

thority 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-regu-

lated 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 del-

egation in the [Controlled Substances Act]’s reg-

istration provision is not sustainable”).

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

2444 (2014) (“When an agency claims to dis-

cover in a long extant statute an unheralded

power to regulate a significant portion of the

American economy, we typically greet its an-

nouncement 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).

e 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 defer-

ence 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 statu-

tory 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-bene-

fit 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 anal-

ysis of Unit 1, it considered “lost economic efficiency

associated with residential and commercial develop-

ment 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 dol-

lars into their plans to develop this area.” Indus. Econ.,

Inc., Economic Analysis of Critical Habitat Designa-

tion 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 bil-

lions 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., dis-

sental) (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 be-

cause, 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 desig-

nate private land, “there is no obstacle to the Service

claiming critical habitat wherever ‘forested areas’ or ‘a

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

interpretation of the ESA, “the Service has the author-

ity 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.” /d. At bot-

tom, this aggrandizing interpretation “threatens to ex-

pand the Service’s power in an ‘unprecedented and

sweeping way.” /d. 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 habi-

tat. 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 pri-

vate 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 inter-

pretation of a statute invokes the outer limits of Con-

gress’ power, we expect a clear indication that Con-

gress intended that result.”).

Whether the F'WS 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 polit-

ical consequences for property owners in this country.

il. 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 Fil-

burn (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 con-

stitutional limits. An agency’s interpretation of a stat-

ute passed pursuant to the Commerce and Neceserary

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 individ-

ual mandate, Natl Fed’n of Indep. Bus. (“NFIB”) v.

Sebelius, 567 U.S. 519, 559-61 (2012), it would be im-

proper 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 nec-

essarily 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, un-

moored from any constitutional foundations. Unit | is

not habitat for the frog and so is beyond the ESA's reg-

ulatory reach under the Commerce and Necessary and

Proper Clauses. For the same reasons that the Agri-

cultural Adjustment Act of 1938 could not constitu-

tionally 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 Execu-

tion” the power to regulate commerce. U.S. Const. art.

|, § 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 un-

der 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 ef-

fects on interstate commerce. /d. Focusing on prong

three, the Lopez majority struck down a federal statu-

tory 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, substan-

tially affect any sort of interstate commerce.” /d. 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 “eco-

nomic.” See id; see also NFIB, 567 U.S. at 550 (2012)

(“The power to regulate commerce presupposes the ex-

istence of commercial activity to be regulated.”).

A piece of land’s mere existence does not constitute

“economic activity” under the Commerce Clause. Oth-

erwise, the Constitution would allow comprehensive

land-use regulation without any connection to inter-

state 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

F'WS 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 con-

stitutional 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 be-

cause it contains water areas used as habitat” by mi-

gratory waterfowl and nothing more. /d. at 172-73,

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

“[pjermitting 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 | is simi-

larly expansive in that it seeks jurisdiction over some-

thing 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 sus-

tain the species...and does not play any supporting

role in the existence of the current habitat for the spe-

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

Apparently recognizing this flaw in the FWS juris-

dictional claim, the court below relied on the compre-

hensive-scheme approach to uphold the regulation of

Unit 1. See Markle, 827 F.3d at 476-78. But the com-

prehensive-scheme test has never been used to regu-

late 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 reg-

ulation 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 Neces-

sary Nor Proper

Under the Constitution, Congress can “make all

Laws which shall be necessary and proper for carrying

into Execution” its enumerated powers. Art. |, § 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] other-

wise granted are included in the grant.” /d.

As this Court noted in NF7B, its jurisprudence un-

der 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 un-

constitutional those laws that undermine the struc-

ture 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.” Jd. 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.” /d. (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 “con-

venient, 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 conducive-

ness to the object, is in the mind of the court.” John

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

shall’s Defense of McCulloch v. Maryland 78, 100 (Ger-

ald Gunther ed., 1969). Nevertheless, the broad, defer-

ential 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 abdica-

tion of its judicial duty to fully analyze what “neces-

sity” 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 (Ken-

nedy, 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 at-

tempts 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 |

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 go-

pher frog population.” /d; see also, Markle, 848 F. 3d at

636-37 (en banc) @WJones, 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 occu-

pation by nor connected in any way to the [dusky go-

pher 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 | 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 sov-

ereignty. See Bond v. United States, 134 S. Ct. 2077,

2101 (2014) (Scalia, J., concurring) (“No law that flat-

tens 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 com-

mitted 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 Ju-

risdictional Interpretation of the Sweeping Clause, 43

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

If this regulation stands, most if not all of this coun-

try’s private land would be subject to federal regula-

tion. The single PCE rule gives the federal government

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

and local land and water resources for species conser-

vation without regard to established constitutional

limits on federal power.” See Pet. of Writ of Cert., Mar-

kle 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 warn-

ing 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 virtu-

ally any part of the United States could be des-

ignated as “critical habitat” for any given en-

dangered species so long as the property could

be modified in a way that would support intro-

duction and subsequent conservation of the spe-

cies 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 peti-

tioner, the Court should reverse the judgment of the

Fifth Circuit.

Respectfully submitted,