# 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%3A31

## Record

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

## Text

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

i
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

iv

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)

l

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.

2

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.

3

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-

A

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

5

(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

6

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:

7

(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,

8

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

9

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,

10

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).

1]

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.

12

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

13

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.

14

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,

15

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

16

“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

17

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

18

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-

19

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

20

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).

21

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.

22

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,
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
mdewitt@cato.org

April 30, 2018

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0771%3A31. Public record. Not legal advice.