Amicus Curiae Brief — Building Industry Ass'n of Superior California v. Norton

: | CLERK

Supreme Court US”

FILED |

Q DEC 13 2901

No. _ 01-620

— Pe cece,

IN THE

Supreme Court of the

United States

BUILDING INDUSTRY ASSOCIATION

OF SUPERIOR CALIFORNIA, ET. AL.,

Petitioners,

Vv.

GALE NORTON, ET. AL.,

Respondents,

ENVIRONMENTAL DEFENSE CENTER, ET. AL.,

Respondents.

On Petition for Writ of Certiorari

to United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF THE CONSULTING ENGINEERS

AND LAND SURVEYORS OF CALIFORNIA

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

—_

DAVID M. IVESTER*

JANELLE E. KELLMAN

STOEL RIVES LLP

111Sutter Street, Suite 700

San Francisco, California 94104

(415) 617-8900

*Counsel of Record

December 13, 2001

i

Table of Contents

Page

Interest Of Amicus Curiae 1

Summary Of Argument - 2

Argument 5

iE, This Case Warrants U.S. Supreme Court

Review To Address The Important

Question Whether Application Of The

ESA To Intrastate, Noneconomic Species

And Activities Exceeds The Limits Of The

Federal Interstate Commerce Power 5

A. Bedrock Constitutional Principles Are At

Stake Here 5

B. There Is No Nexus Between The Fairy

Shrimp, Which Are The Subject Of The

Government’s Listing Decision, And

Interstate Commerce 7

C. The Listing of the Fairy Shrimp Interferes with

State and Local Sovereignty over Land Use

Decisions 11

This Case Warrants U.S. Supreme Court

Review To Address The Important

Question Whether The Administrative

Procedure Act Requires The Agency To

Make Available To The Public All

Scientific Studies It Relies Upon in

Making Its Decision 13

Table of Authorities

Cases

Building Indus. Ass'n

979 F. Supp. 893 ........ccssscrescessereeeereesereeneesssseeseens 8, 9, 13

Building Indus. Ass'n of Superior Cal. V. Babbitt

979 F. Supp. 893 (D.D.C. 1997) .....ccccsccsseesesenseeneees 8, 15

Building Indust. Ass'n

979 F. Supp. 893 ........cccsecsssseseseserenserssnersseeseasseesneeseenes 15

Building Indust. Ass'n of Superior Cal. v. Babbitt

FAT PSG ADGA cccercrccscvcseresssecccsrecccscessovcoyseccsevesgnsssevensees 15

Cooley v. Board of Wardens

53 U.S. (12 How.) 299, 326 (1851) .......cccsceeesereesensenees 9

Dolan v. City of Tigard

S12 U.S. 374 (1994) .cccrrsrserecsseverscercsecessccsssecsosesssvesesocoss 12

FERC v. Mississippi

456 U.S. 742 2.30 (19B2)......cccccrccccccccserscecversesseeseeees 6, 12

Gibbons v. Ogden

22 U.S. (9 Wheat.) 1,-194-95 (1824) ........cccceseeeeeeseens 5,9

Gibbs v. Babbitt

214 F.3d 483 (4th Cir. 2000)...........ccccecseeseeeereeeeetenees 13

Gregory v. Ashcroft

SO1 U.S. 452 (1991).....ccscccocccecssercscecsscosseccccsessssecseessersess 5

Guardian Federal

589 F. 2d at 662.........cccccccccccccsssscccecserscnccsseseteseossees 14, 15

ili

Guardian Federal Savings & Loan Ass’n v. Federal

Savings & Loan Insurance Corp.

I, Cs ROTTED cescsccecensckeveceevvevesevevseneenes 14

Hess v. Port Auth. Trans-Hudson Corp.

I ais iiiscietnsecercteenenectonicebeadoneeenenoseesnres 6

Hodel v. Va. Surface Mining & Reclamation Ass'n

IS a icici eniclorpsadnnivecncestonereessee 9

Idaho Farm Bureau Federation v. Babbitt

- fy | Seon 16

Jones v. United States

ES RT SSR ee 12

Lake Country Estates, Inc. v. Tahoe Reg’! Planning Agency

athe eee lsccanianminpennapenbinenenenes 6

Maryland v. Wirtz

I Co. ssc cdeiesindnssnhenionessdvensanbeonines 13

National Association of Home Builders v. Babbitt

130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 524 U.S.

a scsseeememennrnabiense 3, 4, 10

Palila v. Haw. Dep’t of Land & Natural Res.

471 F. Sapp. SES (D.Haw. 1979) .cccceccsevscccsessescovcsesecsceees 8

Solid Waste Agency of Northern Cook County v. United

States Army Corps of Engineers

531 U.S. 159 (2001) (“SSWANCC’’)...........cccccceseeees 11,12

Solid Waste Agency v. United States Army Corps of

Engineers

IID, ccsiaseiiiniiatdvliptonebabbedratenssotovidbeeveseseeee 4

The Daniel Ball

FE ee CEE Pe) FIT CROP) cocewevssevencvvcerseveveevcoseconvooers 9

iv

United States v. Lopez

514 U.S. 549 (1995).........scccscsssssessssereeeseseessressnesees passim

United States v. Morrison

529 U.S. 598, 611 (2000)...........scceseerserseereeenserseeees passim

Village of Euclid, Ohio v. Amber Realty Co.

272 U.S. 365 (1926)......eccccrccsscsssscscecssecesecerersesesessesseess 12

Warth v. Seldin

422 U.S. 490 1.18 (1975)....ccccscsccsresrecsssserreeeseeeeeseesees 12

Statutes

16 U.S.C. § 1533(a)(3) (2000) .........secerserreereereeeeneeseeseerees 8

16 U.S.C. § 1533(b)(4) (2000) (App. E-6)..........seeseseeees 15

5 U.S.C. § 553(b)-(c) (2000) (App. D-1) ........eccecsereerees 15

Other Authorities

Report of the Attorney General's Comm'n on

Administrative Procedure in Government Agencies

101 (Washington, D.C. 1941) .........sccssesscsessrsereeesenreners 19

Rules

Se. TOE en cninickenencnnnininiemnaiiiine 1

INTEREST OF AMICUS CURIAE!

The Consulting Engineers and Land Surveyors of

California (“CELSOC”) represents 1,100 member firms

providing a wide variety of services for proposed pubdlic

works and privately sponsored projects. Services provided

by CELSOC’s member firms include conducting

environmental studies, preparing environmental impact

reports, designing site plans for proposed projects,

surveying proposed project sites, identifying available

water sources, performing water quality analyses, designing

drainage for project sites, and assisting project sponsors

during the environmental review and permitting process.

As environmental issues regarding projects and associated

administrative processes are central to the daily operations

of its members, CELSOC has an obvious interest in the

scope of federal regulatory authority in general, and federal

environmental regulation in particular.

Application of the federal Endangered Species Act

(“ESA”) in California with respect to entirely intrastate

activities in violation of the Commerce Clause, burdens or

blocks projects for which CELSOC’s members provide or

could provide services. Owing to the ESA’s administration

in this unconstitutional manner, CELSOC’s members, and

other similarly situated engineers and surveyors, have

experienced unexpected and unwarranted terminations of

' Pursuant to this Court’s Rule 37.6, amicus states that no

counsel for any party authored this brief in whole or in part, and no

person or entity other than amicus, its members, or its counsel made a

monetary contribution to the preparation or submission of this brief.

Counsel of record for the parties have given written consent to the

filing of this amicus brief in letters that have been submitted to the

clerk of this Court. See Sup. Ct. R. 37.3(a).

2

projects, reductions in the scope of projects, and lengthy

and expensive delays in project development and

implementation.

Unconstitutional enforcement of the ESA in

California also subjects engineering and surveying firms to

overlapping and potentially conflicting federal, state, and

local standards concerning the protection of entirely

intrastate wildlife. The consequent uncertainty and

confusion about how and when to satisfy the requirements

of the ESA, the entirely independent California Endangered

Species Act, and other state and local laws concerning

wildlife, subjects engineering and surveying firms to added

costs and liability exposure while working on projects.

Because the statute challenged in this case restricts the

opportunities for engineering and surveying firms to

provide services on projects, and exposes such firms to

financial harm, this Court’s resolution of the issues

presented would be of great significance to CELSOC, its

members, and other similarly situated engineering and

surveying firms.

Summary Of Argument

The listing of endangered and threatened species is

of critical importance to those who use or develop property,

or hope to, and those (such as CELSOC’s members) who

assist in the use and development of property. Once listed,

a species automatically receives various forms of protection

under the ESA, some of which may severely constrain

activities and projects on private as well as public land.

Roughly half of the species listed by the Service as

endangered or threatened are found entirely within a single

state, as are the fairy shrimp at issue here.

3 -

This Court has never upheld a Commerce Clause

regulation of an intrastate activity that is not economic in

nature, such as the “taking” of a local species. United

States v. Morrison, 529 U.S. 598, 611 (2000). To the

contrary, the Court has invalidated such regulation in the

form of a law authorizing civil damages for gender-

motivated crimes (id.) and a law prohibiting the possession

of a gun within 1,000 feet of a school (United States v.

Lopez, 514 U.S. 549 (1995)).

Approval, by the Court of Appeals for the District

of Columbia Circuit, of the U.S. Fish and Wildlife

Service’s actions in this case appears to give the federal

government authority to regulate nearly any activity,

whether commercial or not, on virtually any property.

While this result of the case is fairly clear, the rationale is

not. The circuit court merely pointed to its earlier 2-1

decision in National Association of Home Builders v.

Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 524

U.S. 937 (1998), in which individual judges offered several

rationales, but failed to agree on any. One thought is that

the ESA, by controlling the transport of endangered

species, represents a proper exercise of the Commerce

Clause power over the “use of the channels of interstate

commerce.” Another is that loss of medical or economic

benefits from a listed species could, in the aggregate, have

a substantial effect on interstate commerce, and thus

implicate the Commerce Clause power. Yet another is that

protection of biodiversity is important to the conservation

of our ecosystem on which interstate commerce is

dependent.

Because the result below conflicts with the

decisions of this Court explaining the limits of the

Commerce Clause power, and because the confusion

engendered by the diverging rationales offered in National

4

Association of Home Builders calls for coherent resolution

of the issue, this Court should take up this important case

and clarify the limits of the Commerce Clause power as

exercised through the ESA.

At its core, this case also concerns the authority of

the federal government to regulate in areas traditionally left

to the control of the states. In this respect, it presents the

same issue discussed but left unresolved in Solid Waste

Agency v. United States Army Corps of Engineers, 531 U.S.

159 (2001): Whether the federal power to regulate

commerce among the states extends to regulation of species

or activities that are entirely intrastate and noneconomic in

nature.

Also important and warranting the Court’s attention

here is the Service’s failure to make public, and hear

comments on, an important study upon which the Service

“placed great weight” in making its decision to list the fairy

shrimp. In doing so, the Service stripped Petitioner and

other interested parties of the right, under the

Administrative Procedure Act (“APA”), to provide

complete comments during the rule making process, and

deprived itself of important information and analysis. Such

action by the agency is entirely inconsistent with the

mandate of the APA and unfairly precludes public

participation on issues of immense significance.

in order to clarify the limits of federal authority under the

Commerce Clause, and to articulate the role the public can

expect to play in the decision-making process under the

APA.

Argument

I. THis CASE WARRANTS U.S. SUPREME COURT

REVIEW TO ADDRESS THE IMPORTANT QUESTION

WHETHER APPLICATION OF THE ESA TO INTRASTATE,

NONECONOMIC SPECIES AND ACTIVITIES EXCEEDS THE

LIMITS OF THE FEDERAL INTERSTATE COMMERCE

POWER :

A. BEDROCK CONSTITUTIONAL PRINCIPLES

ARE AT STAKE HERE ~

The U.S. Constitution withholds from the federal

government an unlimited license to regulate and rather

grants the government certain enumerated powers. Unlike

the several states, the federal government does not possess

a general police power. Federalism and the enumeration of

federal powers were principles “adopted by the Framers to

ensure the protection of our fundamental liberties.”

Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (citations

and internal quotation marks omitted).

In keeping with these principles, the Commerce

Clause was carefully crafted to specifically facilitate the

development of a common market among the states through

the eradication of internal trade barriers. Gibbons v.

Ogden, 22 U.S. (9 Wheat.)1, 194-95 (1824). “[T]he

enumeration of the particular classes of commerce, to

which the power was to be extended, would not have been

made, had the intention been to extend the power to every

description.” Id. quoted in United States v. Morrison, 529

U.S. 598, 616 n.7 (2000).

The drafters of the U.S. Constitution strove to

establish a unified national economy through the

elimination of discriminatory regulation by one state

6

against another, not to strip the states of their power to

engage in self-government. Accordingly, the scope of the

commerce power must have limits. If the federal power to

regulate interstate commerce is to be limited to its stated

ends, “the Constitution cannot realistically be interpreted as

granting the Federal Government an unlimited license to

regulate.” Morrison, 529 U.S. at 618 n.8. More

specifically, it cannot reach matters that are not commerce,

or commerce that is not interstate.

This Court has made clear that “(t]he Constitution

requires a distinction between what is truly national and

what is truly local.” Id. at 617-18 (citing United States v.

Lopez, 514 U.S. 549, 568 (1995)). In Lopez, this Court

noted that judicial deference to congressional regulation of

single-state noncommercial activities would result in

Congress being able to turn the commerce power into a

national police power. Lopez, 514 U.S. at 565-67. A

government that can regulate virtually anything and

everything is not a limited government. Although there are

no “bright and clear lines,” the extent to which the area of

regulation is the province of the states must be considered,

as well as the extent to which the regulated activity is

connected to commercial concerns. Id. at 579 (Kennedy, J.,

concurring). When the intrusion on state sovereignty is

significant, and the purported commercial nexus is not, the

statute in question will overstep the bounds of the

Commerce Clause. See Id. at 564.

Regulation of land use and zoning “is perhaps the

quintessential state activity,” and has been “traditionally

performed by local governments,” FERC v. Mississippi,

456 U.S. 742, 768 n.30 (1982); Hess v. Port Auth. Trans-

Hudson Corp.,.513 U.S. 30, 44 (1994). See also Lake

Country Estates, Inc. v. Tahoe Reg’! Planning Agency, 440

U.S. 391, 402 (1979) (“The regulation of land use is

7

traditionally a function performed by local governments.”).

Intrusion on state sovereignty requires a “stronger

connection” with commercial concerns central to the

Commerce Clause, or the intrusion “contradicts the federal

balance the Framers designed.” Lopez, 514 U.S. at 583

(Kennedy, J., concurring). In the absence of a substantial

link to interstate commerce, this intrusion into state land

use regulation, and subsequent confusion regarding

overlapping regulation, cannot be justified under the limits

of the Commerce Clause.

B. THERE Is NO NEXUS BETWEEN THE FAIRY

SHRIMP, WHICH ARE THE SUBJECT OF THE

GOVERNMENT’S LISTING DECISION, AND

INTERSTATE COMMERCE

This case concerns the assertion of jurisdiction,

under the Commerce Clause, by the U.S. Fish and Wildlife

Service (“USFWS”), which has been charged with

administering the ESA. In this role, the USFWS, acting

- pursuant to the direction of the Secretary of Interior, is

granted jurisdiction to determine that a species is

endangered or threatened and to designate the critical

habitat of such species. 16 U.S.C. § 1533(a)(3) (2000).

But that jurisdiction cannot exceed the limits of the

Commerce Clause, and, accordingly, it must be shown to

concern actual interstate commerce in order to pass

constitutional scrutiny.

The USFWS’s listing of the fairy shrimp cannot

withstand such scrutiny. Upon listing, the fairy shrimp

automatically were accorded various protections under the

ESA, including protection against unauthorized “taking” by

any person. Like the possession of guns in Lopez, the

“taking” of fairy shrimp has nothing to do with

“commerce” or any other economic activity. Indeed, the

8

possession or taking of fairy shrimp, which are not bought

or sold on the open market, has less of a connection to

“commerce” than the possession of a gun, an indisputably

commercial item. Here, as in Lopez, Congress’s

Commerce Clause authority should not be turned into “a

general police power of the sort retained by the States.”

Lopez, 514 U.S. at 567.

In rejecting this argument, the district court based

its conclusion on Ninth Circuit cases involving the Eagle

Protection Act and the Migratory Bird Treaty Act.

However, unlike the eagles or migratory birds discussed in

those Ninth Circuit decisions, there is little likelihood of

interstate commerce in the fairy shrimp or of “interstate

movement of persons . . . who come to a state to study and

observe these species.’” Building Indus. Ass’n of Superior

Cal. V. Babbitt, 979 F. Supp. 893, 907 (D.D.C. 1997)

(quoting Palila v. Haw. Dep’t of Land & Natural Res., 471

F. Supp. 985, 994-95 (D.Haw. 1979), aff'd, 639 F.2d 495

(9th Cir. 1981)). |

As this Court has explained, the proper purview of

the Commerce Clause is activity that is economic in nature

and that substantially affects interstate commerce. In those

cases in which the Court has “sustained federal regulation

of intrastate activity based upon the activity’s substantial

effects on interstate commerce, the activity in question has

been some sort of economic endeavor.” Morrison, 529

U.S. at 611. Every law enacted by Congress must be based

on a power enumerated in the Constitution. Id. at 607.

Respondents justify the present statute as an act to regulate

interstate commerce. But “[s]imply because Congress may

conclude that a particular activity substantially affects

interstate commerce does not necessarily make it so.” Id. at

614 (quoting Lopez, 514 U.S. at 557 n.2) (citation and

internal quotation marks omitted). “There is undoubtedly

9

an internal commerce which is subject to the control of the

States.” The Daniel Ball, 77 U.S. (10 Wall.) 557, 564

(1870). As Chief Justice Marshall observed in Gibbons, 22

U.S. (9 Wheat.) at 189, 196, “[c]ommerce . . . is

intercourse,” and the “power to regulate” means “to

prescribe the rule by which commerce is to be governed.”

In other words, commerce entails the deliberate and

purposeful interaction of goods and people in trade,

navigation, communication, and movement. See Cooley v.

Board of Wardens, 53 U.S. (12 How.) 299, 326 (1851)

(Daniel, J., concurring) (“The power delegated to congress

by the constitution relates properly to the terms on which

commercial engagements may be prosecuted; the character

of the articles which they may embrace; the permission or

terms according to which they may be introduced[.]’”’).

In distinguishing truly national from truly local

activities, the Court is aware that “[s]ome activities may be

so private or local in nature that they simply may not be in

commerce. Nor is it sufficient that the person or activity

reached have some nexus with interstate commerce.”

Hodel v. Va. Surface Mining & Reclamation Ass’n, 452

U.S. 264, 310 (1981) (emphasis in original). The district

court dismissed this reasoning, stating instead that “species

preservation substantially affects the national economic

interest.” Building Indus. Ass’n, 979 F. Supp. at 907.

However, Congress cannot regulate noneconomic activities

simply because the activity, when aggregated, may have a

substantial effect on commerce. Morrison, 529 U.S. at

610-11. The “substantial effects” tests of Lopez and

Morrison forbid the consideration of potential cumulative

economic impacts of regulation of noncommercial activity

in order to establish authority under the Commerce Clause.

To do so would require courts to “pile inference upon

inference in a manner that would bid fair to convert

congressional authority under the Commerce Clause to a

10

general police power of the sort retained by the States.”

Lopez, 514 U.S. at 567.

Since the circuit court did not discuss the merits of

Petitioner’s Commerce Clause argument, it is uncertain on

what basis the circuit court would conclude that the fairy

shrimp are linked to interstate commerce. Although the

circuit court pointed to the split-panel decision in National

Association of Home Builders, 130 F.3d 1041, that decision

provides no clear rationale for rejecting Petitioner’s

argument. In National Association of Home Builders,

Judge Henderson and Judge Wald offered widely different

opinions why the ESA was, a proper exercise of Congress’s

Commerce Clause power. Judge Wald stated that the ESA

properly controlled the channels of interstate commerce

and regulated a class of activities that substantially affects

interstate commerce. In contrast, Judge Henderson

expressly rejected Judge Wald’s arguments, and concluded

instead that the loss of biodiversity itself has a substantial

effect on the ecosystem and, therefore, on interstate

commerce.

Not only does this split-panel decision leave open

the question of the limits of the Commerce Clause in the

District of Columbia Circuit and how those limits may be

discerned, it also conflicts with this Court’s decisions in

Lopez and Morrison. Under Lopez and Morrison, it is the

economic nature of the class of regulated activity itself, and

not some measurable economic repercussion from the

unconstitutional regulation, that must provide the basis for

regulation under the Commerce Clause. In the absence of a

showing that the fairy shrimp substantially affect interstate

commerce, the use of the Commerce Clause to justify the

ESA is both unwarranted and unconstitutional.

11

C. THE LISTING OF THE FAIRY SHRIMP

INTERFERES WITH STATE AND LOCAL

SOVEREIGNTY OVER LAND USE DECISIONS

This case also presents the issue left unresolved in

Solid Waste Agency of Northern Cook County v. United

States Army Corps of Engineers, 531 U.S. 159 (2001)

(“SWANCC”): whether the federal power to regulate

species or related activities that are entirely intrastate and

noneconomic in nature invades the land use regulatory

authority of state and local agencies. Although SWANCC

concerned the use of the Clean Water Act, rather than the

ESA, to regulate habitat, the U.S. Army Corps of

Engineers’ (“Corps”) application of a federal regulation to

control use and development of land raised many of the

same concerns presented here regarding the usurpation of

state and local governments’ authority over local land use.

In SWANCC, the government asserted that because

the land at issue served as a habitat for migratory birds, the

Corps had the authority to prohibit SWANCC from

developing the property as a landfill. Noting that the ponds

in question were “seasonal {and] wholly located within two

Illinois counties,” this Court rejected the Corps’ assertion

that it could regulate SWANCC’s use of its property under

the Clean Water Act. Id. at 171-72. Noting that the Corps’

assertion raised serious constitutional concerns, the Court

based its holding on a determination that the language of

the Clean Water Act did not provide for the regulation of

these isolated ponds, leaving unresolved the question of

“whether Congress could exercise such authority consistent

with the Commerce Clause.” Id. at 162.

The issue in this case cannot be resolved under the

language of the federal regulation at issue, but instead must

involve an examination of Congress’s power under the

12

Commerce Clause. Development of land is an area

traditionally reserved for the states by the Tenth

Amendment. The Court has also deemed “zoning laws”

and land use controls to be “peculiarly within the province

of state and local legislative authorities.” Warth v. Seldin,

422 U.S. 490, 508 n.18 (1975). In fact, the Court has

previously noted that “regulation of land use is perhaps the

quintessential state activity.” FERC, 456 U.S. at 767 n.30.

States, not federal agencies, are regarded as the proper

governing bodies to enact and enforce laws concerning land

use planning. See Dolan v. City of Tigard, 512 U.S. 374,

384 (1994) (authority of state and local governments to

engage in land use planning has been sustained against

constitutional challenge as long ago as decision in Village

of Euclid, Ohio v. Amber Realty Co., 272 U.S. 365 (1926)).

Here, as in the recent decision in Jones v. United States,

529 U.S. 848, 857 (2000), if the Court were to allow the

unconstitutional enforcement of the ESA, then “hardly a

[parcel of] land would fall outside the federal statute’s

domain.”

The Court should review this case in order to

address the constitutional issue left unresolved in

SWANCC. The federal regulation at issue here intrudes

into an area of government traditionally left to state and

local control, and places countless building projects under

federal jurisdiction without a showing that preservation of

the fairy shrimp affects the national economic interest.

State and local planning measures run the risk of being

undermined by conflicting federal regulations.

Consequently, the federal displacement of local control at

issue here not only usurps state and local authority, but

unnecessarily delays building projects and wastes millions

of dollars.

13

_ In the proceedings below, Petitioner provided

evidence that the listing of the fairy shrimp has depressed

land values and development prospects, has halted or

impeded specific construction projects, and has cost

thousands of dollars in sampling surveys as well as the

costs of delay. Building Indus. Ass’n, 979 F. Supp. 893. '

The Commerce Clause does not justify congressional use of

“a relatively trivial impact on commerce as an excuse for

broad general regulation of state or private activities.”

Maryland v. Wirtz, 392 U.S. 183, 196 n.27 (1968) (Harlan,

J.); Gibbs v. Babbitt, 214 F.3d 483, 491 (4th Cir. 2000)

(“[W]here a federal statute has only a tenuous connection

to commerce and infringes on areas of traditional state

concern, the courts should not hesitate to exercise their

constitutional obligation to hold that the statute exceeds an

enumerated federal power.”). By reviewing this case, the

Court can resolve these important constitutional concerns

in the critical context of the ESA’s sweep over local land

use regulation.

Il. Tuis CASE WARRANTS U.S. SUPREME COURT

REVIEW TO ADDRESS THE IMPORTANT QUESTION

WHETHER THE ADMINISTRATIVE PROCEDURE ACT

REQUIRES THE AGENCY TO MAKE AVAILABLE TO THE

PUBLIC ALL SCIENTIFIC STUDIES IT RELIES UPON IN

MAKING ITs DECISION

In determining whether a species should be listed

under the ESA, the USFWS must “give interested persons

an opportunity to participate in the rule making through

submission of written data, views, or arguments.” 5 U.S.C.

§ 553(b)-(c) (2000) (App. D-1) (incorporated into ESA by

reference at 16 U.S.C. § 1533(b)(4) (2000) (App. E-6).

This requirement ensures that relevant information is

brought to the USFWS’s attention and that its decision is an

informed and intelligent one. In contrast, a scheme that

14

limits or sidesteps widespread public participation will

most likely fail to address all relevant concerns.

Public participation in an agency’s rule making

process is important for two reasons. First, the combined

expertise of the agency and the public produces better rules,

since public input leaves the agency better informed and

may offset any institutional bias for or against a particular

rule. Second, the procedure guarantees an open process by

enabling interested parties to express their views to agency

officials who are not directly accountable to the voters. In

Guardian Federal Savings & Loan Ass’n v. Federal

Savings & Loan Insurance Corp., 589 F.2d 658, 662 (D.C.

Cir. 1978), the District of Columbia Circuit succinctly set

forth the benefits of notice and comment to rule making:

This public participation assures that the

agency will have before it the facts and

information relevant to a particular

administrative problem, as well as

suggestions for alternative solutions. Public

rule making procedures increase the

likelihood of administrative responsiveness

to the needs and concerns of those affected.

And the procedure for public participation

tends to promote acquiescence in the result

even when objections remain as to

substance.

Here, the USFWS violated the APA by relying on a

scientific study obtained after the close of the comment

period without giving interested parties an opportunity to

comment on the study. More specifically, the USFWS did

not give sufficient public notice of, and opportunity for,

comment on either its methodology or the scientific report,

the Simovich study, on which it primarily relied.

15

Both courts below acknowledged the critical role

that the Simovich study played in the agency’s

decisionmaking process, yet neither court found that the

agency was required, under the APA, to make this

important study available for public comment. The district

court conceded that “[bJecause the Final Rule relies

heavily, although not exclusively, on the Simovich study

for the important proposition that fairy shrimp are rare

within their ranges, the study should have been made

available for notice and comment.” Building Indust. Ass'n,

979 F. Supp. 893, 902-03. Similarly, the circuit court

observed that the Simovich study was “the best available

study.” Building Indust. Ass’n, 247 F.3d 1241, 1246. The

circuit court acknowledged that, under the APA, an agency

is obligated to publish for comment the technical studies

and data on which it relies, but concluded nonetheless that

the USFWS was not required to make the Simovich study

available for comment because it “only confirmed the

findings delineated in the proposal.”. Building Indust.

Ass’n of Superior Cal. v. Babbitt, 247 F.3d 1241, 1245-46.

As the circuit court put it, “a final rule that is a logical

outgrowth of the proposal does not require an additional

round of notice and comment even if the final rule relies on

data submitted during the comment period...In relying on

it, the Service ‘did no more than provide support for the

same decision it had proposed to take.’” Id. (citing Int'l

Fabric Inst. v. EPA, 297 U.S. App. D.C. 331, 972 F. 2d

384, 399 (D.C. Cir. 1992) (per curiam)).

The circuit court’s conclusion and reasoning

undercuts the APA’s publication provision, the whole

purpose of which is to allow the public to submit comments

both in support of and in opposition to the proposal.

Publication also allows the public to suggest alternative

solutions to an agency’s proposed rule. See Guardian

Federal, 589 F. 2d at 662. A study that supports the

16

proposal is as critical an element as the proposal itself, and

requires the same opportunity for public discussion and

examination. Anything less precludes the public’s

opportunity to critically examine the proposal or to provide

alternatives.

The listing of the fairy shrimp is a highly |

controversial topic. It makes little sense that the USFWS

could rely so heavily on the study, the “best available

study,” but not allow the public to see it or comment on it.

The USFWS’s failure to publish the Simovich study, and

the lower courts’ endorsement of the agency’s inaction,

strips the public of its right to fully weigh in on a highly

contentious decision and violates the public participation

provisions of the APA. The clear “purpose of the notice

and comment requirement is to provide for meaningful

public participation in the rule-making process.” Idaho

Farm Bureau Federation v. Babbitt, 58 F.3d 1392, 1404

(9th Cir. 1995). The necessity for notice and opportunity to

comment is greatly heightened when an agency relies on a

single study to support its final rule. See id.

As this Court is well aware, notice and comment

procedures are designed to overcome the problems

associated with uninformed rule making. Participation by

economic and community-based groups “in the rule making

process is essential in order to permit administrative

agencies to inform themselves and to afford adequate

safeguards to private interests.” Report of the Attorney

General’s Comm’n on Administrative Procedure in

Government Agencies 101-02, 103 (Washington, D.C.

1941). Furthermore, the “[o]pportunity for public comment

is particularly crucial when the accuracy of important

material in the record is in question.” Idaho Farm Bureau

Federation, 58 F.3d at 1403.

17

A decision that permits rule making without full

public review of the record upon which the rule is

promulgated prevents meaningful public participation in

the rule making process. Furthermore, such an

interpretation allows questionable data to result in the

listing of a species as endangered or threatened. The listing

of the fairy shrimp has enormous repercussions for

homebuilders and those members of the community

interested in economic growth. Despite this enormous

impact on their livelihood, members of CELSOC and the

Building Industry Association, as well as members of the

general community, have effectively been prevented by the

USFWS’s actions from fully weighing in on an important

decision, the effects of which will be felt throughout the

community. Such a result most surely conflicts with the

informed decision making process that the APA is designed

to ensure. This case warrants U.S. Supreme Court review

to clarify and confirm the open rule making process to be

expected of federal agencies.

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for a writ of certiorari in this case.

Respectfully submitted,

A Lt—

David Ivester, Esq.