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City of Arlington v. FCC, No. 11-1545

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Released: October 31, 2012

No. 11-1545

================================================================
In The
Supreme Court of the United States
-----------------  -----------------
CITY OF ARLINGTON, TEXAS, et al.,
Petitioners,
v.
FEDERAL COMMUNICATIONS COMMISSION, et al.,
Respondents.
-----------------  -----------------

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

-----------------  -----------------

AMICUS CURIAE

BRIEF OF NATIONAL WATER

RESOURCES ASSOCIATION, ASSOCIATION OF

CALIFORNIA WATER AGENCIES, SAN LUIS &

DELTA MENDOTA WATER AUTHORITY, AND

WESTLANDS WATER DISTRICT IN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI

-----------------  -----------------
PETER D. NICHOLS
HAROLD CRAIG MANSON
BERG HILL GREENLEAF
Counsel of Record
RUSCITTI LLP
400 Capitol Mall, 27th Floor
1712 Pearl Street
Sacramento, CA 95814
Boulder, Co 80302
Telephone: (916) 321-4225
Telephone: (303) 345-2642 Facsimile: (916) 321-4555
Facsimile: (303) 402-1601 E-Mail:
E-Mail: pdn@bhgrlaw.com cmanson@westlandswater.org
Counsel for National
Counsel for Amici Curiae
Water
Resources

Association
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

i

TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE ...........................
1
BACKGROUND OF THE CASE ...........................
3
A. The Telecommunications Act of 1996 ..........
3
B. The Fifth Circuit Decision ...........................
5
SUMMARY OF ARGUMENT ................................
7
ARGUMENT ........................................................... 10
I.


THIS
COURT HAS NEVER DIRECTLY
DECIDED WHETHER THE CHEVRON
DOCTRINE APPLIES TO AN AGENCY’S
INTERPRETATION OF A STATUTE DE-
FINING ITS JURISDICTION ..................... 10
II.

THE
CHEVRON DOCTRINE APPLIES TO
AGENCY STATUTORY INTERPRETATIONS
THAT LIMIT AGENCY JURISDICTION,
BUT NOT TO AGENCY INTERPRETA-
TIONS THAT EXPAND JURISDICTION ... 15
A.

This Court Has Declined To Apply
Chevron Deference To Agency Statutory
Interpretations That Expand Agency
Jurisdiction ............................................ 18
B.

Conversely, This Court Has Applied
Chevron Deference To Agency Statutory
Interpretations That Limit Agency Ju-
risdiction ................................................ 22
C. The Fifth Circuit Wrongly Applied The
Chevron Doctrine ................................... 25
CONCLUSION ....................................................... 27

ii

TABLE OF AUTHORITIES
Page
CASES
Arkansas v. Oklahoma, 503 U.S. 91 (1992) ......... 10, 12
Babbitt v. Sweet Home Chapter, 515 U.S. 687
(1995) ....................................................................... 10
Baltimore Gas & Elec. Co. v. Natural Res. Def.
Council, 462 U.S. 87 (1983) .................................... 11
BFP v. Resolution Trust Corp., 511 U.S. 531
(1994) ....................................................................... 17
California v. United States, 438 U.S. 645 (1978) ..... 21, 22
Catskill Mountains Chapter v. New York City,
451 F.3d 77 (2d Cir. 2006) ....................................... 24
Chevron U.S.A., Inc. v. Natural Res. Def. Coun-
cil, Inc., 467 U.S. 837 (1984) ........................... passim
Christensen v. Harris County, 529 U.S. 576
(2000) ....................................................................... 11
Cipollone v. Liggett Group, Inc., 505 U.S. 504
(1992) ....................................................................... 17
City of Arlington, et al. v. Federal Communica-
tions Comm’n, 668 F.3d 229 (5th Cir. 2012) ... passim
Dolan v. U.S. Postal Service, 546 U.S. 481
(2006) ....................................................................... 26
FCC v. Fox TV Stations, Inc., 556 U.S. 502
(2009) ....................................................................... 11
Federal Energy Regulatory Comm’n v. Missis-
sippi, 456 U.S. 742 (1982) ....................................... 16

iii

TABLE OF AUTHORITIES – Continued
Page
Friends of the Everglades, et al. v. S. Fla. Water
Mgmt. Dist., et al., 570 F.3d 1210 (11th Cir.
2009), cert. denied, 131 S.Ct. 643 (2010) ................ 24
Hess v. Port Authority Trans-Hudson Corp.,
513 U.S. 30 (1994) ................................................... 16
Industrial Union Dep’t v. American Petroleum
Inst., 448 U.S. 607 (1980) ....................................... 11
Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275
(1958) ....................................................................... 21
Mayo Foundation v. United States, 131 S.Ct.
704 (2011) ................................................................ 10
Mississippi Power & Light Co. v. Mississippi ex
rel. Moore, 487 U.S. 354 (1988) ............ 12, 13, 14, 26
Nat’l Ass’n of Home Builders v. Defenders of
Wildlife, 551 U.S. 644 (2007) .................. 9, 22, 24, 25
Rapanos v. United States, 547 U.S. 715
(2006) ....................................................... 8, 17, 19, 20
Rice v. Santa Fe Elevator Corp., 331 U.S. 218
(1947) ....................................................................... 17
Skidmore v. Swift & Co., 323 U.S. 134 (1944) ........... 11
Solid Waste Agency of Northern Cook County v.
U.S. Army Corps of Engineers (“SWANCC”),
531 U.S. 159 (2001) ......................................... passim
Solid Waste Agency of Northern Cook County v.
U.S. Army Corps of Engineers, 191 F.3d 845
(7th Cir. 1999), rev’d, 531 U.S. 159 (2001) ............. 19

iv

TABLE OF AUTHORITIES – Continued
Page
United States v. California, 694 F.2d 1171 (9th
Cir. 1982) ................................................................. 22
United States v. Lopez, 514 U.S. 549 (1995) .............. 17
United States v. Mead Corp., 533 U.S. 218
(2001) ....................................................................... 10
United States v. Morrison, 529 U.S. 598 (2000) ........ 17

STATUTES
Clean Water Act,
33 U.S.C. § 1342(b) ......................................... passim
33
U.S.C.
§ 1344(a) ................................................. 18
33
U.S.C.
§ 1362(7) ................................................. 18
Endangered Species Act,
16 U.S.C. §§ 1536(a)(2), (c)(1) ....................... 9, 22, 23
Federal Power Act, 16 U.S.C. § 791a ......................... 12
Reclamation Act of 1902,
43 U.S.C. §§ 372, 383 ........................................ 21, 22
Telecommunications Act of 1996,
47 U.S.C. §§ 332(c)(7)(A), (B) ...................... 3, 4, 9, 25

FEDERAL REGULATIONS
40 C.F.R. § 122.3(i)...................................................... 24
50 C.F.R. § 402.03 ....................................................... 23




v

TABLE OF AUTHORITIES – Continued
Page
OTHER AUTHORITIES
T. Merrill, Judicial Deference to Executive Prec-
edent, 101 YALE L. J. 969, 971 (1992) ..................... 12
A. Scalia, Judicial Deference to Administrative
Interpretations of Law, 1989 DUKE L. J. 511,
521 ........................................................................... 15


1

INTEREST OF AMICI CURIAE

1

Amicus Natural Water Resources Association
(“NWRA”) is a nonprofit, voluntary organization of
state water associations whose members include cities,
towns, water conservation and conservancy districts,
irrigation and reservoir companies, ditch companies,
farmers, ranchers, and others with an interest in
water issues in the western states. NWRA has mem-
ber associations in Arizona, California, Colorado,
Idaho, Montana, Nebraska, Nevada, New Mexico,
North Dakota, Oregon, South Dakota, Texas, Utah,
and Washington.

Amicus Association of California Water Agencies
(“ACWA”) represents approximately 90% of the public
water agencies in California, which agencies are re-
sponsible for distributing water supplies for urban
and agricultural use in California. Many ACWA
members, in order to provide water supplies for their
customers, have contracts with federal and state
agencies entitling them to water deliveries from
federal and state water projects.


1 Counsel of record for the parties to this petition have
received notice of intent to file this amicus curiae brief at least
10 days prior to the due date of the brief (Rule 37.2). The pe-
titioners and respondents have consented to the filing of this
brief. None of the parties to the petition nor their counsel have
authored the brief in whole or in part, and no such party or
counsel made a monetary contribution to fund the preparation
or submission of the brief (Rule 37.6).

2

Amicus San Luis & Delta-Mendota Water Au-
thority (“SLDMWA”) is a California joint powers au-
thority, comprised of 29 member water agencies,
which meet the water supply needs of over 2.8 million
acres of agricultural lands within areas of Fresno,
Kings, Merced, San Benito, San Joaquin, Santa Clara,
and Stanislaus Counties; municipal and industrial
use for more than 1 million people in the Silicon
Valley as well as cities in the San Joaquin Valley, and
for approximately 51,500 acres of private waterfowl
habitat in the San Joaquin Valley, California.

Amicus Westlands Water District (“WWD”), lo-
cated in Fresno and King Counties in California, is
the nation’s largest agricultural water district in
terms of irrigated acreage. Westlands supplies irri-
gation water to California’s Central Valley farmlands
which produce a substantial portion of the fruits and
vegetables grown and consumed in the nation.
The
amici or their members obtain water sup-
plies by diverting water from various water bodies, or
by entering into contracts with federal and state
agencies for delivery of water supplies from federal or
state water projects. The U.S. Environmental Protec-
tion Agency (“EPA”) has taken the position that it
may require water users, including the federal and
state water projects, to reduce water diversions and
deliveries in order to provide additional supplies for
endangered species under the Endangered Species
Act (“ESA”). Thus, the amici have an interest in the
issue presented in this case, which is whether the
Chevron doctrine,” based on this Court’s decision in

3
Chevron U.S.A., Inc. v. Natural Res. Def. Council,
Inc.,
467 U.S. 837 (1984), applies when an agency in-
terprets a statute defining its jurisdiction.
-----------------  -----------------

BACKGROUND OF THE CASE

A. The Telecommunications Act of 1996


The underlying dispute involves the interpreta-
tion of two provisions of the Telecommunications Act
of 1996 (“TCA”) – subsections (A) and (B) of section
332(c)(7) – which grant authority to state and local
governments to regulate personal wireless service
facilities and impose limitations on the grant of such
authority. 47 U.S.C. §§ 332(c)(7)(A), (B). Subsection
(A) grants “[g]eneral authority” to state and local
governments to regulate the placement, construction
and modification of personal wireless service facili-
ties, and provides that “[e]xcept as provided in this
paragraph, nothing in this chapter shall limit the
authority” of state and local governments to adopt
such regulations. Id. at § 332(c)(7)(A). Subsection (B)
imposes “[l]imitations” on state and local authority to
adopt such regulations. Id. at § 332(c)(7)(B). Specifi-
cally, subsection (B) provides that state and local
governments shall not adopt regulations that “prohib-
it or have the effect of prohibiting” the provision of
personal wireless services, id. at § 332(c)(7)(B)(i); that
state and local governments must act on requests
to place, construct or modify personal wireless facili-
ties “within a reasonable period of time,” id. at

4
§ 332(c)(7)(B)(ii); and that any person injured by a
state or local government’s “failure to act” may com-
mence a judicial action within 30 days challenging
the decision, id. at § 332(c)(7)(B)(v) (emphases added).

The Federal Communications Commission (“FCC”)
issued a Declaratory Ruling stating that the phrase
“within a reasonable period of time,” as used in
subsection (B)(ii), presumptively means 90 days for
applications requesting modifications, i.e., “colloca-
tions,” of existing personal wireless service facilities,
and 150 days for all other applications. City of Arling-
ton, et al. v. Federal Communications Comm’n
, 668
F.3d 229, 235 (5th Cir. 2012). The FCC concluded that
there has been no “failure to act” within the meaning
of subdivision (B)(v) – and thus no basis for commenc-
ing a judicial action under that provision – as long as
a state or local government acts on an application
within the 90- and 150-day time frames. Id. The FCC
determined that it was authorized to adopt the 90-
and 150-day time frames under its general authority
to make rules and regulations necessary to carry out
the TCA’s provisions. Id. at 247.

The City of Arlington argued below that subsec-
tion (A) precludes the FCC from implementing the
limitations in subsection (B), and thus precludes the
agency from adopting the 90- and 150-day time
frames. Id. In rejecting the argument, the FCC con-
cluded that subsection (A) merely precludes the FCC
from imposing additional limitations on state and lo-
cal authority beyond those imposed in subsection (B),
and that subsection (A) does not otherwise restrict

5
the FCC’s authority to implement the subsection (B)
limitations. Id. In short, the FCC construed subsec-
tion (A) as not restricting its authority to adopt time
frame presumptions under subsection (B).

B. The Fifth Circuit Decision


The Fifth Circuit applied the Chevron doctrine in
upholding the FCC’s interpretation of its authority
under subsections (A) and (B). Arlington, 668 F.3d at
247-54. Under the Chevron doctrine, the courts must
defer to an agency’s interpretation of a statute that it
is responsible for administering and enforcing, if the
statute is ambiguous and the agency’s interpretation
is reasonable. Chevron U.S.A., Inc. v. Natural Res.
Def. Council, Inc.,
467 U.S. 837, 842-44 (1984). The
Fifth Circuit acknowledged that this Court has never
decided whether Chevron deference applies to an
agency’s interpretation of a statute defining its juris-
diction, and that the federal circuit courts disagree
whether Chevron applies in this context. The court
stated:
The Supreme Court has not yet conclusively
resolved the question of whether Chevron
applies in the context of an agency’s deter-
mination of its own statutory jurisdiction,
and the circuit courts of appeal have adopted
different approaches to the issue. Some cir-
cuits apply Chevron deference to disputes
over the scope of an agency’s jurisdiction,
some do not, and some circuits have thus far
avoided taking a position. In this circuit, we

6
apply Chevron to an agency’s interpretation
of its own statutory jurisdiction, and there-
fore, we will apply the Chevron framework
when determining whether the FCC pos-
sessed the statutory authority to establish
the 90- and 150-day time frames.
Arlington, 668 F.3d at 248 (footnotes omitted).2 The
court concluded that subsection (A) and (B) are am-
biguous concerning the FCC’s authority to adopt the
time frame presumptions, that the FCC’s interpreta-
tion of the subsections is not unreasonable, and there-
fore that the FCC’s interpretation must be upheld
under Chevron. Id. at 248-54.

The petition for writ of certiorari raises two ques-
tions, the first of which is whether the Chevron doc-
trine applies to an agency’s interpretation of a statute
defining its jurisdiction. This amicus brief addresses
solely that question.
-----------------  -----------------





2 According to the Fifth Circuit, the Fifth, Third and Tenth
Circuits have held that Chevron applies to an agency’s interpre-
tation of a statute defining its jurisdiction, the Seventh Circuit
and Federal Circuit have held that Chevron does not apply, and
the First and Sixth Circuits have avoided taking a position.
Arlington, 668 F.3d at 248 & nn. 90-94.

7

SUMMARY OF ARGUMENT

The
Chevron doctrine does not apply to an agency’s
interpretation of a statute defining its jurisdiction, if
the agency construes the statute as expanding its
jurisdiction and thus limiting the jurisdiction of state
and local governments to regulate the subject matter.
If Chevron were applied in this context, its applica-
tion would contradict another, more salient canon of
statutory construction – that under long-standing,
constitutionally-based principles of federalism fash-
ioned by this Court, Congress presumptively does not
authorize federal regulation of subjects traditionally
regulated by state and local governments under their
police power or other authority. Congress presump-
tively does not authorize federal intrusion into tradi-
tional areas of state and local regulation unless
Congress speaks with a clear voice – and, if Congress
speaks with a clear voice, the statute is not ambigu-
ous and the Chevron doctrine does not apply by its
terms. The long-standing principles of federalism
fashioned by this Court provide a more reliable guide
for construing Congress’ intent than the Chevron doc-
trine. Simply put, an agency cannot properly construe
an ambiguous statute as expanding its jurisdiction at
the expense of state and local jurisdiction over the
subject matter, and – if an agency does so – the courts
should not grant Chevron deference to the agency’s
construction. Chevron does not contradict or displace
these long-standing principles of federalism, but
instead provides a means for construing ambiguous
statutes where these principles do not apply.

8

It follows that if an agency construes a statute as
limiting its jurisdiction and not intruding into tradi-
tional areas of state and local regulation, the agency’s
construction is more likely to be congruent with
principles of federalism established by this Court and
to be entitled to Chevron deference. If, conversely, an
agency construes a statute as expanding its jurisdic-
tion and thus intruding into traditional areas of state
and local regulation, the agency’s construction is less
likely to be congruent with these principles of federal-
ism and to be entitled to deference. The authority of
state and local governments to regulate subjects
within their traditional areas of jurisdiction is enti-
tled to greater deference than a federal agency’s ex-
pansive interpretation of its authority under an
ambiguous statute.

Indeed, this Court has declined to apply Chevron
deference to an agency’s interpretation of an ambigu-
ous statute, such as the Clean Water Act, 33 U.S.C.
§ 1342(b), where the agency’s interpretation expand-
ed its jurisdiction to regulate subjects traditionally
regulated at the state and local level, such as water
use and land use. Solid Waste Agency of Northern
Cook County v. U.S. Army Corps of Engineers
(“SWANCC”),
531 U.S. 159 (2001); Rapanos v. United
States
, 547 U.S. 715 (2006). In SWANCC, this Court
declined to apply Chevron deference because the
agency’s expansive interpretation of its jurisdiction
would result in an “impingement” of the states’ tradi-
tional regulatory authority, and Congress would not
have “encroach[ed]” on the states’ traditional authority

9
without a “clear expression” of its intent. SWANCC,
531 U.S. at 172-74. On the other hand, this Court
recently applied Chevron in upholding and applying a
federal regulation that limited federal authority
under the Endangered Species Act, 16 U.S.C.
§§ 1536(a)(2), (c)(1), and thus limited federal intru-
sion into areas traditionally regulated by the states.
Nat’l Ass’n of Home Builders v. Defenders of Wildlife,
551 U.S. 644 (2007). Although this Court has never
expressly distinguished for Chevron purposes be-
tween an agency’s limiting and expansive definition
of its jurisdiction, this Court’s decisions in these and
other cases support such a distinction.

The instant case provides an opportunity for the
Court to clearly articulate the distinction for Chevron
purposes between an agency’s expansive and limiting
interpretation of its statutory authority. Here, the
FCC expansively interpreted its authority – and
thereby narrowly interpreted state and local author-
ity – to regulate personal wireless service facilities
under the Telecommunications Act, and the Fifth
Circuit mechanically applied Chevron in upholding
the FCC’s interpretation. In the amici’s view, the
Chevron doctrine does not apply here, and the Fifth
Circuit wrongly applied it.

This Court has never directly decided whether
Chevron deference applies to an agency’s interpreta-
tion of its statutory jurisdiction, and the federal
circuit courts disagree concerning whether Chevron
applies in this context. This Court should grant the


10
petition in order to decide this nationally-significant
issue and resolve the conflict among the circuit
courts.
-----------------  -----------------

ARGUMENT

I. THIS COURT HAS NEVER DIRECTLY

DECIDED WHETHER THE CHEVRON

DOC-
TRINE APPLIES TO AN AGENCY’S INTER-
PRETATION OF A STATUTE DEFINING ITS
JURISDICTION. 4

Under
the
Chevron doctrine, an agency’s inter-
pretation of a statute that it administers is entitled to
deference, if the statute is “silent or ambiguous” and
the agency’s interpretation is “permissible.” Chevron
U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467
U.S. 837, 842-44 (1984); see Mayo Foundation v.
United States
, 131 S.Ct. 704, 711 (2011); Babbitt v.
Sweet Home Chapter
, 515 U.S. 687, 703 (1995);
Arkansas v. Oklahoma, 503 U.S. 91, 105 (1992).
Chevron deference is appropriate “when it appears
that Congress delegated authority to the agency gen-
erally to make rules carrying the force of law, and
that the agency interpretation claiming deference
was promulgated in the exercise of that authority.”
United States v. Mead Corp., 533 U.S. 218, 226-27
(2001). Under the Chevron doctrine, the reviewing
court is required to undertake a two-step analysis:
first, the court determines whether the statute is am-
biguous, and, second, if the statute is ambiguous, the

11
court defers to the agency’s interpretation if it is
permissible. Chevron, 467 U.S. at 842-43.3
Although
the
Chevron doctrine on its face ap-
pears to categorically require deference if certain
objective factors are present – that is, if the statute is
ambiguous and an agency’s interpretation is permis-
sible – this Court has not always applied Chevron
based on these objective factors, and instead has
often considered additional factors in deciding wheth-
er to grant deference. For example, the Court has
held that deference to an agency interpretation is
particularly appropriate if the agency has made a
“scientific determination” within the agency’s “area of
special expertise,” thus indicating that deference is
less appropriate if these factors are not present.
Baltimore Gas & Elec. Co. v. Natural Res. Def. Coun-
cil,
462 U.S. 87, 103 (1983); see Industrial Union
Dep’t v. American Petroleum Inst.,
448 U.S. 607, 656
(1980) (plurality opinion). This Court has construed
federal statutes in order to avoid constitutional
conflicts, thus limiting its deference to an agency’s
interpretation of the statute in such cases. Solid
Waste Agency of Northern Cook County v. U.S. Army
Corps of Engineers,
531 U.S. 159, 172 (2001); FCC v.
Fox TV Stations, Inc.
, 556 U.S. 502, 516 (2009). This
Court has deferred to an agency’s interpretation of its


3 Even
if
Chevron does not apply, a court may still defer to
an agency’s interpretation of a statute if the agency’s interpreta-
tion is “persuasive.” Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944); Christensen v. Harris County, 529 U.S. 576, 587 (2000).

12
statutory authority to resolve an interstate water
pollution dispute, which, although not mentioned by
the Court, had the effect of lessening the need for this
Court to resolve the interstate dispute under its orig-
inal jurisdiction. Arkansas v. Oklahoma, 503 U.S. 91,
105 (1992). As one commentator has observed:
It turns out that the [Supreme] Court does
not regard Chevron as a universal test for
determining when to defer to executive in-
terpretations: the Chevron framework is
used in only about half the cases that the
Court perceives as presenting a deference
question. Nor have the multiple factors iden-
tified in the pre-Chevron period disappeared;
to the contrary, the Court continues to rely
upon them in many cases, despite their ap-
parent irrelevance under Chevron.
T. Merrill, Judicial Deference to Executive Precedent,
101 YALE L. J. 969, 971 (1992).

This Court has never directly decided whether
the Chevron doctrine applies to an agency’s interpre-
tation of a statute defining its jurisdiction. In Missis-
sippi Power & Light Co. v. Mississippi ex rel. Moore
,
487 U.S. 354 (1988), Justices Scalia and Brennan, in
their respective concurring and dissenting opinions,
expressed divergent views concerning whether Chevron
applies in this context.4 Justice Scalia argued:


4 In Mississippi, this Court held that the Federal Power
Act, 16 U.S.C. § 791a, authorizes the Federal Energy Regulatory
(Continued on following page)

13
[I]t is plain that giving deference to an ad-
ministrative interpretation of its [the agency’s]
statutory jurisdiction or authority is both
necessary and appropriate. It is necessary
because there is no discernible line between
an agency’s exceeding its authority and an
agency’s exceeding authorized application of
its authority. . . . And deference is appropri-
ate
because it is consistent with the general
rationale for deference: Congress would nat-
urally expect that the agency would be re-
sponsible, within broad limits, for resolving
ambiguities in its statutory authority or ju-
risdiction.
Mississippi, 487 U.S. at 381-82 (Scalia, J., concurring)
(original emphasis except last emphasis). Justice
Brennan argued:
Our agency deference cases have always been
limited to statutes the agency was “entrusted
to administer.” Agencies do not “administer”
statutes confining the scope of their jurisdic-
tion, and such statutes are not “entrusted” to
agencies. Nor do the normal reasons for
agency deference apply. First, statutes con-
fining an agency’s jurisdiction do not reflect

Commission to determine the prudency of retail electricity rates
charged by public utilities, and preempts the authority of state
utility commissions to determine the prudency of such rates.
The Court reached this conclusion based on principles of
preemption and the Court’s own precedents, and did not apply
the Chevron doctrine or otherwise mention the doctrine in its
majority opinion.

14
conflicts between policies that have been
committed to the agency’s care [citations],
but rather reflect policies in favor of limiting
the agency’s jurisdiction that, by definition,
have not been entrusted to the agency and
that may indeed conflict not only with the
statutory policies the agency has been
charged with advancing but also with the
agency’s institutional interests in expanding
its power. Second, for similar reasons, agen-
cies can claim no special expertise in inter-
preting a statute confining its jurisdiction.
Finally, we cannot presume that Congress
implicitly intended an agency to fill “gaps” in
a statute confining the agency’s jurisdiction,
since by its nature such a statute manifests
an unwillingness to give the agency the free-
dom to define the scope of its own power. It is
thus not surprising that this Court has never
deferred to an agency’s interpretation of a
statute designed to confine the scope of its
jurisdiction.
Id. at 386-87 (Brennan, J., dissenting). [Citations
omitted].

Although Justices Scalia and Brennan expressed
divergent views concerning whether Chevron applies
to an agency’s interpretation of its statutory jurisdic-
tion, it is not clear whether, or how much, their views
would diverge in a particular case. Although Justice
Scalia said that an agency is responsible for deter-
mining its jurisdiction “within broad limits,” Missis-
sippi
, 487 U.S. at 381-82 (Scalia, J., concurring), he
did not spell out how far these “broad limits” might

15
extend, or whether they might preclude Chevron’s
application where an agency seeks to expand its
jurisdiction into areas traditionally regulated by the
states. Indeed, Justice Scalia’s later joinder of this
Court’s majority opinion in Solid Waste Agency of
Northern Cook County v. U.S. Army Corps of Engi-
neers,
531 U.S. 159 (2001) – which declined to apply
Chevron deference to an agency’s expansive interpre-
tation of its jurisdiction under the Clean Water Act –
suggests that Justice Scalia would not grant Chevron
deference to an agency’s overly expansive view of its
jurisdiction.5 Thus, Justice Brennan’s categorical view
and Justice Scalia’s qualified view of Chevron defer-
ence may converge in a particular setting, depending
on whether the agency’s interpretation exceeds the
“broad limits” mentioned in Justice Scalia’s concur-
ring opinion.

II. THE

CHEVRON

DOCTRINE APPLIES TO

AGENCY STATUTORY INTERPRETATIONS
THAT LIMIT AGENCY JURISDICTION, BUT
NOT TO AGENCY INTERPRETATIONS THAT
EXPAND JURISDICTION.


Although this Court has never directly decided
whether Chevron deference applies to an agency’s


5 This conclusion is supported by Justice Scalia’s comment
in a law review article, in which he stated that “[i]t is . . . rel-
atively rare that Chevron will require me to accept an interpre-
tation which, though reasonable, I would not personally adopt.”
A. Scalia, Judicial Deference to Administrative Interpretations of
Law
, 1989 DUKE L. J. 511, 521.

16
interpretation of its statutory jurisdiction, this Court
has considered an important, and indeed apparently
paramount, factor in determining whether Chevron
applies in such circumstances – namely, whether the
agency’s interpretation expands its jurisdiction or in-
stead limits its jurisdiction, and in particular whether
an agency’s expansive interpretation allows it to reg-
ulate subjects traditionally regulated by state and
local governments under their police power or other
authority. This Court has readily applied Chevron to
an agency’s limiting interpretation of its jurisdiction,
but has rarely, if ever, applied Chevron to an agency’s
expansive interpretation of its jurisdiction, where the
agency’s expansive interpretation limits the tradi-
tional regulatory authority of state and local govern-
ments. If an agency interprets an ambiguous statute
as authorizing it to regulate subjects normally regu-
lated at the state and local level, countervailing
principles of federalism come into play that limit
deference to the agency’s interpretation. Under these
principles of federalism, Congress presumptively does
not authorize federal intrusion into areas traditional-
ly regulated by state and local governments unless it
clearly says so – in which case the statute is not
ambiguous and the Chevron doctrine does not apply
by its terms. See, e.g., Hess v. Port Authority Trans-
Hudson Corp
., 513 U.S. 30, 44 (1994) (narrowly
interpreting federal statute limiting state authority);
Federal Energy Regulatory Comm’n v. Mississippi,
456 U.S. 742, 767-68 n. 30 (1982) (same).

For example, this Court has held that Congress
presumptively does not preempt state and local

17
authority to regulate subjects within their traditional
areas of jurisdiction “unless that was the clear and
manifest purpose of Congress.” Rice v. Santa Fe Ele-
vator Corp
., 331 U.S. 218, 230 (1947); see Cipollone v.
Liggett Group, Inc.,
505 U.S. 504, 516 (1992); “We
ordinarily expect a ‘clear and manifest’ expression
from Congress to authorize an unprecedented in-
trusion into traditional state authority. [Citation.]”
Rapanos v. United States, 547 U.S. 715, 738 (2006)
(plurality opinion); see BFP v. Resolution Trust Corp.,
511 U.S. 531, 544 (1994). Similarly, this Court has
held that the Commerce Clause of the Constitution
limits Congress’ power to enact laws that “effectually
obliterate the distinction between what is national
and what is local. . . .” United States v. Lopez, 514
U.S. 549, 557 (1995); see United States v. Morrison,
529 U.S. 598, 619 n. 8 (2000).

Thus, if a federal agency interprets an ambigu-
ous statute as limiting its jurisdiction, the Chevron
doctrine is more likely to converge with principles of
federalism and be applied. If, on the other hand, the
agency interprets an ambiguous statute as expanding
its jurisdiction, and as authorizing it to regulate
subjects traditionally regulated at the state and local
level, the Chevron doctrine is more likely to diverge
from principles of federalism and not be applied.




18

A. This Court Has Declined To Apply Chevron


Deference To Agency Statutory Inter-
pretations That Expand Agency Juris-
diction.


This Court has specifically declined to apply
Chevron deference where an agency interpreted an
ambiguous statute as authorizing the agency to ex-
pansively regulate subjects traditionally regulated by
state and local governments, such as water use and
land use.
In
Solid Waste Agency of Northern Cook County v.
U.S. Army Corps of Engineers, 531 U.S. 159 (2001),
this Court declined to grant Chevron deference to a
U.S. Army Corps of Engineers regulation authorizing
the Corps to regulate “isolated” waters, i.e., waters
not physically connected to navigable waters, under
the Clean Water Act. Under the Act, the Corps is
authorized to regulate “navigable waters,” which are
defined as “the waters of the United States.” 33
U.S.C. §§ 1344(a), 1362(7). Although the Court stated
that the phrase “the waters of the United States” is
not ambiguous, the Court also stated that – even if
the phrase were ambiguous – there would be no basis
for applying Chevron. SWANCC, 531 U.S. at 172-73.
The Court stated that the states have traditionally
and historically regulated non-navigable waters, and
thus the Corps’ assertion of jurisdiction over “isolat-
ed” waters – which by definition are not navigable –
would result in a “significant impingement of the
States’ traditional and primary power over land and
water use,” id. at 161, 174, thus allowing “federal

19
encroachment upon a traditional state power,” id. at
173. The Court stated that Congress would not have
invoked the “outer limits” of its constitutional power
without a “clear expression” of its intent. Id. at 172.
Invoking its “prudential desire not to needlessly
reach constitutional issues,” id. at 172, the Court
concluded that the Corps does not have jurisdiction
under the Clean Water Act to regulate “nonnavigable,
isolated, intrastate waters,” id. at 166. The Court
overturned the Seventh Circuit decision below, which
had relied on Chevron in upholding the Corps’ regula-
tion. SWANCC, 191 F.3d 845, 853 (7th Cir. 1999),
rev’d, 531 U.S. 159, 174 (2001). Thus, the Court
declined to apply Chevron deference in determining
the Corps’ regulatory jurisdiction, and instead applied
long-standing principles of federalism that recognize
the primacy of state and local authority.
Subsequently,
in
Rapanos v. United States, 547
U.S. 715 (2006), this Court’s plurality opinion again
declined to apply Chevron deference to a regulation
adopted by the Army Corps of Engineers under the
Clean Water Act, which interpreted the phrase “the
waters of the United States” – over which the Corps
has jurisdiction – as including virtually all wetlands
in the nation. Although the plurality opinion stated
that the Corps’ “expansive” interpretation of the
phrase was foreclosed by its “natural definition,”


20
Rapanos, 547 U.S. at 731,6 the plurality opinion also
stated that “[e]ven if the phrase ‘the waters of the
United States’ were ambiguous . . . , our own canons
of construction would establish that the Corps’ inter-
pretation of the statute is impermissible.” Id. at 737.
Citing the Court’s decision in SWANCC, the plurality
opinion stated that “the Government’s expansive in-
terpretation would ‘result in a significant impinge-
ment of the States’ traditional and primary authority
over land and water use,’ ” and that “[w]e would or-
dinarily expect a ‘clear and manifest’ statement from
Congress to authorize an unprecedented intrusion
into traditional state authority.” Id. at 738 (citations
and internal quotation marks omitted). Thus, the
plurality opinion stated that the traditional canons of
construction based on principles of federalism, rather
than the Chevron doctrine, apply in construing an
ambiguous jurisdictional statute. Although the dis-
senting opinion argued that the Court should apply
Chevron deference in upholding the Corps’ regulation,
id. at 2252-53 (Stevens, J., dissenting), the plurality
opinion rejected the argument.
Even
before
Chevron, this Court applied long-
standing principles of federalism in construing the
authority of federal agencies to regulate subjects


6 The plurality opinion interpreted the phrase “the waters
of the United States” as including only “relatively permanent,
standing or flowing bodies of water,” Rapanos, 547 U.S. at 732,
and as including only wetlands that have a “continuous surface
connection” to such waters,” id. at 742.

21
traditionally regulated by the states, such as water
use and land use, rather than deferring to the federal
agencies’ interpretation of their jurisdiction. In Cali-
fornia v. United States
, 438 U.S. 645 (1978), this
Court rejected the United States’ argument that the
Secretary of the Interior was authorized under the
Reclamation Act of 1902 to regulate water uses
served by federal reclamation projects in the western
states. The Secretary had long taken the position that
the Reclamation Act – which requires the Secretary
to comply with state laws relating to the “control,
appropriation, use, or distribution of water used in
irrigation,” 43 U.S.C. §§ 372, 383 – requires the
Secretary to comply only with state laws defining
proprietary rights in water, and not with state laws
regulating water uses served by the federal projects.
The statutory language was unclear; indeed, this
Court had earlier upheld the Secretary’s determina-
tion that the statutory language applied only to
proprietary rights. Ivanhoe Irrig. Dist. v. McCracken,
357 U.S. 275, 279 (1958). Nonetheless, this Court in
California held that the statutory language requires
the Bureau to comply with state laws regulating
water uses served by the projects. The Court rea-
soned that Congress had adopted a long-standing
policy of deferring to state water laws, and that this
long-standing congressional policy informed the mean-
ing of the Reclamation Act. Id. at 653. As the Court
stated, “[t]he history of the relationship between the
Federal Government and the States in the reclama-
tion of the arid lands of the Western States is both
long and involved, but through it runs the consistent

22
thread of purposeful and continued deference to state
water law by Congress.” Id.7 Thus, the Court deferred
to Congress’ long-standing policy of recognizing the
supremacy of state water rights laws rather than the
Secretary’s expansive interpretation of his authority
under the Reclamation Act. The outcome of the case
would likely have been entirely different if this Court
had granted Chevron-like deference to the Secretary’s
expansive interpretation of his authority.

B. Conversely, This Court Has Applied

Chevron

Deference To Agency Statutory
Interpretations That Limit Agency Ju-
risdiction.


On the other hand, this Court has applied Chevron
deference in upholding agency statutory interpreta-
tions that limit agency jurisdiction and that do not
circumscribe the traditional regulatory authority of
state and local governments.
In
Nat’l Ass’n of Home Builders v. Defenders of
Wildlife, 551 U.S. 644 (2007), this Court applied
Chevron deference in upholding a federal regulation
limiting the authority of federal regulatory agencies
under the Endangered Species Act (“ESA”). There,


7 On remand, the Ninth Circuit, in a decision written by
then-Judge Kennedy, reaffirmed that the Reclamation Act must
be read in light of Congress’ long-standing policy of deferring to
state water laws. United States v. California, 694 F.2d 1171,
1176, 1178 (9th Cir. 1982).

23
the State of Arizona applied to the U.S. Environmen-
tal Protection Agency (“EPA”) for authority to admin-
ister its permit program under the Clean Water Act.
The Clean Water Act provides that the EPA “shall”
approve a state permit program that meets the Act’s
criteria. 33 U.S.C. § 1342(b). The EPA determined
that the Arizona program met the statutory criteria,
and approved the Arizona program. The Ninth Cir-
cuit held that the EPA violated the ESA by failing
to “consult” with a designated service agency before
approving the Arizona program. Under the ESA, a
federal agency is required to “consult” with a desig-
nated service agency before taking any action “au-
thorized, funded or carried out” by the agency that
may affect an endangered species. 16 U.S.C.
§§ 1536(a)(2), (c)(1).

This Court, overturning the Ninth Circuit deci-
sion, held that a regulation adopted by the Secre-
taries of Interior and Commerce, which defined the
consultation obligation of federal agencies under the
ESA, did not require the EPA to consult, and that
under Chevron the Secretaries’ regulation was enti-
tled to deference. The Secretaries’ regulation required
federal agencies to consult in “all actions in which
there is discretionary Federal involvement or control.”
50 C.F.R. § 402.03 (emphasis added). This Court held
that – since the Clean Water Act provides that the
EPA “shall” approve state permit programs that meet
the statutory criteria – the EPA had no “discretion-
ary” authority to disapprove the Arizona program,
and therefore that the EPA was not required to

24
consult before approving the program. Home Build-
ers
, 551 U.S. at 665-68. Thus, the Court applied
Chevron deference in upholding an agency regulation
that limited an agency’s consultation obligation under
the ESA and thus avoided intrusion into areas tradi-
tionally regulated by the states.

Similarly, the Eleventh Circuit recently applied
Chevron deference in upholding another federal reg-
ulation that limited federal jurisdiction under the
Clean Water Act and thereby limited federal intru-
sion into traditional areas of state regulation. Friends
of the Everglades, et al. v. S. Fla. Water Mgmt. Dist.,
et al.
, 570 F.3d 1210 (11th Cir. 2009), cert. denied,
131 S.Ct. 643 (2010). There, an EPA regulation pro-
vided that a transfer of water from one water body
to another does not result in the “addition” of a pollu-
tant to the second water body (even though the trans-
fer may introduce a pollutant to the second water
body) and therefore the transferor is not required to
obtain a permit from the EPA under the Clean Water
Act in order to make the transfer. 40 C.F.R. § 122.3(i).
The Eleventh Circuit held that the Clean Water Act is
ambiguous concerning whether a water transfer
results in the “addition” of a pollutant; that the EPA’s
regulation provides a “permissible construction” of
the statutory language; and therefore that deference
was appropriate under Chevron. Friends of the Ever-
glades
, 570 F.3d at 1127. Notably, the court declined
to follow the Second Circuit’s earlier decision in
Catskill Mountains Chapter v. New York City, 451
F.3d 77 (2d Cir. 2006), which had concluded – before

25
the EPA adopted its regulation – that an EPA permit
was required for a water transfer. In effect, the Elev-
enth Circuit declined to follow the precedent of a sis-
ter circuit court, and instead deferred to an agency’s
limiting interpretation of its jurisdiction under Chevron,
as this Court did in Home Builders.

C. The Fifth Circuit Wrongly Applied The

Chevron

Doctrine.

In this case, the FCC expansively interpreted its
authority and narrowly interpreted the states’ au-
thority to regulate personal wireless service facilities
under the TCA. Specifically, the FCC narrowly con-
strued subsection (A) of 47 U.S.C. § 332(c)(7), which
grants regulatory authority to the states, and expan-
sively construed subsection (B), which limits the
grant of authority to the states. Arlington, 668 F.3d at
235. Based on its construction, the FCC concluded
that it has statutory authority to implement subsec-
tion (B)’s limitations of state authority. Id. Since the
FCC expansively interpreted its authority and nar-
rowly interpreted the states’ authority, the Fifth
Circuit wrongly applied the Chevron doctrine.
The
amici do not contend that Chevron does not
apply because the TCA is not “ambiguous,” or because
the FCC’s interpretation is not “permissible.” The
amici do not address the question whether the FCC’s
interpretation of the TCA is correct or incorrect.
Rather, the amici contend that the Fifth Circuit ap-
plied the wrong methodology by applying Chevron to

26
an agency’s expansive interpretation of its statutory
authority, an interpretation that circumscribed state
and local authority over the same subject matter. The
Fifth Circuit, rather than applying Chevron, should
have determined the FCC’s statutory authority under
other canons of construction, which inter alia require
consideration of the meaning, purpose and context of
the statute. Dolan v. U.S. Postal Service, 546 U.S.
481, 486 (2006). Regardless of whether the Fifth Cir-
cuit reached the right result in determining the FCC’s
jurisdiction, the court employed the wrong methodol-
ogy by applying Chevron.

This Court has never directly decided whether
Chevron applies to an agency’s construction of a stat-
ute defining its jurisdiction,8 and the federal circuit


8 To be sure, Justice Scalia has argued that “we have held
that this [Chevron] rule of deference applies to an agency’s in-
terpretation of a statute designed to confine its authority,” Mis-
sissippi Power & Light Co. v. Mississippi ex rel. Moore
, 487 U.S.
354, 380 (1988) (Scalia, J., concurring), although Justice Brennan
argued in the same case that “this Court has never deferred to
an agency’s interpretation of a statute designed to confine the
scope of its jurisdiction.” Id. at 349 (Brennan, J., dissenting).
Regardless of whether Justice Scalia or Justice Brennan was
right, there is at least disagreement among this Court’s present
and past members over whether the Court has decided the issue,
which alone provides a basis for this Court to review the issue.
The Fifth Circuit stated – correctly, in our view – that this Court
has never resolved the issue. Arlington, 668 F.3d at 248. In any
event, this Court has never expressly distinguished for Chevron
purposes between agency interpretations that limit agency juris-
diction and agency interpretations that expand agency jurisdic-
tion – although this Court’s above-cited cases appear to support
(Continued on following page)

27
courts disagree concerning whether Chevron applies
in this context. Arlington, 668 F.3d at 248. This Court
should review the case to decide this nationally-
significant issue and resolve the intercircuit conflict.
-----------------  -----------------

CONCLUSION


For the foregoing reasons, the petition for writ of
certiorari should be granted.
Respectfully submitted,
HAROLD CRAIG MANSON
Counsel of Record
400 Capitol Mall, 27th Floor
Sacramento, CA 95814
Telephone: (916) 321-4225
Facsimile: (916) 321-4555
E-Mail:
cmanson@westlandswater.org
Counsel for Amici Curiae

such a distinction – and this case presents an opportunity for
this Court to expressly decide whether the distinction exists.

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