Five more here. Because I'm going through every case that cites Kisor in order, I include the boring ones in these posts right alongside the interesting ones. Out of the five decisions discussed below, only one is actually interesting from a Kisor perspective. If you want to skip to that one, scroll down to United States v. Brace, 2019 WL 377894 (E.D. Pa. 2019).

Mayo Clinic v. United States, 2019 WL 3574709 (D. Minn. 2019)

District court strikes down a longstanding Treasury Department regulation as exceeding Treasury's statutory authority under 26 U.S.C. 26 U.S.C. § 170(b)(1)(A)(ii). Not really a Kisor case. The district court cites Kisor in its discussion of ambiguity in the Chevron Step 1 context. My focus here is Kisor, so I won't get into the details, but this is an interesting and important decision. Worth a read, but be aware: the case is already pending on appeal in the Eighth Circuit.

Jones v. Madden, 2019 WL 3564012 (C.D. Cal. 2019) (Habeas case that cites Kisor for its discussion of stare decisis principles)

Figueroa v. Saul, 2019 WL 3766184 (D. N. M. 2019) (Cites Kisor only for stare decisis principles)

United States v. Brace, 2019 WL 3778394 (E.D. Pa. 2019)*

The United States brought an enforcement action against Robert Brace and two of his companies for alleged Clean Water Act violations. A U.S. Army Corps of Engineers' regulation applicable at the time of the alleged violations at issue defined "waters of the United States" to include, among other things, certain "wetlands." 33 C.F.R. 328.3(a) (1993). Another Corps regulation defined  “wetlands” as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions," id. § 328.3(b).

To determine whether a particular area met that definition, the Corps applied a three-part test found in the Corps' 1987 Wetlands Delineation Manual. Under that test, to be "wetlands," an area had to exhibit "(1) a prevalence of hydrophytic plants, (2) hydrological conditions suited to such plants, and (3) the presence of hydric soils.” Ordinarily, an area had to exhibit all three factors. According to the Corps' 1987 Manual, however, there were "atypical situations" where "one or more of the three wetlands indicators 'have been obliterated by human or natural conduct.'" Where that was the case, the Court explained, the Manual permitted the decisionmaker "to use alternative evidence not permitted under a 'normal circumstances' examination to fill in the blanks of what existed prior to the disturbance."

In the Brace case, the government had determined that an atypical situation was present because the defendants' conduct had obliterated two of the three wetlands factors at the marsh site at issue. The question for the Court was whether the government's decision to use the specialized methodology in defendants' case was "appropriate."

The Court proceeded to parse the 1987 Manual's discussion of the specialized methodology and when it would be appropriate to use it. The Manual emphasizes, for example, that “[t]he definition of wetlands in [33 C.F.R. 328.3(b)], contains the phrase ‘under normal circumstances,’ which was included because there are instances in which the vegetation in a wetland has been inadvertently or purposely removed or altered as a result of recent natural events or human activities.” Id. The Manual also makes clear that the atypical situations methodology “should be used only when a determination has already been made ... that positive indicators of hydrophytic vegetation, hydric soils, and/or wetland hydrology could not be found due to effects of recent human activities or natural events." Finally, all three of the wetlands indicators need not be missing or undeterminable before resort to the atypical methods may be had.

Because the defendants "engaged in numerous land clearing activities, which altered vegetation, soil type, and hydrology" at the marsh site in question, the Court found "that use of the atypical situations methodology was appropriate," given the disturbances the government officials observed even where they could still identify some of the wetlands indicators on the Marsh Site." The Court added that its determination also aligned with "the deference due by Courts to agencies," explaining that

As the Supreme Court recently stated, “we presume that Congress intended for courts to defer to agencies when they interpret their own ambiguous rules,” under the doctrine commonly referred to as “Auer deference.” Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019) (citing Auer v. Robbins, 519 U.S. 452, 462 (1997)). This is especially true in areas requiring scientific expertise as deference is particularly appropriate in “complex and highly technical regulatory program[s],” which “require significant expertise and entail the exercise of judgment grounded in policy concerns,” such as the CWA. Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 697 (1991); see also Thorson, 2004 WL 737522, at *9.

It went on to explain that "both the applicable statute and the regulation interpreting them are ambiguous as to what methodology to use when confronted with an area whose vegetation, hydrology, and soil have been clearly altered." In fact, the Court added, "they are silent on methodology writ large, leaving the development of the appropriate methodology to use in wetlands delineations to the Corps to determine in their Manual." And because "the Corps' methods are reasonable, given the difficult task of reassembling the wetlands puzzle after unauthorized changes eliminate some of the telltale indicators, ... it makes sense to engage in a forensic analysis considering how the disturbances may have affected the presence of each of the three wetland parameters by utilizing alternative sources of information such as aerial photography, historical records, and reference sites." Finally, the Court reasoned, "'the character and context of the agency interpretation' is appropriate for deference as the question involves a 'complex scientific field, wetlands ecology and hydrology' for which the Corps, not the Court, is expert, Deaton, 332 F.3d at 713; see also Kisor, 139 S. Ct. at 2417." Accordingly, the Court "defer[red] to the Corps' construction of the applicability of the atypical situations methodology in situations like this where one or more, but not all, of the wetlands indicators are missing because of disturbance."

The Court explained its Kisor analysis further in a footnote:

The Court does not provide a lengthy elaboration on “traditional tools of construction” because it determines that the “legal toolkit is empty” based on the fact that none of the cited laws or regulations discusses how to delineate wetlands. Kisor, 2415 S. Ct. at 2415. In fact, this is the whole purpose of the 1987 Manual and Regional Supplement; to help delineate wetlands according to specific science-based criteria considering the uniqueness of each region of the country.

I think the Court got the deference analysis all wrong here. Recall that the question presented, according to the Court was whether "use of the atypical situations methodology was appropriate here, given the disturbances the government officials observed even where they could still identify some of the wetlands indicators on the Marsh Site." As the Court itself explains, however, "none of the cited laws or regulations discusses how to delineate wetlands." In other words, as far as the question presented goes, the ambiguous regulation simply "parrots" the ambiguous statute. But the Supreme Court went out of its way to explain that deference is inappropriate in that very circumstance:

[T]his Court has denied Auer deference when an agency interprets a rule that parrots the statutory text. See Gonzales v. Oregon, 546 U.S. 243, 257, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006). An agency, we explained, gets no “special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.” Ibid.

Kisor v. Wilkie, 139 S. Ct. 2400, 2417 n.5 (2019) (quoting Gonzales v. Oregon, 546 U.S. 243, 257 (2006)). In my view, the Court should have determined the "appropriateness" of the government's methodology under State Farm standard and without resorting to Kisor at all.

Laturner v. United States, 933 F.3d 1354 (Fed. Cir. 2019)

The Federal Circuit refuses to defer to Treasury interpretation of its regulation under Kisor after concluding that the regulations aren't genuinely ambiguous. As far as the Kisor discussion goes, the opinion is straightforward, so I don't see any point in delving deeper here.

Lower Courts Applying Kisor IV
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