business says gallagher and henry may please the court the case presents an overarching threshold question to what extent should this court provide deference to federal assertions of jurisdiction under the clean those three cases stand for the proposition that the clean water act pushes the outer boundaries of federal power under the commerce clause and the federalism structure of government established by the founding fathers since justice kennedy is concerned concurrence of the plurality in that case with an eye towards the federalism concerns and commerce clause power that you're identifying narrowed the interpretation of the statute from the one that the court initially asserted why with justice kennedy's concurrence echoes swank's statements regarding the pushing of the outer boundaries of federal jurisdiction of the clean water act with regard to the commerce clause and federalis in twenty sixteen the supreme court in justice kennedy's concurring opinion said essentially the same thing justice kennedy said the clean water act quote ominous research continues to raise troubling questions regarding the government's power to cast doubt on the full use and enjoyment of private property throughout the nation but what i don't understand as i thought that the solution to that problem was justice kennedy's test which  it doesn't alter the standard of review but what justice kennedy didn't repond us is in order to skirt if you will the constitutional issues he provided six pages of instructions to the corps of engineers as to how they must perform jurisdictional determinations those six pages of instructions become the law of the case for purposes of the a p a and to the extent that was because of the constitutional concerns the justice kennedy provided those detailed instructions and six pages and i want to discover what those instructions work and then compare that to what the core actually did here so jurisdiction more specific inquiry is necessary and specifically some measure of hydrologic significance to navigable water quality including crucially the quantity said but this is about applying that opinion in the standard justice kennedy sent out to what the car actually did hear and question being whether it was i'm trying to preach a stories you'll have it not in accordance with law it's it's also it's just a question of is justice kennedy's six pages of instructions to the court if the court didn't follow those instructions then the court didn't perform jurisdictional determination in accordance with the law that that's all i'm saying but don't we look at whether or not they follow those instructions under an arbitrary and capricious standard because you're if it's under the a p a which requires the deference if if if it were a case where just kennedy had not brought in the constitutional issues and had not specifically provided instructions based on those constitutional concerns yes then it would be screwed or be true capricious knitter but that's not the saying is that given the instructions with detailed instructions that to the extent the corps did not follow those instructions the law of the case hasn't been  hasn't been achieved and so they don't check each one of the boxes set out in justice kennedy's opinion it automatically fails we don't even look at the evidence that they otherwise had that it's almost a procedural error no absolutely we need to look at the evidence and i like to get into  think you quickly on this legislative fall because i have a number of questions about that is it your position in the preamble that this five year abandonment provision is a legislative rule and its flaws that it did not go through notice and comment interpretive role you know because of the hard line that it draws in the substantive rights that changes so that if it's a legislative role it can't just appear in the preamble it would have had to go through notice and comment and i that's why i'm trying to understand your challenge i couldn't quite get what your position was about why this was invalid yes your honor i got a group but you just said ok so you think it was a legislative role that should have gone through notice and comment because it's laying down as you point out in your brief it can't be interpreted thing but prior convert because it would be kind of in the hopper as in the have to case kind of straining i mean really that's kind of your point about brock right when you cite brock you're saying if it's not in the text of the regulation then it's it's not a regulation it should have gone through the band of exceptions but based on the comments received the that reference manual had not gone through notice and comment if it sells that it can't be referenced in the body of the regulation and so consequently in the final that followed by numerous other courts and such forth in the briefing basically said that if it's not in the language of the c a far but only in the preamble it's not binding not only is it question because i think it's a difficult one i mean i understand what you're saying but that goes to whether there was an error it doesn't go to what the remedy should be for example it's not necessarily the case that we should vacate it possible that we should just language of c a far as a third party that's not harmless served for orchard hill it believed that it had per convert cropland that's why extended hundreds of thousands of dollars to get permits for the entire one hundred wetlands really took away the constitutional concerns that you're raising he skirted the constitutional issue didn't he it didn't he specifically said that he was status concerned about it because of the restrict attest that he had imposed a significant nexus yes assuming that the corps of engineers in the future post ripost would follow his specific instructions that delayed his concern the question here is did they follow the retention basins you've got the entire length almost of with loathing and creek in the numerous properties in between so for a drop of water to travel from the thirteen acres to the little calumet river it needs to traverse that gauntlet of natural and then the barriers and what are the core do in terms of presenting evidence well the core didn't measure the extent of the content or the frequency of flow at or for on the thirt takers the evidence of flow gathered by the corps with regard to physical and chemical nexus there are one point of evidence and that is a one time eyeball observation made on march twenty fourth twenty  sampling an analysis of the chemical parameters of the flow and there's no sampling in analysis of the thirteen acres the course all appellate review officer on appeal said that's not enough to stablish  income tax i need i need a better explanation so the court came up with the eleven page supplement and what does the supplement add with regard to the physical and nexus issue nothing nothing with regard to the thirt afield is the netherlands to hypothesize that the thirteen acres have the ability to filter pollutants that's the entire basis of the evidence on which the core claims a significant  a it very clearly described that set for the standard that the course of apply on a case by case basis when evaluating whether wetlands have a significant nexus to navigable waters are actually supposed substantial evidence applies to this court's review of the fats that the that the army corps found and whether there was whether there was enough evidence that a reasonable mind might agree that that the evidence supports the conclusion so there could be conflicting evidence in the record but if there's enough evidence to support the army corps conclusion that there is a significant nexus and that the facts exist to support the significant nexus for example that there is hydrological connection that these wetlands contribute to flood control benefits for navigable waters those sorts of things if there is enough evidence in the record that a reasonable mind might agree that those facts or evidence support the conclusion this court should defer and this court should also afford the army corps scientific judgment a higher level of deference because that and then it might apply to facts that weren't particularly technical or scientific because of the because of the army corps unique expertise in applying the statute here has let me touch about the prior converted cop plans exception so i gather the thrust of your brief is that you think that the preamble and the five year abandonment exception is an interpretive full yes that's correct your honor i i hesitate to characterize it as interpretive versus legislative because i'm not one hundred percent sure how you mean those terms but what i would like to like to explain more specifically i think it would be legislative and right i go through i apologize interpretive and that's based on the text of the preamble itself so in the in the propose room defining prior converted croplands with the abandonment concept attached to it so in other words per converted croplands has no meaning on its own and so when the core was was proposing the regulations initially it did say parker copland's will be exempt well if you're interpreting the phrase prior converted croplands it seems to me that it would be an interpretation to say what's a cropland or be an interpretation to say this is what it means for it to have been converted my problem with the five year limitation is it's like this court's decision and hocked are where you know judge posner said if you're going to pick a line like an eight foot high fence then you're changing substantive rights you're laying down a rule that would be legislated and so here i mean you're picking a number it's hard to see how a five year abandonment in any way interprets what it means to have prior could read a cop lands and seems to me that what you're saying about it having gone through notice and comment really goes more towards harmless error into whether this legislative rule should have gone through notice and comment itself there's a lot of your question just backing up to that ok how do we back up just just explain to me why you think it's interpretive and not legislative it's interpretive because if you look at the preamble to both the proposed regulation and the final regulation the core clearly explained that it removed the definition so in the final regulation it explained that it removes the definition of prayer converted cropland so that it could routine discretion to update its read its regulation or its interpretation of the word in a way that would be consistent with the department of agriculture or department of agriculture as manual so you think that this five year abandonment can fairly be which is an interpreter and the phrase prior converted cropland it actually is a component of the meaning of prayer converted cropland so why not six years then i but i would say that the line drawing is rational and reasonable here because it was directly imported from the us department of agriculture's interpretation of converted cropland i don't think it i'm not saying that it's irrational all i'm saying is that the a p a requires legislative rules rules that change substantive rights rules that lay down lines like this one to go through notice and comment and this is not part of the regulation it's in the preamble so i'm wondering why it didn't go through notice and comment and if it is a legislative role that did not go through notice and comment then we confront the question of whether it's subject to harmless error review and what the remedy should be should it be vacated and we mandate that reverse the district court with instructions any man to the agency or whether it should not be vacated it should just be remanded to the agency that's my set of concern i was i don't you argue in your brief that the public did have the opportunity to comment on yes what can you explain that in answering the question citation specifically has fifty seven federal register twenty six eight nine seven where the corps in its proposed rule explained how it would interpret the term prior converted cropland and explained that it would import the abandonment concept into that definition of prayer converted cropland and then again that that proposed regulation went through notice and comment the public commented on the meaning of prayer converted cropland and in particular concept and we can see that reflected in the final regulation in the preamble to the final regulation which is the page sixty two it didn't and hold on the corporal that private abandonment provision outside of the regulation itself because it had not completed notice and comments in the other doubt of forgetting there are so many agencies involved in the yet had and hadn't completed doesn't come and so you made it a deliberate choice to pull it outside of the regulation and put it in the preamble you're correct in stating that the core polled the definition specifically from the text of the regulation but it it did that so that it could retain the discretion to interpret that phrase differently in accordance with the department of agriculture and manual which was changing over time so specifically in the preamble to the final regulation the core put the public on notice and it specifically said on fifty within the meaning of these provisions and which exhibits wetlands characteristics will be considered weapons subject to section four of four regulation and on that page in the preceding page in the federal register it talks about the comments that the public made on the on the use of the abandonment concept i have been in the regulation itself you don't have to pull it out you could have retained discretion and left and the regulation without shifting it to the preamble which is not the regulation that's true your honor but again i would i would submit that it doesn't matter either way because the corps has explained how it's going to be interpreting the term prior converted cropland in its preamble in the proposed regulation public the public cropland and the meaning of abandonment and then the core explained in the in the preamble to the final regulation and this is on page forty five zero thirty three it specifically said we believe that consistency as department of agriculture as a guidance document used in conjunction with other technical guidance and field testing techniques to determine whether in a grand council even if it's in a manual or a guidance under supreme court precedent that doesn't  preclude it from being a legislative rule if the field officers don't have discretion to depart from it and again if this five year abandonment thing is a hard line and it's functioning as a legislative rule not as guidance that those who are making the determination have the discretion to to depart from or not now i take everything you're saying about the public having had a chance to you know comment on it but again analytically i'm thinking that goes to harmless error review and not to the question of whether it's a legislative submit that the court doesn't need to reach the question of whether it's a legislative rule or an interpretive rule in order to affirm the army corps decision here because the corps announced how it was going to be in i understand but as your position i want you to say it matters to how we decide the case it would matter to how we wrote an opinion so i would i would i want you to state your position i mean your position is that it's an interpretive rule or your have that discretion i'm not prepared to speak to that but what i can say or and direct this court to is to look at the core at the district court's decision and new hope so there are and the reason why i'm sort of that has attention fully answered this question is there's because of the new hope decision which was a district court decision which which held that new post regulatory guidance document that change the definition of prior converted crop needed to go through notice and comment rule making in order to be applied and the corps has interpreted that district court decision as being limited to the district in which it applies and so my understanding is that the corps believes that it can the course position is that it can change its interpretation of the core at least within that district so it's somewhat unclear and i would hesitate to put the corps into a box especially given the changes in the regulatory landscape that are pending and that i'm not authorized to comment on because they're there they're still pending there's been no final decision but it is a difficult question and that's why i would urge the court to the to decline to address that because it doesn't need to address this particular question cropland that has been abandoned or that is not far from for more than five years i would also say if the court were to look at the harmless error analysis that in this situation it's it's it's it's not even a five year issue that the white lines that issue here have not been farms and sank in ninety six so it's much longer than five years so there is no sort of question or this court should have any question or concern about an arbitrary bright line that's been drawn i would also submit to the court that that the while and that issue have returned to full wetlands conditioned state and that the evidence in the right there's no contrary evidence in the record to suggest that these are not and that there is no hydrological connection and that they don't play a significant role the only thing that works or hell asks this court to do is find that more evidence should have been obtained or that more evidence is required but the case law simply doesn't support that result here no court has required and in fact the fourth circuit in pre con has held that the army corps doesn't actually need to go out and measure the flow rates or quantitatively measure pollution content coming into the wetlands and water and in water leaving the wetlands and so for this court to reach the outcome that works would help would like it to here would mean that it would have to depart from other circuit precedent in the preconception to require more evidence of the army corps and that's just not consistent with repond of and again not consistent with other courts that have addressed this issue in meeting the significant evidence or significant nexus chest word submitted evidence and similarly situated lands which under your regulations means eight years that are wetlands that are adjacent to the middle of the creek and you were light specifically on one hundred  sixty five acres what evidence is there in the record though that supports that these one hundred sixty five acres were actually a chasten to the middle of the creek to identify the similarly it's situated what lines the core look at all of the wetlands that were in the same water in the midlothian creek watershed which is where these wetlands are located and looked specifically at the national at the fish and wildlife services national that lands inventory and that inventory is gathered by looking at soil so whiteman's consists of certain types of soils and so the ate the fish and wildlife service identifies where certain soils are located and then it goes and looks at aerial survey m to identify what types of vegetation are at the location and from there it determines that there are like that there are wetlands there or not is are you referring to appendix twenty yes can you help me out please where share with you at the end of the list oh i'm sorry doesn't say that because one of the questions is do these directly up but which i'm assuming that means do they directly a button a floaty and creek you're right and for all but four it says no they don't you're right and actually at the top of page twenty number three it says at the very top of the page is has characteristics of all wetlands adjacent to the tributary if any so that's where that the term thing comes in and then what it says if in the adjacent to the wetlands are adjacent to the tributary if any right and so this is these are so the core of this this may be where your question is coming from the court as an interpreter which is also consistent with the kennedy decision and repond i believe so if you interpret it as neighboring what is your evidence that these hundred sixty five acres are neighboring evidence comes in the form of that of the national wetlands inventory itself and is there anything on this document at appendix twenty that would tell me that these wetlands are actually  that limits it to the area we're talking about so that that refers to the map specifically where the information was gathered but i would which i think is what you relied on at the district court  yes and what we rely on here and it's the basis of the army corps decision the i would direct this court to look at the discussion on page thirty seven of the appendix which says the national wetlands inventory map identifies one hundred sixty five wetlands in the midlothian creek watershed totaling four hundred sixty two point nine eight hours and then it talks a little bit more about the midlothian creek watershed appendix thirty seven that's correct in the middle of the actual report so i just trying to figure out oh that's army corps that's of course report yet where did the court get that information they stated as if it's a fact here but i'm trying to find out what the back of evidences the back that although the corps prepared its analysis by looking at at the war micky wetlands along with all of the other wetlands in the watershed the corps independently found that these wetlands alone satisfy the city the significant nexus standard and and what and that would be an independent basis for the court find that there is a significant nexus here thank you this is going to be an exercise in speed talking but to try to go through this quickly with regard to scientific judgment being greater deference to this case the government cites the zero zone case decided by this court that significant nexus should be entitled to higher standard deference because that's an issue involving scientific or technical questions zero zone is not on point here in that case the department of energy promulgated efficiency standards for commercial refrigeration you see the issue is whether those standards were scientifically and technically sound here by contrast gallagher and henry is not contesting the core scientific or technical determinations but it's for sale you to follow justice kennedy's instructions in the context of the course constitutionally suspect power under the clean water act that's an issue which courts are uniquely qualified to address he would like to quickly go to the biological nexus issue where where i left off and that is that the kind of evidence a deuced here with regard to biological nexus is precisely the kind of evidence that was rejected by the swancourt in its refusal to defer to the court's judgment in connection with migratory birds with regard to similarly situated sites there's a list of one hundred sixty five sites it's only a list and there's no additional information that's precisely the kind of information that the  would be vacating remained to the agency or just remain and thank you very much counsel