3n tf)e Entteb Stated Court of appeals? for t^e Bfdtrtct...

NOT YET SCHEDULED FOR ORAL ARGUMENT

Nos. 18-5154,18-5181

3n tf)e Entteb Stated Court of appeals? for tê Bfdtrtct of Columbia Circuit

AMERICAN BANKERS ASSOCIATION, PLAINTIFF-APPELLEE-CROSS-APPELLANT

NATIONAL CREDIT UNION ADMINISTRATION, DEFENDANT-APPELLANT-CROSS-APPELLEE

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA (CIV. NO. 16-2394)

(THE HONORABLE DABNEY L. FRIEDRICH, J.)

BRIEF OF AMICI CURIAEIN SUPPORT OF PLAINTIFF-APPELLEE-CROSS-APPELLANT

AMERICAN BANKERS ASSOCIATION

Julie Johnson McLean (AT#0005185) Robert A. Gamble (AT#0002809)Davis Brown Law Firm 215 10th Street, Suite 1300 Des Moines, IA 50309 Telephone: (515)288-2500 Facsimile: (515) 243-0654 Email: [email protected]

[email protected]

Steven D. GordonHolland & Knight LLP800 - 17th Street N.W., Suite 1100Washington, DC 20006Telephone: (202) 955-3000Facsimile: (202) 955-5564Email: [email protected]

#3032245 v.I3

USCA Case #18-5154 Document #1770280 Filed: 01/25/2019 Page 1 of 45

(Page 1 of Total)

mailto:[email protected]



CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to Circuit Rule 28(a)(1), Amici Curiae for Plaintiff-Appellee-

Cross-Appellant American Bankers Association make the following certification:

A. Parties, Interveners, and Amici. Except for the following, all

parties, interveners, and amici appearing before the District Court and in this Court

are listed in the Opening Brief for Defendant-Appellant-Cross-Appellee:

(i) Illinois League of Financial Institutions has merged into Illinois Bankers Association, and Illinois Bankers Association, as the surviving entity, continues to appear as an Amicus in support of Plaintiff-Appellee-Cross- Appellant American Bankers Association in this Court;

(ii) Puerto Rico Bankers Association is first appearing as an Amicus Curiae in support of American Bankers Association in this Court; and

(iii) Bluegrass Community Bankers Association and California Community Banking Network are first appearing as Amici Curiae in support of American Bankers Association in this Court.

For the convenience of this Court, Amici Curiae for Plaintiff-Appellee-

Cross-Appellant American Bankers Association in this Court are as follows:

(a) The State Bankers Associations in all 50 states and in the commonwealth of Puerto Rico, as identified in Exhibit A;

(b) Independent Community Bankers of America (“ICBA”); and

(c) The 25 state-level community banking organizations -affiliated with ICBA, as identified in Exhibit B.

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B. Rulings Under Review. References to the rulings at issue appear in

the Opening Brief for Defendant-Appellant-Cross-Appellee.

C. Related Cases. This case has not previously been before this Court

or any other court for appellate review. To the best of the knowledge of Amici

Curiae and their counsel, no related cases are currently pending in this Court or in

any other U.S. Court of Appeals or in any other Court in the District of Columbia.

/s/ Steven D. GordonSteven D. Gordon

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and D.C.

Circuit Rule 26.1, Amici submit the following corporate disclosure statement:

Iowa Bankers Association (“IBA”) was initially formed in 1887 for the

purpose of supporting banks in the State of Iowa by providing leadership,

advocacy, information and education to its members, their commercial and

consumer customers, and the public. IBA is an Iowa nonprofit corporation

organized under Iowa Code Chapter 504. The current membership of IBA consists

of approximately 315 state and national banks and savings associations

representing 98% of such banks and associations operating in Iowa. There is no

parent corporation of IBA, nor does any publicly-held corporation own 10% or

more of its stock.

The other State Bankers Associations, as identified in Exhibit A, all serve a

similar purpose, and are all similarly organized, nonprofit organizations that

represent a substantial number of the community banks and savings associations in

their respective states and in the commonwealth of Puerto Rico. They have no

parent corporations and no stock held by the public; and no publicly-held

corporation owns 10% or more of their stock. IBA and the other State Bankers

Associations represent a substantial number of community banks and savings

associations that are not members of ABA.

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Independent Community Bankers of America (“ICBA”) is a nationwide

trade organization dedicated to promoting and protecting the interests of America’s

community banks by monitoring, and advocating on, federal issues that affect

thousands of community banks and their customers. ICBA is the nation’s voice for

many of the 5,300 community banks serving local and rural communities

throughout the United States. With 52,000 locations nationwide, community banks

employ 760,000 Americans and hold $4.9 trillion in assets, $3.9 trillion in deposits,

and $3.4 trillion in loans to consumers, small businesses, and the agricultural

community. In addition, 25 state level community banking organizations affiliated

with ICBA, as identified on Exhibit B. join this Brief as Amici Curiae.

ICBA, including 25 affiliated state-level community banking organizations,

are nonprofit trade associations; they have no parent corporations and no stock

held by the public; and no publicly-held corporation owns 10% or more of their

stock.

IV


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STATEMENT REGARDING CONSENT TO FILE AND AUTHORSHIP

All parties to these appeals have consented to the filing of this Amici Brief.

This Amici Brief is filed upon the authority of the Board of Directors and

the President of IBA and the Board of Directors or the Chief Executive Officer of

each of the other State Bankers Associations. Counsel for IBA and ICBA authored

this Amici Brief in its entirety. No counsel for ABA or NCUA has authored this

Amici Brief, in whole or in part, nor has ABA or NCUA or their respective counsel

contributed money to fund the preparation or submission of this Brief. No entity or

person, other than IBA and ICBA, have contributed funds to cover the costs of the

preparation and submission of this Amici Brief.


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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULING AND RELATED CASES...............i

CORPORATE DISCLOSURE STATEMENT ..................................................... iii

STATEMENT REGARDING CONSENT TO FILE AND AUTHORSHIP..........v

TABLE OF CONTENTS ....................................................................................... vi

TABLE OF AUTHORITIES ............................................................................... viii

GLOSSARY OF ABBREVIATIONS ...................................................................xii

INTRODUCTION AND STATEMENT OF INTEREST........................................ 1

STATUTES AND REGULATIONS........................................................................5

SUMMARY OF ARGUMENT....................................................... 5

I. THE DISTRICT COURT INCORRECTLY DETERMINED EXCLUSION OFCORE AREAS FROM CORE-BASED STATISTICAL AREAS DID NOT CONTRAVENE CONGRESSIONAL INTENT................................................. 7

II. EXCLUSION FROM CRA, TOGETHER WITH THE FINAL RULE’SDELETION OF “CORE AREA” FROM THE DEFINITION OF CORE- BASED STATISTICAL AREA ENABLES COMMUNITY CREDIT UNIONS TO CIRCUMVENT CONGRESSIONAL INTENT ...................... 15

III. THE FINAL RULE UNREASONABLY EXPANDS RURAL DISTRICTS................................................ 17

IV. NCUA’S ARGUMENTS REGARDING VIABILITY OF CREDIT UNIONSIN RURAL AREAS ARE WITHOUT MERIT........................... 24

V. NCUA’S DEFINITIONS ARE NOT ENTITLED TO CHEVRONDEFERENCE........................................................................ 25

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CONCLUSION 27

CERTIFICATE OF COMPLIANCE ................................................................... 31

CERTIFICATE OF SERVICE ............................................................................ 32

EXHIBIT A - STATE BANKERS ASSOCIATIONS

EXHIBIT B - ICBA STATE-LEVEL COMMUNITY BANKING ORGANIZATIONS

EXHIBIT C - MAP - MINNEAPOLIS CBSA

EXHIBIT D - MAP - DETROIT CBSA

EXHIBIT E - MAP - CHICAGO CBSA

EXHIBIT F - STATISTICAL SUMMARY OF US CENSUS DATA - COUNTY POPULATION AND SQUARE MILEAGE

Vll


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TABLE OF AUTHORITIES1

Cases Page(s)

Am. Bankers Ass ’n v. NCUA, 271 F.3d 262 (D.D.C. Cir. 2001)...........................8

Am. Bankers Ass ’n v. NCUA, 347 F.2d 1061 (D. Utah 2004)....................... 14, 15

Am. Bankers Ass ’n v. NCUA, 2008 WL 2857678 (M.D. Pa.July 21, 2008)................................................................................................... 14

*Am. Bankers Ass ’n v. NCUA, 306 F. Supp. 3d 44 (D.D.C. 2018) ........... .....12, 17

^Chevron, US.A. Inc. v. Natural Resource Defense Council, Inc.,467 U.S. 837(1984)....................................................... 25,26

Cuomo v. Clearing House Assn., L.L.C., 557 U.S. 519 (2009) ............................26

First Nat. Bank and Trust Co. v. Nat. Credit Union Admin.,988 F.2d 1272 (D.C. Cir. 1993).................................................................. 8, 26

First Nat. Bank of Fayetteville v. Smith, 365 F.Supp. 898, 903 (W.D. Ark. 1973), rev ’d on other grounds. First Nat. Bank of Fayetteville v. Smith,508 F.2d 1371 (8th Cir. 1974)..........................................................................27

U.S. v. Carmack, 329 U.S. 230 (1946)................................................................ 27

Util. Air Regulatory Grp v. E.P.A., 573 U.S. 302 (2014) ....................................26

Whitehead Street, Inc. v. Secretary of U.S. Dept, of Agriculture,701 F.3d 1345 (11th Cir. 2012)........................................................................26

Statutes and Regulations

12 C.F.R. parts 25, 228, 345, and 195.................................................................16

12 C.F.R. § 228.29 ............................................................................................... 16

1 Authorities upon which Amici chiefly rely are marked with asterisks pursuantto Circuit Rule 28(a)(2).

viii


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26 U.S.C. §1361(b) 28

48 Stat. 1216, 1219 (1934).............................................................................. 2, 16

63 Fed. Reg. at 72,012............................................................................................. 3

63 Fed. Reg. at 72,037.............................................................................................. 3

63 Fed. Reg. at 72,038.............................................................................................. 4

63 Fed. Reg. at 72,038-39.......................................................................................4

63 Fed. Reg. at 72,039 .............................................................................................4

75 Fed. Reg. at 36,257 ............................................................................................. 7

Administrative Procedure Act, 5 U.S.C. § 701 et seq..............................................1

Appendix B to 12 C.F.R. Part 701 .................................................................... 2, 5

Chartering and Field of Membership Manual, 81 Fed. Reg. 88,412 (Dec. 7, 2016), 12 C.F.R. pt. 701 .................................................................................................... 2

Chartering and Field of Membership Manual, 81 Fed. Reg. at 88,413...................7

Chartering and Field of Membership Manual, 81 Fed. Reg. at 88,426.................. 13

Chartering and Field of Membership Manual, 81 Fed. Reg. at 88,440 ......7, 13, 18

Chartering and Field of Membership Manual, 81 Fed. Reg. at 88,441 .................13

Community Reinvestment Act, 12 U.S.C. 2901 ......................................... 1, 15, 28

* Credit Union Membership Access Act, Pub. L. No. 105-219, 112 Stat. 913 (1998) ........................................................................................................................ 3, 7, 27

Federal Credit Union Act, 12 U.S.C. § 1751 et seq................................................ 1

FCUA, 12 U.S.C. § 1759(b)........................................................................ 1, 3, 25

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FCUA, 12 U.S.C. § 1759(b)(3) ......................................................................... 5, 7

FCUA, 12 U.S.C. § 1759(g)(1).................... ..:................................................... ...5

Iowa Code Chapter 504 ......................................................................................... iii

Organization and Operations of Federal Credit Unions, 63 Fed.Reg. 71,998 (Dec. 30, 1998) ..............................................................................3

Pub. L. No. 73-467, 48 Stat. 1216 (1934)............................................................ 16

Pub. L. No. 86-354, 73 Stat. 628, 631 (1959)...................................................... 2

Pub. L. No. 105-219, 112 Stat. 913........................................................2,3, 8, 25,27

Other Administrative Materials

American Banker, Vol. 182, No. 101, p. 2, May 26, 2017 .....................................1

FDIC, FDIC Community Banking Study, December 2012https://www.fdic.gov/regulations/resources/cbi/report/cbi-full.pdf...................... 25

NCUA Letter No. 18-FCU-02 (October 2018).............. ........................... ............. 8

National Credit Union Administration, Quarterly Credit Union Data Summary 2018 Q3, https://www.ncua.gov/files/publications/analysis/quarterly-data-summary-2018-03 .pdf (last visited Jan. 9, 2019).......................................................................... 24

U.S. Census Bureau, 2010 Census Percent Urban and Rural by State,https://www2.census.gov/geo/docs/reference/ua/PctUrbanRural State.txt (last visitedJan. 17, 2019)......................................................................................................... 18

U.S. Census Bureau, Annual Estimates of Resident Population: April 1, 2010 to July 1, 2016-United States-Metropolitan and Micropolitan Statistical Area; and for Puerto Rico,https://factfmder.census.gov/faces/tableservices/isf/pages/productview.xhtml7srcU3kmk............................................................................................................... 9, 10, 11, 19

X

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https://www.ncua.gov/files/publications/analysis/quarterly-data-summary-2018-

https://www2.census.gov/geo/docs/reference/ua/PctUrbanRural_State.txt

https://factfmder.census.gov/faces/tableservices/isf/pages/productview.xhtml7srcU3kmk

U.S. Census Bureau, QuickFacts Eden Prairie city, Minnesota; Maple Grove city, Minnesota; Edina city, Minnesota; Plymouth city, Minnesota; Golden Valley city, Minnesota; Minnetonka city, Minnesota,https://www.census.gov/quickfacts/fact/table/miraietonkacityminnesota,goldenvalleyc ityminnesota,plymouthcityminnesota,edinacityminnesota,maplegrovecityminnesota,ed enprairiecityminnesota/INC 110217 (last visited Jan. 23, 2019)..............................9

U.S. Census Bureau, QuickFacts Evanston city, Illinois; Wilmette village, Illinois; Northfield village, Illinois; Winnetka village, Illinois; Glencoe village, Illinois; Highland Park city, Illinois,https://www.census.gov/quickfacts/fact/table/highlandparkcityillinois,glencoevillageil linois,winnetkavillageillinois,northfieldvillageillinois,wilmettevillageillinois,evanston cityillinois/PST045218 (last visited Jan. 23, 2019)............................................... 11

U.S. Census Bureau, QuickFacts South Dakota; Alaska; North Dakota; Wyoming; United States,https://www.census.gov/quickfacts/fact/table/sd,ak,nd,wy,US/PST045218 (last visitedJan. 17, 2019)......................................................................................................... 18

U.S. Census Bureau, 2010 Census Percent Urban and Rural by State, https://www2.census.gov/geo/docs/reference/ua/PctUrbanRural State.txt (last visited Jan. 17,2019)......................................................................................................... 18

U.S. Census Bureau, QuickFacts El Dorado Hills city, California; Redding city, California,https://www.census.gov/quickfacts/fact/table/reddingcitycalifomia,eldoradohillscdpca lifomia/PST045218 (last visited Jan. 22, 2019)....................................................22

U.S. Census Bureau, QuickFacts Bainbridge city, Georgia; Eufaula city, Alabama, https://www.census.gov/ quickfacts/fact/table/eufaulacity alabama,bainbridgecitygeorgi a/PST045218 (last visited Jan. 22, 2019)............................................................. 23

U.S. Census Bureau, QuickFacts Plattsburgh city, New York; Amsterdam city, New York,https ://www. census .gov/quickfacts/fact/table/amsterdamcitynewyork,plattsburghcityn ewyork/PST045218 (last visited Jan. 22, 2019)....................................................23

U.S. Census Bureau, QuickFacts Plainview city, Texas; Amarillo city, Texas, https ://www. census.gov/ quickfacts/fact/table/amarillocitytexas,plainviewcitytexas/P S T045218 (last visited Jan. 22, 2019)...................................................................... 23


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https://www.census.gov/quickfacts/fact/table/miraietonkacityminnesota,goldenvalleyc

https://www.census.gov/quickfacts/fact/table/highlandparkcityillinois,glencoevillageil

https://www.census.gov/quickfacts/fact/table/sd,ak,nd,wy,US/PST045218

https://www.census.gov/

U.S. Census Bureau, QuickFacts,https://www.census.gov/quickfacts/table/PST045216/2758000.2743Q00.,QQ.........9

U.S. Census Bureau, QuickFacts,https://www.census.gov/quickfacts/table/PST045216/00 .......................................9

U.S. Census Bureau, QuickFacts,https://www.census. gov/auickfacts/table/PST045216/2717288.2751730.2740166.2718188.2718116:see also https://www.census.gov/quickfacts/table/PST045216/2743252.2724308 ........................................................................................................................................10

U.S. Census Bureau, QuickFacts,https://www.census.gOv/quickfacts/table/PST045216/2622000..........................10

U.S. Census Bureau, QuickFacts,https://www.census.gov/quickfacts/table/PST045216/2659440.2616313120.2680700.2612585480.2608640.2612509110: see alsohttps://www.census.gov/quickfacts/table/PST045216/2649000.2627440,266903 5........................................................................................................................................11

Dictionaries

Dictionary.com, Rural, http://www. dictionary. com/browse/rural?s=t................19

Merriam-Webster Dictionary Online, Rural,https://www.merriam-webster.com/dictionarv/rural.............................................19

Thesaurus.com., Rural, http://www.thesaurus.com/browse/rural?s=t.................19

Exhibits

Exhibit A - State Bankers AssociationsExhibit B - ICBA State-Level Community Banking Organizations Exhibit C - Map - Minneapolis CBS A Exhibit D - Map - Detroit CBS A Exhibit E - Map - Chicago CBS AExhibit F - Statistical Summary of US Census Data - County Population and Square

Mileage

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https://www.census

https://www.census.gov/quickfacts/table/PST045216/2659440.2616313120.2680700

https://www.census.gov/quickfacts/table/PST045216/2649000.2627440,266903

GLOSSARY OF ABBREVIATIONS

ABA........................................................................ American Bankers Association

CSA................................................................................. Combined Statistical Area

CRA......................................................................... Community Reinvestment Act

CBS A............................................................................. Core-Based Statistical Area

CUMAA....................................................... Credit Union Membership Access Act

FCUA............................................................................... Federal Credit Union Act

IB A.................................................................................. Iowa Bankers Association

ICBA.................................................Independent Community Bankers of America

MHI............................................................................... Median Household Income

NCUA........................................................... National Credit Union Administration

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INTRODUCTION AND STATEMENT OF INTEREST

Iowa Bankers Association (“IBA”), together with the state bankers

associations representing banks in the other 49 states and the commonwealth of

Puerto Rico (collectively, “State Bankers Associations”) identified in Exhibit A

and Independent Community Bankers of America and 25 affiliated state-level

community banking organizations identified in Exhibit B (collectively, “ICBA”)

(State Bankers Associations and ICBA collectively, “Amici”) submit this Brief in

support of the appeal of American Bankers Association (“ABA”) filed against

National Credit Union Administration (“NCUA”) arising from NCUA’s alleged

violations of the Federal Credit Union Act (“FCUA”), 12 U.S.C. section 1751 et

seq., and the Administrative Procedure Act, 5 U.S.C. section 701 et seq.

Amici have an interest because, if not invalidated, the Final Rule will

expand the authority of tax-exempt Federal credit unions2 to provide services in

areas they select without regard to their statutory mission and unimpaired by the

Community Reinvestment Act (“CRA”) and other regulatory restrictions

applicable to banks.

FCUA contains three well-defined limits on the field of membership for all

Federal credit unions. 12 U.S.C. § 1759(b). This case relates to amendments to field

2 The credit union tax exception is estimated by the U.S. Treasury Department to cost the federal government $35.3 billion over the next decade. See American Banker, Vol. 182, No. 101, p. 2, May 26, 2017.


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of membership rules in the Chartering and Field of Membership Manual (the

“Manual”), 81 Fed. Reg. 88,412 (Dec. 7, 2016), 12 C.F.R. Part 701 (the “Final

Rule”), specifically sections of Appendix B to 12 C.F.R. Part 701 that expand the

field of membership for community common bond credit unions (“Community

Credit Unions”).

FCUA was enacted during the Great Depression to make credit available

through a national system of nonprofit credit unions. Initially, FCUA limited

membership to “groups within a well-defined neighborhood, community, or rural

district.” 48 Stat. 1216, 1219 (1934). Amendments were made to FCUA in 1959,

but restrictions on membership remained the same: “Federal credit union

membership shall be limited to groups having a common bond of occupation or

association, or to groups within a well-defined neighborhood, community, or rural

district.” Pub. L. No. 86-354, 73 Stat. 628, 631 (1959).

The 1998 Credit Union Membership Access Act (“CUMAA”) amended

FCUA “to clarify existing law with regard to the field of membership of Federal

credit unions.” Pub. L. No. 105-219, 112 Stat. 913. Congress defined three

membership fields: (i) single common bond - one group with a common bond of

occupation or association; (ii) multiple common bond - more than one group, each

(within the group) having a common bond of occupation or association, and the

number of members of each group not exceeding 3,000 when first included in the

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field of membership; and (iii) a Community Credit Union, defined as “persons or

organizations within a well-defined local community, neighborhood, or rural

district.” 12U.S.C. § 1759(b).

Congress specifically added the word “local” to the definition of Community

Credit Union and stated in pertinent part:

“Credit unions, unlike many other participants in the financial services market, are exempt from Federal and most State taxes because they are member-owned, democratically operated, not-for-profit organizations generally managed by volunteer boards of directors and because they have the specified mission of meeting the credit and savings needs of consumers, especially persons of modest means.”

Pub. L. No. 105-219, 112 Stat. 913 § 2 (1998) (emphasis added).

After CUMAA, NCUA acknowledged that local “was intended as a limiting

factor” and imposed a “more circumspect and restricted approach to chartering

community credit unions.” Organization and Operations of Federal Credit Unions,

63 Fed. Reg. 71,998, 72,012 (Dec. 30, 1998). NCUA identified several factors to

be considered in deciding whether a proposed area qualified as a well-defined local

community, including (i) the presence or absence of a single major trade area,

shared governmental or civic facilities, or an area newspaper, (ii) the population

and geographic size of the proposed community, and (iii) the specific geographic

boundaries used to define the community. Id. at 72,037.

NCUA identified examples of acceptable and unacceptable community

fields of membership. Acceptable fields included:

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I

•“Persons who live, work, worship, or attend school in, and businesses located in the area of Johnson City, Tennessee, bounded by Fern Street on the north. Long Street on the east. Fourth Street on the south, and Elm Avenue on the west;

•Persons who live or work in Green County, Maine; and

•Persons who live, worship, or work in and businesses and other legal entities located in Independent School District No. 1, DuPage County, Illinois”.

Id. at 72,038-39.

Unacceptable local communities, neighborhoods, or rural districts included:

•“Persons who live or work in the Greater Boston Metropolitan Area (does not meet the definition of local community, neighborhood, or rural district); and

•Persons who live or work in the State of California (does not meet the definition of local community, neighborhood, or rural district).”

Id. at 72,039.

Before the Final Rule, fields of membership for a Community Credit Union

were limited to persons or organizations within a well-defined local community or

neighborhood, or within a rural district, as follows:

(A) A Single Political Jurisdiction, Le^, a city, county, or their political equivalent or portion thereof, regardless of population.

(B) A Core-Based Statistical Area (designated by the U.S. Census Bureau or a Metropolitan Division within a CBS A or a portion thereof), in either case, subject to a 2.5 million population limit. The Core-Based Statistical Area was required to include the “core area” defined as the most populated county or named municipality in the Core-Based Statistical Area’s title.

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(C) A rural district restricted to an area with a population not toexceed the greater of 250,000 people or 3% of the population within theCommunity Credit Union’s home state.

12 C.F.R. Pt. 701, App. B (2015).

Implementation of the Final Rule to expand fields of membership will have

a substantial adverse effect on banks across the nation. Because of their tax-

advantaged status, credit unions are able to offer financial products in direct

competition with banks at a substantially lower cost. By expanding the definition

of the field of membership for Community Credit Unions, NCUA has exceeded its

authority under 12 U.S.C. section 1759(g)(1) that limits the field of membership of

Community Credit Unions to “persons or organizations within a well-defined local

community, neighborhood, or rural district.” 12 U.S.C. §1759(b)(3).

The Final Rule effects a sea change in the “field of membership” of

Community Credit Unions and obliterates the limitations imposed by Congress for

more than 80 years.

STATUTES AND REGULATIONS

All applicable Statutes and Regulations are contained in the Opening Brief

for NCUA.

SUMMARY OF ARGUMENT

Amici agree with the arguments in the Principal and Response Brief for

ABA, including those pertaining to Combined Statistical Areas. Amici write

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separately to discuss NCUA’s removal of the core area requirement from Core-

Based Statistical Areas and its expansive definition of rural districts, both of which

are unreasonable, arbitrary, capricious, and manifestly contrary to statute.

The Final Rule unlawfully allows Community Credit Unions to unilaterally

define their own service areas anywhere within a CBS A, rather than having to

serve an existing “well-defined local community” as Congress intended.

Community Credit Unions may redline low-income areas from Core-Based

Statistical Areas or portions they intend to serve, thereby circumventing express

Congressional intent that credit unions serve low-income persons. NCUA’s

supervisory process does not adequately protect persons of modest means located

within core areas, as the supervisory process occurs only after a Community Credit

Union has obtained its charter and after the core area has been excluded.

The Final Rule unreasonably defines rural districts to automatically include

entire states, as well as vast areas spanning over 100,000 square miles, each with

large urban populations. Due to the increased population limit in the Final Rule,

rural districts automatically include major metropolitan areas. Interpreting rural

districts to automatically include entire states, large geographic areas, and

metropolitan areas is unreasonable, arbitrary, capricious and manifestly contrary to

statute.

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ARGUMENT

I. THE DISTRICT COURT INCORRECTLY DETERMINED EXCLUSION OF CORE AREAS FROM CORE-BASED STATISTICAL AREAS DID NOT CONTRAVENE CONGRESSIONAL INTENT.

The Final Rule’s exclusion of core areas from Core-Based Statistical Areas

is unlawful. Congress has mandated that “the membership of any Federal credit

union shall be limited to ... [p]ersons or organizations within a well-defined local

community, neighborhood, or rural district.” 12 U.S.C. § 1759(b)(3) (emphasis

added). In 2010, NCUA provided that this requirement is met if the proposed

service area is a Core-Based Statistical Area or a portion thereof with a population

not exceeding 2,500,000. 75 Fed. Reg. 36,257, 36,264. Under the prior rule, a

Community Credit Union was required to serve a CBSA’s core. Manual, 81 Fed.

Reg. at 88,413. Core area is defined as the “most populated county or named

municipality” in a CBSA’s title. Id.

In contrast, the Final Rule permits a Community Credit Union to serve any

portion of a Core-Based Statistical Area it chooses, even if it does not serve the

core area. Id. This enables a Community Credit Union to define its own service

area anywhere within a CBS A and, in so doing, to exclude the core, its organizing

principle. This is the antithesis of the congressional mandate that Community

Credit Unions shall serve an existing “well-defined local community”, not one of

their own creation.

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Moreover, the Final Rule contravenes the intent of Congress, evinced by

adding “local” to the limitation, that NCUA should “take ‘a more circumspect and

restricted approach to chartering community credit unions.”’Bankers Ass’n v.

NCUA, 271 F.3d 262, 273 (D.D.C. Cir. 2001). Accordingly, the Final Rule is

contrary to law.

The Final Rule is at odds with the alternative approach NCUA permits to

establish the existence of a well-defined local community through a written

narrative. NCUA Letter No. 18-FCU-02 (October 2018). The applicant must

demonstrate both (1) “[t]he ability to serve the requested community”; and (2)

“[t]he intent to serve the entire community and all of its segments.” Id. This

dichotomy is arbitrary and capricious.

Furthermore, the Final Rule enables a Community Credit Union to

gerrymander its service area by choosing only the most affluent portions of a Core-

Based Statistical Area, excluding the core area. By eliminating the requirement to

serve a CBSA’s core area, the Final Rule contravenes Congressional intent that

“[cjredit unions ... have the specified mission of meeting the credit and savings

needs of consumers, especially of persons of modest means.” CUMAA, Pub. L.

No. 105-219, 112 Stat. 913 (1998) (emphasis added); see also First Nat. Bank &

Trust Co. v. Nat. Credit Union Admin., 988 F.2d 1272, 1274 (D.C. Cir. 1993)

(“FCUA was designed to improve access to credit for people of small means”).

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For example, the Minneapolis-St. Paul-Bloomington, MN Metropolitan

Statistical Area (the “Minneapolis CBSA’A of over 3,500,000 includes the core

communities of Minneapolis and St. Paul3 with median household income (“MHI”)

of $55,720 and $52,841, respectively.4 The MHI of the United States is $57,652.5

The populations of Minneapolis and St. Paul consist of individuals of modest

means with MTU significantly below the United States average, the very persons

credit unions are intended to serve. Under the Final Rule, a Community Credit

Union serving the Minneapolis CBS A could exclude both Minneapolis and St.

Paul, and limit its service area to affluent suburbs including Eden Prairie ($103,426

MHI); Maple Grove ($101,859 MHI); Edina ($96,477 MHI); Plymouth ($91,867

MHI); Golden Valley ($87,964 MHI); and Minnetonka ($86,672 MHI), if the total

population in the selected areas does not exceed 2.5 million.6 See Map Exhibit C.

3 See U.S. Census Bureau, Annual Estimates of Resident Population: April 1, 2010to July 1, 2017-United States-Metropolitan and Micropolitan Statistical Area; and for Puerto Rico,https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src= CF (last visited Jan. 17, 2019).4 See U.S. Census Bureau, QuickFacts: St. Paul city, Minnesota; Minneapolis city, Minnesota; United States,https://www.census.gov/quickfacts/table/PST045216/2758000,2743000,00 (last visited Jan. 17, 2019).5 See U.S. Census Bureau, QuickFacts: United States, https://www.census.gov/quickfacts/table/PST045216/00 (last visited Jan. 17,2019).6 See U.S. Census Bureau, QuickFacts Eden Prairie city, Minnesota; Maple Grove city, Minnesota; Edina city, Minnesota; Plymouth city, Minnesota; Golden Valley city, Minnesota; Minnetonka city, Minnesota,

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https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=

https://www.census.gov/quickfacts/table/PST045216/2758000,2743000,00

https://www.census.gov/quickfacts/table/PST045216/00

Another example is Detroit-Warren-Dearbom, MI Metropolitan Statistical

Area (the “Detroit CBS A”) of over 4,000,000 consisting largely of the core

community of Detroit.7 Detroit’s MHI is $27,838, less than half United States’

MHI.8 Persons living in Detroit constitute the very population Congress intended

credit unions to serve. Nonetheless, a Community Credit Union applying to serve

the Detroit CBS A could exclude Detroit and serve the wealthier suburban areas of

Bloomfield Charter Township ($123,086 MHI); Birmingham ($114,537 MHI);

West Bloomfield Charter Township ($98,336 MHI); Troy ($93,017 MHI); Novi

($88,667 MHI); Rochester Hills ($87,475 MHI); Farmington Hills ($76,637 MHI);

and Livonia ($74,882 MHI).9 See Map Exhibit D.

https://www.census.gov/quickfacts/fact/table/minnetonkacityminnesota,goldenvall eycityminnesota,plymouthcityminnesota,edinacityminnesota,maplegrovecityminne sota,edenprairiecityminnesota/INC 110217 (last visited Jan. 23, 2019)7 See U.S. Census Bureau, Annual Estimates of Resident Population: April 1, 2010to July 1, 2017-United States-Metropolitan and Micropolitan Statistical Area; and for Puerto Rico,https//factfmder.census.gov/faces/tableservices/jsf/pages/productview.xhtmt?src=C D (last visited Jan. 17, 2019).8 See U.S. Census Bureau, QuickFacts, Detroit city, Michigan, https://www.census.gov/quickfacts/table/PST045216/2622000 (last visited Jan. 17, 2019).9 See U.S. Census Bureau, QuickFacts Novi city, Michigan; Troy city, Michigan;West Bloomfield charter township, Oakland County, Michigan; Birmingham city, Michigan; Bloomfield charter township, Oakland County, Michigan, https://www.census.gov/quickfacts/fact/table/novicitymichigan,troycitymichigan,w estbloomfieldchartertownshipoaklandcountymichigan,birminghamcitymichigan,bl oomfieldchartertownshipoaklandcountymichigan/INC 110217 (last visited Jan. 17, 2019); U.S. Census Bureau, QuickFacts Livonia city, Michigan; Farmington Hills city, Michigan; Rochester Hills city, Michigan

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https://www.census.gov/quickfacts/fact/table/minnetonkacityminnesota,goldenvall


https://www.census.gov/quickfacts/fact/table/novicitymichigan,troycitymichigan,w

The Chicago-Naperville-Elgin Metropolitan Statistical Area (the “Chicago

CBS A”) of over 9,500,000 includes the core area of Chicago10 whose MHI is

$52,497, well under the United States’ MHI.11 The citizens of Chicago qualify as

persons of modest means. A credit union applying to serve a portion of the

Chicago CBS A could forego Chicago and only serve the affluent suburbs of

Evanston ($74,901 MHI); Wilmette ($148,678 MHI); Northfield ($105,929 MHI);

Winnetka ($216,875 MHI); Glencoe ($203,235 MHI); and Highland Park

($137,450 MHI).12 See Map Exhibit E.

Similar outcomes result when using portions of other large U.S. cities.

Clearly, eliminating the requirement to serve the core areas of communities

https://www.census.gov/quickfacts/table/PST045216/2649000,2627440,2669035 (last visited Jan. 17, 2019); and U.S. Census Bureau, QuickFacts Bloomfield charter township, Oakland County, Michiganhttps://www.census.gov/quickfacts/fact/table/bloomfieldchartertownshipoaklandco untymichigan/PST045218 (last visited Jan. 17, 2019).10 See U.S. Census Bureau, Annual Estimates of Resident Population: April 1, 2010to July 1, 2017-United States-Metropolitan and Micropolitan Statistical Area; and for Puerto Rico,https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src= CF (last visited Jan. 23, 2019).11 See U.S. Census Bureau, QuickFacts, Chicago city, Illinois, https://www.census.gov/quickfacts/table/PST045216/1714000 (last visited Jan. 23, 2019).12 See U.S. Census Bureau, QuickFacts Evanston city, Illinois; Wilmette village,Illinois; Northfield village, Illinois; Winnetka village, Illinois; Glencoe village, Illinois; Highland Park city, Illinois,https://www.census.gov/quickfacts/fact/table/highlandparkcityillinois,glencoevilla geillinois,winnetkavillageillinois,northfieldvillageillinois,wilmettevillageillinois,ev anstoncityillinois/PST045218 (last visited Jan. 23, 2019).

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https://www.census.gov/quickfacts/table/PST045216/2649000,2627440,2669035

https://www.census.gov/quickfacts/fact/table/bloomfieldchartertownshipoaklandco



https://www.census.gov/quickfacts/fact/table/highlandparkcityillinois,glencoevilla

contravenes express Congressional intent that Community Credit Unions serve

persons of “modest means”.

The District Court rejected this assertion, stating that as laudable and

important as congressional policy may be, it is thin evidence that the NCUA

failed to consider relevant factors and failed to adequately explain its decision.”

Am. Bankers Ass’n v. NCUA, 306 F. Supp. 3d 44, 65 (D.D.C. 2018). The Court

reasoned that persons of modest means were protected by an NCUA supervisory

process which “assesses a credit union’s efforts to offer service to the entire

community a credit union seeks to serve.” Id. (emphasis added). According to the

Court, NCUA’s process of conducting annual evaluations during the first three

years of a Community Credit Union’s charter or expansion, together with oversight

by the Office of Consumer Protection that reviews implementation of business and

marketing plans, adequately protects service to low-income areas. Id.

The District Court’s reliance on NCUA’s supervisory process is misplaced.

This process occurs only after a charter or expansion is approved and after the

service area has been established. The process cannot assure, nor even consider,

service to those of modest means in the core area, because, as permitted by the

Final Rule, the charter or expansion area excludes the core area.

The Final Rule’s initial application process is equally limited. Prior to

granting a charter or expansion under the Final Rule, an applicant must merely

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demonstrate that the proposed community area meets the statutory requirements of

being: (1) well-defined; and (2) a local community or rural district. Manual, 81

Fed. Reg. at 88,440. A Community Credit Union must submit a business plan

incorporating certain factors, none of which requires service to the core area of a

CBSA. Id. at 88,441. Once an application is submitted, NCUA analyzes the

business plan for realistic projections, attainable goals, adequate service to all

segments of the proposed field of membership, sufficient start-up capital, and time

commitment by the proposed officials and employees. Id. at 88,426. The review

does not consider services offered to the core area, since it is excluded from the

service area defined in the application. The review merely considers services and

marketing efforts made to underserved populations, if any, in an already

gerrymandered community.

For example, a Community Credit Union application could exclude Detroit

and propose to serve the affluent suburban areas of Bloomfield Charter Township,

Birmingham, West Bloomfield Charter Township, Troy, Novi, Rochester Hills,

Farmington Hills, and Livonia. Its application and business plan would describe

services to be offered to low-income populations, if any, in those affluent areas.

Manual, 81 Fed. Reg. at 88,441. NCUA would review the business plan to

determine whether adequate service will be provided to all segments of the affluent

areas described in the application. Id. at 88,426. After the charter is granted,

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NCUA would determine whether the Community Credit Union is serving low-

income populations in its service area. The core area of Detroit would not be

included in the review. Indeed, the Community Credit Union would be prohibited

from marketing to or serving Detroit. Instead of protecting the core area, NCUA’s

process would ensure only that services to the affluent suburban areas surrounding

Detroit do not discriminate against low-income populations in those areas, if any.

The application and supervisory process does not advance Congressional intent of

service to persons of modest means, where those persons are entirely excluded

from the process.

Neither NCUA nor the District Court has pointed to any safeguards that

adequately protect persons in core areas as a part of the charter process. Instead,

NCUA claims its post-approval supervisory process will somehow protect those in

core areas excluded from the field of membership and not subject to NCUA’s

review.

Reliance on NCUA’s supervisory process is further troubling because

NCUA has been characterized as “act[ing] as a rubber stamp or cheerleader” for

the credit union industry. Am. Bankers Ass ’n v. NCUA, 347 F. Supp. 2d 1061, 1070

(D. Utah 2004). See also Am. Bankers Ass ’n v. NCUA, 2008 WL 2857678 (M.D.

Pa. July 21, 2008) (rejecting a field of membership comprising six counties in

Pennsylvania, stating “[t]o a casual observer familiar with central Pennsylvania, it

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would likely be a remarkable finding ... a geographic area of more than 3,000

square miles with a population over 1.1 million people and encompassing

Harrisburg, Hershey, Carlisle, York, Lebanon, Gettysburg, and Shippensburg

constituted a ‘well-defined local community’”). In Am. Bankers Ass ’n v. NCUA, a

federal court in Utah determined that “NCUA must have some gatekeeping

responsibility to ensure that the ‘local’ requirement is satisfied” and NCUA’s

review had been “troubling because there [wa]s no indication ... NCUA questioned

any of the data [provided by a credit union applicant] or ... NCUA queried into

areas that would diminish the likelihood of finding a ‘local’ community.” 347 F.

Supp. 2d at 1070.

The Final Rule permits NCUA, an entity criticized for inadequately

performing its gatekeeping function, to approve applications that do not protect

low-income individuals in core areas that are not part of a Community Credit

Union’s charter area. The District Court’s reliance on NCUA’s supervisory process

is misplaced. The Final Rule is unreasonable, unlawful, arbitrary and capricious,

and should be invalidated.

II. EXCLUSION FROM CRA, TOGETHER WITH THE FINAL RULE’S DELETION OF “CORE AREA” FROM THE DEFINITION OF CORE- BASED STATISTICAL AREA ENABLES COMMUNITY CREDIT UNIONS TO CIRCUMVENT CONGRESSIONAL INTENT.

CRA, 12 U.S.C. section 2901 et seq., was enacted by Congress in 1977 to

encourage depository institutions to meet the credit needs of the communities in

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which they operate, including low-income areas. CRA is implemented by 12

C.F.R. parts 25, 228, 345 and 195. Under CRA and supporting regulations, banks

are examined for compliance and receive ratings. An unsatisfactory rating may

prevent a bank from engaging in certain activities, including mergers, acquisitions

and establishment of offices. 12 C.F.R. § 228.29.

Community Credit Unions are not subject to CRA and may operate without

the related regulatory burdens, record retention, and expenses. Without CRA

regulation, coupled with the Final Rule’s deletion of the prior requirement that

Community Credit Unions serve CBSA’s core areas, Community Credit Unions

may establish fields of membership designed to serve only affluent areas and

eliminate core areas where persons of modest means reside.

Under the Final Rule, Community Credit Unions are permitted to expand

into geographic areas on a tax-advantaged basis and without the regulatory expense

of CRA, without regard to their statutory mandate “to make more available to

people of small means credit for provident purposes.” FCUA, Pub. L. 73-467, 48

Stat. 1216 (1934). This result further demonstrates that the Final Rule’s definitions

of “well-defined local community” and “rural district” exceed the statutory powers

ofNCUA, are arbitrary and capricious, and violate the intent of FCUA.

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III. THE FINAL RULE UNREASONABLY EXPANDS RURAL DISTRICTS.

The District Court correctly found the Final Rule unreasonably expands the

definition of rural districts. In its Brief, NCUA mischaracterizes the Court’s ruling,

stating that the Court concluded “rural district” must mean an area smaller than a

county. The Court’s ruling, incorporating portions of the map below, stated

“[bjecause the Rule automatically qualifies areas larger than states as rural

districts even though the term commonly referred to areas smaller than a county,

the NCUA’s definitional decision is unreasonable and manifestly contrary to

statute.” Am. Bankers Ass’n, 306 F. Supp. 3d at 69, 70. The ruling does not

mandate that a rural district must be smaller than a county. The ruling correctly

concludes that interpreting the term rural district to automatically include areas

larger than states is unreasonable and manifestly contrary to statute.

Under the Final Rule, “[a]n area of any geographic size qualifies as a Rural

District if:

• The proposed district has well-defined, contiguous geographic boundaries;

• The total population of the proposed district does not exceed1,000,000;

• Either more than 50% of the proposed district’s population resides in census blocks or other geographic units that are designated as rural by the Consumer Finance Protection Bureau or the United States Census Bureau, OR the district has a population density of 100 persons or fewer per square mile; and

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• The boundaries of the well-defined rural district do not exceed the outer boundaries of the states that are immediately contiguous to the state in which the credit union maintains its headquarters (i.e., not to exceed the outer perimeter of the layer of states immediately surrounding the headquarters state).”

See Manual, 81 Fed. Reg. at 88,440 (emphasis added). The Final Rule’s definition

of “rural districts” expands a rural district to include areas encompassing several

states, so long as the population is less than 1,000,000 and has at least 50% of its

population living in census blocks or geographic units that are designated as rural,

or the population density is less than 100 persons per square mile. Id.

Based on the Final Rule’s definition, the entire states of Alaska, South

Dakota, North Dakota and Wyoming qualify as rural districts under the density

test,13 even though the following percentages of each state’s population reside in

urban areas: Alaska 66.02%; South Dakota 55.65%; North Dakota 59.9%; and

Wyoming 64.76%.14 Those states’ rural districts include the Metropolitan

Statistical Areas of Anchorage, Sioux Falls, Fargo, and Cheyenne, which contain

total metropolitan area populations of 400,888, 259,094, 241,356, and 98,327,

13 See U.S. Census Bureau, QuickFacts South Dakota; Alaska; North Dakota; Wyoming; United States,https://www.census.gov/quickfacts/fact/table/sd,ak,nd,wy,US/PST045218 (last visited Jan. 17, 2019).14 See U.S. Census Bureau, 2010 Census Percent Urban and Rural by State, https://www2.census.gov/geo/docs/reference/ua/PctUrbanRural_State.txt (last visited Jan. 17, 2019).

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https://www.census.gov/quickfacts/fact/table/sd,ak,nd,wy,US/PST045218

https://www2.census.gov/geo/docs/reference/ua/PctUrbanRural_State.txt

respectively.15 Such metropolitan areas cannot and should not be classified as part

of a “rural” district. The term “rural” is defined to mean “of or relating to the

country, country people or life, or agriculture”,16 or “living in the country.”17

Antonyms include metropolitan, urban, city, and suburban.18 The Final Rule’s

definition of “rural” which permits inclusion of large metropolitan areas is

manifestly contrary to commonly-accepted definitions of the term. Accordingly,

NCUA’s inclusion of metropolitan areas, areas literally defined to mean the

opposite of “rural,” within the term “rural district” is unreasonable, arbitrary and

capricious.

Rural districts under the Final Rule are also unreasonable in geographic size.

The map below details five potential rural districts that, due to the low population

densities, encompass large areas of several states. A summary of census data

showing the population and square mile area of the counties that comprise each

district below is attached as Exhibit F.

15 See U.S. Census Bureau, Annual Estimates of Resident Population: April 1, 2010 to July 1, 2017-United States-Metropolitan and Micropolitan Statistical Area; and for Puerto Rico,https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src= CF (last visited Jan. 17, 2019).16 Merriam-Webster Dictionary Online, Rural, https://www.merriam- webster.com/dictionary/rural (last visited Jan. 17, 2019).17 Dictionary.com, Rural, http://www.dictionary.com/browse/rural7sH; (last visited Jan. 17, 2019).18 Thesaurus.com., Rural, http://www.thesaurus.com/browse/rural7sH (last visited Jan. 17, 2019).

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https://www.merriam-webster.com/dictionary/rural

https://www.merriam-webster.com/dictionary/rural

http://www.dictionary.com/browse/rural7sH

http://www.thesaurus.com/browse/rural7sH

- <smmag -* ~n_____ 2aT‘ PR

2010 Census Results - United States and Puerto RicoPopulation Density by County or County Equivalent

People per Square Milegg 2.KC.0 lo 69.4£&4 ‘ g| 5C0.C to 1,599-9

; as.110 459-9 ! 2Q[Mo£SJ

Each of the districts outlined above meets the Final Rule’s rural district

requirements as a contiguous area having fewer than 1,000,000 total population

and density of less than 100 persons per square mile. This automatic qualification

is manifestly unreasonable as each rural district spans over 100,000 square miles

and includes major metropolitan areas as shown in the table below.

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Supporting Information for Rural Districts

NevadaDistrict

WyomingDistrict

WesternOklahoma

District

WesternNebraskaDistrict

States Nevada,NorthernCalifornia,EasternOregon,SouthernIdaho,Western Utah

NorthernArizona,EasternNevada,SouthernUtah,Southwestern Colorado, Northwestern New Mexico

Wyoming,EasternIdaho,SouthernMontana,WesternSouth Dakota,WesternNebraska,NorthwesternColorado,NortheasternUtah

WesternOklahoma,NorthernTexas,Eastern NewMexico,EasternColorado,WesternKansas

WesternNebraska,WesternKansas,EasternColorado,EasternWyoming,SouthernSouth Dakota

Square Miles 181,765.61 104,341.75 181,676.00 117,659.79 151,698.15TotalPopulation

975,246 999,454 995,580 998,820 977,606

MajorMetropolitan Areas and Population

Reno, NV (excludingCity of Reno)- 239,342

Flagstaff, AZ- 140,776Lake Havasu City,Kingman, AZ- 207,200St. George, UT- 165,622 Farmington, NM - 129,926

Casper, WY -79,547Cheyenne,WY - 98,327

Amarillo, TX - 264,925

Cheyenne,WY - 98,327

The districts in the above map and table would not qualify as rural districts

prior to the Final Rule. Under the prior rule, the term rural district was defined as

an area: (1) with well-defined, contiguous boundaries; (2) that has no more than

250,000 people or no more than 3% of the population of the state in which the

majority of the district is located; and (3) where either a majority of the district’s

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population lives in areas designated as rural by the U.S. Census Bureau, or the total

area’s population density is no more than 100 people per square mile.

Relying on the population limit of no more than 3% of the population of the

state in which the majority of the district is located, NCUA in its Brief fashioned a

map of 4 hypothetical rural districts primarily located in California, Texas, Florida

and New York that could exist prior to the Final Rule. Only the California district

exceeds a population of 1,000,000, the limit permitted by the Final Rule. The

remaining hypothetical districts in Texas, Florida and New York serve populations

of 751,554, 560,903 and 574,972, respectively, each less than the Final Rule’s

1,000,000 population limitation by a significant margin. NCUA’s hypothetical

rural districts under the prior rule only further demonstrate the unreasonableness of

the Final Rule’s inclusion of major metropolitan areas. The urban areas in each

hypothetical district are significantly smaller than those present in rural districts

permitted under the Final Rule. Specifically, the largest urban areas in the

California district are El Dorado Hills (micropolitan area), El Dorado County,

California (42,108) and Redding, Shasta County, California (91,794).19 The largest

urban areas in the Texas district are Plainview (micropolitan area), Hale County,

19 See U.S. Census Bureau, QuickFacts El Dorado Hills city, California; Redding city, California,https://www.census.gov/quickfacts/fact/table/reddingcitycalifomia,eldoradohillscd pcalifomia/PST045218 (last visited Jan. 22, 2019).

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https://www.census.gov/quickfacts/fact/table/reddingcitycalifomia,eldoradohillscd

Texas (20,767) and a portion of Amarillo, Randall County, Texas (85,209).20 The

Texas district excludes Potter County, where the majority of the population of

Amarillo, Texas, is located. The largest urban areas in the Florida district are

Bainbridge (micropolitan area), Decatur County, Georgia (12,111) and Eufaula

(micropolitan area), Barbour County, Alabama (12,044).21 The largest urban areas

in the New York district are Plattsburgh (micropolitan area), Clinton County, New

York (19,696) and Amsterdam (micropolitan area), Montgomery County, New

York (17,844).22

The above urban areas’ populations pale in comparison to the major

metropolitan areas of Anchorage (400,888), Amarillo (264,925), Sioux Falls

(259,094), Fargo (241,356), and the others shown in the table above, each of which

are permitted in rural districts under the Final Rule. Even under the hypothetical

districts fashioned by NCUA, the prior rule’s population limitations prohibit the

inclusion of large metropolitan areas within rural districts. Under the Final Rule,

20 See U.S. Census Bureau, QuickFacts Plainview city, Texas; Amarillo city, Texas, https ://www. census.gov/ quickfacts/fact/table/amarillocitytexas,plainviewcitytexas/ PST045218 (last visited Jan. 22, 2019).21 See U.S. Census Bureau, QuickFacts Bainbridge city, Georgia; Eufaula city, Alabama,https ://www. census .gov/quickfacts/fact/table/eufaulacityalabama,bainbridgecityge orgia/PST045218 (last visited Jan. 22, 2019).22 See U.S. Census Bureau, QuickFacts Plattsburgh city, New York; Amsterdam city, New York,https://www.census.gov/quickfacts/fact/table/amsterdamcitynewyork,plattsburghcit ynewyork/PST045218 (last visited Jan. 22, 2019).

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https://www.census.gov/quickfacts/fact/table/amsterdamcitynewyork,plattsburghcit

however, the increase of the population limit to 1,000,000 automatically allows

major metropolitan areas to be included within rural districts, rendering the Final

Rule’s definition unreasonable, arbitrary and capricious and manifestly contrary to

statute.

IV. NCUA’S ARGUMENTS REGARDING VIABILITY OF CREDITUNIONS IN RURAL AREAS ARE WITHOUT MERIT.

In their respective Briefs, NCUA and its amici make contradictory assertions

regarding the long-term viability of credit unions. NCUA asserts credit unions

require expanded fields of membership for growth and viability, while its amici

state that credit unions are growing and thriving. Contrary to NCUA’s assertions,

credit unions are not at death’s door, but are growing rapidly due in large part to

their tax-exempt status. During the first three quarters of 2018, Federal credit

unions added 4.9 million members “and credit union membership in these

institutions reached 115.4 million.”23 Moreover, during the first three quarter

quarters of 2018, total assets rose by 77 billion, or 5.6%, to 1.44 trillion and total

loans outstanding increased 89 billion, or 9.5%, to 1.0 trillion.24 The above

statistics contradict NCUA’s assertions regarding the need to expand credit union

fields of membership. Clearly, credit unions are thriving.

23 National Credit Union Administration, Quarterly Credit Union Data Summary2018 Q3, https://www.ncua.gov/files/publications/analysis/quarterly-data-summary-2018-Q3 .pdf (last visited Jan. 9, 2019).24 Id.

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https://www.ncua.gov/files/publications/analysis/quarterly-data-

NCUA and its amici suggest that credit unions should be allowed to expand

their fields of membership in rural areas or risk disappearing through acquisition or

failure. This is simply not the case. Community banks, unaided by tax exemptions,

effectively serve small rural areas. In 2011, 38% of community banks, or

approximately 13,623 offices, were located in nonmetropolitan areas.25

Community banks do not require a field of membership of 1,000,000 people to

survive. Instead, they efficiently serve limited populations, often the size of one to

three counties. In 2011, 46% of community banks operated in one county, and 82%

operated within three or fewer counties.26 For decades, community banks have

operated in rural areas without the benefit of federal and state tax exemptions and

in compliance with state and federal regulations, including CRA.

V. NCUA’S DEFINITIONS ARE NOT ENTITLED TO CHEVRON DEFERENCE.

Generally, NCUA’s interpretation of 12 U.S.C. section 1759(b) would be

entitled to Chevron deference. Chevron, US.A. Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837, 842 (1984). In reviewing an agency’s construction of a statute, a

court must first determine whether Congress has directly spoken to the question at

issue. Id. If Congressional intent is clear, the court, as well as the agency, must

give effect to the unambiguous express intent of Congress. Id.

25 FDIC, FDIC Community Banking Study, December 2012 https://www.fdic.gov/regulations/resources/cbi/report/cbi-full.pdf.26 Id.

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https://www.fdic.gov/regulations/resources/cbi/report/cbi-full.pdf

Congress has stated that “[t]he American credit union movement began as a

cooperative effort to serve the productive and provident credit needs of individuals

of modest means.” CUMAA, Pub. L. No. 105-219, 112 Stat. 913 (1998). Congress

further declared that “[c]redit unions . . . have the specified mission of meeting the

credit and savings needs of consumers, especially of persons of modest means.”

Id.\ see also First Nat. Bank, 988 F.2d at 1274 (“FCUA was designed to improve

access to credit for people of small means.”) Congress has expressed the clear

intent that credit unions serve persons of modest means. The portion of the Final

Rule that allows a credit union to exclude core areas and individuals of modest

means from its membership area is in direct conflict with express Congressional

intent and, therefore, is not entitled to Chevron deference.

If a statute is silent or ambiguous, the question for a court is whether the

agency’s interpretation is based on a permissible construction of the statute.

Chevron, 467 U.S. at 842. Where a statute is ambiguous, “the question is whether .

. . the agency has acted reasonably and thus stayed within the bounds of its

statutory authority.” Util. Air Regulatory Grp. v. E.P.A., 573 U.S. 302, 315 (2014).

The presence of some statutory uncertainty does not cover virtually any

interpretation of a statute; the interpretation must be reasonable. Cuomo v.

Clearing House Ass’n, L.L.C., 557 U.S. 519, 525 (2009) (stating, “we defer to an

agency’s reasonable interpretation of a statute it is charged with administering.”)

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Deference is not paid to agency interpretation if it is arbitrary, capricious or

manifestly contrary to the statute. The terms “arbitrary” and “capricious” have

been defined as an act done without adequate determining principle or was

unreasoned. U.S. v. Carmack, 329 U.S. 230, 243 (1946). The Final Rule’s

definitions of “well-defined local community” and “rural district” are neither

within the bounds of the statutory authority of NCUA nor within the bounds of

reasonable interpretation and are not entitled to deference by the Court.

CONCLUSION

Congress has authorized NCUA to adopt definitions that serve its express

intent that “credit unions ... have the specified mission of meeting the credit and

savings needs of consumers, especially persons of modest means.” CUMAA, Pub.

L. No. 105-219, 112 Stat. 913 (1998). In its definitions of “well-defined local

community” and “rural district”, NCUA has clearly exceeded its statutory

authority.

The District Court incorrectly held that allowing Community Credit Unions

to operate in affluent areas of Core-Based Statistical Areas while completely

excluding core areas was reasonable under the Final Rule. The Final Rule

automatically and unreasonably permits Community Credit Unions to adopt fields

of membership that completely ignore the credit and savings needs of persons of

modest means. The Final Rule enables large credit unions to grow even larger and

27


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expand commercial lending activities and other services generally provided by

community banks that do not relate to “persons of modest means” as Congress

intended.

The District Court correctly held that NCUA’s definition of “rural districts”

was manifestly contrary to statute. A Community Credit Union in a rural district,

as defined in the Final Rule, may serve an area covering several states and include

major metropolitan areas. A Community Credit Union pays no federal or state

income tax and is not subject to CRA.27 Therefore it may enjoy such a competitive

advantage that community banks in the area may be required to close or

consolidate, resulting in reduced competition and banking services.

The Final Rule is simply further effort by NCUA to expand the competitive

advantages of Community Credit Unions. In doing so, NCUA has adopted

definitions of “well-defined local community” and “rural district” that are certainly

not “local”. The Final Rule is unreasonable, arbitrary and capricious and exceeds

NCUA’s statutory authority. Accordingly, the District Court’s ruling regarding

27 Contrary to NCUA’s amici’s assertion, the tax treatment of small Subchapter S banks is not similar to the tax exempt status of credit unions. Subchapter S limits shareholders to 100 individuals, trusts and estates. 26 U.S.C. § 1361(b). Corporations are not eligible shareholders. Id. Accordingly, Subchapter S is generally available only to small banks and holding companies, while credit unions are tax exempt regardless of size. Subchapter S shareholders pay taxes on all income, whether or not distributed, while credit union members pay taxes only on the insignificant amounts actually distributed.

28


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Core-Based Statistical Areas should be vacated, and its ruling regarding rural

districts should be upheld.

/s/Robert A. Gamble___________Robert A. Gamble (AT#0002809)Julie Johnson McLean (AT#0005185)Davis Brown Law Firm215 10th Street, Suite 1300Des Moines, IA 50309Telephone: (515) 288-2500Facsimile: (515) 243-0654Email :beaugamble@davisbro [email protected]

/s/ Steven D. Gordon _______Steven D. GordonHolland & Knight LLP800 - 17th Street N.W., Suite 1100Washington, DC 20006Telephone: (202) 955-3000Facsimile: (202) 955-5564Email: [email protected]

29


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CERTIFICATE OF COMPLIANCE WITH TYPEFACE AND

WORD-COUNT LIMITATIONS

I, Steven D. Gordon, counsel for Amici Curiae and a member of the Bar of

this Court, certify, pursuant to Federal Rule of Appellate Procedure 32(a)7)(B),

that the attached Brief of Amici Curiae in Support of Plaintiff-Appellee-Cross-

Appellant is proportionately spaced, has a typeface of 14 points or more, and

contains 6,444 words, excluding the parts of the Brief exempted by Fed. R. App. P.

32(f) and Circuit Rule 32(e)(1).

/s/ Steven D. GordonSteven D. Gordon

JANUARY 25, 2019

30


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CERTIFICATE OF SERVICE

I, Steven D. Gordon, counsel for Amici Curiae and a member of the Bar of

this Court, certify that, on January 25, 2019, a copy of the attached Brief of Amici

Curiae in Support of Plaintiff-Appellee-Cross-Appellant was filed with the Clerk

of Court through the Court’s electronic filing system. I further certify that all

parties required to be served have been served.

/s/ Steven D. Gordon________Steven D. Gordon

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EXHIBIT ASTATE BANKERS ASSOCIATIONS

1. Alabama Bankers Association2. Alaska Bankers Association3. Arizona Bankers Association4. Arkansas Bankers Association5. California Bankers Association6. Colorado Bankers Association7. Connecticut Bankers Association8. Delaware Bankers Association9. Florida Bankers Association10. Georgia Bankers Association11. Hawaii Bankers Association12. Idaho Bankers Association13. Illinois Bankers Association14. Indiana Bankers Association15. Iowa Bankers Association16. Kansas Bankers Association17. Kentucky Bankers Association18. Louisiana Bankers Association19. Maine Bankers Association20. Maryland Bankers Association21. Massachusetts Bankers Association22. Michigan Bankers Association23. Minnesota Bankers Association24. Mississippi Bankers Association25. Missouri Bankers Association26. Montana Bankers Association

27. Nebraska Bankers Association28. Nevada Bankers Association29. New Hampshire Bankers Association30. New Jersey Bankers Association31. New Mexico Bankers Association32. New York Bankers Association33. North Carolina Bankers Association34. North Dakota Bankers Association35. Ohio Bankers League36. Oklahoma Bankers Association37. Oregon Bankers Association38. Pennsylvania Bankers Association39. Rhode Island Bankers Association40. South Carolina Bankers Association41. South Dakota Bankers Association42. Tennessee Bankers Association43. Texas Bankers Association44. Utah Bankers Association45. Vermont Bankers Association46. Virginia Bankers Association47. Washington Bankers Association48. West Virginia Bankers Association49. Wisconsin Bankers Association50. Wyoming Bankers Association51. Puerto Rico Bankers Association


(Page 46 of Total)

EXHIBIT BSTATE-LEVEL COMMUNITY BANKING ORGANIZATIONS

1. Arkansas Community Bankers2. Bluegrass Community Bankers Association3. California Community Banking Network4. Independent Bankers of Colorado5. Community Bankers Association of Georgia6. Community Bankers Association of Illinois7. Community Bankers of Iowa8. Community Bankers Association of Kansas9. Community Bankers of Michigan10. Independent Community Bankers of Minnesota11. Missouri Independent Bankers Association12. Montana Independent Bankers13. Nebraska Independent Community Bankers14. Independent Community Bankers Association of New Mexico15. Independent Bankers Association of New York State16. Independent Community Banks of North Dakota17. Community Bankers Association of Ohio18. Community Bankers Association of Oklahoma19. Pennsylvania Association of Community Bankers20. Independent Banks of South Carolina21. Independent Community Bankers of South Dakota22. Independent Bankers Association of Texas23. Virginia Association of Community Bankers24. Community Bankers of Washington25. Community Bankers of West Virginia


(Page 47 of Total)


(Page 48 of Total)

fiil- ■ ̂!-V—\ ^Ladillaf Sq'i ,,1 v


(Page 49 of Total)

LAKE MICHIGAN

, , P|S ? 'a I *WYWÎtasck 11 i: v : ISschji’fîdDsll Bensenvilje MrW$ifi-'vvoodirfT5^-. LOff® JJ l i ^^4'Ev|rt4 >M/te'bm9;g mt.X-A s

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(Page 50 of Total)

EXHIBIT FCOUNTY POPULATION AND SQUARE MILEAGE (AS OF 2016)

County State Population Square MilesNEVADA DISTRICTHumboldt Nevada 16,842 9,640.76Elko Nevada 52,168 17,169.83Washoe Nevada 212,171 (excluding Reno) 6,199.27Lander Nevada 5,702 5,490.11Eureka Nevada 1,917 4,175.68Lincoln Nevada 5,055 10,633.20White Pine Nevada 9,682 8,875.65Churchill Nevada 24,198 4,930.46Pershing Nevada 6,560 6,036.56Klamath Oregon 66,443 5,941.05Lake Oregon 7,837 8,138.98Malheur Oregon 30,439 9,887.53Harney Oregon 7,292 10,133.17Grant Oregon 7,158 4,528.54Baker Oregon 16,059 3,068.36Union Oregon 26,087 2,036.61Wallowa Oregon 6,946 3,146.19Owyhee Idaho 11,389 7,665.51Payette Idaho 23,026 406.87Washington Idaho 10,172 1,452.98Adams Idaho 3,900 1,363.06Gem Idaho 17,184 560.90Twin Falls Idaho 83,514 1,921.21Cassia Idaho 23,504 2,565.08Box Elder Utah 53,139 5,745.55Tooele Utah 64,833 6,941.35Juab Utah 11,010 3,392.28Millard Utah 12,694 6,572.43Beaver Utah 6,493 2,589.88Iron Utah 49,937 3,296.68Lassen California 30,870 4,541.18Plumas California 18,627 2,553.04Modoc California 8,795 3,917.77Siskiyou California 43,603 6,277.89TOTAL 975,246 181,795.61

ARIZONA DISTRI CTLincoln Nevada 5,055 10,633.20Coconino Arizona 140,908 18,618.89


(Page 51 of Total)

County State Population Square MilesMohave Arizona 205,249 13,311.08Montezuma Colorado 26,999 2,029.53Dolores Colorado 2,056 1,067.05San Miguel Colorado 8,017 1,286.61Montrose Colorado 41,471 2,240.70La Plata Colorado 55,623 1,692.08Hinsdale Colorado 788 1,117.25Archuleta Colorado 12,854 1,350.18San Juan New Mexico 115,079 5,513.07McKinley New Mexico 74,923 5,449.81Cibola New Mexico 27,487 4,539.48Rio Arriba New Mexico 40,040 5,860.84Catron New Mexico 3,508 6,923.60Washington Utah 160,245 2,426.36Iron Utah 49,937 3,296.68Kane Utah 7,334 3,990.23San Juan Utah 16,895 7,819.99Garfield Utah 4,986 5,175.12TOTAL 999,454 104,341.75

OKLAHOMA DISTRICTBeaver Oklahoma 5,382 1,814.67Texas Oklahoma 21,098 2,041.26Cimarron Oklahoma 2,162 1,834.74Harper Oklahoma 3,717 1,039.02Ellis Oklahoma 4,080 1,231.52Roger Mills Oklahoma 3,640 1,141.14Beckham Oklahoma 22,519 901.81Harmon Oklahoma 2,704 537.19Greer Oklahoma 5,998 639.32Jackson Oklahoma 25,497 802.65Kiowa Oklahoma 9,077 1,015.23Tillman Oklahoma 7,465 871.13Washita Oklahoma 11,447 1,003.17Custer Oklahoma 29,293 988.82Dewey Oklahoma 4,819 999.48Woodward Oklahoma 20,814 1,242.40Woods Oklahoma 9,201 1,286.45Alfalfa Oklahoma 5,827 866.46Major Oklahoma 7,772 954.99Potter Texas 120,832 908.37Carson Texas 6,057 920.22Gray Texas 22,725 925.97Wheeler Texas 5,546 914.52


(Page 52 of Total)

County State Population Square MilesCollingsworth Texas 3,016 918.44Donley Texas 3,405 926.89Armstrong Texas 1,876 909.11Randall Texas 132,501 911.54Lipscomb Texas 3,487 932.18Ochiltree Texas 10,306 917.63Hansford Texas 5,538 919.81Sherman Texas 3,068 923.04Dallam Texas 7,056 1,503.26Hartley Texas 5,747 1,462.03Moore Texas 22,120 899.69Hutchinson Texas 21,511 887.42Roberts Texas 916 924.06Hemphill Texas 4,129 906.29Oldham Texas 2,076 1,500.53Deaf Smith Texas 18,830 1,496.87Union New Mexico 4,183 1,066.18Quay New Mexico 8,365 2,874.35Harding New Mexico 665 2,125.44Mora New Mexico 4,504 1,931.27Colfax New Mexico 12,253 3,758.06San Miguel New Mexico 27,760 4,715.82Taos New Mexico 33,065 2,203.11Costilla Colorado 3,721 1,226.95Huerfano Colorado 6,677 1,591.00Custer Colorado 4,602 738.63Las Animas Colorado 14,103 4,772.67 ■Otero Colorado 18,295 1,261.96Bent Colorado 5,861 1,512.86Prowers Colorado 11,922 1,638.40Crowley Colorado 5,694 787.42Kiowa Colorado 1,373 1,767.77Lincoln Colorado 5,643 2,577.63Cheyenne Colorado 1,848 1,778.28Kit Carson Colorado 8,195 2,160.82Washington Colorado 4,908 2,518.03Yuma Colorado 10,103 2,364.41Cheyenne Kansas 2,661 1,019.89Rawlins Kansas 2,549 1,069.42Sherman Kansas 5,965 1,056.07Thomas Kansas 7,892 1,074.69Wallace Kansas 1,497 913.65Logan Kansas 2,831 1,072.99Greeley Kansas 1,296 778.45


(Page 53 of Total)

County State Population Square MilesWichita Kansas 2,112 718.57Hamilton Kansas 2,536 996.51Keamy Kansas 3,917 870.54Stanton Kansas 2,062 680.35Grant Kansas 7,646 574.80Morton Kansas 2,848 729.73Stevens Kansas 5,584 727.29Haskell Kansas 4,006 577.52Seward Kansas 22,709 639.50Meade Kansas 4,216 978.09Decatur Kansas 2,832 893.52Sheridan Kansas 2,509 895.96Gove Kansas 2,589 1,071.67Scott Kansas 5,032 717.54Lane Kansas 1,636 717.46Finney Kansas 36,722 1,301.97Gray Kansas 6,034 868.87Norton Kansas 5,493 878.13Graham Kansas 2,564 898.52Trego Kansas 2,872 889.48Ness Kansas 2,962 1,074.75Hodgeman Kansas 1,870 859.99Ford Kansas 33,971 1,098.27Clark Kansas 2,072 974.63Comanche Kansas 1,862 788.30Kiowa Kansas 2,483 722.64Edwards Kansas 2,938 621.89Rush Kansas 3,058 717.76TOTAL 998,820 117,659.79

WYOMING DISTRICTWyoming Wyoming 585,501 97,093.14Jackson Colorado 1,357 1,613.72Routt Colorado 24,648 2,362.03Moffat Colorado 13,109 4,743.29Rio Blanco Colorado 6,545 3,220.93Grand Utah 9,579 3,671.54Uintah Utah 36,373 4,479.69Daggett Utah 1,095 696.98Duchesne Utah 20,337 3,240.95Summit Utah 40,307 1,871.71Rich Utah 2,319 1,028.78Morgan Utah 11,437 609.20Oneida Idaho 4,343 1,200.06


(Page 54 of Total)

County State Population Square MilesFranklin Idaho 13,406 663.65Bear Lake Idaho 5,945 974.79Caribou Idaho 6,887 1,764.15Fremont Idaho 12,943 1,863.53Clark Idaho 860 1,764.19Beaverhead Montana 9,401 5,541.62Madison Montana 7,924 3,587.48Park Montana 16,114 2,803.06Carbon Montana 10,460 2,048.79Big Horn Montana 13,343 4,995.46Powder River Montana 1,746 3,297.30Carter Montana 1,203 3,340.75Harding South Dakota 1,278 2,671.38Butte South Dakota 10,205 2,249.90Lawrence South Dakota 25,281 800.04Custer South Dakota 8,596 1,557.00Fall River South Dakota 6,849 1,739.92Dawes Nebraska 8,979 1,396.46Sioux Nebraska 1,242 2,066.74Box Butte Nebraska 11,194 1,075.29Scotts Bluff Nebraska 36,422 739.40Morrill Nebraska 4,787 1,423.84Cheyenne Nebraska 10,051 1,196.29Banner Nebraska 798 746.11Kimball Nebraska 3,679 951.85Sheridan Nebraska 5,234 2,440.86Garden Nebraska 1,930 1,704.28Deuel Nebraska 1,873 439.85TOTAL 995,580 181,676.00

NEBRASKA DISTEHCTDawes Nebraska 8,979 1,396.46Sioux Nebraska 1,242 2,066.74Box Butte Nebraska 11,194 1,075.29Scotts Bluff Nebraska 36,422 739.40Morrill Nebraska 4,787 1,423.84Cheyenne Nebraska 10,051 1,196.29Banner Nebraska 798 746.11Kimball Nebraska 3,679 951.85Sheridan Nebraska 5,234 2,440.86Garden Nebraska 1,930 1,704.28Deuel Nebraska 1,873 439.85Cherry Nebraska 5,832 5,960.42Grant Nebraska 641 776.22


(Page 55 of Total)

County State Population Square MilesArthur Nebraska 469 715.36Keith Nebraska 8,018 1,061.60Perkins Nebraska 2,898 883.34Chase Nebraska 3,937 894.42Dundy Nebraska 1,831 919.68Hooker Nebraska 708 721.12McPherson Nebraska 493 858.98Lincoln Nebraska 35,550 2,564.07Thomas Nebraska 716 713.24Logan Nebraska 772 570.66Hayes Nebraska 897 713.06Frontier Nebraska 2,621 974.59Hitchcock Nebraska 2,825 709.94Red Willow Nebraska 10,722 716.99Boyd Nebraska 1,982 539.94Keya Paha Nebraska 791 773.07Holt Nebraska 10,250 2,412.40Rock Nebraska 1,390 1,008.32Brown Nebraska 2,960 1,221.33Loup Nebraska 591 568.29Garfield Nebraska 2,011 569.79Wheeler Nebraska 776 575.18Valley Nebraska 4,184 568.05Greeley Nebraska 2,399 569.81Sherman Nebraska 3,054 565.83Howard Nebraska 6,429 569.34Custer Nebraska 10,807 2,575.52Dawson Nebraska 23,640 1,013.10Buffalo Nebraska 49,383 968.11Gosper Nebraska 1,971 458.16Phelps Nebraska 9,266 539.79Kearney Nebraska 6,552 516.24Furnas Nebraska 4,787 719.13Harlan Nebraska 3,473 553.47Franklin Nebraska 3,014 575.82Blaine Nebraska 484 710.87Cheyenne Kansas 2,661 1,019.89Rawlins Kansas 2,549 1,069.42Sherman Kansas 5,965 1,056.07Thomas Kansas 7,892 1,074.69Wallace Kansas 1,497 913.65Logan Kansas 2,831 1,072.99Greeley Kansas 1,296 778.45Wichita Kansas 2,112 718.57


(Page 56 of Total)

County State Population Square MilesHamilton Kansas 2,536 996.51Kearny Kansas 3,917 870.54Stanton Kansas 2,062 680.35Grant Kansas 7,646 574.80Morton Kansas 2,848 729.73Stevens Kansas 5,584 727.29Haskell Kansas 4,006 577.52Seward Kansas 22,709 639.50Meade Kansas 4,216 978.09Decatur Kansas 2,832 893.52Sheridan Kansas 2,509 895.96Gove Kansas 2,589 1,071.67Scott Kansas 5,032 717.54Lane Kansas 1,636 717.46Finney Kansas 36,722 1,301.97Gray Kansas 6,034 868.87Costilla Colorado 3,721 1,226.95Huerfano Colorado 6,677 1,591.00Custer Colorado 4,602 738.63Las Animas Colorado 14,103 4,772.67Otero Colorado 18,295 1,261.96Bent Colorado 5,861 1,512.86Prowers Colorado 11,922 1,638.40Crowley Colorado 5,694 787.42Kiowa Colorado 1,373 1,767.77Lincoln Colorado 5,643 2,577.63Cheyenne Colorado 1,848 1,778.28Kit Carson Colorado 8,195 2,160.82Elbert Colorado 25,231 1,850.85Washington Colorado 4,908 2,518.03Yuma Colorado 10,103 2,364.41Logan Colorado 21,919 1,838.55Sedgwick Colorado 2,407 548.04Phillips Colorado 4,288 687.93Laramie Wyoming 98,136 2,685.91Goshen Wyoming 13,390 2,225.39Platte Wyoming 8,680 2,084.21Albany Wyoming 38,256 4,273.84Converse Wyoming 14,191 4,254.88Niobrara Wyoming 2,480 2,626.04Campbell Wyoming 48,803 4,802.71Weston Wyoming 7,236 2,398.09Crook Wyoming 7,464 2,854.41


(Page 57 of Total)

County State Population Square MilesCuster South Dakota 8,596 1,557.00Fall River South Dakota 6,849 1,739.92Shannon South Dakota 14,415 2,093.90Bennett South Dakota 3,460 1,184.71Jackson South Dakota 3,326 1,863.91Mellette South Dakota 2,102 1,307.31Todd South Dakota 10,155 1,388.56Tripp South Dakota 5,492 1,612.45Brule South Dakota 5,238 817.24Gregory South Dakota 4,171 1,014.96Charles Mix South Dakota 9,396 1,097.49Douglas South Dakota 2,932 431.80Bon Homme South Dakota 6,984 563.70Hutchinson South Dakota 7,368 812.90Yankton South Dakota 22,616 521.16Clay South Dakota 14,086 412.19TOTAL 977,606 151,698.15


(Page 58 of Total)

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