Amicus Curiae Brief — Weyerhaeuser Company, Petitioner v. United States Fish and Wildlife Service, et al.

No. 17-71

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------WEYERHAEUSER COMPANY,

Petitioner,

v.

UNITED STATES FISH AND

WILDLIFE SERVICE, ET AL.,

Respondents.

-----------------------------------------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

-----------------------------------------------------------------BRIEF OF AMICI CURIAE NATIONAL

FEDERATION OF INDEPENDENT BUSINESS

SMALL BUSINESS LEGAL CENTER AND

BUILDING INDUSTRY ASSOCIATION OF THE

BAY AREA IN SUPPORT OF PETITIONER

-----------------------------------------------------------------ROBERT HENNEKE

THEODORE HADZI-ANTICH*

*Counsel of Record

CHANCE WELDON

(Of Counsel)

RYAN WALTERS

(Of Counsel)

TEXAS PUBLIC

POLICY FOUNDATION

901 Congress Avenue

Austin, Texas 78701

Telephone: (512) 472-2700

Facsimile: (512) 472-2728

tha@texaspolicy.com

Counsel for Amici Curiae

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Whether decisions of the U.S. Fish and Wildlife

Service “not to exclude” areas from critical habitat under Section 4(b)(2) of the Endangered Species Act are

immune from judicial review.

ii

TABLE OF CONTENTS

Page

Question Presented ................................................

i

Table of Authorities ................................................

iii

Interest of Amicus Curiae ......................................

1

Introduction and Summary of Argument ..............

4

Argument ................................................................

8

I. THE ESA’S TEXT REQUIRES, AND

LOGIC DICTATES, THAT DECISIONS

“NOT TO EXCLUDE” AREAS FROM CRITICAL HABITAT BE SUBJECT TO JUDICIAL REVIEW .............................................

8

II. THE OBJECTIVES AND STRUCTURE OF

THE ESA REQUIRE THAT DECISIONS

“NOT TO EXCLUDE” AREAS FROM CRITICAL HABITAT BE SUBJECT TO JUDICIAL REVIEW ............................................. 15

III.

THE LEGISLATIVE HISTORY OF THE ESA

SHOWS THAT CONGRESS INTENDED

AGENCY DECISIONS “NOT TO EXCLUDE”

AREAS FROM CRITICAL HABITAT BE

SUBJECT TO JUDICIAL REVIEW ........... 23

IV. THE AVAILABILITY OF JUDICIAL REVIEW IS FUNDAMENTAL TO OUR SYSTEM OF GOVERNMENT AND THE RULE

OF LAW ........................................................ 27

Conclusion ...............................................................

33

iii

TABLE OF AUTHORITIES

Page

CASES:

Abbott Labs v. Gardner, 387 U.S. 136 (1967) ...............8

Amador Cty. v. Salazar, 640 F.3d 373 (D.C. Cir.

2011) .................................................................. 12, 13

Barlow v. Collins, 397 U.S. 159 (1970) ................... 9, 12

Bear Valley Mut. Water Co. v. Jewell, 790 F.3d

977 (9th Cir. 2015) ...................................................12

Bell v. Hood, 327 U.S. 678 (1946) ...............................30

Bennett v. Spear, 520 U.S. 154 (1997)................. passim

Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971) ...............30

Building Industry Association of the Bay Area,

et al. v. United States Department of Commerce, et al., 792 F.3d 1027 (9th Cir. 2015),

cert. denied, 137 S.Ct. 328 (2016) ....................... 3, 12

Boise Cascade Corp. v. United States EPA, 942

F.2d 1427 (9th Cir. 1991) .........................................18

Bowen v. Am. Hosp. Assoc., 475 U.S. 610 (1986) .........22

Calder v. Bull, 3 U.S. 386 (1798) ................................29

Califano v. Sanders, 430 U.S. 99 (1977) .......................9

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) ............ 18, 26

Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971) ...................................................9

Davis v. Mich. Dep’t of Treas., 489 U.S. 803 (1989) ....... 19

iv

TABLE OF AUTHORITIES – Continued

Page

Dickson v. Sec’y of Def., 68 F.3d 1396 (D.C. Cir.

1995) ........................................................................13

Griffin v. Oceanic Contractors, 458 U.S. 564

(1982) .......................................................................26

Gustafson v. Alloyd Co., Inc., 513 U.S. 561 (1995)......... 18

Heckler v. Chaney, 470 U.S. 821 (1985) ...... 9, 10, 11, 12

Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478

U.S. 221 (1986) ..........................................................9

Kendall v. United States ex rel. Stokes, 37 U.S.

524 (1838) ................................................................29

King v. St. Vincent’s Hosp., 502 U.S. 215 (1991) .........19

Mach Mining, LLC v. E.E.O.C., 135 S.Ct. 1645

(2015) ............................................................... passim

Marbury v. Madison, 5 U.S. 137 (1803) ................ 29, 30

Mathews v. Eldridge, 424 U.S. 319 (1976)..................32

Michigan v. EPA, 135 S.Ct. 2699 (2015) .............. 22, 24

Motor Vehicle Mfrs. Assn. of United States v.

State Farm Mut. Automobile Ins. Co., 463 U.S.

29 (1983) ..................................................................23

Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207

(1986) (quoting Mastro Plastics Corp. v. NLRB,

350 U.S. 270 (1956)) ................................................17

Rodriguez v. United States, 480 U.S. 522 (1987)

(quoting Russello v. United States, 464 U.S. 16

(1983)) ......................................................................18

v

TABLE OF AUTHORITIES – Continued

Page

Sackett v. EPA, 132 S.Ct. 1367 (2012) ...................... 2, 8

Sierra Club v. Peterson, 705 F.2d 1475 (9th Cir.

1983) ..........................................................................9

Tennessee Valley Authority v. Hill, 437 U.S. 153

(1978) ................................................................... 7, 23

Tesoro Alaska Petroleum Co. v. FERC, 234 F.3d

1286 (D.C. Cir. 2000) ...............................................32

Towns of Concord, Norwood & Wellesley, Mass. v.

FERC, 955 F.2d 67 (D.C. Cir. 1992) ........................32

United States v. Cleveland Indians Baseball Co.,

532 U.S. 200 (2001) .................................................19

United States v. Lee, 106 U.S. 196 (1882) ...................30

U.S. Army Corps of Engineers v. Hawkes Co.,

Inc., 136 S.Ct. 1807 (2016) ........................................2

VanHorne’s Lessee v. Dorrance, 2 U.S. 304

(1795) ........................................................... 7, 27, 28, 30

Webster v. Doe, 486 U.S. 592 (1988) ...................... 21, 22

CONSTITUTIONAL PROVISIONS:

2 Sources and Documents of United States Constitutions 197 (W. Swindler ed. 1775) .....................29

A Declaration of Rights and Fundamental Rules

of the Delaware State § 12 (1776) ..........................29

Ky. Const., Art. XII, cl. 13 (1792) ................................29

Mass. Const., Art. XI (1780) .......................................29

vi

TABLE OF AUTHORITIES – Continued

Page

Md. Const., Art. XVII (1776) ......................................29

Tenn. Const., Art. XI, § 17 (1796) ...............................29

STATUTORY & REGULATORY PROVISIONS:

5 U.S.C.

§ 701(a)(1) ............................................................ 8, 21

§ 701(a)(2) ..................................................................8

16 U.S.C.

§ 1531(b) ..................................................................15

§ 1532(5)(A) .............................................................16

§ 1532(6) ..................................................................16

§ 1532(20) ................................................................16

§ 1533(a)(1)(A)-(E) ...................................................16

§ 1533(a)(3)(A) .........................................................16

§ 1533(b)(2) ...................................................... passim

42 U.S.C.

§ 2000e-5(b) .............................................................20

50 U.S.C.

§ 403(c).....................................................................21

§ 403(d)(3) ................................................................21

OTHER:

Amee B. Bergin, Comment, Does Application of

the APA’s “Committed to Agency Discretion”

Exception Violate the Nondelegation Doctrine?,

28 B.C. Envtl. Aff. L. Rev. 363 (2001) ......................13

vii

TABLE OF AUTHORITIES – Continued

Page

Andrew J. Turner & Kerry L. McGrath, A Wider

View of the Impacts of Critical Habitat Designation, 43 Envt’l. L. Rep. News & Analysis

10,678 (2013) ...........................................................11

Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts (2012)........19

Committee on Environment & Public Works,

97th Cong., A Legislative History of the Endangered Species Act of 1973, as Amended

in 1976, 1977, 1978, 1979, & 1980 (Congressional Research Service eds., 1982) ............ 24, 25, 27

Frederick Douglass, Selected Speeches and Writings (Lawrence Hill Books, 1999) ...........................30

Matthew Groban, Case Note, Arizona Cattle

Growers’ Association v. Salazar: Does the Endangered Species Act Really Give a Hoot

About the Public Interest It “Claims” to Protect?, 22 Vill. Envt’l. L.J. 259 (2011)........................11

Norman J. Singer, 2A Sutherland Statutory

Construction (7th ed. 2007).....................................17

Pub. L. No. 95-632, 92 Stat. 3,751 (Nov. 10, 1978)..... 23, 24

Rachel E. Barkow, The Ascent of the Administrative State and the Demise of Mercy, 121 Harv.

L. Rev. 1332 (2008) ..................................................14

Raoul Berger, Administrative Arbitrariness: A

Synthesis, 78 Yale L.J. 965 (1969)...........................31

viii

TABLE OF AUTHORITIES – Continued

Page

Ronald M. Levin, Understanding Unreviewability in Administrative Law, 74 Minn. L. Rev.

689 (1990) ................................................................13

Speech of Hon. John A. Bingham of Ohio, In the

House of Representatives, February 28, 1866,

In support of the proposed amendment to enforce the Bill of Rights (available at: https://

archive.org/details/onecountryonecon00bing) ........31

Tracy A. Thomas, Ubi Jus, Ibi Remedium: The

Fundamental Right to a Remedy Under Due

Process, 41 San Diego L. Rev. 1633 (2004) .............32

The Federalist No. 78 (Alexander Hamilton)

(Clinton Rossiter ed., Penguin Books 1961) ...........31

1 ANNALS OF CONG. (Joseph Gales ed., 1790) .............31

3 W. Blackstone, Commentaries (1783)................ 28, 29

1

INTEREST OF AMICUS CURIAE1

National Federation of Independent Business

Small Business Legal Center

The National Federation of Independent Business

(“NFIB”) is the nation’s leading small business association, representing members in Washington, D.C., and

all 50 state capitals. Founded in 1943 as a nonprofit,

nonpartisan organization, NFIB’s mission is to promote and protect the rights of its members to own,

operate and grow their businesses. NFIB represents

small businesses nationwide, and its membership spans

the spectrum of business operations, ranging from sole

proprietor enterprises to firms with hundreds of employees. While there is no standard definition of a

“small business,” the typical NFIB member employs 10

people and reports gross sales of about $500,000 a year.

The NFIB membership is a reflection of American

small business.

To fulfill its role as the voice for small business,

the NFIB Small Business Legal Center (the “Legal Center”), frequently files amicus briefs in cases that will

impact small businesses. The Legal Center files this

amicus brief to provide a voice in these proceedings for

1

Amici National Federation of Independent Business and

Building Industry Association of the Bay Area file this brief with

the consent of all parties, which have filed their blanket letters of

consent with the Clerk. See Supreme Court Rule 37.3(a). Pursuant to Supreme Court Rule 37.6, counsel for Amici authored this

brief in whole, no counsel for a party authored this brief in whole

or in part, and no other person or entity other than Amici, their

members, and their counsel contributed monetarily to the preparation or submission of this brief.

2

the rights of small business landowners. Their land is

often one of their most valuable assets both in terms of

financial investment and for their practical operations.

It is highly problematic for ranchers, farmers, and

other small business landowners when they are denied

their common law right to put their lands to productive

uses and profoundly concerning if they are denied the

right to seek meaningful and timely judicial review of

government-imposed restrictions under the Endangered Species Act (“ESA”). For similar reasons, the Legal Center participated as amicus curiae in Sackett v.

EPA, 132 S.Ct. 1367 (2012), and U.S. Army Corps of Engineers v. Hawkes Co., Inc., 136 S.Ct. 1807 (2016).

Building Industry Association of the Bay Area

Building Industry Association of the Bay Area

(“BIABA”), a nonprofit association of builders, contractors, and related trades and professions involved in the

residential construction industry, represents the interests of its members and the residential construction

industry in Northern California. A part of BIABA’s

mission is to ensure that there is sufficient geographic

territory available to its members on which they may

conduct their residential construction activities. BIABA’s

members have been adversely impacted by overly

broad ESA critical habitat designations. Several lower

federal courts have determined that some such designations are not judicially reviewable under the Administrative Procedure Act (“APA”).

3

BIABA was the lead plaintiff in Building Industry

Association of the Bay Area, et al. v. United States Department of Commerce, et al., 792 F.3d 1027 (9th Cir.

2015), cert. denied, 137 S.Ct. 328 (2016), in which the

Ninth Circuit held that the National Marine Fisheries

Administration was immune from judicial review for

its decision not to exclude vast areas of the California,

Oregon, and Washington coasts from critical habitat

designation for the Northern Distinct Population Segment of the Green Sturgeon. The Ninth Circuit’s opinion imposed substantial negative economic impacts on

BIABA’s members, which will continue to be harmed

to the extent that courts make rulings immunizing any

aspect of critical habitat designation under the ESA

from judicial review. BIABA has also engaged in substantial other federal litigation involving the implementation of the ESA by the U.S. Fish and Wildlife

Service, including listing and delisting decisions and

critical habitat designation.

The Court is considering two issues in this case:

(1) Whether the ESA prohibits designation of private

land as unoccupied critical habitat that is neither

habitat nor essential to species conservation, and

(2) Whether an agency decision not to exclude an area

from critical habitat because of economic impact of

designation is subject to judicial review. Amici are particularly interested in the reviewability issue, which

goes to the heart of the ability of landowners to seek

relief from government overreach. Accordingly, this

brief addresses solely the issue of whether decisions

4

not to exclude areas from critical habitat are immune

from judicial review.

------------------------------------------------------------------

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Fifth Circuit held that decisions of the U.S.

Fish and Wildlife Service (the “Service”) to exclude

areas from critical habitat under ESA Section 4(b)(2)

are subject to judicial review while decisions not to exclude areas from critical habitat are immune from judicial review. The holding is illogical, inconsistent with

the text of Section 4(b)(2), contradictory to the ESA’s

purposes and structure, and at odds with the ESA’s

legislative history. Furthermore, the lower court’s

holding clashes with the strong presumption in favor

of reviewability firmly established in the APA and prescribed by legal tradition.

Crucially, the four-step process required by the

ESA to designate critical habitat demonstrates that

the Service’s designations are subject to judicial review

regardless of outcome. First, if the Service determines

that a species requires ESA protection, it lists the species as either “endangered” or “threatened,” depending

upon the degree to which the species is at risk.

Second, for each protected species, the Service develops a candidate list of geographic areas to be considered for critical habitat designation and studies the

conservation benefits to the species that would result

from designating each area.

5

Third, the Service considers the economic impact

of designating each area as critical habitat.

Fourth, the Service makes a final decision to designate or not to designate each particular area under

consideration based upon a balancing of the conservation benefits to the species against the economic impacts of designation. Thus, the Service’s sole task in

the fourth step is to determine what areas to leave out

of critical habitat and what areas to leave in. By deciding what to leave out, the Service necessarily decides

what to leave in, and vice versa. This fourth step, which

is the focus of the reviewability issue before the Court,

is set forth in the second sentence of ESA Section

4(b)(2).

Judicial review of a decision made under Section

4(b)(2) is governed by the APA, under which there is a

strong presumption of reviewability, which can be rebutted only by a showing that the Service’s action has

been either: (1) explicitly made immune from judicial

review by Congress, or (2) implicitly committed to

agency discretion by law because there is no law for

courts to apply. It is undisputed that Section 4(b)(2)

does not explicitly immunize critical habitat decisions

from judicial review. The dispute is whether any particular types of critical habitat decisions are implicitly

immunized from judicial review.

The lower court held that, while decisions to exclude areas from critical habitat are subject to judicial

review because there is law to apply (i.e., for abuse of

discretion), decisions not to exclude are immune from

6

judicial review because there is no law to apply. But if

there is law to apply with regard to decisions to exclude, that same law applies to decisions not to exclude.

Either all critical habitat decisions under Section

4(b)(2) are subject to judicial review, regardless of result, or none of them are. It is the process itself that

is reviewable for abuse, as explained by this Court in

Bennett v. Spear, where the Service was required to

redo a critical habitat designation because it failed to

address economic impacts as mandated by Section

4(b)(2): “It is rudimentary administrative law that discretion as to the substance of the ultimate decision

does not confer discretion to ignore the required procedures of decisionmaking.” 520 U.S. 154, 172 (1997).

Further, as the Bennett Court observed, one of the

ESA’s goals “(if not indeed the primary one) is to avoid

needless economic dislocation produced by agency officials zealously but unintelligently pursuing their environmental objectives.” Id. at 176-77. Accordingly, given

the centrality of economic considerations in the critical

habitat designation process, Congress could not have

intended to provide for judicial review when the Service decides to exclude areas from critical habitat

based on economic impacts while at the same time

blocking judicial review when the Service decides not

to exclude areas based on the same economic impacts.

Such a one-way, outcome-determinative reviewability

standard has never been sanctioned by this Court.

The lower court’s ruling also is contrary to Congressional intent as reflected in the ESA’s legislative

history. Section 4(b)(2) was enacted as an amendment

7

to the ESA in 1978 in part as a response to this Court’s

statement in Tennessee Valley Authority v. Hill that,

under a previous version of the ESA, species must be

protected “whatever the cost.” The amendment specifically required the Service to consider costs in designating critical habitat. It is unlikely that Congress would

have amended the ESA in such a manner if it had intended to hinge reviewability on the outcome of the

decisionmaking process, thereby reverting to the pre1978 standard whenever the Service happened to

decide, “whatever the cost,” not to exclude an area

from critical habitat. Under such circumstances, the

economic impacts study mandated by the 1978 amendment as the third step of the critical habitat designation process would be relegated to a useless paper

exercise.

Moreover, the lower court’s decision is contrary to

the strong presumption that executive actions are subject to judicial review, a principle enshrined since the

early history of this Court in VanHorne’s Lessee v. Dorrance, 2 U.S. 304, 316 (1795), which held that unchecked and unreviewable executive action would be a

threat to the foundations of “Republican Government.”

Ever since VanHorne’s Lessee, this Court has held to

the presumption that, subject to certain limited exceptions not present here, executive actions are judicially

reviewable, especially where, as here, private property

rights are impacted.

Accordingly, the lower court’s ruling that the Service’s decisions not to exclude areas from critical habitat are immune from judicial review defies logic, is

8

inconsistent with the ESA’s statutory text and structure, overlooks the relevant legislative history, and

goes against the long-standing presumption of reviewability.

------------------------------------------------------------------

ARGUMENT

I

THE ESA’S TEXT REQUIRES, AND LOGIC

DICTATES, THAT DECISIONS “NOT TO

EXCLUDE” AREAS FROM CRITICAL

HABITAT BE SUBJECT TO JUDICIAL REVIEW

Claims challenging actions taken by the Service

under ESA Section 4(b)(2) are governed by the APA.

See Bennett, 520 U.S. at 171-75 (holding that a claim

challenging the Service’s “maladministration of the

ESA” is not reviewable under the citizen suit provisions of the ESA, but is reviewable under the APA).

There is a strong presumption under the APA that

agency actions are subject to judicial review. See Mach

Mining, LLC v. E.E.O.C., 135 S.Ct. 1645, 1651 (2015),

Sackett v. EPA, 132 S.Ct. 1367, 1373 (2012).

The APA provides that agency action may be immune from judicial review only in rare cases where

Congress expressly precludes review or where the action is implicitly “committed to agency discretion by

law.” 5 U.S.C. § 701(a)(1), (2); see also Abbott Labs. v.

Gardner, 387 U.S. 136, 141 (1967) (“[O]nly upon a

showing of ‘clear and convincing evidence’ of a contrary

legislative intent should the courts restrict access to

9

judicial review.”) (citation omitted) (abrogated on other

grounds by Califano v. Sanders, 430 U.S. 99 (1977); Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221,

230 n.4 (1986) (Judicial review “is available absent

some clear and convincing evidence of legislative intention to preclude review.”). Express preclusion must

be made by Congress in “unmistakable terms.” Barlow

v. Collins, 397 U.S. 159, 166 (1970). Absent express preclusion, judicial review is available except “in those

rare instances where statutes are drawn in such broad

terms that in a given case there is no law to apply.”

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

402, 410 (1971) (internal quotation marks omitted). Judicial review is precluded implicitly when “the statute

is drawn so that a court would have no meaningful

standard against which to judge the agency’s exercise

of discretion.” Heckler v. Chaney, 470 U.S. 821, 830

(1985). Thus, preclusion of judicial review is not to be

lightly inferred; rather, it must be demonstrated that

Congress obviously intended an agency action to be unreviewable. See Sierra Club v. Peterson, 705 F.2d 1475,

1479 (9th Cir. 1983).

ESA Section 4(b)(2) is comprised of two sentences.

On its face, the text does not explicitly immunize from

judicial review decisions “not to exclude” areas from

critical habitat:

The secretary shall designate critical habitat

. . . after taking into consideration the economic impact . . . of specifying any particular

area as critical habitat. The Secretary may

exclude any area from critical habitat if he

10

determines that the benefits of such exclusion

outweigh the benefits of specifying such area

as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to

designate such area as critical habitat will result in the extinction of the species concerned.

16 U.S.C. § 1533(b)(2).

The lower court held that the permissive language

used in the second sentence (i.e., the term “may”) implicitly places decisions “not to exclude” outside the

reach of judicial review. This Court disagrees. Bennett,

520 U.S. at 172 (reasoning that the use of the term

“may exclude” in Section 4(b)(2) does not undercut “the

fact that the Secretary’s ultimate decision is reviewable [under the abuse of discretion standard]).”

Moreover, in addressing reviewability under the

APA more broadly, this Court made the following distinction in Heckler:

[W]hen an agency refuses to act it generally

does not exercise its coercive power over an individual’s liberty or property rights, and thus

does not infringe upon areas that courts often

are called upon to protect [but] when an

agency does act . . . that action itself provides

a focus for judicial review, inasmuch as the

agency must have exercised its power in some

manner. The action at least can be reviewed to

11

determine whether the agency exceeded its

statutory powers.

470 U.S. at 832 (emphases in original). Here, the Service acted when it designated critical habitat because

it “exercise[d] its coercive power” over private property

by imposing substantial restrictions on the use, enjoyment, and development of such property. See Andrew

J. Turner & Kerry L. McGrath, A Wider View of the Impacts of Critical Habitat Designation, 43 Envt’l. L. Rep.

News & Analysis 10,678, 10,680 (2013) (“Considerable

regulatory burdens and corresponding economic costs

are borne by landowners, companies, state and local

governments, and other entities as a result of critical

habitat designation.”); see also Matthew Groban, Case

Note, Arizona Cattle Growers’ Association v. Salazar:

Does the Endangered Species Act Really Give a Hoot

About the Public Interest It “Claims” to Protect?, 22 Vill.

Envt’l. L.J. 259, 279 (2011) (Critical habitat designations “have the ability to ruin individuals’ lives.”).

Accordingly, under Heckler, action to exclude or

not to exclude areas from critical habitat “can be reviewed to determine whether the agency exceeded its

statutory powers,” 470 U.S. at 832, and under Bennett,

such actions are reviewable for abuse of discretion. 520

U.S. at 172. Thus, the artificial distinction made by

the lower court between exclusion decisions and decisions “not to exclude” finds no support in Heckler or

Bennett.

The lower court’s citations to decisions of the

Ninth Circuit in support of its unreviewability holding

12

are to no avail. The citations to Bear Valley Mut. Water

Co. v. Jewell, 790 F.3d 977, 989-90 (9th Cir. 2015), and

Bldg. Industry Association of the Bay Area, et al. v. U.S.

Dep’t of Commerce, et al., No. 13-15132, 2015 WL 408761 at 8 (9th Cir. July 7, 2015), for the proposition that

the statute’s permissive term “may” requires a finding

of unreviewability of “not to exclude” decisions, is contrary to Bennett’s teaching that the abuse of discretion

standard applies to the Service’s decisions. See 520

U.S. at 172. And it is antithetical to Heckler’s teaching

that there is law to apply where agencies exercise coercive power over property rights. See 470 U.S. at 832.

The lower court’s decision is also contrary to the wellestablished principle that permissive language used in

a statute does not imply unreviewability. See Barlow,

397 U.S. at 166 (statute authorizing Secretary of Agriculture to promulgate regulations “as he may deem

proper” does not preclude judicial review). For the

same reasons, the lower court’s citations to a handful

of district court decisions at odds with the foregoing

precedents of this Court are unavailing. See Slip Opinion at 29-30.

Two recent decisions of the D.C. Circuit rejected

agencies’ assertions of a lack of manageable judicial

standards where, as here, they had acted pursuant to

a discretionary provision using the permissive term

“may.” In Amador Cty. v. Salazar, 640 F.3d 373 (D.C.

Cir. 2011), a section of the Indian Gaming Regulatory

Act stated that the Secretary of Commerce “may disapprove” a compact for only three particular reasons.

The court held that the use of this permissive language

13

followed by the articulation of reasons for the exercise

of that discretion indicated that the “use of ‘may’ is best

read to limit the circumstances in which disapproval is

allowed.” Id. at 381. In Dickson v. Sec’y of Def., 68 F.3d

1396 (D.C. Cir. 1995), the court examined a provision

granting discretion to the relevant agency: it “may excuse a failure to file [for a correction of military record]

within three years after discovery if it finds it to be in

the interest of justice.” Id. at 1399 (citation omitted).

The court likewise rejected the assertion of a lack of

manageable judicial standards, reasoning that the permissive term “may” did not indicate unfettered discretion as “this construction would mean that even if the

Board expressly found in a particular case that it was

‘in the interest of justice’ to grant a waiver, it could still

decline to do so.” Id. at 1402 n.7. Accordingly, simply

because the ESA Section 4(b)(2) uses permissive language does not mean that decisions “not to exclude” are

unreviewable. See Ronald M. Levin, Understanding

Unreviewability in Administrative Law, 74 Minn. L.

Rev. 689, 695 (1990) (observing that “the APA contains

compelling internal evidence” rejecting the view that

the presence of agency discretion precludes judicial review).

Furthermore, an expansive application of the

“no law to apply” concept raises profound constitutional and public policy questions. See Amee B. Bergin,

Comment, Does Application of the APA’s “Committed

to Agency Discretion” Exception Violate the Nondelegation Doctrine?, 28 B.C. Envtl. Aff. L. Rev. 363

(2001) (suggesting that a wholly unreviewable grant of

discretionary power would violate the nondelegation

14

doctrine); Rachel E. Barkow, The Ascent of the Administrative State and the Demise of Mercy, 121 Harv. L.

Rev. 1332, 1339 (2008) (“In a legal culture that is firmly

committed to judicial review, wedded to reasoned decisionmaking, and devoted to a fair and regular process,

there is little space for the exercise of unreviewable legal power that is dispensed without reason and without the need to be consistent.”).

Moreover, the distinction made by the lower court

between the reviewability of excluding an area and not

excluding an area from critical habitat under Section

4(b)(2) is illogical. The first sentence of Section 4(b)(2)

requires economic impacts to be taken into account in

designating critical habitat. The second sentence mandates the manner in which such economic impacts

must be considered (i.e., balancing of the conservation

benefits of inclusion vs. the economic benefits of exclusion). The lower court concluded that agency abuse

of the balancing-of-the-benefits requirement provides

a sufficient standard for purposes of judicial review

when the Service decides to exclude an area from critical habitat but not when it decides to include an area

as part of critical habitat. According to the lower court,

the standard is sufficient for judicial review when the

government decides to leave an area out but not sufficient when it decides to leave an area in. It defies logic

that the Service could determine what to exclude without at the same time determining what to include. To

be out of bounds one must know what is in bounds.

If the abuse of discretion standard provides a

meaningful standard to review a decision to exclude,

15

then a decision not to exclude can be reviewed applying

the same standard. Once a candidate list of potential

critical habitat areas is established, a decision as to

what areas will be left out necessarily determines

what areas will be left in. Either all inclusion or exclusion decisions, regardless of outcome, are reviewable,

or none of them are. Because the lower court acknowledges that decisions to leave areas out are reviewable

so too must be decisions to leave areas in.

II

THE OBJECTIVES AND STRUCTURE OF

THE ESA REQUIRE THAT DECISIONS “NOT

TO EXCLUDE” AREAS FROM CRITICAL

HABITAT BE SUBJECT TO JUDICIAL REVIEW

One objective of the ESA is “to provide a program

for the conservation of . . . endangered species and

threatened species,” 16 U.S.C. § 1531(b), while “another objective (if not indeed the primary one) is

to avoid needless economic dislocation produced by

agency officials zealously but unintelligently pursuing

their environmental objectives.” Bennett, 520 U.S. at

176-77. Those dual objectives of species conservation

and avoidance of unnecessary economic dislocation are

reflected in the structure of the ESA.

The protection of species from extinction is governed by a four-step process. First, before a species receives ESA protection, it must be listed as “threatened”

or “endangered.” A “threatened” species is “any species

which is likely to become an endangered species within

16

the foreseeable future throughout all or a significant

portion of its range.” 16 U.S.C. § 1532(20). An “endangered” species is one “which is in danger of extinction

throughout all or a significant portion of its range.”

16 U.S.C. § 1532(6). Listing decisions must be based

purely on conservation criteria. Economic or other factors may not be considered in making a listing determination. See 16 U.S.C. § 1533(a)(1)(A)-(E).

Second, for threatened or endangered species, the

Service has a duty under the ESA and applicable regulations to develop, “to the maximum extent prudent

and determinable,” a list of geographic areas that

may serve as critical habitat for the species. 16 U.S.C.

§ 1533(a)(3)(A). In relevant part, critical habitat is defined as

the specific areas within the geographical

area occupied by the species, at the time it is

listed . . . on which are found those physical or

biological features . . . essential to the conservation of the species and . . . which may require special management considerations or

protection.

16 U.S.C. § 1532(5)(A).

Third, under the first sentence of ESA Section

4(b)(2), before designating “any particular area” as critical habitat, the Service must consider the economic impact of such designation. 16 U.S.C. § 1533(b)(2).

Fourth, under the second sentence of ESA Section

4(b)(2), the Service “may exclude any area from critical

habitat if [it] determines that the benefits of exclusion

17

outweigh the benefits of specifying such area as part of

critical habitat.” Id.

Accordingly, while economic factors may not be

taken into account in determining whether or not to

list a species as endangered or threatened, the economic impacts of critical habitat designation must be

considered before any area is actually designated. Id.;

see also Bennett, 520 U.S. at 172. Thus, listing decisions

must exclusively further the statutory objective of species’ conservation, while critical habitat designations

must take into account both the conservation objective

and the objective of avoiding “needless economic dislocation.” Bennett, 520 U.S. at 176-77. It is untenable

that one of the “primary” objectives of the ESA (the

avoidance of needless economic dislocation) would be

left by Congress entirely to the discretion of the government. Yet immunizing from judicial review any decision by the Service “not to exclude” an area from

critical habitat regardless of economic impacts leaves

a “primary” objective of avoiding economic dislocation

to the unfettered discretion of the Service and leaves

impacted landowners without a remedy. “In expounding a statute, we must not be guided by a single sentence, . . . but look to the provisions of the whole law,

and to its object and policy.” Offshore Logistics, Inc. v.

Tallentire, 477 U.S. 207, 221 (1986) (quoting Mastro

Plastics Corp. v. NLRB, 350 U.S. 270, 285 (1956)); see

also Norman J. Singer, 2A Sutherland Statutory Construction § 45:8 (7th ed. 2007) (“Explanation of the purpose [of a statute] is a way of focusing attention on an

18

insight that is often helpful in making a judgment

about intent or meaning.”).

Thus, critical habitat designation under Section

4(b)(2) is the specific part of the ESA where Congress

has required the government to focus on the economic

objectives of the Act. “ ‘Where Congress includes particular language in one section of a statute but omits it

in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely

in the disparate inclusion or exclusion.’ ” Rodriguez v.

United States, 480 U.S. 522, 525 (1987) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). The text

of Section 4(b)(2), coupled with the design and structure of the Act, forecloses the lower court’s holding that

exclusion decisions are reviewable while decisions not

to exclude are not. See Gustafson v. Alloyd Co., Inc., 513

U.S. 561, 568 (1995); Boise Cascade Corp. v. United

States EPA, 942 F.2d 1427, 1432 (9th Cir. 1991) (Courts

“must interpret statutes as a whole, giving effect to

each word and making every effort not to interpret a

provision in a manner that renders other provisions of

the same statute inconsistent, meaningless or superfluous.”); see also Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 861 (1984)

(“[T]he meaning of a word must be ascertained in the

context of achieving particular objectives.”). Accordingly, Congress could not have intended the Service to

exercise unfettered and unreviewable discretion as to

how it will implement a primary objective of the ESA,

namely, that of avoiding “needless economic dislocation,”

19

whenever it decides “not to exclude” an area from critical habitat designation. Bennett, 520 U.S. at 177.

Furthermore, the decision to exclude or not to exclude is governed by the same statutory criteria, i.e.,

balancing the conservation benefits against the economic impacts. See 16 U.S.C. § 1533(b)(2) (whether “the

benefits of such exclusion outweigh the benefits of

specifying such area as part of critical habitat”). Accordingly, Congress could not have intended, and it

would be nonsensical, for the availability of judicial review to depend upon the result of the indivisible process of determining what to leave in and what to leave

out. “Statutory construction is a holistic endeavor and

. . . the meaning of a provision is clarified by the remainder of the statutory scheme . . . [when] only one of

the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United

States v. Cleveland Indians Baseball Co., 532 U.S. 200,

217-18 (2001) (internal quotation marks and citation

omitted; brackets in original); see also Antonin Scalia

& Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 167 (2012) (“The text must be construed as

a whole.”); see also King v. St. Vincent’s Hosp., 502 U.S.

215, 221 (1991) (“[T]he meaning of statutory language,

plain or not, depends on context.”); Davis v. Mich. Dep’t

of Treas., 489 U.S. 803, 809 (1989) (“[S]tatutory language cannot be construed in a vacuum.”).

In Mach Mining, this Court examined the requirement of Title VII of the Civil Rights Act of 1964 mandating that, before EEOC could sue an employer for

violations of that statute, the agency must first

20

“endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. § 2000e-5(b). The

court of appeals had held that “the statutory directive

to attempt conciliation is not subject to review” because “that provision entrusts conciliation solely to the

EEOC’s expert judgment and thus provides no workable standard of review for courts to apply.” Mach Mining, LLC, 135 S.Ct. at 1650 (internal quotation marks

and citations omitted). This Court first reiterated that

there exists “a strong presumption favoring judicial

review of administrative action,” noting that if “a statute’s language or structure demonstrates that Congress wanted an agency to police its own conduct,” the

agency could meet its “heavy burden in attempting to

show that Congress prohibit[ed] all judicial review of

the agency’s compliance with a legislative mandate.”

Id. (internal quotation marks and citations omitted;

brackets in original).

EEOC argued that it had met that burden because

Title VII provided “no standards by which to judge

its performance of its duty to conciliate,” that it had

“broad leeway . . . to decide how to engage in, and when

to give up on, conciliation,” and thus Congress had provided no “judicially manageable criteria with which to

review EEOC’s efforts.” Mach Mining, LLC, 135 S.Ct.

at 1652 (citations and internal quotation marks omitted). While acknowledging that “the statute provides

the EEOC with broad latitude over the conciliation

process,” the Court rejected the government’s argument that “Congress has [ ] left everything to” the

21

agency’s discretion, noting that if EEOC took an employer to court without making an attempt at

conciliation, there would be “a perfectly serviceable

standard for judicial review.” Importantly, the Court

noted that the conciliation provision contained “concrete standards” relevant to what such an “endeavor”

must include. Because the provision made the goal of

conciliation “eliminat[ing] [the] alleged unlawful employment practice by informal methods of conference,

conciliation, and persuasion,” the agency would necessarily be required to communicate among the parties,

exchanging information and views about the particular claim. Id. If the EEOC did not take those actions, it

would not satisfy Title VII and courts would have judicially manageable standards to so determine. Id.2

2

Compare Webster v. Doe, 486 U.S. 592 (1988), where this

Court evaluated a provision of the National Security Act that

granted the Director of the CIA the authority to terminate any

employee when the Director “shall deem such termination necessary or advisable in the interests of the United States.” 50 U.S.C.

§ 403(c). Given that this empowered termination not only where

it is satisfied under some external standard, but whenever the

Director “deems” it satisfied, the provision “fairly exudes deference to the Director, and appears to us to foreclose the application

of any meaningful judicial standard of review . . . and [was] thus

‘committed to agency discretion by law’ ” and unreviewable by

courts. Webster, 486 U.S. at 600 (quoting 5 U.S.C. § 701(a)(1)). The

Webster Court bolstered this point by referencing the “overall

structure of the [National Security Act].” Another provision of

that statute gave the Director the duty of “protecting intelligence

sources and methods from unauthorized disclosure,” id. (quoting

50 U.S.C. § 403(d)(3)). The Court had previously stated that “[t]he

plain meaning of the statutory language, as well as the legislative

history of the National Security Act, . . . indicates that Congress

vested in the Director of Central Intelligence very broad authority

22

Just as in Mach Mining, the overall goals and

procedures concretely articulated in surrounding language of the provision at issue serve to provide judicially manageable standards for the agency’s decision

to not exclude areas from critical habitat designation.

Economic impacts must be considered in relation to

any benefits from designation or exclusion. The criteria

of balancing economic impacts against conservation

benefits provides a cogent and judicially manageable

standard upon which to review critical habitat designations for abuse of discretion, regardless of result.

Any agency decision failing to satisfy that standard is

unlawful and must be set aside.

Moreover, there is a substantial body of law available for courts to apply in reviewing the Service’s decisions not to exclude areas from critical habitat under

ESA Section 4(b)(2). “Agencies must rely on facts in the

record and its decisions must rationally relate to those

facts.” See Bowen v. Am. Hosp. Assoc., 476 U.S. 610, 626

(1986). “Federal administrative agencies are required

to engage in reasoned decisionmaking. Not only must

an agency’s decreed result be within the scope of its

lawful authority, but the process by which it reaches

that result must be logical and rational.” Michigan v.

EPA, 135 S.Ct. 2699, 2706 (2015) (internal quotation

to protect all sources of intelligence information from disclosure.”

Id. at 601 (quoting CIA v. Sims, 471 U.S. 159, 168-69 (1985)). Because the discretionary termination provision was “part and parcel of the entire Act,” the “language and structure” of the provision

“preclud[ed] judicial review of these decisions under the APA.” Id.

No such national security objectives, language, or structural elements are to be found in the ESA.

23

marks and citations omitted). Agency action is lawful

only if it is based “on a consideration of the relevant

factors.” Motor Vehicle Mfrs. Assn. of United States v.

State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43

(1983) (internal quotation marks omitted). Agency action is arbitrary and capricious if the agency has “entirely failed to consider an important aspect of the

problem” or has “offered an explanation for its decision

that runs counter to the evidence before the agency.”

Id. at 44. Accordingly, the lower court’s ruling that

there is “no law to apply” in connection with the Service’s decision not to exclude an area from critical habitat is contradicted by a long line of cases decided by

this Court requiring the opposite conclusion. At the

very least the record must demonstrate that the

agency gave reasoned consideration to economic impacts.

III

THE LEGISLATIVE HISTORY OF THE ESA

SHOWS THAT CONGRESS INTENDED

AGENCY DECISIONS “NOT TO EXCLUDE”

AREAS FROM CRITICAL HABITAT BE

SUBJECT TO JUDICIAL REVIEW

This Court held under an earlier version of the

ESA that the statute was intended by Congress to conserve species “whatever the cost.” Tennessee Valley

Authority v. Hill, 437 U.S. 153, 184 (1978). Partly in response to that decision, Congress enacted amendments

to the ESA in 1978, Pub. L. No. 95-632, 92 Stat. 3,751

(Nov. 10, 1978), expressly requiring a consideration of

24

economic impacts in connection with critical habitat

designation.3 Id. Sections 11, 92. Stat at 3,766. Those

amendments gave the Service the authority to exclude

areas from critical habitat based on a balancing of the

conservation benefits of inclusion versus the economic

benefits of exclusion. The lower court’s decision undoes

Congress’s effort to include economic considerations in

the critical habitat decisionmaking process. Absent judicial review of decisions “not to exclude” an area from

critical habitat, property owners would have no relief

from irrational agency designations that provide little

if any conservation benefit while causing substantial

economic damage. This Court has refused to accept

such unreasonable agency action. See Michigan, 135

S.Ct. at 2707 (EPA operated outside “the bounds of reasonable behavior” when it interpreted a provision of

3

See Committee on Environment & Public Works, 97th

Cong., A Legislative History of the Endangered Species Act of

1973, as Amended in 1976, 1977, 1978, 1979, & 1980, at 822 (Congressional Research Service eds., 1982) (statement of Rep. Robert

Leggett of California) (“We should be concerned about the conservation of endangered species, but I, for one, am not prepared to

say that we should be concerned about them above all else.”); id.

at 919 (statement of Sen. Howard H. Baker, Jr., of Tennessee) (“I

do not believe, however, that Congress intended that the protection or management of an endangered species should in all instances override other legitimate national goals or objectives with

which they might conflict.”); id. at 1068 (statement of Sen. William Scott of Virginia) (“People are more important than fish.”);

id. at 1006 (statement of Sen. Edwin Garn of Utah) (“Certainly, in

1973, there was a great environmental push. The Endangered

Species Act passed the Senate extremely easily, with no dissenting votes. But, talking to many of my colleagues, I learn that they

certainly would not have voted for it if they had known the implications and the extremes to which the act would be carried.”).

25

the Clean Air Act to allow it to “ignore costs when

deciding whether to regulate power plants.”); see

also Bennett, 520 U.S. at 172 (observing that “the Secretary’s ultimate decision” regarding critical habitat

designation “is reviewable . . . for abuse of discretion”).

It is pointless to assess the economic impacts of a critical habitat designation if that assessment, as implemented through the exclusion process, is immune from

judicial review. The lower court’s decision impermissibly converts the Service’s obligation to assess economic

impacts of critical habitat designation into a meaningless paper exercise, a result that should not be countenanced by this Court. See Bennett, 520 U.S. at 172

(holding that the Service has a nondiscretionary duty

to assess economic impacts prior to critical habitat designation).

Some details of the ESA’s legislative history are

particularly informative:

[T]he 1978 amendments significantly altered

the structure of the act by establishing a procedure to balance the interests in conserving

endangered species against other legitimate

national concerns.

A Legislative History of the Endangered Species Act

of 1973, as Amended in 1976, 1977, 1978, 1979, & 1980:

Together with a Section-by-Section Index (Comm.

Print) (1982) at 1348-49 (statement of Representative

Bowen) (emphasis added). The balancing procedure

envisioned by Congress is reflected in significant part

in the balancing-of-the-benefits methodology required

by Section 4(b)(2) for critical habitat designation.

26

In fact, the legislative history of the 1978 Amendments underscores the importance that Congress placed

in ensuring full ventilation and analysis of economic

impacts in connection with critical habitat designations:

The 1978 amendments established much

more, however, than just creating a safety

valve in the act. The amendments also required a number of other important changes

in the endangered species program which are

designed to insure that the program is run in

the manner that Congress intended. The act

now requires the preparation of economic impact statements on proposed critical habitat

designations. . . .

Id. at 1349 (emphasis added). Because the requirement

to consider economic impacts is “much more . . . than

just . . . a safety valve” and calls for the equivalent

of “economic impact statements,” Congress could not

have intended that upon a review of economic impacts

a decision not to exclude areas from critical habitat be

left entirely to the discretion of the Service. “[Courts]

must reject administrative constructions which are

contrary to clear congressional intent.” Chevron, 467

U.S. at 843 n.9. Accordingly, the lower court should

have asked itself whether “alternative interpretations

consistent with the legislative purpose are available.”

See Griffin v. Oceanic Contractors, 458 U.S. 564, 575

(1982).

There could be no clearer statement of legislative

intent than that of Representative Murphy:

27

The Conference Report includes the House

provision mandating the Secretary to consider the economic impact of designating critical habitat for any species. The Secretary is

authorized to alter the critical habitat designation based on this economic evaluation.

This is the most significant provision in the entire bill.

A Legislative History of the Endangered Species Act of

1973, supra, at 1221 (emphasis added) (statement of

Representative Murphy). Government decisionmaking

in connection with the consideration of economic impacts, characterized on the floor of the House of Representatives as the “most significant provision in the

entire bill,” could not have been intended to be left to

the unconstrained discretion of “agency officials zealously but unintelligently pursuing their environmental objectives.” Bennett, 520 U.S. at 176-77.

IV

THE AVAILABILITY OF JUDICIAL REVIEW

IS FUNDAMENTAL TO OUR SYSTEM OF

GOVERNMENT AND THE RULE OF LAW

Early in its history, this Court heard a case addressing the issue of whether government encroachment of property rights is subject to judicial review. In

VanHorne’s Lessee v. Dorrance, 2 U.S. 304 (1795), the

Court examined a state law that granted a state board

authority to make decisions regarding the value of private property. The state argued that the decisions of

28

that agency were final and not appealable in court.

This Court disagreed:

The proprietor stands afar off, a solitary and

unprotected member of the community, and is

stript of his property, without his consent, . . .

the value of that property judged upon without his participation, or the intervention of a

Jury. . . . If this be the Legislation of a Republican Government, in which the preservation

of property is made sacred by the Constitution, I ask, wherein it differs from the mandate of an Asiatic Prince?

Id. at 316. The same question could be asked here.

The Service’s decision not to exclude the private

property of the Petitioners devalues the property and

burdens Petitioners’ property rights. Indeed, the effect

on Petitioners’ property here is measured in millions

of dollars. Pet. Br. at 32. But the lower court held that

the Service’s decision injuring these property rights is

wholly immune from judicial review.

In enacting the APA, Congress recognized a

“strong presumption” in favor of the reviewability of

administrative actions, Mach Mining, LLC, 135 S.Ct.

at 1653, but that presumption long predates the APA.

The right to judicial review of executive actions has its

origins in natural justice and common law.

Since before the time of Blackstone, it has been “a

general and indisputable rule, that where there is a

legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded.” 3 W.

29

Blackstone, Commentaries 23 (1783). The revolutionary generation thought the principle so crucial that

several States put it into their constitutions.4 Justice

Marshall explicitly imported this theory into American

jurisprudence in Marbury v. Madison, 5 U.S. 137, 163

(1803), noting that our Government “has been emphatically termed a government of laws, and not of men. It

will certainly cease to deserve this high appellation, if

the laws furnish no remedy for the violation of a vested

legal right.” Several years later, the Court opined on

the importance of reviewability for injuries to rights,

noting that it would be a “monstrous heresy . . . [that

there should be] . . . no remedy” for a government action that impacted a citizen’s rights. Kendall v. United

States ex rel. Stokes, 37 U.S. 524, 567 (1838).

The presumption of review is particularly strong

with regard to property rights. Indeed, this Court has

frequently noted that judicial protection of private

property is both the impetus and justification for government. See, e.g., Calder v. Bull, 3 U.S. 386, 388 (1798).

Judicial protection of property rights is a central element of the social compact:

The right of acquiring and possessing property, and having it protected, is one of the natural, inherent, and unalienable rights of man.

4

See, e.g., A Declaration of Rights and Fundamental Rules of

the Delaware State § 12 (1776); 2 Sources and Documents of

United States Constitutions 197, 198 (W. Swindler ed. 1775); Md.

Const., Art. XVII (1776), 4 id., at 372, 373; Mass. Const., Art. XI

(1780), 5 id., at 92, 94; Ky. Const., Art. XII, cl. 13 (1792), 4 id., at

142, 150; Tenn. Const., Art. XI, § 17 (1796), 9 id., at 141, 148.

30

Men have a sense of property: Property is necessary to their subsistence, and correspondent

to their natural wants and desires; its security

was one of the objects, that induced them to

unite in society. No man would become a member of a community, in which he could not

enjoy the fruits of his honest labour and industry. The preservation of property then is a

primary object of the social compact.

VanHorne’s Lessee, 2 U.S. at 310.

Review is particularly important when the injury

to property is caused by government. “In such cases

there is no safety for the citizen, except in the protection of the judicial tribunals.” United States v. Lee, 106

U.S. 196, 219 (1882); Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 395

(1971) (same). In the absence of such tribunals, there

remains to the citizen only “the alternative of resistance, which may amount to crime.” Id.

To avoid this result, this Court has long construed

any law “derogatory to the rights of property” narrowly,

VanHorne’s Lessee, 2 U.S. at 316,5 and generally provides judicial review for government actions affecting

property. Bell v. Hood, 327 U.S. 678, 684 (1946) (citing

Marbury, 5 U.S. at 163). In the administrative law context, “the exception of ‘discretion’ from review shield[s]

‘sound’ discretion only; it in no wise exempt[s] the

5

See also Frederick Douglass, Selected Speeches and Writings, 386-87 (Lawrence Hill Books, 1999). “Where a law is susceptible of two meanings . . . the language of the law must be

construed strictly in favour of justice and liberty.”

31

antithetical ‘abuse of discretion’ from the review

expressly directed by [the Administrative Procedure

Act].” Raoul Berger, Administrative Arbitrariness: A

Synthesis, 78 Yale L.J. 965, 970 (1969). Thus, it has always been the case that government restriction of

property rights is generally subject to judicial review.

When James Madison introduced the Bill of Rights

in Congress, he noted the importance of judicial review

as a fundamental check on the other branches. According to Madison, “independent tribunals of justice” are

to be “an impenetrable bulwark against every assumption of power in the legislative or executive; they will

be naturally led to resist every encroachment upon

rights.” 1 ANNALS OF CONG. 457 (Joseph Gales ed.,

1790). Alexander Hamilton went further, arguing that

limited government “can be preserved in practice no

other way than through the medium of courts of justice. . . . Without this, all the reservations of particular

rights or privileges would amount to nothing.” The

Federalist No. 78, at 466 (Alexander Hamilton) (Clinton Rossiter ed., Penguin Books 1961). Several decades

later, John Bingham, who drafted the Fourteenth

Amendment, echoed this sentiment from the floor of

Congress, arguing that if individual rights were not enforceable by an action in federal court, the rights were

“dead letter.”6

6

Speech of Hon. John A. Bingham of Ohio, In the House of

Representatives, February 28, 1866, In support of the proposed

amendment to enforce the Bill of Rights (available at: https://

archive.org/details/onecountryonecon00bing).

32

The lower court’s opinion not only stands opposed

to the text of ESA Section 4(b)(2), the dictates of logic,

the objectives and structure of the ESA, and the legislative history, but also to the concepts of limited

government, separation of powers, and protection of

fundamental rights. “[U]bi jus, ibi remedium – for

every right, [there is] a remedy.” Towns of Concord,

Norwood & Wellesley, Mass. v. FERC, 955 F.2d 67, 73

(D.C. Cir. 1992). This legal principle is an integral part

of the due process guaranteed by the Constitution. See

Tracy A. Thomas, Ubi Jus, Ibi Remedium: The Fundamental Right to a Remedy Under Due Process, 41 San

Diego L. Rev. 1633 (2004). The fundamental right to

have an independent judicial evaluation of grievances

against government action lies at the heart of our system of jurisprudence, and “[a]gencies may not use shell

games to elude review.” Tesoro Alaska Petroleum Co. v.

FERC, 234 F.3d 1286, 1293 (D.C. Cir. 2000). Fundamental fairness requires giving a party aggrieved by

government action the “opportunity to be heard.” See

Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

------------------------------------------------------------------

33

CONCLUSION

The judgment of the Fifth Circuit should be reversed.

Dated: April 30, 2018

Respectfully submitted,

ROBERT HENNEKE

THEODORE HADZI-ANTICH*

*Counsel of Record

CHANCE WELDON

(Of Counsel)

RYAN WALTERS

(Of Counsel)

TEXAS PUBLIC

POLICY FOUNDATION

901 Congress Avenue

Austin, Texas 78701

Telephone: (512) 472-2700

Facsimile: (512) 472-2728

tha@texaspolicy.com

Counsel for Amici Curiae