Amicus Curiae Brief — Weyerhaeuser Company, Petitioner v. United States Fish and Wildlife Service, et al.
Supreme Court briefApr 30, 2018
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NO. 17-71
In the Supreme Court of the United States
WEYERHAEUSER COMPANY,
v.
Petitioner,
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 AMERICAN FARM BUREAU
FEDERATION, CROPLIFE AMERICA, NATIONAL
ALLIANCE OF FOREST OWNERS, AND NATIONAL
MINING ASSOCIATION IN SUPPORT OF PETITIONER
WILLIAM R. MURRAY
NATIONAL ALLIANCE
OF FOREST OWNERS
122 C St., N.W.
Suite 630
Washington, D.C. 20001
(202) 747-0742
TYSON C. KADE
Counsel of Record
JOSEPH B. NELSON
VAN NESS FELDMAN, LLP
1050 Thomas Jefferson St., N.W.
Washington, D.C. 20007
(202) 298-1800
tck@vnf.com
Counsel for Amici Curiae
(additional counsel listed on inside cover)
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
Additional Counsel:
ELLEN STEEN
DANIELLE QUIST
AMERICAN FARM
BUREAU FEDERATION
600 Maryland Ave., S.W.
Suite 1000W
Washington, D.C. 20024
(202) 406-3600
RACHEL LATTIMORE
DOREEN MANCHESTER
CROPLIFE AMERICA
1156 15th St., N.W.
Suite 400
Washington, D.C. 20005
(202) 296-1585
KATIE SWEENEY
ADAM ECKMAN
NATIONAL MINING
ASSOCIATION
101 Constitution Ave., N.W.
Washington, D.C. 20001
(202) 463-2600
i
QUESTIONS PRESENTED
Amici Curiae will address the following questions:
1. Whether the Endangered Species Act prohibits
designation of private land as unoccupied critical
habitat that is neither habitat nor essential to species
conservation.
2. Whether an agency decision not to exclude an
area from critical habitat because of the economic
impact of designation is subject to judicial review.
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv
INTERESTS OF THE AMICI CURIAE . . . . . . . . . . 1
INTRODUCTION AND
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . 5
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
I. Designation of Unoccupied Critical Habitat
Requires that the Specific Areas Be Both
Habitat for the Species and Essential to Its
Conservation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A. The ESA’s Plain Language Limits Critical
Habitat to Specific Areas Within Existing
Habitat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
B. Congress Intended to Limit Critical Habitat
to a Subset of the Species’ Habitat. . . . . . . . 13
C. Designation of Unoccupied Habitat Is a More
Demanding Standard that Requires the
Entire Area to be Essential for the
Conservation of the Species. . . . . . . . . . . . . 17
D. Congress Provided Other Mechanisms for the
Identification and Protection of Areas that
May Later Become Habitat and Provide
Benefits to a Species. . . . . . . . . . . . . . . . . . . 22
II. Judicial Review Applies to Decisions Not to
Exclude Areas from Critical Habitat. . . . . . . . . 23
iii
A. The Fifth Circuit Disregarded the Strong
Presumption of Judicial Review of
Administrative Action. . . . . . . . . . . . . . . . . . 25
B. Congress Provided Clear and Meaningful
Standards for the Exclusion of Areas from
Critical Habitat. . . . . . . . . . . . . . . . . . . . . . . 29
C. The Court Has Already Recognized that
Judicial Review Applies to Decisions under
ESA Section 4(b)(2). . . . . . . . . . . . . . . . . . . . 34
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
iv
TABLE OF AUTHORITIES
Cases
Abbott Laboratories v. Gardner,
387 U.S. 136 (1967) . . . . . . . . . . . . . . . . . . . 25, 26
Alliance for Wild Rockies v. Lyder,
728 F. Supp. 2d 1126 (D. Mont. 2010) . . . . . . . 20
Arizona Cattle Growers’ Ass’n v. Salazar,
606 F.3d 1160 (9th Cir. 2010) . . . . . . . . . . . . . . 19
Babbitt v. Sweet Home Chapter of Communities for
a Great Oregon,
515 U.S. 687 (1995) . . . . . . . . . . . . . . . . . . . . 3, 23
Barlow v. Collins,
397 U.S. 159 (1970) . . . . . . . . . . . . . . . . . . . . . . 28
Bear Valley Mutual Water Co. v. Jewell,
790 F.3d 977 (9th Cir. 2015) . . . . . . . . . . . . . . . 28
Bennett v. Spear,
520 U.S. 154 (1997) . . . . . . . . . . . . . 12, 29, 34, 35
Cape Hatteras Preservation Alliance v. U.S. Dep’t of
the Interior,
344 F. Supp. 2d 108 (D.D.C. 2004) . . . . . . . . . . 20
Center for Biological Diversity v. Kelly,
93 F. Supp. 3d 1193 (D. Idaho 2015) . . . . . . . . . 20
Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402 (1971) . . . . . . . . . . . . . . . . . . . . . . 26
Dickson v. Secretary of Defense,
68 F.3d 1396 (D.C. Cir. 1995) . . . . . . . . . . . . . . 29
v
Heckler v. Chaney,
470 U.S. 821 (1985) . . . . . . . . . . . . . . . . 25, 26, 27
Home Builders Ass’n of Northern California v. U.S.
Fish & Wildlife Service,
616 F.3d 983 (9th Cir. 2010) . . . . . . . . . . . . . . . 19
ICC v. Brotherhood of Locomotive Engineers,
482 U.S. 270 (1987) . . . . . . . . . . . . . . . . . . . . . . 28
Lamie v. U.S. Trustee,
540 U.S. 526 (2004) . . . . . . . . . . . . . . . . . . . 10, 11
Lincoln v. Vigil,
508 U.S. 182 (1993) . . . . . . . . . . . . . . . . . . . . . . 28
Mach Mining, LLC v. EEOC,
135 S. Ct. 1645 (2015) . . . . . . . . . . . . . . . . . . . . 26
Markle Interests, L.L.C. v. U.S. Fish & Wildlife
Service,
827 F.3d 452 (5th Cir. 2016) . . . . . . . . . . . passim
Markle Interests, L.L.C. v. U.S. Fish & Wildlife
Service,
848 F.3d 635 (5th Cir. 2017) . . . . . . . . . . . passim
Mulloy v. United States,
398 U.S. 410 (1970) . . . . . . . . . . . . . . . . . . . . . . 28
Sosa v. Alvarez-Machain,
542 U.S. 692 (2004) . . . . . . . . . . . . . . . . . . . . . . 11
Tennessee Valley Authority v. Hill,
437 U.S. 153 (1978) . . . . . . . . . . . . . . . . . . . 14, 30
TRW Inc. v. Andrews,
534 U.S. 19 (2001) . . . . . . . . . . . . . . . . . . . . . . . 11
vi
United States v. Gonzales,
520 U.S. 1 (1997) . . . . . . . . . . . . . . . . . . . . . . . . 19
U.S. Army Corps of Engineers v. Hawkes Co., Inc.,
136 S. Ct. 1807 (2016) . . . . . . . . . . . . . . . . . . . . 28
Webster v. Doe,
486 U.S. 592 (1988) . . . . . . . . . . . . . . . . . . . . . . 28
Statutes and Regulations
5 U.S.C. § 701(a)(2) . . . . . . . . . . . . . . . . . . . 24, 26, 27
5 U.S.C. § 704 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5 U.S.C. § 706(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . 29
16 U.S.C. § 1532(5)(A)(i) . . . . . . . . . . . . . . . . . . . 6, 18
16 U.S.C. § 1532(5)(A)(ii) . . . . . . . . . . . . . . . 6, 18, 20
16 U.S.C. § 1533(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 5
16 U.S.C. § 1533(a)(3)(A)(i) . . . . . . . . . . . . 5, 8, 10, 12
16 U.S.C. § 1533(a)(3)(A)(ii) . . . . . . . . . . . . . . . . . . 23
16 U.S.C. § 1533(b)(2) . . . . . . . . . . . . . 5, 6, 23, 24, 34
16 U.S.C. § 1533(b)(3)(D) . . . . . . . . . . . . . . . . . . . . 23
16 U.S.C. § 1533(f)(1) . . . . . . . . . . . . . . . . . . . . . . . 22
16 U.S.C. § 1533(f)(1)(B)(i) . . . . . . . . . . . . . . . . . . . 22
16 U.S.C. § 1534(a)(2) . . . . . . . . . . . . . . . . . . . . . . . 22
16 U.S.C. § 1536(a)(2) . . . . . . . . . . . . . . . . . . . . . . 3, 7
16 U.S.C. § 1536(b)(4)(A) . . . . . . . . . . . . . . . . . . . . . 7
16 U.S.C. § 1536(b)(4)(C)(ii) . . . . . . . . . . . . . . . . . . . 7
vii
16 U.S.C. § 1540(g)(1)(C) . . . . . . . . . . . . . . . . . . . . 34
50 C.F.R. § 402.02 (2017) . . . . . . . . . . . . . . . . . . . . . 7
50 C.F.R. § 424.12(e) . . . . . . . . . . . . . . . . . . . . . . . . 21
Endangered Species Act of 1973,
Pub. L. No. 93-205, 87 Stat. 884 . . . . . . . . . . . . 13
Endangered Species Act Amendments of 1978,
Pub. L. No. 95-632, 92 Stat. 3751 . . . . . . . . . . . 31
Endangered & Threatened Wildlife and Plants:
Final Rulemaking to Designate Critical Habitat
for the Threatened Southern Distinct Population
Segment of North American Green Sturgeon,
74 Fed. Reg. 52,300 (Oct. 9, 2009) . . . . . . . . . . . . 4
Endangered and Threatened Wildlife and Plants;
Designation of Critical Habitat for Dusky
Gopher Frog (Previously Mississippi Gopher
Frog); Final Rule and Proposed Rule,
77 Fed. Reg. 35,118 (June 12, 2012) . . . . . . . . . . 8
Endangered and Threatened Wildlife and Plants;
Designation of Revised Critical Habitat for the
Northern Spotted Owl; Final Rule,
77 Fed. Reg. 71,876 (Dec. 4, 2012) . . . . . . . . . . . 4
Endangered and Threatened Wildlife and Plants;
Revised Designation of Critical Habitat for the
Contiguous United States Distinct Population
Segment of the Canada Lynx and Revised
Distinct Population Segment Boundary; Final Rule,
79 Fed. Reg. 54,782 (Sept. 12, 2014) . . . . . . . . . . 4
viii
Endangered and Threatened Wildlife and Plants;
Revised Designation of Critical Habitat for Bull
Trout in the Coterminous United States; Final Rule,
75 Fed. Reg. 63,898 (Oct. 18, 2010) . . . . . . . . . . . 4
Interagency Cooperation–Endangered Species Act
of 1973,
43 Fed. Reg. 870 (Jan. 4, 1978) . . . . . . . . . . . . . 14
Listing Endangered and Threatened Species and
Designating Critical Habitat; Implementing
Changes to the Regulations for Designating
Critical Habitat; Final Rule,
81 Fed. Reg. 7414 (Feb. 11, 2016) . . . . . . . . . . . 21
National Defense Authorization Act for Fiscal Year
2004,
Pub. L. No. 108-136, 117 Stat. 1392 (2003) . . . 31
Legislative Materials
124 Cong. Rec. 21,355 (1978) . . . . . . . . . . . . . . . . . 16
124 Cong. Rec. 21,575 (1978) . . . . . . . . . . . . . . . . . 17
124 Cong. Rec. 38,122 (1978) . . . . . . . . . . . . . . . . . 30
124 Cong. Rec. 38,128 (1978) . . . . . . . . . . . . . . . . . 33
124 Cong. Rec. 38,131 (1978) . . . . . . . . . . . . . . . 6, 15
124 Cong. Rec. 38,154 (1978) . . . . . . . . . . . . . . 15, 21
124 Cong. Rec. 38,665 (1978) . . . . . . . . . . . . . . . 6, 17
124 Cong. Rec. 38,666 (1978) . . . . . . . . . . . . . . . . . 31
H.R. Rep. No. 93-740 (1973)
(Endangered Species Act Amendments of 1973:
Report to Accompany S. 1983) . . . . . . . . . . . . . . 13
ix
H.R. Rep. No. 95-1625 (1978)
(Endangered Species Act Amendments of 1978:
Report to Accompany H.R. 14104) . . . . . . passim
H.R. Rep. No. 97-567 (1982)
(Endangered Species Act Amendments of 1982:
Report to Accompany H.R. 6133) . . . . . . . . . . . 31
S. Rep. No. 79-752 (1945)
(Administrative Procedure Act: Report of the
Committee on the Judiciary on S. 7) . . . . . . . . . 26
S. Rep. No. 95-874 (1978)
(Endangered Species Act Amendments of 1978:
Report to Accompany S. 2899) . . . . . . . . 14, 17, 20
Other Sources
Merriam-Webster’s Collegiate Dictionary
(11th ed. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 21
John M. Frywell, et al., Wildlife Ecology,
Conservation, & Management (3d ed. 2014) . . . 12
Linnea S. Hall, et al., The Habitat Concept and a
Plea for Standard Terminology, 25(1) Wildlife
Soc’y Bulletin 173 (1997) . . . . . . . . . . . . . . . . . . 12
Andrew J. Turner & Kerry L. McGrath, A Wider
View of the Impacts of Critical Habitat
Designation, 43 Envtl. L. Rep. News & Analysis
10,678 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
NMFS & FWS, Interim Endangered and
Threatened Species Recovery Plan Guidance,
§ 1.1 (June 2010), https://www.fws.gov/
endangered/esa-library/pdf/NMFSFWS_Recovery_Planning_Guidance.pdf . . . . . . 22
1
INTERESTS OF THE AMICI CURIAE
The American Farm Bureau Federation (Farm
Bureau), CropLife America (CLA), National Alliance of
Forest Owners (NAFO), and National Mining
Association (NMA) respectfully submit this brief as
amici curiae in support of the Petitioner.1
The Farm Bureau is an independent, nongovernmental, voluntary general farm organization
with nearly six million member families in all 50 states
and Puerto Rico. Established in 1919, the Farm
Bureau’s primary function is to advance and promote
the interests and betterment of farming and ranching;
the farming, ranching, and rural community; and the
individual families engaged in farming and ranching.
This effort involves protecting, promoting, and
representing the business, economic, social, and
educational interests of American farmers and
ranchers.
CLA is a national, not-for-profit trade association
that represents developers, manufacturers,
formulators, and distributors of crop protection
products and plant science solutions for agriculture and
pest management in the United States. CLA’s many
registrant member companies produce pesticides
registered with EPA for use in the United States under
the Federal Insecticide, Fungicide and Rodenticide Act
(FIFRA).
1
Pursuant to Rule 37.6, amici affirm that no counsel for a party
authored this brief in whole or in part and that no person other
than amici or their counsel made a monetary contribution to its
preparation or submission. All parties have filed blanket consents
to the filing of this brief.
2
NAFO is a trade association that represents owners
and managers of over 80 million acres of private forests
in 47 states. NAFO was incorporated in March 2008,
and has been working aggressively since then to
sustain the ecological, economic, and social values of
forests, and to assure an abundance of healthy and
productive forest resources for present and future
generations.
NMA is the national trade association of the mining
industry. NMA has more than 300 members, including
those who produce most of the nation’s coal, metals,
industrial, and agricultural minerals. The mining
industry has a broad impact on the national economy,
generating nearly 1.9 million jobs and contributing
$225 billion to the U.S. GDP and $45 billion in federal,
state, and local taxes each year. A core mission of
NMA is to promote practices that foster the
environmentally sound development and use of mineral
resources.
The amici have a substantial interest in this case
because the designation of private property as critical
habitat under the Endangered Species Act (ESA) is a
remarkably intrusive action that imposes significant
burdens on landowners and restricts their ability to
fully utilize their property. The U.S. Court of Appeals
for the Fifth Circuit endorsed an expansive
interpretation of critical habitat by upholding the
protection of an area that is not only unoccupied but
also unsuitable and uninhabitable by the species. In
doing so, the Fifth Circuit destroyed the statutory
distinction between occupied and unoccupied critical
habitat and contravened Congressional intent by
granting the Secretary “virtually limitless” power to
3
designate critical habitat. Markle Interests, L.L.C. v.
U.S. Fish & Wildlife Serv., 848 F.3d 635, 651 (5th Cir.
2017) (Jones, J., dissenting from Denial of Rehearing
En Banc). “[T]he ramifications of this decision for
national land use regulation . . . cannot be
underestimated.” Id. at 637.
The specter created by the Fifth Circuit’s erroneous
interpretation of what qualifies as critical habitat is
unremittingly chilling in its implications for ongoing
activities on private property. This over-expansive
interpretation of the ESA “imposes unfairness to the
point of financial ruin—not just upon the rich, but upon
the simplest farmer who finds his land conscripted to
national zoological use.” Babbitt v. Sweet Home
Chapter of Communities for a Great Or., 515 U.S. 687,
714 (1995) (Scalia, J., dissenting). A critical habitat
designation can freeze the operations of property
designated as critical habitat in perpetuity. While such
restrictions are only triggered by a discretionary
federal agency action subject to ESA Section 7
“consultation,” 16 U.S.C. § 1536(a)(2), the nexus
between federal agency actions and private land use is
exceedingly broad, and includes Clean Water Act
permitting, FIFRA pesticide registrations, financial
assistance, and other programs from the National
Resources Conservation Service, Small Business
Administration loan guarantees, Federal Emergency
Management Agency flood insurance, and other Army
Corps of Engineers permits.
The consultation requirement imposes a federal
management overlay upon private lands with
significant regulatory and economic ramifications under
the ESA. A private property owner is barred from
4
obtaining any discretionary federal permits,
authorizations, funding, or other agency actions without
first being subject to a review to ensure that there will
be no destruction or adverse modification of critical
habitat. Further, if the property owner’s activities may
adversely affect a threatened or endangered species or
its critical habitat, those activities may be significantly
curtailed or subject to conditions that impair the
productivity and use of that property.
The amici have members that are engaged in
timber, agriculture, mining operations, and other
related activities on privately owned property. They
will suffer economic injury and, in many instances, the
deprivation of the use and enjoyment of their property
due to the consequential restrictions on land use
activities arising from a designation of their land as
critical habitat. These impacts are not limited to the
facts of this case, but are occurring nationwide through
the increasing trend of geographically expansive
critical habitat designations. These designations
impose economic impacts of millions of dollars annually
and, sometimes, result in the outright rejection or
cessation of ongoing activities that serve the
development needs of the Nation.2 These restrictions
2
See, e.g., 74 Fed. Reg. 52,300, 52,300 (Oct. 9, 2009) (designating
all potential critical habitat for the green sturgeon would have
annualized economic impact of $64 million to $578 million); 75
Fed. Reg. 63,898, 63,920 (Oct. 18, 2010) (potential incremental
impacts of bull trout critical habitat estimated at $56.3 to $80.9
million over 20 years); 77 Fed. Reg. 71,876, 71,946 (Dec. 4, 2012)
(northern spotted owl critical habitat could have up to a $6.4
million annual impact); 79 Fed. Reg. 54,782, 54,829 (Sept. 12,
2014) (Canada lynx critical habitat could have up to $805,000
annual cost).
5
and negative effects are even more alarming when, as
here, the land is unoccupied by the relevant species
and lacks the features making it viable habitat. This
Court must restrain the “virtually limitless” power
conferred by the Fifth Circuit, and restore the
designation of critical habitat to the bounds that
Congress intended and explicitly prescribed.
INTRODUCTION AND
SUMMARY OF ARGUMENT
Congress added a narrow definition of critical
habitat to the ESA in 1978 to restrain the prevailing
practice of designating expansive areas of land with no
regard to what was actually necessary for species
conservation. In doing so, Congress struck a balance
between the need to protect habitat for threatened and
endangered species and the need to ensure that the
exercise of regulatory powers affecting the economic
and productive use of land is wielded with focused
circumspection.
The application of the ESA is triggered when the
Secretary determines to list a species as either
threatened or endangered. 16 U.S.C. § 1533(a)(1).
Concurrent with a listing decision, to the maximum
extent prudent and determinable, the Secretary shall
“designate any habitat of such species which is then
considered to be critical habitat.” Id. § 1533(a)(3)(A)(i)
(emphasis added). The Secretary must base the
designation on “the best scientific data
available . . . after taking into consideration the
economic impact, . . . and any other relevant impact, of
specifying any particular area as critical habitat.” Id.
§ 1533(b)(2). The Secretary is authorized to exclude
any area from critical habitat if “the benefits of such
6
exclusion outweigh the benefits of specifying such area
as part of the critical habitat,” unless an exclusion
would result in the extinction of the species concerned.
Id.
Congress did not envision the designation of critical
habitat “as far as the eyes can see and the mind can
conceive.” 124 Cong. Rec. 38,131 (1978). Rather,
Congress crafted an “extremely narrow definition of
critical habitat” that imposed clear standards and
statutory boundaries to restrain the overbroad
assertion of federal regulatory power. 124 Cong. Rec.
38,665 (1978). For occupied habitat, the designation of
critical habitat is limited to “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 (I) essential to the conservation of
the species and (II) which may require special
management considerations or protection.” 16 U.S.C.
§ 1532(5)(A)(i). For unoccupied habitat, Congress
imposed a heightened standard—critical habitat only
can be designated for “specific areas outside the
geographical area occupied by the species at the time it
is listed . . . upon a determination by the Secretary that
such areas are essential for the conservation of the
species.” Id. § 1532(5)(A)(ii).
A critical habitat designation triggers the
application of Section 7 of the ESA, whereby a federal
agency must “consult” with the U.S. Fish and Wildlife
Service (FWS) or National Marine Fisheries Service
(NMFS) (collectively, the Services) on any action
authorized, funded, or carried out that may affect
7
critical habitat.3 16 U.S.C. § 1536(a)(2). During
consultation, if FWS or NMFS concludes that the
action will destroy or adversely modify critical habitat,
then a reasonable and prudent alternative (RPA) to the
proposed action is developed to avoid the destruction or
adverse modification.4 Id. § 1536(b)(4)(A). A private
party applicant or partner to the federal agency action
must typically implement the RPA or be subject to
denial of its application or project. These Section 7
consultations impose “[c]onsiderable regulatory
burdens and corresponding economic costs [that] are
borne by landowners, companies, state and local
governments, and other entities as a result of critical
habitat designation.” Andrew J. Turner & Kerry L.
McGrath, A Wider View of the Impacts of Critical
Habitat Designation, 43 Envtl. L. Rep. News &
Analysis 10,678, 10,680 (2013). Where the federal
action authorizes some activity on private land, the
costs are borne by the private party, not by the federal
agency.5
3
The relevant regulations define “action” expansively to include
the “granting of licenses, contracts, leases, easements, right-ofway, permits, or grants-in-aid” or “actions directly or indirectly
causing modifications to the land, water, or air.” 50 C.F.R.
§ 402.02 (2017).
4
If the action will cause the incidental take of a listed species,
FWS or NMFS also will specify reasonable and prudent measures
(RPMs) to minimize the impact of the taking. 16 U.S.C.
§ 1536(b)(4)(C)(ii). These RPMs impose terms and conditions that
can impose further restrictions on the use of property.
5
The costs of consultation include, for example, conducting
biological surveys and assessments—including multiple site visits,
hiring of technical experts, and subsequent analyses—which can
reach hundreds of thousands of dollars. Compliance costs for
measures to avoid or minimize the effects of the proposed action on
8
In the decision below, the closely divided Fifth
Circuit panel upheld the designation of more than
1,500 acres of private forest land (Unit 1) in Louisiana
as unoccupied critical habitat for the dusky gopher
frog. Markle Interests, L.L.C. v. U.S. Fish & Wildlife
Serv., 827 F.3d 452, 459 (5th Cir. 2016). The FWS
conceded that Unit 1 only contains one of the three
physical or biological features that comprise habitat for
the species (ephemeral ponds) and that, in its present
state, Unit 1 is “unsuitable as habitat for dusky gopher
frogs.” 77 Fed. Reg. 35,118, 35,129 (June 12, 2012);
JA145 (emphasis added). Furthermore, Unit 1 is
located about 50 miles from existing populations, and
natural dispersal of frogs to the area is not possible.
See id. at 35,130; JA145-46. Even if dusky gopher frogs
were introduced into Unit 1, they would not survive.
The Fifth Circuit wrongly held that “[t]here is no
habitability requirement in the text of the ESA or the
implementing regulations.” Markle, 827 F.3d at 468.
The plain language of ESA Section 4 explicitly limits
critical habitat to a subset of “any habitat of such
species.” 16 U.S.C. § 1533(a)(3)(A)(i) (emphasis added).
The Fifth Circuit’s decision condones the designation of
admittedly unsuitable and uninhabitable land based on
the mere presence of one physical feature that, alone,
cannot support the dusky gopher frog. This decision
sets a remarkably low bar for the designation of critical
habitat—there is no requirement for existing habitat,
designated critical habitat areas can be crippling.
The
consultation process itself also has economic impacts because it
“often takes months or years, significantly delaying projects and
resulting in substantial additional project costs, if not destroying
the projects’ economic viability.” 43 Envtl. L. Rep. News &
Analysis at 10,681.
9
no requirement for suitability, and no reasonable
expectation that the area will be used for the
conservation of the species.
The Fifth Circuit also “play[s] havoc with
administrative law” by holding that FWS’s decision not
to exclude Unit 1 from designated critical habitat is
unreviewable. Markle, 848 F.3d at 652 (Jones, J.,
dissenting). On the contrary, the Administrative
Procedure Act (APA) provides a strong presumption of
judicial review of final agency actions, including those
that involve discretionary agency decision-making.
While ESA Section 4(b)(2) contains a cost-benefit
standard that applies to decisions on whether to
exclude areas from critical habitat, the Fifth Circuit
subverted this provision and acquiesced to the
imposition of up to $34 million in economic costs with
“virtually nothing on the other side of the economic
ledger.” Id. at 653. This is contrary to Congressional
intent, and disregarded precedent from the Court
concluding that such decisions are judicially reviewable
for abuse of discretion.
10
ARGUMENT
I. Designation of Unoccupied Critical Habitat
Requires that the Specific Areas Be Both
Habitat for the Species and Essential to Its
Conservation.
A. The ESA’s Plain Language Limits Critical
Habitat to Specific Areas Within Existing
Habitat.
The decision below impermissibly authorizes the
Secretary to designate almost any land or waterbody
within the United States as critical habitat for an ESAlisted species, even in places where the species could
not currently survive. The Fifth Circuit erroneously
held, “[t]here is no habitability requirement in the text
of the ESA or the implementing regulations.” Markle,
827 F.3d at 468 (emphasis added). This conclusion
contravenes the ESA’s explicit statutory requirements.
Section 4 clearly delineates “critical habitat” as a
subset of “habitat.” The Secretary can only “designate
any habitat of such species which is then considered to
be critical habitat.” 16 U.S.C. § 1533(a)(3)(A)(i)
(emphasis added).
Thus, “[w]hatever is ‘critical
habitat,’ according to this operative provision, must
first be ‘any habitat of such species.’” Markle, 848 F.3d
at 640 (Jones, J., dissenting). This “clear habitability
requirement” dictates the scope of the narrower
designation of occupied and unoccupied areas as
critical habitat for a species.
The Court has emphasized, “[t]he starting point in
discerning congressional intent is the existing statutory
text.” Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004).
And, “when the statute’s language is plain, the sole
11
function of the courts—at least where the disposition
required by the text is not absurd—is to enforce it
according to its terms.” Id. The use of “habitat” within
Section 4 was purposeful and must be construed to
have meaning. E.g., TRW Inc. v. Andrews, 534 U.S. 19,
31 (2001) (“It is a cardinal principle of statutory
construction that a statute ought, upon the whole, to be
so construed that, if it can be prevented, no clause,
sentence, or word shall be superfluous, void, or
insignificant.”) (internal quotation marks and citation
omitted).
Because Congress used different
terminology—“habitat” versus “critical habitat”—this
Court must assume that different meanings were
intended. Sosa v. Alvarez-Machain, 542 U.S. 692, 711
n.9 (2004). The only interpretation that gives this
distinction any operative effect is if critical habitat is
viewed as the “specific areas” within a species’ broader
habitat.
While not defined in the ESA, “habitat” is commonly
understood to be:
the resources and conditions present in an area
that produce occupancy—including survival and
reproduction—by a given organism. Habitat is
organism-specific; it relates the presence of a
species, population, or individual (animal or
plant) to an area’s physical and biological
characteristics. Habitat implies more than
vegetation or vegetation structure; it is the sum
of the specific resources that are needed by
organisms. Wherever an organism is provided
with resources that allow it to survive, that is
habitat.
12
Linnea S. Hall, et al., The Habitat Concept and a Plea
for Standard Terminology, 25(1) Wildlife Soc’y Bulletin
173, 175 (1997); John M. Frywell, et al., Wildlife
Ecology, Conservation, & Mgmt. 427 (3d ed. 2014) (“The
place where an animal or plant normally lives, often
characterized by a dominant plant form or physical
characteristic (e.g. soil habitat, forest habitat).”).
Furthermore, properly interpreted, habitat can only
be designated as critical habitat if that habitat exists
at the time of the designation. The ESA states that, to
the maximum extent prudent and determinable, the
Services shall “concurrently with making a
determination . . . that a species is [endangered or
threatened], designate any habitat of such species
which is then considered to be critical habitat.”
16 U.S.C. § 1533(a)(3)(A)(i) (emphasis added). This
imposes a temporal requirement that an area must
already possess the necessary physical or biological
features comprising habitat for the species in order to
qualify for the narrower critical habitat designation.6
The Services cannot designate degraded or
uninhabitable areas as critical habitat based on the
possibility that sometime in the future those areas may
somehow become habitat.7 The habitat considered for
6
Under the ESA, the critical habitat designation is required to be
made concurrent with listing a species, but may later be revised or
updated pursuant to other provisions of the Act. In each instance,
at the time the designation is made, the Services must determine
what areas can be categorized as habitat for the species and what
portions of those areas should be designated as critical habitat.
7
The designation of critical habitat is subject to the requirement
to use the best scientific data available, which ensures that the
ESA is not “implemented haphazardly, on the basis of speculation
or surmise.” Bennett v. Spear, 520 U.S. 154, 176 (1997).
13
designation must already exist and be capable of
supporting the survival of the species.
For areas that are not currently occupied by the
species, the requirement for habitability ensures that
the designation of critical habitat and application of the
ESA does not create illogical results. As in the present
case, it is axiomatic that an area where the dusky
gopher frog cannot survive (even if relocated there)
cannot provide a conservation benefit to the species.
By divorcing “habitat” from “critical,” the Fifth
Circuit’s reasoning allows almost any area to be
designated as critical habitat with no restrictions on
scope or the attendant regulatory impositions on
affected landowners. This is contrary to the explicit
statutory safeguards that Congress provided.
B. Congress Intended to Limit Critical
Habitat to a Subset of the Species’ Habitat.
As enacted in 1973, the ESA did not contain a
definition of critical habitat or specify how it was to be
designated.8 In 1978, the Services promulgated
regulations that defined “critical habitat” as:
8
The only reference to critical habitat in the 1973 ESA was the
prohibition on federal agencies taking action that “jeopardize the
continued existence of such endangered species and threatened
species or result in the destruction or modification of habitat of
such species which is determined by the Secretary . . . to be
critical.” Endangered Species Act of 1973, Pub. L. No. 93-205 § 7,
87 Stat. 884, 892. Congress intended that critical habitat would be
acquired and protected pursuant to ESA Section 5. Id. § 5, 87 Stat.
at 889; H.R. Rep. No. 93-740, at 25 (1973) (“Any effective program
for the conservation of endangered species demands that there be
adequate authority vested in the program managers to acquire
habitat which is critical to the survival of those species.”)
(emphasis added).
14
any air, land, or water area . . . and constituent
elements thereof, the loss of which would
appreciably decrease the likelihood of the
survival and recovery of a listed species or a
distinct segment of its population. . . . Critical
habitat may represent any portion of the present
habitat of a listed species and may include
additional areas for reasonable population
expansion.
43 Fed. Reg. 870, 874-75 (Jan. 4, 1978) (emphasis
added).
Shortly thereafter, the Court enjoined
construction of the nearly completed Tellico Dam
Project to protect the endangered snail darter and
prevent the destruction of its critical habitat. Tenn.
Valley Auth. v. Hill, 437 U.S. 153, 184 (1978) (“[t]he
plain intent of Congress in enacting this statute was to
halt and reverse the trend toward species extinction,
whatever the cost.”). In response to these events, and
the expansive designation of critical habitat for other
species,9 Congress amended the ESA to explicitly
define critical habitat and limit the scope of such
designations to alleviate the resulting significant
economic and regulatory impacts.
Congress’s efforts demonstrate a clear intention
that critical habitat designations are limited to areas
that are habitable by the species and that unoccupied
9
For example, Congress was particularly concerned about a
proposal to designate up to 10 million acres of Forest Service land
as critical habitat for the grizzly bear. Much of the proposed
designation was “not habitat that is necessary for the continued
survival of the bear,” but was being designated so that the present
population “within the true critical habitat” could expand. S. Rep.
No. 95-874, at 10 (1978).
15
habitat should only be designated sparingly based on
heightened criteria. Notably, Congress recognized that
an area must first be functioning habitat for a species
before the more specific areas of critical habitat could
be designated within that habitat. For example, as
amended, House Bill 14104 defined unoccupied critical
habitat as:
specific areas periodically inhabited by the
species which are outside the geographic area
occupied by the species at the time it is listed in
accordance with the provisions of section 4 of
this Act (other than any marginal habitat the
species may be inhabiting because of pioneering
efforts or population stress), upon a
determination by the Secretary at the time it is
listed that such areas are essential for the
conservation of the species.
124 Cong. Rec. 38,154 (1978) (emphasis added). The
House Committee on Merchant Marine and Fisheries
noted that efforts to define critical habitat were driven
by the concern that “the existing regulatory definition
could conceivably lead to the designation of virtually all
of the habitat of a listed species as its critical
habitat.”10 H.R. Rep. No. 95-1625, at 25 (1978)
(emphasis added). Instead, the Committee directed the
Secretary to “be exceedingly circumspect in the
10
During floor debate on House Bill 14104, Representative Bowen
stated that “I believe the majority of the House is in agreement on
that, that the Office of Endangered Species has gone too far in just
designating territory as far as the eyes can see and the mind can
conceive. What we want that office to do is make a very careful
analysis of what is actually needed for survival of this species.”
124 Cong. Rec. 38,131 (emphasis added).
16
designation of critical habitat outside the presently
occupied area of the species.” Id. at 18 (emphasis
added).
The corresponding Senate Bill 2899 also included a
definition of unoccupied critical habitat, which limited
it to:
specific areas outside the geographical area
occupied by the species at the time it is listed in
accordance with the provisions of section 4 of
this act, into which the species can be expected
to expand naturally upon a determination by the
Secretary at the time it is listed, that such areas
are essential for the conservation of the species.
124 Cong. Rec. 21,355 (1978) (emphasis added).11 For
unoccupied areas, the Senate Committee on
Environment and Public Works stated that “[t]here
seems to be little or no reason to give exactly the same
status to lands needed for population expansion as is
given to those lands which are critical to a species[’]
11
Regarding his amendment, Senator McClure explained that “this
is in response to the difficulty of how large an area should there be
established and if that species then expands beyond that area
must humans then be displaced in that area.” Id.
17
continued survival.”12
(emphasis added).
S. Rep. No. 95-874, at 10
The final bill passed by Congress included “[a]n
extremely narrow definition of critical habitat,
virtually identical to the definition passed by the
House.” 124 Cong. Rec. 38,665. That definition
remains in effect today. The legislative history clearly
demonstrates that Congress was focused on habitat of
species which could then be designated as either
occupied or unoccupied critical habitat if the area
satisfied the relevant definitional criteria. Markle, 848
F.3d at 642 n.4 (Jones, J., dissenting) (“uniform
awareness in Congress that a species’ critical habitat
was a subset of the species’ habitat”). Contrary to the
Fifth Circuit’s conclusion, this habitability requirement
was understood by Congress at the outset and
incorporated into the operative provisions of the ESA.
C. Designation of Unoccupied Habitat Is a
More Demanding Standard that Requires
the Entire Area to be Essential for the
Conservation of the Species.
The Fifth Circuit found that “only occupied habitat
must contain all of the relevant [physical or biological
12
In explaining the role of critical habitat, Senator Garn stated
that “[w]hen a Federal land manager begins consideration of a
project, or an application for a permit, it is essential that he know,
not only of the existence of an endangered species, but also of the
extent and nature of the habitat that is critical to the continued
existence of that species. Unless he knows the location of the
specific sites on which the endangered species depends, he may
irrevocably commit Federal resources, or permit the commitment
of private resources to the detriment of the species in question.”
124 Cong. Rec. 21,575 (1978) (emphasis added).
18
features],” and upheld the designation of the
unoccupied Unit 1 despite it only containing one of the
three features that are essential to the conservation of
the species. Markle, 827 F.3d at 468 & 472 n.20. The
decision illogically establishes that the same
conditions—a lack of all relevant physical or biological
features—can justify the designation of an unoccupied
area, but not an occupied area, as critical habitat. This
is contrary to Congressional intent and erroneously
lowers the bar for designating unoccupied critical
habitat.
The ESA, its legislative history, and court precedent
all unquestionably demonstrate that “an unoccupied
critical habitat designation was intended to be different
from and more demanding than an occupied critical
habitat designation.” Markle, 848 F.3d at 648 (Jones,
J., dissenting). In defining critical habitat, Congress
explicitly distinguished between occupied and
unoccupied habitat. Occupied habitat requires the
presence of “features [that are] essential to the
conservation of the species.” 16 U.S.C. § 1532(5)(A)(i)
(emphasis added). Conversely, unoccupied habitat
requires “specific areas . . . [that] are essential to the
conservation of the species.” Id. § 1532(5)(A)(ii)
(emphasis added). From a biological perspective, the
use of “features” for occupied habitat and “areas” for
unoccupied habitat is inherently logical. An already
occupied area is, by definition, habitat for the species,
so a focus on physical or biological features ensures
that the critical components of that habitat are
identified. Because unoccupied areas may or may not
have habitat, the analysis must expand beyond mere
features to consider the habitability of the area as a
19
whole, otherwise the designation would provide no
conservation benefit to the species.
The use of these disparate statutory terms—
“features” versus “areas”—clearly connotes that
different standards apply to the designation of occupied
and unoccupied habitat. United States v. Gonzales, 520
U.S. 1, 5 (1997) (“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”)
(citation omitted). To give these terms independent
meaning, the designation of unoccupied habitat must
require more than the presence of a single feature.
Disregarding this statutory construct, the Fifth
Circuit contradicted all relevant precedent by making
“it easier to designate as critical habitat the land on
which the species cannot survive than that which is
occupied by the species.” Markle, 848 F.3d at 646
(Jones, J., dissenting). In contrast, the U.S. Court of
Appeals for the Ninth Circuit has stated:
The statute thus differentiates between
“occupied” and “unoccupied” areas, imposing a
more onerous procedure on the designation of
unoccupied areas by requiring the Secretary to
make a showing that unoccupied areas are
essential for the conservation of the species.
Ariz. Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160,
1163 (9th Cir. 2010); see also Home Builders Ass’n of N.
Cal. v. U.S. Fish & Wildlife Serv., 616 F.3d 983, 990
(9th Cir. 2010) (designation of unoccupied habitat “is a
more demanding standard than that of occupied critical
20
habitat”).
Numerous district courts also have
concluded that the designation of unoccupied habitat
requires more than the standard for designating
occupied areas. E.g., Cape Hatteras Pres. All. v. U.S.
Dep’t of the Interior, 344 F. Supp. 2d 108, 119 (D.D.C.
2004) (“with unoccupied areas, it is not enough that the
area’s features be essential to conservation, the area
itself must be essential”); All. for Wild Rockies v. Lyder,
728 F. Supp. 2d 1126, 1138 (D. Mont. 2010) (“ESA
imposes a more onerous procedure on the designation
of unoccupied areas”); Ctr. for Biological Diversity v.
Kelly, 93 F. Supp. 3d 1193, 1202 (D. Idaho 2015) (“more
demanding [standard] than that of unoccupied
habitat”). The Fifth Circuit’s anomalous decision is
contrary to established case law, and subverts
Congressional intent and the ESA statutory criteria
which impose a heightened standard for the
designation of unoccupied critical habitat.13
The Fifth Circuit’s decision extinguished the
statutory criterion that “such areas are essential for
the conservation of the species.”
16 U.S.C.
§ 1532(5)(A)(ii). The purposeful use of “essential”
should not be ignored.
To be “essential,” the
designated habitat must be “of the utmost importance”
13
In adopting the definition of “critical habitat,” Congress sought
to constrain the ability of the Secretary to designate unoccupied
habitat. The Senate found that there is “little or no reason to give
exactly the same status to lands needed for population expansion
as is given to those lands which are critical to a species[’] continued
survival.” S. Rep. No. 95-874, at 10 (emphasis added). Likewise,
the House directed the Secretary to be “exceedingly circumspect in
the designation of critical habitat outside the presently occupied
area of the species.” H.R. Rep. No. 95-1625, at 18 (emphasis
added).
21
or “indispensable” for the conservation of a species.
Merriam-Webster’s Collegiate Dictionary 427 (11th ed.
2005). Congress clearly understood that its use of
“essential” would impose a stringent limitation on the
areas that could be designated as critical habitat.14
The operative effect of this term is particularly
apparent where, as here, the unoccupied area is not
connected to occupied areas, would require extensive
modifications and annual maintenance to become
suitable habitat, and is not subject to current or
anticipated restoration efforts or conservation
measures. Markle, 827 F.3d at 481 (Owens, J.,
dissenting). By upholding the designation of Unit 1,
the Fifth Circuit removed any principled limitation on
the Secretary’s ability to designate critical habitat and
rendered this authority “virtually limitless.”15 Markle,
848 F.3d at 649-51 (Jones, J., dissenting). This is
contrary to what Congress intended and what the ESA
explicitly commands.
14
As Representative Duncan explained, “I think that in order to be
consistent with the purposes of this bill to preserve critical habitat
that there ought to be a showing that it is essential to the
conservation of the species and not simply one that would
appreciably or significantly decrease the likelihood of conserving
it.” 124 Cong. Rec. 38,154 (emphasis added).
15
In part, the Fifth Circuit justified its decision based on a thenexisting regulatory requirement that the Secretary could only
designate an unoccupied area as critical habitat “when a
designation limited to its present range would be inadequate to
ensure the conservation of the species.” Markle, 827 F.3d at 470
(citing 50 C.F.R. § 424.12(e)). The Services subsequently deleted
this requirement from their regulations. See 81 Fed. Reg. 7414,
7434 (Feb. 11, 2016).
22
D. Congress Provided Other Mechanisms for
the Identification and Protection of Areas
that May Later Become Habitat and
Provide Benefits to a Species.
Congress did not intend for a critical habitat
designation to be the sole mechanism by which the
Services would attempt to identify and protect
uninhabitable areas that may someday benefit a
species. Instead, the ESA provides other statutory
mechanisms to achieve that function.
First, the Services are required to develop and
implement recovery plans for listed species. 16 U.S.C.
§ 1533(f)(1). In particular, these recovery plans
describe the “site-specific management actions” that
are necessary to achieve the conservation and survival
of the species. Id. § 1533(f)(1)(B)(i). While not
imposing mandatory obligations, recovery plans
identify proactive measures, such as the ecological
restoration of habitat or implementation of
conservation measures, that can be undertaken by the
Services or other stakeholders to achieve a species’
recovery.16
Second, under ESA Section 5, the Secretary can
acquire land, irrespective of whether it qualifies as
habitat, to conserve listed species.
16 U.S.C.
§ 1534(a)(2) (authorization “to acquire by purchase,
donation, or otherwise, lands, waters, or interest
therein” to conserve fish, wildlife, and plants). As the
16
NMFS & FWS, Interim Endangered and Threatened Species
Recovery Plan Guidance, § 1.1 (June 2010),
https://www.fws.gov/endangered/esa-library/pdf/NMFSFWS_Recovery_Planning_Guidance.pdf.
23
Court has recognized, this authority may be “useful for
preventing modification of land that is not yet but may
in the future become habitat for an endangered or
threatened species.”
Babbitt, 515 U.S. at 703
(emphasis added).
Finally, a critical habitat designation is not a
singular, determinative action that is only taken
concurrent with the listing of a species and never revisited. In fact, the Services “may, from time-to-time
thereafter as appropriate, revise such designation.” 16
U.S.C. § 1533(a)(3)(A)(ii). A revision to critical habitat
also can be initiated by a petition from an interested
person. Id. § 1533(b)(3)(D). Thus, while an area that
is uninhabitable at the time of listing (such as Unit 1
in the present case) cannot be designated as critical
habitat, nothing in the ESA precludes the ability to
designate that area in the future if and when it
becomes habitat and satisfies the additional
requirements for occupied or unoccupied critical
habitat.
II. Judicial Review Applies to Decisions Not to
Exclude Areas from Critical Habitat.
The Fifth Circuit’s decision undermines a crucial
provision of the ESA, and leaves affected landowners
with no judicial recourse to challenge the non-exclusion
of an area from critical habitat when there are
disproportionate impacts. The ESA mandates that
FWS “tak[e] into consideration the economic impact,
the impact on national security, and any other relevant
impact, of specifying any particular area as critical
habitat.” Id. § 1533(b)(2) (emphasis added). Based on
this consideration, FWS “may exclude any area from
critical habitat if he determines that the benefits of
24
such exclusion outweigh the benefits of specifying such
area as part of the critical habitat.” Id. (emphasis
added). The ESA prevents FWS from excluding areas
from critical habitat only if it “will result in the
extinction of the species concerned.” Id. Thus, the
consideration of economic impacts, and whether to
exclude an area from critical habitat based on such
impacts, is an essential component of the Services’
designation of critical habitat.
Based on a misinterpretation of the statute, the
Fifth Circuit concluded that a decision not to exclude
an area from critical habitat is committed to agency
discretion by law and is therefore unreviewable.
Markle, 827 F.3d at 473 (citing 5 U.S.C. § 701(a)(2)).
The Fifth Circuit found that “Section 1533(b)(2)
articulates a standard for reviewing [FWS’s] decision to
exclude an area [but] is silent on a standard for
reviewing [FWS’s] decision to not exclude an area.” Id.
at 474 (emphasis in original).
The ramifications of the Fifth Circuit’s decision
have significant consequences. The landowners could
suffer up to $34 million in economic costs with
“virtually nothing on the other side of the economic
ledger.” Markle, 848 F.3d at 653 (Jones, J., dissenting).
However, these and other similarly situated
landowners are now foreclosed from seeking judicial
review in such circumstances. This outcome “play[s]
havoc with administrative law.” Id. at 652.
25
A. The Fifth Circuit Disregarded the Strong
Presumption of Judicial Review of
Administrative Action.
Based on the use of the permissive word “may,” the
Fifth Circuit concluded that a decision not to exclude
an area from critical habitat is committed to agency
discretion and therefore unreviewable.17 The Fifth
Circuit stated that Section 4(b)(2) “establishes a
discretionary process by which [FWS] may exclude
areas from designation, but it does not articulate any
standard governing when [FWS] must exclude an area
from designation.” Markle, 827 F.3d at 474 (emphasis
in original). Finding “no meaningful standard against
which to judge the agency’s exercise of discretion,” the
Fifth Circuit concluded that judicial review was
unavailable. Id. at 473 (quoting Heckler v. Chaney, 470
U.S. 821, 830 (1985)). The Fifth Circuit’s holding is
contrary to the strong presumption of judicial review
under both the APA and this Court’s precedent.
With limited exceptions, the APA provides a right of
judicial review of all “final agency action for which
there is no other adequate remedy in a court.” 5 U.S.C.
§ 704. In construing the scope of the APA, the Court
has found that it “manifests a congressional intention
that it cover a broad spectrum of administrative
actions,” and that its “‘generous review provisions’
must be given a ‘hospitable’ interpretation.” Abbott
Laboratories v. Gardner, 387 U.S. 136, 140-41 (1967)
(citation omitted). Accordingly, “only upon a showing
17
The Fifth Circuit found that the ESA only “explicitly mandates
‘consideration’ of ‘economic impact,’” which FWS satisfied by the
commissioning of an economic report. Markle, 827 F.3d at 474
(citation omitted).
26
of ‘clear and convincing evidence’ of a contrary
legislative intent should the courts restrict access to
judicial review.” Id. at 141. Recognizing that Congress
rarely intends to preclude the enforcement of its
directives to federal agencies, the Court has repeatedly
reaffirmed that the APA creates “a ‘strong
presumption’ favoring judicial review of administrative
action.” Mach Mining, LLC v. EEOC, 135 S. Ct. 1645,
1651 (2015) (citation omitted).
The Fifth Circuit based its holding on the APA
provision that prevents judicial review when the
“agency action is committed to agency discretion by
law.” 5 U.S.C. § 701(a)(2). However, “[t]his is a very
narrow exception.” Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402, 410 (1971). Based on the
legislative history of the APA, the Court found that it
is only applicable “in those rare instances where
‘statutes are drawn in such broad terms that in a given
case there is no law to apply.’” Id. (citing S. Rep.
No. 79-752, at 26 (1945)) (emphasis added).
The Fifth Circuit erroneously relied on the Court’s
decision in Heckler to support its broad interpretation
of the APA exemption. In Heckler, the Court found
that an agency’s decision not to take enforcement
action under the Federal Food, Drug, and Cosmetic Act
was unreviewable because such a decision “has
traditionally been ‘committed to agency discretion.’”
Heckler, 470 U.S. at 831-32 (recognizing the “general
unsuitability for judicial review of agency decisions to
refuse enforcement”). The Court noted that “review is
not to be had if the statute is drawn so that a court
would have no meaningful standard against which to
judge the agency’s exercise of discretion.” Id. at 830.
27
However, Heckler only establishes the presumption of
unreviewability in the context of enforcement actions.
Even then, the Court found that it may be rebutted
“where the substantive statute has provided guidelines
for the agency to follow in exercising its enforcement
powers.” Id. at 833 (“Congress did not set agencies free
to disregard legislative direction in the statutory
scheme that the agency administers”).18
The Fifth Circuit’s reliance on Heckler also fails
because a refusal to take enforcement action cannot be
conflated with a refusal to exclude an area from critical
habitat. As the Court stated, “when 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.” Id. at 832 (emphasis in
original). Here, FWS’s decision not to act on a critical
habitat exclusion yields the opposite result—the area
is included within designated critical habitat and
subject to the imposition of burdensome permitting
requirements and federal agency restrictions. This is
the same coercive power that justifies judicial review
according to the Court’s Heckler decision.
The Court has not expanded the scope of the APA’s
“committed to agency discretion” standard such that it
would include a decision not to exclude an area from
18
“If it has indicated an intent to circumscribe agency enforcement
discretion, and has provided meaningful standards for defining the
limits of that discretion, there is ‘law to apply’ under § 701(a)(2),
and courts may require that the agency follow that law; if it has
not, then an agency refusal to institute proceedings is a decision
‘committed to agency discretion by law’ within the meaning of that
section.” Heckler, 470 U.S. at 834-35.
28
critical habitat. Instead, the Court has identified other
narrow categories of administrative decisions that have
traditionally been deemed discretionary and therefore
unreviewable.
See, e.g., ICC v. Brotherhood of
Locomotive Eng’rs, 482 U.S. 270, 282 (1987) (agency’s
refusal to grant reconsideration of an action because of
material error); Webster v. Doe, 486 U.S. 592, 599-601
(1988) (decision to terminate an employee in the
interests of national security); Lincoln v. Vigil, 508
U.S. 182, 193 (1993) (agency’s allocation of funds from
a lump-sum appropriation).
Outside of these
delineated circumstances, the Court has continued to
apply its presumption of judicial review of agency
action. E.g., U.S. Army Corps of Eng’rs v. Hawkes Co.,
Inc., 136 S. Ct. 1807, 1816 (2016) (noting “APA’s
presumption of reviewability for all final agency
action”) (citation omitted).
Contrary to the Fifth Circuit’s interpretation, the
use of the word “may” is not dispositive and does not
negate the presumption of reviewability. Focusing on
the use of “may,” the Fifth Circuit concluded that this
permissive language made the agency’s decision not to
act “presumptively unreviewable.” Markle, 827 F.3d at
474 (citing Bear Valley Mut. Water Co. v. Jewell, 790
F.3d 977, 989 (9th Cir. 2015)). However, the Court has
previously rejected arguments that the use of
permissive terms commits a matter exclusively to
agency discretion. Barlow v. Collins, 397 U.S. 159, 166
(1970) (“the permissive term ‘as he may deem proper,’
by itself, is not to be read as a congressional command
which precludes a judicial determination of the correct
application of the governing canons”); Mulloy v. United
States, 398 U.S. 410, 414-15 (1970) (provision that
Selective Service board “may reopen” draft
29
classification does not allow arbitrary refusal to reopen
when applicant establishes a prima facie case for a new
classification).19 Thus, while the word “may” suggests
some discretion, there is no indication in the statute
that the Services have absolute discretion to determine
whether to exclude an area from critical habitat.
Bennett, 520 U.S. at 172 (“Secretary’s ultimate decision
is reviewable only for abuse of discretion”); 5 U.S.C.
§ 706(2)(A) (reviewing court can set aside agency action
that is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law”).
B. Congress Provided Clear and Meaningful
Standards for the Exclusion of Areas from
Critical Habitat.
The imposition of draconian economic costs for
minimal conservation gain motivated Congress to
amend the ESA to include consideration of economic
impacts and the authority to revise a critical habitat
designation. Pursuant to the Fifth Circuit’s holding, the
Services would have unfettered and unreviewable
discretion to determine whether to exclude an area from
critical habitat, irrespective of whether the impacts of
the designation significantly outweigh the benefits to
the species. By shielding these decisions from judicial
review, the Fifth Circuit disregarded the ESA statutory
19
See also Dickson v. Sec’y of Def., 68 F.3d 1396, 1401 (D.C. Cir.
1995) (“[w]hen a statute uses a permissive term such as ‘may’
rather than a mandatory term such as ‘shall,’ this choice of
language suggests that Congress intends to confer some discretion
on the agency, and that courts should accordingly show deference
to the agency’s determination. However, such language does not
mean the matter is committed exclusively to agency discretion.”)
(emphasis in original).
30
constraints that Congress put into place to guide and
restrain the scope of the Services’ discretionary power,
and reduced the mandatory consideration of economic
and other impacts to a meaningless exercise.
As enacted in 1973, the ESA did not include a
provision for excluding areas from critical habitat. The
significant repercussions of the lack of any qualifying
language were made clear by the Court’s decision in
TVA, which found “an explicit congressional decision to
require agencies to afford first priority to the declared
national policy of saving endangered species.” TVA,
437 U.S. at 185 (emphasis added). The Court stated
that the plain language of the ESA “admits of no
exception,” id. at 173 (emphasis added), and that
endangered species were to be protected “whatever the
cost.” Id. at 184.
Responding directly to the TVA decision, and to
expansive designations of critical habitat, Congress
amended the ESA in 1978 to provide the Services with
the flexibility to consider economic impacts that the
Court had previously found lacking.20 In relevant part,
20
H.R. Rep. No. 95-1625, at 14 (“The bill attempts to retain the
basis integrity of the [ESA], while introducing some flexibility
which will permit exemptions from the Act’s stringent
requirements.”); 124 Cong. Rec. 38,122-23 (1978) (Congress sought
to revise the ESA to “take into consideration more accurately the
development needs of this Nation” and, while protecting and
preserving endangered species, “provide[] an opportunity for
human growth, development, and progress, which we feel is an
absolutely vital consideration.”) (statement of Rep. Bowen); id. at
38,138 (“The amendments to the act, for the first time, recognize
that there are human considerations to be dealt with and people
are an important factor in this equation.”) (statement of Rep.
Burgener).
31
the statutory authority to exclude an area from critical
habitat stated:
In determining the critical habitat of any
endangered or threatened species, the Secretary
shall consider the economic impact, and any
other relevant impacts, of specifying any
particular area as critical habitat, and he may
exclude any such area from the critical habitat
if he determines that the benefits of such
exclusion outweigh the benefits of specifying the
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.21
Given the consideration of economic impacts, and the
authority to revise a critical habitat designation based
on this consideration, this was viewed by some as “the
most significant provision in the entire bill.” 124 Cong.
Rec. 38,666 (1978) (statement of Rep. Murphy).
21
Pub. L. No. 95-632 § 11(5), 92 Stat. 3751, 3766 (1978). In the
1982 amendments to the ESA, Congress made its penultimate
revisions to Section 4(b)(2) to reflect what is essentially its present
structure. In doing so, Congress reiterated the importance of
economic considerations for critical habitat designations. H.R.
Rep. No. 97-567, at 12 (1982) (“Desirous to restrict the Secretary’s
decision on species listing to biology alone, the committee
nonetheless recognized that the critical habitat designation, with
its attendant economic analysis, offers some counter-point to the
listing of species without due consideration for the effects on land
use and other development interests.”). In 2003, the National
Defense Authorization Act amended Section 4(b)(2) to explicitly
include consideration of “the impact on national security.” Pub. L.
No. 108-136 § 318(b), 117 Stat. 1392, 1433 (2003).
32
One of the primary purposes of the amendment was
to ensure the consideration of economic impacts in the
designation of critical habitat. See H.R. Rep. No. 951625, at 17 (“Up until this time, the determination of
critical habitat has been purely a biological question.
With the addition of this new paragraph, the
determination of critical habitat . . . takes on
significant added dimensions.”). Specifically, Congress
explained that “[e]conomics and any other relevant
impact shall be considered by the Secretary in setting
the limits of critical habitat for such a species.” Id.
Within the scope of this mandatory consideration of
economic and other impacts, Congress provided the
Services with flexibility in determining the weight and
priority to afford the relevant impacts. Id. (“The
consideration and weight given to any particular
impact is completely within the Secretary’s discretion”).
However, this discretion does not obviate the
requirement that the Services consider economic
impacts at the time of a critical habitat designation.
In addition, Congress authorized the Services to
modify a proposed critical habitat designation when the
economic benefits of excluding a portion of the critical
habitat outweigh the benefits of designating the area
as part of the critical habitat. As Congress explained,
Factors of recognized or potential importance to
human activities in an area will be considered by
the Secretary in deciding whether or not all or
part of that area should be included in the
critical habitat of [a species]. The committee
expects that in some situations, the resultant
critical habitat will be different from that which
would have been established using solely
33
biological criteria. In some situations, no critical
habitat would be specified.
Id. (emphasis added).
The purpose of this
authorization is to “cause the Secretary to be more
judicious in specifying such a critical habitat,” and to
avoid conflicts between [species] and Federal activities
at an early stage. 124 Cong. Rec. 38,128 (1978); H.R.
Rep. No. 95-1625, at 16.
Seeking to harmonize species conservation with the
Nation’s development needs, Congress revised the
criteria for the designation of critical habitat to include
a mandatory consideration of economic and other
impacts associated with the inclusion of a particular
area as critical habitat.
To ensure that this
consideration of impacts was actually applied in the
designation process, Congress also included a balancing
test whereby the Services would determine whether to
exclude an area from critical habitat (i.e., if the benefits
of exclusion outweigh the benefits of inclusion), limited
only by the obligation to ensure that the exclusion did
not result in the extinction of the species. Rather than
instilling the Services with absolute discretion
regarding the final scope of a critical habitat
designation, these standards were intended to direct
the Services in the exercise of their authority to exclude
areas from critical habitat. Indeed, contrary to the
Fifth Circuit’s decision, the fundamental purpose of
these amendments was to ensure that the Services
designate critical habitat more judiciously and alleviate
the economic and other impacts resulting from more
expansive or unfounded designations.
34
C. The Court Has Already Recognized that
Judicial Review Applies to Decisions under
ESA Section 4(b)(2).
The Fifth Circuit’s holding that a decision not to
exclude critical habitat is unreviewable clashes with
the Court’s decision in Bennett, 520 U.S. 154. There,
the Court determined that ESA Section 4(b)(2) is not
wholly discretionary and therefore incapable of judicial
review under the APA. Id. at 172. The Fifth Circuit
failed to address, let alone reconcile, this component of
the Bennett decision. Markle, 848 F.3d at 654 (Jones,
J., dissenting).
In Bennett, the Court considered a challenge to a
biological opinion pursuant to the ESA citizen suit
provision based, in part, on the argument that it was
an implicit critical habitat determination in violation of
the requirements of Section 4(b)(2).22 The government
sought to dismiss the claim by asserting that the
Secretary’s duties were discretionary. Rejecting that
assertion, the Court stated that “the terms of
§ 1533(b)(2) are plainly those of obligation rather than
discretion.” Bennett, 520 U.S. at 172. While noting the
statutory distinction between the mandate to consider
economic and other impacts and the permissive
authority to exclude any area from critical habitat, the
Court did not find this to be dispositive. On the
contrary, the Court concluded “the fact that the
Secretary’s ultimate decision is reviewable only for
22
In part, the ESA citizen-suit provision allows any person to
commence a civil suit against the Secretary “where there is alleged
a failure of the Secretary to perform any act or duty under section
1533 of this title which is not discretionary with the Secretary.”
16 U.S.C. § 1540(g)(1)(C) (emphasis added).
35
abuse of discretion does not alter the categorical
requirement that, in arriving at his decision, he ‘tak[e]
into consideration the economic impact, and any other
relevant impact,’ and use ‘the best scientific data
available.’” Id. (emphasis omitted).
Bennett confirms that a decision on whether or not
to exclude an area from critical habitat is judicially
reviewable under the APA. The Services cannot ignore
the required procedures of decision-making and must
consider the economic and other impacts of a critical
habitat designation. While the ultimate decision on
excluding a particular area entails some discretion, the
Court concluded that it is reviewable under the APA’s
abuse of discretion standard.
The ability to seek judicial review of a decision not
to exclude critical habitat is a necessary protection of
the interests of private property owners. Section
4(b)(2) is the singular instance where Congress
explicitly directs the Services to consider and
ameliorate the economic and regulatory burdens
associated with a decision under the ESA. However,
with no judicial recourse, affected property owners are
at the mercy of “agency officials zealously but
unintelligently pursuing their environmental
objectives.” Id. at 177. The result, as exemplified by
this case, is the irrational imposition of millions of
dollars in economic costs with no corresponding
demonstrable conservation benefit to the species.
Judicial review provides the indispensable mechanism
for property owners to restrain this arbitrary exercise
of administrative power.
36
CONCLUSION
For the foregoing reasons, the amici respectfully
request that the decision of the Fifth Circuit be
reversed.
Respectfully submitted,
WILLIAM R. MURRAY
NATIONAL ALLIANCE
OF FOREST OWNERS
122 C St., N.W.
Suite 630
Washington, D.C. 20001
(202) 747-0742
TYSON C. KADE
Counsel of Record
JOSEPH B. NELSON
VAN NESS FELDMAN, LLP
1050 Thomas Jefferson St., N.W.
Washington, D.C. 20007
(202) 298-1800
tck@vnf.com
ELLEN STEEN
DANIELLE QUIST
AMERICAN FARM
BUREAU FEDERATION
600 Maryland Ave., S.W.
Suite 1000W
Washington, D.C. 20024
(202) 406-3600
KATIE SWEENEY
ADAM ECKMAN
NATIONAL MINING
ASSOCIATION
101 Constitution Ave., N.W.
Washington, D.C. 20001
(202) 463-2600
RACHEL LATTIMORE
DOREEN MANCHESTER
CROPLIFE AMERICA
1156 15th St., N.W.
Suite 400
Washington, D.C. 20005
(202) 296-1585
Counsel for Amici Curiae
April 30, 2018
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.