Petition for Writ of Certiorari — Bennett v. Spear

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95-813

No.

Supreme Court, U.S,

FIDEQD

WOV 21 1086

PERS

———

In The

Supreme Court of the United States

October Term, 1995

BRAD BENNETT, et al.

Petitioners,

Vs.

MARVIN PLENERT, et al.

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Best, Best & KRIEGER

Grecory K. WILKINSON

ZACHARY R. WALTON

3750 University Avenue,

Suite 400

P. O. Box 1028

Riverside, California 925°2

(909) 686-1450

WILLIAM F. SCHROEDER

Caro. DEHAVEN SKERJANEC

Attorneys at Law

280 “A” Street East

P. O. Box 220

Vale, Oregon 97918

(503) 473-3141

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-283!

CA)

QUESTIONS PRESENTED

Under the citizen suit provision of the Endangered

Species Act of 1973 (16 U.S.C. 1540(g)(1)) “any person”

may commence a civil suit on his own behalf to enjoin the

United States from violating the provisions of the Act or

regulations issued thereunder. The questions presented

are:

Whether the broad standing mandated by Con-

gress in the citizen suit provision of the Endan-

gered Species Act is subject to a zone of interest

test as a further, judicially imposed prudential

limitation on standing;

If standing to sue under the Endangered Species

Act is subject to prudential limitations, whether

those limitations permit only environmental

plaintiffs to challenge government conduct

alleged to violate the terms of the Act or

whether the claims of economic injury raised by

public water suppliers and water users are also

within the zone of interests protected or regu-

lated by the Act.

PARTIES

The petitioners are the Langell Valley Irrigation Dis-

trict and the Horsefly Irrigation District, each of which is

organized as a political subdivision of the State of Ore-

gon, and Brad Bennett and Mario Giordano, individuals

resident in the State of Oregon.

The respondents are Marvin Plenert, the Regional

Director, Region One of the United States Fish and Wild-

life Service; John F. Turner, Director of the United States

Fish and Wildlife Service; and Bruce Babbitt, Secretary of

the United States Department of the Interior.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .....................005. i

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TABLE OF AUTHOORITIOS ....... cc ceccccecesccees Vv

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APPLICABLE FEDERAL LAWS.................... l

STATEMENT OF THE CASE... ..........cccccccess 2

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1. This Court Should Grant Review To Resolve A

Conflict Among The Circuits And To Give Effect

To Congress’ Intent To Expand Standing To Sue

PIED 46:65 60060¢n0é04d 0ccaceddebuwince 4

2. The Ninth Circuit's Decision Misapplies The Con-

cept of Prudential Standing To Produce an

Unwarranted Exclusion of Potential Plaintiffs

Within the Zone of Interests Regulated By The

PE RUUGGREKe send ceceenceccccedeccesceséeusseuee 16

3. The Ninth Circuit’s Application of Prudential

Standing Ignores Amendments to the ESA That

Were Enacted to Expand the Range of Interests

PEE HY GD CEs ccccccccanccncescctoccses: 20

(a) Congress Amended the ESA to Require Con-

sideration of Economic Feasibility and Com-

munity Impacts in the Development of

Biological Opinions................6.6...66. 20

TABLE OF CONTENTS - Continued

Page

(b) Congress Explicitly Required a Balancing of

bd coevesecadesncocesuseseceneesecee 24

cies to Cooperate With State and Local Agen-

cies to Resolve Water Resources Issues in

Concert With the Conservation of Endan-

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TABLE OF AUTHORITIES

Cases:

Alvarez v. Longboy, 697 F.2d 1333 (9th Cir. 1983)..... 15

Association of Data Processing Service Organizations

v. Camp, 397 U.S. 150 (1975) ......... 9, 10, 13, 15, 17

Barlow v. Collins, 397 U.S. 159 (1970).......... 9, 10, 17

Boise Cascade Corp. v. U.S.E.P.A., 942 F.2d 1427 (9th

eS chines Galle the Radiabarcneed ele dan 22

Clarke v. Securities Industry Association, 479 U.S.

Ee ep ee nee wees 17, 18, 19

Estate of Cowart v. Nicklos Drilling Co., 505 U.S.__,

2° | 2, 4% ear 22

Defenders of Wildlife v. Hodel, 851 F.2d 1035 (8th Cir.

thcctcechandandckesdeboksucceuéde 3, 11, 12, 13, 14

Gladstone Realtors v. Village of Bellwood, 441 U.S. 91

Ree ie Cee a ied ie a 10, 11, 13, 14

Humane Soc. of the U.S. v. Hodel, 840 F.2d 45 (D.C.

ERR ae AN ae cee a EN aS he ae ees 13

Jeffers v. United States, 432 U.S. 137 (1977)........... 29

Lujan v. Defenders of Wildlife, _. US. __ 119

es eee eee del eedine 3, 11, 14, 28

National Audubon Society v. Hester, 801 F.2d 405

es Ee Ed édégeucsnnsdéceckucnasbaevsdebese 13

North Haven Bd. of Educ. v. Bell, 456 U.S. 512 (1982) .... 23

Overseas Educ. Ass'n Inc. v. FLRA, 876 F.2d 960

Ph nn Ci) on cos enecendeek Gneedbaneewienues 23

TABLE OF AUTHORITIES - Continued

Page(s)

Pacific Northwest Generating Cooperative v. Brown,

38 F.3d 1058 (9th Cir. 1994)...............-0005 6, 14

Pacific Northwest Generating Cooperative v. Brown,

Civ. Nos. 57-973, 92-1260 and 92-1264 (D.Or.

BEE EE viv vec nicadetsasacssovetintinesss

Ratzlaf v. United States, 510 U.S.__, 126 L.Ed.2d

SEE la ictuinantsadseeacsauaunenpenthentesees 22

S&M Inv. v. Tahoe Regional Planning Agency, 911

F.2d 324 (9th Cir. 1990), cert. den., 498 U.S. 1087

SUR ccccccctdstvececussecebscccdutscnccévesseeus 22

Sierra Club v. Morton, 405 U.S. 727 (1972) ........... 11

State of Idaho By and Thru Idaho Public Utilities

Commission v. ICC, 35 F.3d 585 (D.C. Cir. 1994) .... 13

Weinberger v. Rossi, 456 U.S. 25 (1982)............... 23

STATUTES:

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BD WK... B TINO oc cccccvcsvecccccsesceves 5, 21

Se ee OF SEED cvccdoveccécccodevacevecit 22

Vii

TABLE OF AUTHORITIES - Continued

Page(s)

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86 UBC. § ISGRMAMA).... 0. cccccccccccccccccccecs 4

PL ET ccuccvcuuseudedectuveechhcscotensuce 21

ee Dn on a estas akmnbeneceehdeacecns 1

i on oe cae aenaeabeseneeeces 10

REGULATIONS

eT EL, o ob.cb0unscbaecécdicwweercdesdeewes 24

OTHER

Federal Practice and Procedure; Jurisdiction 2d

Nhs obudedeeeesebaneeensbusedeeaneeebae 10, 19

OPINIONS BELOW

The decision of the United States Court of Appeals

for the Ninth Circuit (App. 1-18) is reported at 63 F.3d

915. The decision of the United States District Court

(App. 19-30) is not reported.

JURISDICTION

The decision of the United States Court of Appeals

for the Ninth Circuit was filed and entered on August 24,

1995. While a Suggestion for Rehearing In Banc was filed

on October 23, 1995,! no petition for rehearing was filed.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(a).

APPLICABLE FEDERAL LAWS

Section 11(g)(1) of the Endangered Species Act states:

“Except as provided in paragraph (2) of this

subsection any person may commence a civil

suit on his own behalf -

“(A) to enjoin any person, including the

United States and any other governmental

1 Petitioners initially attempted to file a Suggestion for

Rehearing In Banc on October 6, 1995. Because of the need for

extended argument regarding the exceptional importance of the

issues raised and the apparent inconsistency of the decision

herein with a series of prior Ninth Circuit decisions, petitioners

requested the Court of Appeals’ permission to extend the page

limitation ordinarily applicable to a Suggestion for Rehearing In

Banc. That request was denied. (App. 45) However, the Court

did extend the time for filing a revised Suggestion for Rehearing

and a shortened Suggestion was thereafter filed. To date, no

ruling has issued from the Ninth Circuit regarding the Sugges-

tion for Rehearing In Banc.

instrumentality or agency (to the extent per-

mitted by the eleventh amendment to the

Constitution), who is alleged to be in viola-

tion of any provision of this chapter or reg-

ulation issued under the authority thereof.”

(81 Stat. 884, 16 U.S.C. § 1540(g)(1))

STATEMENT OF THE CASE

This case is appropriate for the granting of certiorari

for two reasons. First, the Ninth Circuit Court of Appeals

has rendered a decision regarding the applicability of

prudential standing requirements to actions brought

under the Endangered Species Act (16 U.S.C. §§ 1531 et

seq.) which is in conflict with the decision of another

United States court of appeals on the same matter. Speci-

fically, the decision in this case conflicts with a decision

of the Eighth Circuit. Second, this case raises an impor-

tant issue of law concerning the scope of the interests

protected or regulated by the Endangered Species Act

(“ESA”) which has not been, but should be, settled by

this Court.

In its decision below, the Ninth Circuit Court of

Appeals, per Judges Reinhardt, Pregerson and Canby,

held that Congress’ inclusion of a citizen suit provision in

the ESA empowering “any person” to seek to enjoin a

violation of the Act does not eliminate the need of also

establishing prudential standing to bring such a suit.

(App. 11) Because, in the Ninth Circuit’s view, the overall

purposes of the ESA are “singularly devoted to the goal

of species protection,” the economic and recreational

interests asserted by two small irrigation districts and

their water users lie outside the “zone of interest” pro-

tected by the Act. (Id. 12-13) In the Ninth Circuit, “only

plaintiffs who allege an interest in the preservation of

endangered species” will have standing, in the future, to

challenge government conduct alleged to violate the pro-

visions of the ESA. (Id. 11)

As the Ninth Circuit recognized (App. 8, n.3), its

ruling is contrary to the decision reached by the Eighth

Circuit in Defenders of Wildlife v. Hodel, 851 F.2d 1035, 1039

(8th Cir. 1990), opinion after remand, 911 F.2d 117 (8th Cir.

1990), rev'd on other grounds sub. nom., Lujan v. Defenders of

Wildlife, __ U.S. ___, 119 L.Ed.2d 351 (1992). There, the

court held that Congress’ enactment of the citizen suit

provision found in the ESA abrogated the necessity of

establishing prudential standing. (851 F.2d at 1039) Thus,

according to the Eighth Circuit, a plaintiff commencing

suit under the ESA need only meet the requirements for

standing established by Article III of the Constitution.

(Id.) When this Court granted certiorari in Defenders of

Wildlife, it ultimately reversed the finding of the Eighth

Circuit that the plaintiffs therein met the standing require-

ments imposed by Article III. (Lujan v. Defenders of Wild-

life, supra, ___ U.S. ___, 119 L.Ed.2d 351, 365) At the same

time, however, the Court did not alter the conclusions of

the Eighth Circuit regarding prudential standing.

The issues presented by this petition arise in the

context of litigation commenced in March, 1993 by two

small irrigation districts, organized as political subdivi-

sions of the State of Oregon, and two individual ranchers

resident in Oregon, who receive their primary supply of

irrigation water under Federal contract from reservoirs

operated by the Bureau of Reclamation (“Bureau”) in the

eastern portion of the Klamath project, in Southern Ore-

gon and Northern California. (App. 33-34)

Throughout most of the twentieth century, the

Bureau utilized long-standing procedures for storing and

releasing water from its Klamath project reservoirs which

produced a reliable supply of water for irrigation pur-

poses. In 1992, however, pursuant to a biological opinion

developed by respondents with respect to two species of

fish (the Lost River sucker and the shortnose sucker)

listed as endangered under the ESA, it was determined

that the Bureau’s operational procedures for the reser-

voirs would be likely to jeopardize the continued exis-

tence of the two species. (Id. 37)

Accordingly, in purported compliance with the provi-

sions of Section 7 of the ESA (16 U.S.C. § 1536), respon-

dents developed a so-called “reasonable and prudent

alternative” to the Bureau’s proposal to maintain its long-

standing operational procedures. The alternative requires

reservoir levels to be maintained substantially higher

during certain periods (App. 39), with the result that

petitioners receive a correspondingly reduced supply of

irrigation water, to their detriment. (Id. 40)

After complying with the necessary procedural pre-

requisites? petitioners commenced litigation against

respondents in the United States District Court for the

District of Oregon under the citizen suit provision of the

ESA (16 U.S.C. § 1540(g)(1)) and the provisions of the

Administrative Procedure Act (5 U.S.C. §§ 701 et seq.)

(App. 31-44) Inter alia, petitioners’ Complaint alleged a

2 By letter dated November 12, 1992, petitioners pro-

vided respondents with a 60-day Notice of Intent to

Sue (16 U.S.C. § 1540(g)(2)(A)) (App. 33)

£m PE re ery

violation of Section 7 of the ESA (16 U.S.C. § 1536)3

resulting from respondents’ imposition of restrictions on

the withdrawal of irrigation water from the reservoirs on

which petitioners rely. (App. 41) In addition, petitioners

alleged that respondents’ biological opinion effectively

designated critical habitat for the two listed species with-

out considering the economic effect of doing so, in viola-

tion of Section 4 of the ESA (16 U.S.C. § 1533(b)(2)).4

3 Section 7(b)(3)(A) of the Endangered Species Act pro-

vides:

“Promptly after conclusion of consultation under

paragraph (2) or (3) of subsection (a) of this section,

the Secretary shall provide to the Federal agency and

the applicant, if any, a written statement setting forth

the Secretary’s opinion, and a summary of the infor-

mation on which the opinion is based, detailing how

the agency action affects the species or its critical

habitat. If jeopardy or adverse modification is found,

the Secretary shall suggest those reasonable and pru-

dent alternatives which he believes would not violate

subsection (a)(2) of this section and can be taken by

the Federal agency or applicant in implementing the

agency action.” (92 Stat. 3752, 16 U.S.C.

§ 1536(b)(3)(A))

* Section 4(b)(2) of the Endangered Species Act provides:

“The Secretary shall designate critical habitat, and

make revisions thereto, under subsection (a)(3) of this

section on the basis of the best scientific data avail-

able and after taking into consideration the economic

impact, and any other relevant impact, of specifying

any particular area as critical habitat. The Secretary

may exclude any area from critical habitat if he deter-

mines 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

(App. 42) Based upon their claims, petitioners requested

the trial court to compel respondents to withdraw their

biological opinion and to declare respondents’ actions to

be in violation of both Sections 4 and 7 of the ESA. (App.

43-44)

Respondents moved to dismiss the complaint on the

ground that petitioners lacked standing. (App. 20) In an

unpublished order issued November 18, 1993, the District

Court agreed that petitioners lacked prudential standing

to sue under the ESA.° (App. 25-29)

On appeal, the Ninth Circuit rejected the contention

that the citizen suit language of Section 11(g) of the ESA

abrogates the need to demonstrate prudential standing.

(App. 11) Finding that such a contention, if accepted,

would permit plaintiffs to sue even though their pur-

poses were “plainly inconsistent with, or only ‘mar-

ginally related’ to, those of the Act...” the Ninth Circuit

held:

“Only plaintiffs who allege an interest in the

preservation of endangered species fall within

the zone of interest protected by the ESA.

result in extinction of the species concerned.” (92 Stat.

3764, 16 U.S.C. § 1533(b)(2))

5 The only authority cited by the District Court for its view

was the trial court decision in Pacific Northwest Generating Coop-

erative v. Brown, Civ. Nos. 57-973, 92-1260 and 92-1264 (D.Or.

April 1, 1993). (App. 27-28) Subsequent to issuance of the dis-

trict court’s opinion in the case at bench, the Ninth Circuit

issued its decision on appeal in Pacific Northwest Generating

Cooperation v. Brown, 38 F.3d 1058 (9th Cir. 1994). On the crucial

issue of prudential standing, the Ninth Circuit - in 1994 at least

- concluded that economic injury could be sufficient to satisfy

the requirements of prudential standing, assuming those

requirements even apply to actions commenced under the ESA.

(38 F.3d 1058, 1065-66)

‘

Because the plaintiffs have not alleged such an

interest in their complaint, they do not have

standing.” (App. 11)

Finding the purposes of the ESA to be singularly

aimed at species preservation, the Ninth Circuit also con-

cluded that potential plaintiffs with economic or recre-

ational claims could not satisfy the requisites of

prudential standing:

“The overall purposes of the ESA are singularly

devoted to the goal of ensuring species preser-

vation; they do not embrace the economic and

recreational interests that underlie the plaintiffs’

challenge. (App. 12-13)

Indeed, the fact that petitioners sought to raise a

competing interest in water from the affected reservoirs

was enough, in the Ninth Circuit’s view, to deprive them

of standing to challenge the Government's determination

of the amount of water necessary for the two protected

species:

“In short, the plaintiffs do not seek to further

the statutory purpose. Nor do they allege any

community of interest of any kind between

themselves and the suckers. To the contrary,

they claim a competing interest - an interest in

using the very water that the government

believes is necessary for the preservation of the

species.” (App. 16)

The fact that Congress had specifically directed the

Government to consider economic factors in making the

kinds of determinations challenged by the petitioners did

not cause the Ninth Circuit to alter its views on standing:

“Finally, we are aware that the ESA specifically

provides that the government should consider a

variety of factors — including economic ones — in

designating critical habitat for a species. (See, 16

U.S.C. § 1533(b)(3)). The Act’s inclusion of such

directives does not alter our analysis. We do not

believe that in setting forth the factors to be

weighed in formulating a plan for protecting

species, Congress intended to do more than

ensure a rational decision-making process by

providing guidance for government officials.

Certainly, it did not intend impliedly to confer

standing on every plaintiff who could conceiv-

ably claim that the failure to consider one of

those factors adversely affected him. . . . To

interpret the statute in the manner suggested by

plaintiffs would be to transform provisions

designed to further species protection into the

means to frustrate that very goal. ,

Accordingly, we hold that the plaintiffs have no

standing under the ESA.” (App. 17, citations

omitted.)

Thus, on August 24, 1995, the Ninth Circuit affirmed

the Judgment of the District Court.

ARGUMENT

The Ninth Circuit Court of Appeals erred in holding

that a zone of interest test applies to claims brought

under the Endangered Species Act. Even if the petitioners

would otherwise be barred by the rules of prudential

standing, the decisions of this Court hold that Congress

may expand standing to the full extent permitted by

Article III of the Constitution. By authorizing “any per-

son” to commence a civil action to enjoin the United

States from violating the ESA, Congress did precisely

that.

Moreover, the Ninth Circuit erred in applying the

rules of prudential standing to bar ail potentia’ plaintiffs

under the ESA save those “who allege an interest in the

‘

a TT RET T

preservation of endangered species.” Not only does the

circuit court’s highly exclusionary decision ignore the

limitations on prudential standing imposed by the deci-

sions of this Court; it effectively disregards the efforts of

Congress to expand the zone of interests cognizable

under the ESA to encompass the precise claims raised by

the petitioners in this case. By its decision, the Ninth

Circuit has effectively closed the courts to the only poten-

tial plaintiffs who have a significant interest in assuring

that the Government conducts the kind of balanced pro-

ceedings under the ESA which Congress intended.

1. This Court Should Grant Review To Resolve A Con-

flict Among The Circuits On the Same Matter And

To Give Effect To Congress’ Intent To Expand Stand-

ing To Sue Under the ESA

The zone of interest test was first articulated in the

companion decisions in Association of Data Processing Ser-

vice Organizations v. Camp, 397 U.S. 150 (1970) and Barlow

v. Collins 397 U.S. 159 (1970), both of which involved the

reach of Section 10 of the Administrative Procedure Act

(5 U.S.C. § 702). Writing for the Court in both cases,

Justice Douglas cast the zone of interest test as a rule of

judicial self-restraint (397 U.S. at 154), not as a rule hav-

ing ~enstitutional dimension. Moreover, he recognized

that Congress could, if it so elected, expand the limits of

standing to the boundaries imposed only by Article III of

the Constitution:

“The question of standing is different. It con-

cerns, apart from the ‘case’ or ‘controversy’ test,

the question whether the interest sought to be

protected by the complaint is arguably within

the zone of interest to be protected or regulated

by the statute or constitutional guarantee in

question.

“Apart from Article III jurisdictional questions,

problems of standing, as resolved by this Court

have involved a ‘ruie of self-restraint.’ Congress

can, of course, resolve the question one way or

another, save as the requirements of Article III

dictate otherwise.” (397 U.S. at 153-54, citations

omitted)

Commenting upon Data Processing and Barlow,

leading treatise observes:

“The zone of interest requirement was appar-

ently treated in the Data Processing opinion as a

matter of judicial self-restraint. Against the

values of restraint, the Court set the perception

that Congress had intended § 10 of the Adminis-

trative Procedure Act to enlarge the class of

people who can challenge administrative action.

As the opinion left matters, it could have been

possible to find that the zone of interest require-

ment is an important part of the standing doc-

trine, to be weighed heavily, uniess Congress has

acted to encourage review. It would also have been

possible to conclude that little need be shown to

satisfy the requirement.” (Wright, Miller and

Cooper, Federal Practice and Procedure; Jurisdic-

tion 2d § 3531.7 emphasis added)

one

Nearly a decade later, the Court elaborated upon its

earlier statement that Congress could, by legislation,

resolve the prudential standing issue. In Gladstone Real-

tors v. Village of Bellwood, 441 U.S. 91 (1979) — which is

cited by the Ninth Circuit, but never applied to the cir-

cumstances presented in the present case (App. 17-18) -

the Court considered language in the Fair Housing Act of

1968 (42 U.S.C. §§ 3601 ef seq.) which authorized any

TT Se

“person aggrieved” to commence a civil action to enforce

the rights granted by the Act. Concluding that Congress

had intended to grant standing “as broad as is permitted

by Article III of the Constitution” (441 U.S. at 109) the

Court stated:

“Congress may, by iegislation, expand standing

to the full extent permitted by Article III, thus

permitting litigation by one ‘who otherwise

would be barred by prudential standing rules.’

In no event, however, may Congress abrogate

the Article III minima: A plaintiff must always

have suffered ‘a distinct and palpable injury to

himself,’ that is likely to be redressed if the

requested relief is granted.” (441 U.S. at 100,

citations omitted)

Subsequently, in Defenders of Wildlife v. Hodel, supra,

851 F.2d 1035, opinion after remand, 911 F.2d 117, rev'd on

other grounds sub. nom. Lujan v. Defenders of Wildlife, supra,

—__. US. __, 119 L.Ed.2d 351, the Eighth Circuit con-

cluded that Congress had undertaken precisely such an

abrogation of prudential standing with respect to litiga-

tion commenced under the provisions of the ESA:

“Unlike the constitutional limitations [on stand-

ing], Congress may eliminate the prudential lim-

itations by legislation. Gladstone Realtors v.

Village of Bellwood, 441 U.S. 91 at 100, 99 S.Ct. at

1608. Where ‘Congress has authorized public

officials to certain functions according

to law, and has provided by statute for judicial

review of those actions under certain circum-

stances, the inquiry as to standing must begin

with a determination of whether the statute in

question authorizes review at the behest of the

plaintiff.’ Sierra Club v. Morton, 405 U.S. 727, 732,

92 S.Ct. 1361, 1364-65, 31 L.Ed.2d 636 (1972). In

this case, the ESA provides that ‘any person’

may commence a suit to enjoin any person who

is alleged to be in violation of the ESA. See 16

U.S.C. § 1540(g). Environmental associations are

‘persons’ and may bring suit in their own name.

Id. at 1532(13). Defenders therefore need meet

only the constitutional requirements for stand-

ing for their claims under the ESA.” (851 F.2d at

1039)

In the course of reviewing the Eighth Circuits deci-

sion in Defenders of Wildlife, supra, this Court considered

the question of standing to sue under the ESA at length.

(Lujan v. Defenders of Wildlife, supra, __ U.S. __, 119

L.Ed.2d 351 (1992)). While the Court reversed the Eighth

Circuit’s conclusion that the plaintiffs had met the stand-

ing requirements imposed by Article III of the Constitu-

tion, it left intact the circuit court’s conclusion regarding

congressional abrogation of prudential standing through

the enactment of Section 11(g) of the ESA. Indeed, when

the Court discussed prudential standing at ali, it was in

terms which emphasized judicial self-government rather

than the concept of a barrier to otherwise qualified poten-

tial plaintiffs:

“One of those landmarks, setting apart the

‘cases’ and ‘controversies that are of the justicia-

ble sort referred to in Article III - ‘serving to

identify those disputes which are appropriately

resolved through the judicial process’ — is the

doctrine of standing. Though some of its elements

express merely prudential considerations that are

part of judicial self-government, the core compo-

nent of standing is an essential and unchanging

part of the case - or controversy requirement of

Article Ill.” (__ U.S. __, 119 L.Ed.2d at 364,

citations omitted)

The Ninth Circuit’s decision effectively ignores the

consistently expressed view of this Court, that Congress

may expand standing under a statute to the limits of

Article III of the Constitution. Although it cites Gladstone

Realtors to that effect (App. 8) it never applies Gladstone -

or Data Processing or any other decision of this Court - to

the citizen suit language actually adopted by Congress in

the ESA. Likewise, although the Ninth Circuit acknowl-

edges a conflict between its decision and the Eighth Cir-

cuit’s decision in Defenders of Wildlife, supra, (App. 8, n.3)

it never offers to explain why, in its view, the Eighth

Circuit’s decision is incorrect.®

The foregoing omissions are crucial in view of the

citizen suit language enacted by Congress as part of the

ESA. By authorizing “any person” to sue to enjoin a

violation of the ESA, Congress chose language even

of authority among the circuit courts of appeal includes the

Circuit Court of Appeals for the District of Columbia (App. 8)

which has ruled, in three cases, that Congress’ decision to incor-

porate citizen suit language into the ESA did not abrogate the

obligation of a plaintiff to demonstrate prudential standing.

(See State of Idaho By and Thru Idaho Public Utilities Commission v.

ICC, 35 F.3d 585, 592 (D.C. Cir. 1994); Humane Soc. of the U.S. v.

Hodel, 840 F.2d 45 (D.C. Cir. 1988); National Audubon Society v.

Hester, 801 F.2d 405, 407 (D.C. Cir. 1986)

It is noteworthy, however, that none of the D.C. Circuit's opin-

ions on the issue - unlike the Eighth Circuit’s opinion in

Defenders of Wildlife, supra —- was the subject of a hearing by this

Court. Nor has the D.C. Circuit attempted to use prudential

standing to bar everyone except environmental plaintiffs from

the ability to sue under the ESA. To the contrary it has found, for

example, that a state’s proprietary interest in land satisfies the

test without regard to whether the state has an interest in the

preservation of endangered species. (State of Idaho, supra)

Indeed, the D.C. Circuit appears to have never applied pruden-

tial standing to exclude any class of plaintiffs from an ESA suit,

let alone all classes of potential plaintiffs, save one.

broader than that used in Gladstone Realtors. Indeed, it

used the broadest language possible.’

In these circumstances, the Ninth Circuit's assertion

that its decision is justified because it has applied pru-

dential standing obligations in the face of other citizen

suit provisions (App. 7, 9) is largely irrelevant. Moreover,

the assertion is a considerable overstatement. For exam-

ple, in Pacific Northwest Generating Cooperative v. Brown,

supra, 38 F.3d 1058 - cited by the Ninth Circuit as support

for its application of prudential standing in the present

case (App. 7) - the Court, in fact, declined to resolve the

issue of whether the ESA’s citizen suit provision abro-

gates the requirements of prudential standing. Instead, it

assumed the applicability of those requirements and con-

cluded that the economic interest of power users reliant

upon the federal Bonneville project was enough to satisfy

the test:

“It is an open question whether the plaintiffs

must satisfy the prudential ‘zone of interest’ test

in addition to Article III standing requirements.

A sister circuit has dispensed with this require-

ment. Defenders of Wildlife v. Hodel, 851 F.2d 1035,

1039 (8th Cir. 1988), opinion after remand, 911 F.2d

117 (8th Cir. 1990), rev’d on other grounds sub.

nom. Lujan v. Defenders of Wildlife, 122 S.Ct. 2130,

119 L.Ed.2d 351 (1992). We, however, will

assume that the requirement must be met For

7 “Person” is defined in Section 3 of the ESA (16 U.S.C.

§ 1532(13)) as follows:

“The term ‘person’ means an individual, corporation,

partnership, trust, association, or any other private

entity, or any officer, employee, agent, department or

instrumentality of the Federal government, of any

State or political subdivision thereof, or any foreign

government.” ‘

reasons now to be stated, we conclude that it

has been met.

The present endangered or threatened status of

the species imposes actual costs upon the plain-

tiffs. They have a real economic interest in

changing the status. We see no reason why that

economic interest is not convertible into a legal

interest. Once that legal interest is recognized,

the plaintiffs qualify for standing under foot-

note seven.” (38 F.3d 1058 at 1065-66)

Similarly, in Alvarez v. Longboy, 697 F.2d 1333 (9th Cir.

1983) also cited by the Ninth Circuit as support for its

decision in the present case (App. 10), the Court con-

strued a provision in the Farm Labor Contractor Registra-

tion Act that permitted “any person aggrieved” to bring

suit. (697 F.2d at 1336) Analyzing the requirements

imposed by the zone of interest test in this context, the

Ninth Circuit stated:

“This language is patterned after language

defining standing under the Federal Civil Rights

statutes, and . . . show[s] a congressional inten-

tion to define standing as broadly as is permit-

ted by Article III of the Constitution.” (697 F.2d

at 1336)

In sum, as the Ninth Circuit recognized in Alvarez,

and as this Court has recognized in Data Processing and

Gladstone, the constitutionally imposed standing require-

ments of Article III will continue to apply to all potential

plaintiffs under the ESA. Those requirements are enough

to ensure that, in the future, real plaintiffs will bring real

cases and controversies to the courts. At the same time,

given Congress’ manifest intention, expressed through

Section 11(g) of the ESA, to expand standing under the

Act to the limits of Article III, there is simply no basis to

exclude all potential plaintiffs, save one apparently

favored group, through the inappropriate application of a

zone of interest test.

2. The Ninth Circuit’s Decision Misapplies The Con-

cept of Prudential Standing To Exclude Potential

Plaintiffs Who Are Within the Zone of Interest Reg-

ulated By The ESA

The result of the Ninth Circuit’s decision in the pres-

ent case is to exclude from federal court all potential

plaintiffs under the ESA unless they allege an interest in

the preservation of endangered species. (App. 11) If a

potential plaintiff is unlucky enough to be dependent

upon a federal project which makes use of a resource

determined by federal wildlife officials to be necessary

for an endangered species, the Ninth Circuit’s decision

bars the plaintiff from challenging any determination

regarding disposition of the resource, even if the disposi-

tion is incompatible with the requirements of the law. It

reaches this result because the potential plaintiff, in the

Ninth Circuit’s view, is claiming a “competing interest”

in the resource and is thus outside the zone of interest

protected by the ESA. (App. 16) Indeed, even if the

potential plaintiff asserts an economic interest expressly

recognized in the Act, he remains outside of the zone of

interest, according to the Ninth Circuit, since his asser-

tion of economic claims “would be to transform provi-

sions designed to further species protection into the

means to frustrate that very goal.” (App. 17) Petitioners

respectfully suggest that this remarkable application of

prudential standing lies well beyond the bounds of this

Court's standing decisions.

When this Court initially articulated the concept of

prudential standing, it did so in terms which recognized

not only a zone of interest “protected” by the statute in

question, but also a zone of interest “regulated” by the

relevant statute:

“The question of standing is different. It con-

cerns, apart from the ‘case’ or ‘controversy’ test,

the question whether the interest sought to be

protected by the complaint is arguably within

the zone of interest to be protected or regulated

by the statute or constitutional guarantee in

question.” (Association of Data Processing Service

Organization v. Camp, supra, 397 U.S. 150 at 153,

emphasis added)

By focusing exclusively on the purported zone of

interest “protected” by the ESA and ignoring the zone of

interest regulated under the ESA, the Ninth Circuit has

managed to truncate the prudential standing test in a

manner incompatible with the very decision which estab-

lished the test. Because they receive their primary source

of irrigation water from the federal reservoirs effectively

regulated by the biological opinion adopted by respon-

dents, the petitioners are without doubt, “arguably

within the zone of interest . . . regulated by the stat-

ute ... in question.”

Almost two decades after first articulating a pruden-

tial standing test, this Court elaborated upon the limita-

tions inherent in any effort to apply the test. In Clarke v.

Securities Industry Association, 479 U.S. 388 (1987), the

Court considered a challenge brought by an association

of securities dealers utilizing Section 10 of the Adminis-

trative Procedure Act (the same statute utilized in Data

Processing and Barlow) to challenge a ruling by the Comp-

troller of the Currency that permitted national banks to

conduct discount brokerage operations from locations

where branch banking would be prohibited. According to

the Ninth Circuit, prior to Clarke, the zone of interest test

“ _.. appeared to be on the verge of being abandoned.”

(App. 5)

While the Ninth Circuit believes Clarke “resuscitated”

prudential standing and cites the decision for the propo-

sition that a zone of interest test applies even in cases

which are not brought under the Administrative Pro-

cedure Act (App. 5-6), it never actually manages to refer

to the main text of the Court’s opinion in the case. Thus,

the Ninth Circuit’s decision ignores the following discus-

sion appearing in the majority opinion in Clarke:

“The ‘zone of interest’ test is a guide for deciding

whether, in view of Congress’ evident intent to

make agency action presumptively reviewable, a

particular plaintiff should be heard to complain

of a particular agency decision. In cases where

the plaintiff is not itself the subject of the regula-

tory action, the test denies a right of review if

the plaintiff’s interests are so marginally related

to or inconsistent with the purposes implicit in

the statute that it cannot be reasonably assumed

that Congress intended to permit the suit. The

test is not meant to be especially demanding.” (479

U.S. at 399, emphasis added)

Thus, according to this Court, there need only be a

“plausible relationship” between the interests of the liti-

gants and the policies embedded in the overall context of

__ the statute at issue. (479 U.S. at 403) Moreover, as this

Court explained:

“The principal cases in which the ‘zone of inter-

est’ test has been applied are those involving

claims under the APA, and the test is most

usefully understood as a gloss on the meaning

of § 702.” (479 U.S. at 400, n.16)

This analysis by the Clarke majority led one respected

commentator to a view fundamentally different than that

expressed by the Ninth Circuit regarding the “resuscita-

tion” of the zone of interest test and its applicability

beyond actions brought pursuant to the APA:

“This opinion [Clarke] puts the zone of interest

test once again in eclipse. The most obvious

reading would be to limit the test to administra-

tive review proceedings under § 10 of the APA,

and to apply it to permit standing unless there

are special reasons to fear that a particular

plaintiff will impair the objectives embedded in

the underlying regulatory statute. The presump-

tion of reviewability is likely to be difficult to

overcome. Beyond this point, only the brave

would venture to illuminate the obscure hint

that other settings will support different pru-

dential tests that somehow resemble the zone of

interest test.” (Wright, Miller & Cooper, Federal

Practice and Procedure: Jurisdiction 2d § 3531.7

(1995 Supplement))

In short, the decision of the Ninth Circuit in the

present case turns the zone of interest test on its head.

Rather than a test not meant to be “especially demand-

ing,” it is now a test which can be wielded, in the Ninth

Circuit, to exclude potential plaintiffs virtuaily at will.

From a test understood to be a “gloss” on the meaning of

Section 702 of the APA, the test will now be employed,

within the Ninth Circuit, to close the courts to plaintiffs

whether they bring suit under the APA or not. From a test

thought to be “in eclipse,” the zone of interest test now

emerges, within the Ninth Circuit, as a highly discrimina-

tory tool to be used to bar entire groups of potential

plaintiffs from court even if they are within the zone of

interest “regulated” by the statute in question. This

result, petitioners respectfully submit, is beyond the

bounds of any reasonable interpretation of the prior deci-

sions of this Court.

3. The Ninth Circuit’s Application of Prudential

Standing Ignores Amendments to the ESA That

Were Enacted to Expand the Range of Interests Pro-

tected by the Act

If a prudential standing test nonetheless applies to

actions brought under the ESA, it is evident that the

Ninth Circuit has construed the applicable zone of inter-

est too narrowly. As the basis for its conclusion that

petitioners fail to satisfy the requirements of prudential

standing, the Ninth Circuit stated:

“The overall purposes of the ESA are singularly

devoted to the goal of ensuring species preser-

vation; they do not embrace the economic and

recreational interests that underlie the plaintiffs’

challenge.” (App. 12-13)

This view of the ESA is at odds with at least three

different amendments adopted by Congress for the pur-

pose of expanding the range of interests cognizable under

the Act. Each of these amendments is directly related to

the claims raised by the petitioners in this proceeding.

(a) Congress Amended the ESA to Require Con-

sideration of Economic Feasibility and Com-

munity Impacts in the Development of

Biological Opinions

In 1978, Congress amended the ESA by enacting the

consultation procedures which resulted in the biological

opinion at issue in this case. Its purpose in doing so was

to introduce flexibility into the Act. (See e.g., H.R. Rep.

No 1625, 95th Cong., 2nd Sess., at 3 (1978); 124 Cong. Rec.

9804 (1978) (Statement of Sen. Baker); 124 Cong. Rec.

21,135 (1978) (Statement of Sen. Randolph); 124 Cong.

Rec. 21,139 (1978) (Statement of Sen. Scott)). Congress

achieved its purpose by charting a path which incorpo-

rates a balancing of economic impacts into the consulta-

tion procedure. (124 Cong. Rec. 38,132 (1978) (Statement

of Rep. Murphy); 124 Cong. Rec. 38,138 (1978) (Statement

of Rep. Burgener); 124 Cong. Rec. 9,804 (1978) (Statement

of Sen. Baker); 124 Cong. Rec. 9,805 (1978) (Statement of

Sen. Wallop)).

The specific vehicle which Congress chose for this

purpose was a comprehensive amendment of Section 7 of

the ESA. (16 U.S.C. § 1636) It is under this section, as

amended, that petitioners brought one of their two ESA-

based claims in this case. (App. 41) Included as part of

the amendment of Section 7 was a requirement that “rea-

sonable and prudent alternatives” be developed by the

Secretary in the event a project, as proposed, is found to

cause jeopardy to a listed species. (16 U.S.C.

§ 1536(b)(3)(A).)® The language chosen - “reasonable and

8 Section 7(b)(3)(A) of the Act (16 U.S.C. § 1536(b)(3)(A))

provides:

“Promptly after conclusion of consultation under

paragraphs (2) or (3) of subsection (a) of this section,

the Secretary shall provide to the Federal Agency and

the applicant, if any, a written statement setting forth

the Secretary’s opinion, and a summary of the infor-

mation on which the opinion is based, detailing how

the agency action affects the species or its critical

habitat. If jeopardy or adverse modification of critical

habitat is found, the Secretary shall suggest those reason-

able and prudent alternatives which he believes would not

prudent alternatives” — is word-for-word identical to lan-

guage chosen by the same Congress, at the same time and

used in the same section of the amended Act, to describe a

key finding required of a so-called “Endangered Species

Committee” in order for it to grant an exemption from

the jeopardy requirements of the Act. (16 U.S.C.

§ 1536(h)(1)(A)(i))

It is well recognized, of course, that terms should be

construed consistently throughout the same statute.

(Ratzlaf v. United States, 510 U.S.__, 126 L.Ed.2d 615, 623

(1994); Estate of Cowart v. Nicklos Drilling Co., 505 U.S.___

120 L.Ed.2d 379 (1992)) Indeed, in other cases, the Ninth

Circuit itself has recognized that when the same word or

phrase is used in different parts of the same statute, the

courts will presume that the word or phrase has the same

meaning throughout. (S&M Inv. v. Tahoe Regional Planning

Agency, 911 F.2d 324, 328 (9th Cir. 1990), cert. den., 111

S.Ct. 963 (1991); Boise Cascade Corp. v. U.S.E.P.A., 942 F.2d

1427, 1432 (9th Cir. 1991))

Reference to the legislative history of the 1978

amendments of the ESA discloses that the phrase “rea-

sonable and prudent alternatives” was defined in detail

during debate on S. 2899, 95th Cong., 2nd Sess. (1978),

which contained the amendatory language ultimately

adopted by Congress. During a colloquy concerning the

meaning of the phrase “reasonable and prudent alterna-

tives,” Senator Howard Baker — without dissent — stated

the following:

violate subsection (a)(2) of this section and can be taken by

the Federal Agency or applicant in implementing the

agency action.” (Emphasis added) .

“It is the intent of the Environment and

Public Works Committee that the cabinet-level

panel established by S. 2899 [the Endangered

Species Committee] in evaluating alternatives

examine not only engineering ‘feasibility,’ but

also environmental and community impacts, eco-

nomic feasibility and other relevant factors. In other

words, the Environment and Public Works Com-

mittee believes that the use of the term ‘reason-

able’ rather than ‘feasible’ gives more flexibility

to the Endangered Species Committee in its

review of ‘irresolvable’ conflicts arising under

the Endangered Species Act.” (124 Cong. Rec.

21,590 (1978)).

Senator Baker’s position as one of the chief sponsors

of the so-called “Culver-Baker Amendments” which com-

prised S. 2899, is important. As expressed in Overseas

Educ. Ass'n, Inc. v. FLRA, 876 F.2d 960 (D.C. Cir. 1989):

“...[NJo one can gainsay the overwhelmiag

judicial support for the proposition that expla-

nations by sponsors of legislation during floor

discussion are entitled to great weight when

they cast light on the construction properly to be

placed upon statutory language. This principle

is firmly embedded in the jurisprudence of the

Supreme Court, e.g., North Haven Bd. of Educ. v.

Bell, 456 U.S. 512, 526-527 (1982) (‘remarks of the

sponsor of language ultimately enacted are an

authoritative guide to the statute’s construc-

tion’); Weinberger v. Rossi, 456 U.S. 25, 35 (1982)

(Sponsor’s statements entitled to weight)” (876

F.2d at 967, n.41)

Of at least equal significance is the fact that respon-

dents, themselves, have interpreted the ESA to require

that the “reasonable and prudent alternatives” which lie

at the heart of any biological opinion which makes a

jeopardy finding, must be “economically feasible.” In

Joint Regulations adopted by the United States Fish and

Wildlife Service and the Marine Fisheries Service for the

purpose of administering the ESA, the agencies define

“reasonable and prudent alternatives” as follows:

“Reasonable and prudent alternatives refer to alter-

native actions during formal consultation that

can be implemented in a manner consistent with

the intended purpose of the action, that can be

implemented consistently with the scope of the

federal agency’s legal authority and jurisdiction,

that are economically and technologically feasible,

and that the Director believes would avoid the

likelihood of jeopardizing the continued exis-

tence of listed species or resulting in the

destruction or adverse modification of critical

habitat.” (50 CFR § 402.02, emphasis added)

In short, both Congress and the agencies charged with

implementation of the ESA recognized that development

of the kind of “reasonable and prudent alternative”

which lies at the heart of the present case must be guided

by the concept of “economic feasibility.” The Ninth Cir-

cuit’s decision in this case, however, denies standing to

the only group of potential plaintiffs with a substantial

interest in ensuring compliance with the “economic fea-

sibility” requirement.

(b) Congress Explicitly Required a Balancing of

Impacts as Part of the Designation of Critical

Habitat

When Congress amended the ESA in 1978, it also

modified Section 4 (16 U.S.C. § 1533) to add a new para-

graph which obligates the Secretary to weigh and balance

the benefits and burdens of including, particular areas

within designated critical habitat.? According to the

House Report which accompanied the bill (H.R. 14104,

95th Cong., 2nd Sess. (1978)) that added the balancing

language, the proposal represented a compromise

between disparate points of view: it attempted to retain

the basic integrity of the ESA while introducing some

flexibility which would permit exemptions from the Act's

requirements. (H.R. Rep. No. 1625, 95th Cong., 2nd Sess.,

(1978), reprinted in 1978 U.S.C.C.A.N. 9453, 9463-64)).

During the debates in the House leading to adoption

of the bill, Representative Leggett, the bill’s author,

described the purpose of the balancing requirement. He

stated:

“The Endangered Species Act has been crit-

icized because it allows for no consideration of

the economic impact of listing a species or des-

ignating critical habitat. Although H.R. 14104

retains the Act’s stringent mandate, it does

introduce a consideration of economic impact in

several respects. . . . [T]he bill includes a provi-

sion which requires the Secretary to evaluate the

* The language adopted by Congress in 1978 added the

following paragraph to Section 4(b) of the ESA:

“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. (Act of Nov. 10,

1978, Pub. L. No. 95-632, 1978 U.S.C.C.A.N. (92 Stat.)

366).

economic impact of designating critical habitat

for invertebrate species. This provision autho-

rizes the Secretary to alter the designation of

critical habitat for the species if he determines

that the benefits associated with excluding the

habitat outweigh the benefits associated with

the designation. . . . ” (124 Cong. Rec. 38,134

(1978) (Statement of Rep. Leggett)).

In 1982 when Congress later reauthorized and

amended the ESA (P.L. 97-304) the House Report which

accompanied the amendments stated the following

regarding the balancing obligation in Section 4:

“Desirous to restrict the Secretary’s decision on

species listing to biology alone, the [Merchant

Marine and Fisheries] 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.”

(H.R. 567, 97th Cong., 2nd Sess. (1982), reprinted

in 1982 U.S.C.C.A.N. 2807, 2812 (Merchant

Marine and Fisheries Committee)).

Congress thus amended the ESA for the explicit pur-

pose of broadening its focus to accommodate economic-

based interests in connection with the designation of

critical habitat. Precisely such interests were raised in the

complaint filed by appellants herein. With considerable

clarity they alleged a designation by the Secretary of

critical habitat without any consideration of economic

impacts, in violation of the ESA. (App. 42)

Despite petitioners’ efforts to invoke the economic

balancing requirement amended into the ESA by Con-

gress, however, the Ninth Circuit was unmoved:

“(W]e are aware that the ESA specifically pro-

vides that the government should’ consider a

variety of factors - including economic ones - in

designating critical habitat for a species. (See, 16

U.S.C. § 1533(b)(3)). The Act’s inclusion of such

directives does not alter our analysis. We do not

believe that in setting forth the factors to be

weighed in formulating a plan for protecting

species, Congress intended to do more than

ensure a rational decision-making process by

providing guidance for government officials.

Certainly, it did not intend impliedly to confer

standing on every plaintiff who could conceiva-

bly claim that the failure to consider one of

those factors adversely affected him.” (App. 17).

The Ninth Circuit’s conclusions are inconsistent with

the statements of both the author of the bill which added

the economic balancing requirement to the ESA and the

House Committee with jurisdiction over the Act. Of equal

concern, the Ninth Circuit’s decision denies standing to

the only potential plaintiffs possessing a substantial inter-

est in assuring that the habitat designation process in fact

is rational in its consideration of economic factors. The

absence of any consideration of economic impacts is at

the heart of the petitioners’ remaining claim for relief

under the ESA. (App. 42)

In this regard, it is unrealistic to expect, as the Ninth

Circuit apparently does that, in future, the cudgels of

litigation will be picked up by a regulated federal agency

and used against a federal regulating agency:

“None of the plaintiffs is directly subject to the

regulatory action. Rather, it is the Bureau of

Reclamation which would be required to act if

any rules regarding reservoir water levels are

ultimately adopted. We do not consider here

when a directly regulated entity, or a party

standing in the shoes of such an entity, would

have standing.” (Slip Opinion, p. 10654, n.2)

While the specter of one agency of the Department of

Interior suing a sister agency of the same Department

may be interesting to contemplate in a theoretical sense,

the dearth of such cases suggests that the likelihood of

sister agency litigation in the real world is not high.

Moreover, it is unclear how potentially collusive litiga-

tion brought by sister agencies answerable to the same

cabinet official furthers the goal of the standing doctrine;

viz, identifying those justiciable “cases” or “controver-

sies” which are “appropriately resolved through the judi-

cial process. ...” (Lujan v. Defenders of Wildlife, supra, __

U.S. __; 119 L.Ed.2d at 364) As has been true for a

considerable period of time, in the Ninth Circuit and

elsewhere, those who rely on federal projects — not the

federal operator of the project —- are more likely to present

a real “case” or “controversy” regarding federal regula-

tory action. This is so since the operator of the project

effectively serves as a middleman, while the users of the

water, who rely upon the project for inputs critical to

their homes, farms or businesses are, in fact, the parties

who possess the “interest” which is regulated.

to Cooperate With State and Local Agencies to

Resolve Water Resources Issues in Concert

With the Conservation of Endangered Species

Finally, the Ninth Circuit asserts that its analysis of

the applicable zone of interest is borne out by Section 2 of

the ESA (16 U.S.C. § 1531) which sets forth the Act's

purposes. (App. 13-14) Thus, in quoting Section 2(b),

the Court declares:

“That section provides no basis for concluding

that the plaintiffs’ interest in obtaining water

that the government deems critical to the sur-

vival of endangered fish is a protected one.”

(App. 13-14)

Unfortunately, the Ninth Circuit neglected to exam-

ine the very next subsection of the ESA which sets forth

Congress’ policy regarding the protection of endangered

species and provides the following, in relevant part:

“(2) It is further declared to be the policy of

Congress that federal agencies shall cooperate

with state and local agencies to resolve water

resource issues in concert[!!] with conservation

of endangered species.”

With respect to the singular matter of “water

resource issues”, it is thus evident that Congress granted

state and local water resource agencies an interest in

obtaining federal cooperation in resolving endangered

10 Section 2(b) of the ESA provides:

“The purposes of this chapter are to provide a means

whereby the ecosystems upon which endangered and

threatened species depend may be conserved, to pro-

vide a program for the conservation of such endan-

gered and threatened species, and to take such steps

as may be appropriate to achieve the purposes of the

treaties and conventions set forth in subsection (a) of

this section.”

1) In Jeffers v. United States, 432 U.S. 137, 148-49 (1977), this

Court defined the words “in concert” in the following terms:

“In the absence of any indication from the legislative

history or elsewhere to the contrary, the . . . likely

explanation is that Congress intended the word ‘con-

cert’ to have its common meaning of agreement in a

design or plan.”

species conservation issues agreeably with water resource

management concerns. Such agencies - and appellants

Horsefly Irrigation District and Langell Valley Irrigation

District are each alleged to be a subdivision of the State of

Oregon — have a unique interest that is protectable under

the terms of the ESA itself. That interest was completely

ignored by the Ninth Circuit which found, instead, that

the ESA has a “singular” goal of ensuring species preser-

vation. Simply put, the finding is incompatible with the

policy language of the ESA itself.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

DATED: November 21, 1995

Respectfully submitted,

Best, Best & KRIEGER

Grecory K. WILKINSON

ZACHARY R. WALTON

WILLIAM F. SCHROEDER

Caro. DEHAVEN SKERJANEC

Attorneys for Petitioners

Brad Bennett, Mario Giordano,

Langell Valley Irrigation District

and Horsefly Irrigation District

App. 1

APPENDIX

Brad BENNETT; Mario Giordano; Langell Val-

ley Irrigation District, a political subdivision

of the state of Oregon; Horsefly Irrigation Dis-

trict, a political subdivision of the State of

Oregon, Plaintiffs-Appellants,

Marvin L. PLENERT, in his official capacity as

Regional Director, Region One, Fish and Wild-

life Service, U.S. Department of the Interior;

John F. Turner, in his official capacity as Direc-

tor, Fish and Wildlife Service, U.S. Department

of the Interior; Bruce Babbitt, in his official

capacity as Secretary, U.S. Department of the

Interior, Defendants-Appellees.

No. 94-35008.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted June 7, 1995.

Decided Aug. 24, 1995.

William F. Schroeder, Schroeder, Hutchens & Sul-

livan, Vale, OR, for plaintiffs-appellants.

Ellen J. Durkee, U.S. Dept. of Justice, Washington,

DC, for defendants-appellees.

Appeal from the United States District Court for the

District of Oregon.

App. 2

Before: PREGERSON*, CANBY, and REINHARDT

Circuit Judges.

REINHARDT, Circuit Judge:

This case requires us to determine whether plaintiffs

who assert no interest in preserving endangered species

may sue the government for violating the procedures

established in the Endangered Species Act. We conclude

that they may not.

The plaintiffs are two Oregon ranch operators and

two irrigation districts located in that state. They chal-

lenge the government's preparation oi a biological opin-

ion which concludes that the water level in two reservoirs

should be maintained at a particular minimum level in

order to preserve two species of fish. The plaintiffs, who

make use of the reservoir water for commercial (and

recreational) purposes, bring this action under the Endan-

gered Species Act (ESA), 16 U.S.C. § 1531 et seq., the

Administrative Procedure Act (APA), 5 U.S.C. § 701 et

seq., and the National Environmental Policy Act (NEPA),

42 U.S.C. § 4332(2)(C).

*Judge Tang was originally a member of this panel and heard

argument in this case. Judge Tang died prior to circulation of

this opinion, and pursuant to General Order 3.2(g), Judge Preg-

erson was drawn as a replacement. Judge Pregerson was fur-

nished with a tape of the oral argument as well as the briefs and

other materials received by the other membets of the panel.

App. 3

The two reservoirs in question are part of the federal

government’s Klamath Project, which the Bureau of Rec-

lamation administers. The Bureau concluded that the

long term operation of the Klamath Project might

adversely affect two species of fish: the Lost River and

shortnose suckers. Pursuant to the requirements of the

ESA, the Bureau consulted with the United States Fish

and Wildlife Service in order to assess the impact of the

Klamath Project on the fish. 16 U.S.C. § 1536(a)(2).

As a result of the consultation, the Service prepared a

biological opinion. 16 U.S.C. § 1536(b)(3)(A). The opinion

concluded that unless mitigating actions were taken the

“long-term operation of the Klamath Project was likely to

jeopardize the continued existence of the Lost River and

shortnose suckers.” The opinion “recommended a

number of measures the [Bureau] could take to avoid

jeopardy to the suckers . . . including the recommenda-

tions regarding maintaining minimum lake level at issue

in this case.” The Bureau informed the Service that it

accepted the opinion’s recommendations and intended to

comply with them.

The plaintiffs filed suit for declaratory and injunctive

relief in an effort to compel the government to withdraw

portions of the biological opinion. Their complaint alleges

that there is no evidence to support the opinion’s conclu-

sion that the long-term operation of the Klamath project

will adversely affect suckers. In fact, the complaint

alleges that the evidence shows that the fish are “repro-

ducing successfully” and are not in need of specie! pro-

tection. The complaint then explains that the plaintiffs’

objective in seeking to prevent the government from rais-

ing the minimum reservoir levels is to ensure that more

App. 4

water will be available for their own commercial (and

recreational) use. In short, they wish to use for their own

purposes some of the water that the government main-

tains is needed to ensure the survival of the suckers.

The complaint alleges that in preparing the opinion,

the government violated the consultation provisions set

forth in 16 U.S.C. 3 1536(a) of the ESA. It also alleges that

the government violated 16 U.S.C. § 1533(b)(2) of the ESA

by failing to consider the economic impact of its deter-

mination that the reservoirs constituted critical habitats

for the suckers. They bring related claims pursuant to the

APA and NEPA.

The government moved to dismiss the complaint for

lack of standing. The district court concluded that the

plaintiffs’ interest in utilizing the Klamath water for com-

mercial and recreational purposes “conflict[s] with the

Lost River and shortnose suckers’ interest in using water

for habitat.” Accordingly, it concluded that the plaintiffs

lacked standing because their claims were premised on

“an interest which conflicts with the interests sought to

be protected by the Act.”

Il.

The issue before us is not whether the plaintiffs have

satisfied the constitutional standing requirements but

whether their action is precluded by the zone of interests

App. 5

test, the prudential standing limitation that the district

court deemed dispositive.!

The zone of interests test first appeared as a standing

requirement in Association of Data Processing Service Orga-

nizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827,

829-30, 25 L.Ed.2d 184 (1970). There, the Court held that a

plaintiff seeking judicial review under the Administrative

Procedure Act (APA) must show that “the interest sought

to be protected by [him was] arguably within the zone of

interests to be protected or regulated by the statute or

constitutional guarantee in question.” Id. at 153, 90 S.Ct.

at 830. In the decade that followed, the test appeared to

be on the verge of being abandoned. However, in 1987,

the Court resuscitated it, offering an “exegesis” regarding

when the test applies and how a court should determine

whether it has been met. See Clarke v. Securities Industry

Ass'n, 479 U.S. 388, 410, 107 S.Ct. 750, 762-63, 93 L.Ed.2d

757 (1987) (Stevens, J. concurring in part).

' We note that the zone of interests test applies even to

plaintiffs who have established constitutional standing prem-

ised on a procedural injury. See Deuglas County v. Babbitt, 48 F.3d

1495, 1500-1501 (9th Cir.1995) (applying the prudential zone of

interests test after concluding that the plaintiffs had procedural

standing to assert a claim) (citations omitted); Yesler Terrace

Community Council v. Cisneros, 37 F.3d 442, 447 (9th Cir.1994)

(same). Accordingly, we need not address whether the plaintiffs

have procedural, or as it is sometimes known, “footnote seven”

standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 570-573

n. 7, 112 S.Ct. 2130, 2142-2143 n. 7, 119 L.Ed.2d 351 (1992). See

also Hazardous Waste Treatment Council v. Thomas, 885 F.2d 918,

921 n. 2(D.C.Cir.1989) (explaining that standing may be decided

on prudential grounds without first undertaking the constitu-

tional inquiry).

App. 6

In a lengthy footnote, the Clarke Court made it clear

that some form of the zone test applies even in cases

which are not brought under the Administrative Pro-

cedure Act. However, it cautioned that “|wJhile inquiries

into reviewability or prudential standing in other con-

texts may bear some resemblance to a ‘zone of interest’

inquiry under the APA, it is not a test of universal appli-

cation.” Clarke, 479 U.S. at 400 n. 16, 107 S.Ct. at 757 n. 16.

Perhaps because the Court did not proceed to explain

how the test might differ when applied to non-APA

actions, our court, like most others, has continued to

apply the traditional zone of interests test to such actions,

as well as to APA cases. See, e.g., Central Arizona Water

Conservation District v. EPA, 990 F.2d 1531, 1538-39 (9th

Cir.), cert. denied, __ U.S. __, 114. S.Ct. 94, 126 L.Ed.2d 61

(1993) (Clean Air Act); Self-Insurance Institute v. Korioth,

993 F.2d 479, 484 (5th Cir.1993) (preemption); ANR

Pipeline v. Corporation Commission of State of Oklahoma, 860

F.2d 1571, 1579 (10th Cir.1988), cert. denied, 490 U.S. 1051,

109 S.Ct. 1967, 104 L.Ed.2d 435 (1989) (same); 13 Wright,

Miller & Cooper, Federal Practice and Procedure § 3531.7

(Supp.1993). We follow that practice here.

Clarke's principal relevance to the case before us is its

holding regarding when a plaintiff who is not directly

subject to the regulatory action that he seeks to challenge

falls within the zone of interests.2 As to such plaintiffs,

2 None of the plaintiffs is directly subject to the regulatory

action. Rather, it is the Bureau of Reclamation which would be

required to act if any rules regarding reservoir water levels are

ultimately adopted. We do not consider here when a directly

regulated entity, or a party standing in the shoes of such an

entity, would have standing.

App. 7

Clarke holds that “the test denies a right of review if the

plaintiff's interests are so marginally related to or incon-

sistent with the purposes implicit in the statute that it

cannot be reasonably assumed that Congress intended to

permit the suit.” Clarke, 479 U.S. at 399, 107 S.Ct. at 757;

see also Central Arizona, 990 F.2d at 1538-39 (9th Cir.1993)

(quoting same).

Clarke explains that the zone of interests test simply

provides a mtthod of determining whether Congress

intended to permit a particular plaintiff to bring an

action. As the Clarke Court made clear, “at bottom the

reviewability question turns on congressional intent, and

all indicators helpful in discerning that intent must be

weighed.” Clarke, 479 U.S. at 400, 107 S.Ct. at 757. Thus,

Clarke concludes that the statutory purposes should be

divined by considering the particular statutory provision

that underlies the complaint within “the overall context”

of the act itself. Clarke, 479 U.S. at 401, 107 S.Ct. at 758.

Hl.

We have previously applied the zone of interests test

to claims brought directly under the ESA. See Pacific

Northwest Generating Co-Op v. Brown, 38 F.3d 1058, 1065

(9th Cir.1994); Mt. Graham Red Squirrel v. Espy, 986 F.2d

1568, 1581 & n. 8 (9th Cir.1993). However, the plaintiffs

contend that these cases do not conclusively demonstrate

that the zone of interests test applies here. They argue

that the question of the test’s application is an open one

because our past cases did not consider whether the

ESA's citizen-suit provision overrides the limitation on

standing that the test imposes. 16 U.S.C. § 1540(g); see

App. 8

Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100,

99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979) (holding that

Congress may extend standing under a statute to the

limits of Article III).* The provision in question autho-

rizes “any persen [to] commence a civil suit on his own

behalf — a) to enjoin any person, including the United

States [and its agencies], who is alleged to be in violation

of any provision of this chapter or regulation issued

under the authority thereof...” See 16 U.S.C. § 1540(g).

We need not rely on our decisions in Mt. Graham and

Pacific Northwest. Rather, notwithstanding the broad lan-

guage of the citizen-suit provision, we directly reject the

plaintiffs’ contention that it renders the zone of interests

test inapplicable to claims brought under the ESA.* Our

* There is a division in the circuits as to whether the zone of

interests test applies to ESA suits. The District of Columbia

Circuit, notwithstanding the citizen-suit provision, has

expressly held that the zone of interests test applies. State of

Idaho By and Thru Idaho Public Utilities Commission v. ICC, 35 F.3d

585, 592 (D.C.Cir.1994); see also Humane Society of the United

States v. Hodel, 840 F.2d 45 (D.C.Cir.1988); National Audubon

Society v. Hester, 801 F.2d 405, 407 (D.C.Cir.1986). By contrast,

the Eighth Circuit has concluded that ESA's citizen-suit provi-

sion necessarily abrogated any zone of interests test. See

Defenders of Wildlife v. Hodel, 851 F.2d 1035, 1039 (8th Cir.1988),

opinion after remand, 911 F.2d 117 (8th Cir.1990), rev'd on other

grounds sub nom., Lujan v. Defenders of Wildlife, 504 U.S. 555, 112

S.Ct. 2130, 119 L.Ed.2d 351 (1992).

4 We note that, whether or not the zone of interests test

applies, the class of plaintiffs that Congress had in mind was

necessarily more \imited than the literal language of the citizen-

suit provision suggests. As Lujan makes clear, Congress may not

permit suits by those who fail to satisfy the constitutionally-

mandated standing requirements. For that reason, suits under

App. 9

conclusion follows from the fact that our court, and

others, have regularly employed the zone of interests test

in determining standing despite Congress’ enactment of

expansive citizen-suit provisions.

For example, in Gonzales v. Gorsuch, 688 F.2d 1263,

1266 (9th Cir.1982), we considered whether a plaintiff had

standing under the Clean Water Act's citizen-suit provi-

sion to complain that the EPA was unlawfully expending

funds for purposes other than the improvement of water

quality. In answering the question, we considered not

only the provision of the statute which permitted “any

citizen” to sue for a violation of the Act, but also the

legislative history. We concluded that the plaintiff had

standing because the citizen-suit provision was “intended

to grant standing to a nationwide class, comprised of

citizens who alleged an interest in clean water.” Id.

(emphasis added).

Subsequent to Gonzales, we concluded that the Clean

Water Act’s citizen-suit provision did not confer standing

on a plaintiff who claimed that the government's failure

to comply with the statute deprived him of grant funds.

See Dan Caputo Co. v. Russian River County Sanitation, 749

F.2d 571, 575 (9th Cir.1984). We based our holding on the

fact that the plaintiff's injury did not “arise from an

interest in the environment,” and the fact that he did “not

seek to vindicate environmental concerns.” Id.

the ESA, no less than suits under any statute, are clearly not

available to “any person” in the broadest possible sense of that

term. See Lujan, 504 U.S. at 570-580, 112 S.Ct. at 2142-2146.

App. 10

We applied a similar analysis in construing a differ-

ent statute. In Alvarez v. Longboy, 697 F.2d 1333, 1337 (9th

Cir.1983), we considered whether a provision of the Farm

Laborer Contractor Registration Act (FLCRA) that per-

mitted suit by “[a]ny person claiming to be aggrieved” by

a violation of the act conferred standing on migrant

workers to sue farm labor contractors with whom they

had no contract. See 7 U.S.C. § 2050a(a).5 We concluded

that it did, but only after carefully considering the overall

purposes of the act to determine whether the particular

plaintiff fell within the zone of interests that the statute

protected. Alvarez, 697 F.2d at 1337-38.

The Eleventh Circuit employed the same approach in

construing the FLCRA. Davis Forestry Corporation v. Smith,

707 F.2d 1325, 1328 (11th Cir.1983). After analyzing the

purposes of the act, the court concluded that the provi-

sion authorizing suits under the FLCRA did not confer

standing on competitors of farm labor contractors to

bring an action for a violation of the statute. It explained

that their claimed injury fell outside “the zone of interests

sought to be protected” by the statute. Jd. In so conclud-

ing, the court explained that:

The FLCRA was designed to alleviate a parade

of horribles being inflicted upon farm laborers

(primarily migrant farm workers). While “any

person” may be read to include many possi-

bilities, we do not find any basis for extending it

5 The inclusion of the language “claiming to be aggrieved”

does not distinguish the statute from the one we consider here.

As we have explained, the constitution necessarily limits stand-

ing to plaintiffs who are, at the least, aggrieved; i.e., persons

who suffer constitutional injury.

App. 11

to [the plaintiff] for the type of claim alleged

here.

Id. at 1329.

In sum, the fact that a statute contains a citizen-suit

provision does not necessarily establish that Congress

intended that any particular plaintiff have standing to

assert a violation. In light of our consistent use of the

zone of interests test in determining the standing of

plaintiffs who have sued under citizen-suit provisions,

we hold that the ESA does not automatically confer

standing on every plaintiff who satisfies constitutional

requirements and claims a violation of the Act’s pro-

cedures. A contrary ruling would permit plaintiffs to sue

even though their purposes were plainly inconsistent

with, or only “marginally related” to, those of the Act.

Clarke, 479 U.S. at 399, 107 S.Ct. at 757. Thus, we apply

the zone of interests test here.

IV.

Having concluded that the zone of interests test

applies, we must next determine whether the ESA pro-

tects plaintiffs who assert an interest of the type asserted

here. We answer that question in the negative, holding

that only plaintiffs who allege an interest in the preserva-

tion of endangered species fall within the zone of inter-

ests protected by the ESA. Because the plaintiffs have not

alleged such an interest in their complaint, they do not

have standing.

In reaching our conclusion, we follow the approach

that we have adopted in applying the zone of interests

test to claims brought pursuan‘ to other environmental

App. 12

statutes. In those cases, we declined to confer standing on

plaintiffs who asserted interests similar to those that

underlie the claims in this case; we concluded that the

asserted interests were not tied to the environmental

purposes served by the respective statutes. For example,

as we have explained supra at page 10656, we denied

standing under the Clean Water Act to a plaintiff who

sought grant funds but did not assert an interest that

“ar[o]se from an interest in the environment” or “envi-

ronmental concerns.” See Dan Caputo Co. v. Russian River

County Sanitation, 749 F.2d 571, 575 (9th Cir.1984). Sim-

ilarly, we held that plaintiffs do not have standing under

NEPA to protect “purely” economic interests, because the

environmental purposes of the Act would not be fur-

thered by permitting suits premised on such interests. See

Nevada Land Action Ass‘n v. U.S. Forest Service, 8 F.3d 713,

716 (9th Cir.1993).

We see no reason why the ESA should be construed

in a different manner from either NEPA or the Clean

Water Act.© The overall purposes of the ESA are

Environmental Protection Agency, 990 F.2d 1531 (9th Cir.1993), is

not inconsistent with our analysis. In Central Arizona, although

we conferred standing on water districts that sued to recoup the

“compliance costs” imposed by the Clean Air Act, we did not

consider the general question of whether the Clean Air Act

protects the interests of plaintiffs who assert no interest in clean

air. Instead, in our opinion, we concluded that the districts had

standing because they were contractually “require[d]” to pay a

substantial portion of the multi-million dollar “compliance

costs” that the Act imposed directly on the Bureau of Reclama-

tion. Central Arizona, 990 F.2d at 1537-1539. In Central Arizona,

the water districts stood in the same positidn as the Bureau of

A A me

ee eee

App. 13

singularly devoted to the goal of ensuring species preser-

vation; they do not embrace the economic and recre-

ational interests that underlie the plaintiffs’ challenge.

Our conclusion is based in part on the Supreme Court's

own exhaustive review of the purposes of the ESA in

Tennessee Valley Authority v. Hill, 437 U.S. 153, 184, 98 S.Ct.

2279, 2296-97, 57 L.Ed.2d 117 (1978) (emphasis added).

There, the Court concluded that:

[t]he plain intent of Congress in enacting this

statute was to halt and reverse the trend toward

species extinction, whatever the cost. That is

reflected not only in the stated policies of the

Act, but in literally every section of the statute.

See also Babbitt v. Sweet Home Chapter of Communities for a

Great Oregon, __ U.S. __, ___, 115 S.Ct. 2407, 2413, 132

L.Ed.2d 597 (1995) (quoting same). The Court went on to

point out that even the citizen-suit provision, on which

the plaintiffs rely, was designed to serve the goal of

species protection by permitting “interested persons” to

sue to enforce the Act. Id. at 181, 98 S.Ct. at 2295

(emphasis added).

Moreover, a review of the section of the ESA that sets

forth the Act’s purposes bears out the Court’s analysis.

That section provides no basis for concluding that the

plaintiffs’ interest in obtaining water that the government

deems critical to the survival of endangered fish is a

Reclamation, the entity that the Clean Air Act regulated directly.

As we noted earlier, the zone of interests test does not apply in

such circumstances. Clarke, 479 U.S. at 400, 107 S.Ct. at 757;

supra, note 2.

App. 14

protected one. Rather, the statute declares that its pur-

poses are:

to provide a means whereby the ecosystems

upon which endangered species and threatened

species depend may be conserved, to provide a

program for the conservation of such endan-

gered species and threatened species, and to

take such steps as may be appropriate to achieve

the purposes of the treaties and conventions set

forth in subsection (a) of this section.

16 U.S.C. § 1531(b). It was a similar declaration of pur-

pose that we relied upon in concluding that a plaintiff's

economic interest fell outside the zone of interests pro-

tected by NEPA. See Nevada Land Action, 8 F.3d at 716

(quoting the purposes section of NEPA). Given that the

clear purpose of the ESA is to ensure the protection of

endangered species, we conclude that suits by plaintiffs

who are interested only in avoiding the burdens of that

preservation effort “are more likely to frustrate than to

further statutory objectives.” Nevada Land Action, 8 F.3d at

716 (quoting Clarke, 479 U.S. at 397 n. 12, 107 S.Ct. at 756

n. 12).

Our conclusion echoes some of the views that we

recently expressed in Pacific Northwest. In Pacific North-

west, hydropower purchasers challenged the govern-

ment’s preparation of a biological opinion that

recommended regulating water flow in order to protect

endangered salmon. In one of their claims, the hydro-

power purchasers contended that the opinion’s recom-

mendations would yield only “dubious benefit to the

listed species” and did not adequately consider the

impact that the proposed regulations would have on their

ne tan

eed deeded

App. 15

industry. Pacific Northwest, 38 F.3d at 1067. We explained

that such a claim went beyond the bounds of the standing

that the ESA confers.

On analysis, a portion of this claim goes beyond

the basis for the plaintiffs’ standing because it

focuses on the increases in cost to hydropower

operations. The plaintiffs are entitled to stand-

ing because preservation of the salmon will, in

the long run, reduce their cost. But the plaintiffs

are not entitled to standing simply to complain about

the additional cost imposed on hydropower. Nothing

in the Endangered Species Act confers a cause of

action for that purpose.

Pacific Northwest, 38 F.3d at 1067 (emphasis added).

Pacific Northwest said, in effect, that as to a portion of

their claim, the plaintiffs were not entitled to standing

because they failed to assert an interest in preserving a

threatened or endangered species.”

7? Pacific Northwest did not clearly state whether it was con-

cluding that the ESA denied the plaintiffs standing or a cause of

action. However, the distinction between “standing” and “cause

of action” is often “only a matter of semantics,” National Railroad

Passenger Corp. v. National Ass'n of Railroad Passengers, 414 U.S.

453, 467, 94 S.Ct. 690, 697, 38 L.Ed.2d 646 (1974), (Douglas, J.,

dissenting); Pacific Northwest, 38 F.3d at 1067, and the terms are

sometimes used interchangeably or confused. See, e.g., DKT

Memorial Fund v. Agency for International Development, 887 F.2d

275, 286 (D.C.Cir.1989) (explaining that zone of interests stand-

ing test and cause of action inquiry often meld into one) (quot-

ing Cardenas v. Smith, 733 F.2d 909, 915 (D.C.Cir.1984)); see also

McMichael v. County of Napa, 709 F.2d 1268, 1273 (9th Cir.1983)

(Kennedy, J. concurring). Thus, Pacific Northwest's interchange-

able use of the two terms does not constitute a departure from

our past practice of deeming the question of who may sue for a

statutory violation as one that concerns standing. See Alvarez v.

App. 16

Here, the plaintiffs make no allegation that the gov-

ernment’s recommendations will harm the Lost River or

shortnose suckers. Instead, they argue that the actions

proposed in the biological opinion are not necessary to

preserve the fish. In their claims regarding consultation

and designation of critical habitat, they seek only to

obtain a greater share of the water and do not contend

that compliance with the Act will improve the fish’s lot.

Indeed, they tell us that the suckers are doing just fine.

Thus, their complaint belies any assumption that they

seek compliance with the statute in order to further the

goal of species preservation. The complaint instead is

premised on the contrary position that the fish are

“reproducing successfully” and will not be adversely

affected by the long-term operation of the Klamath pro-

ject.

In short, the plaintiffs do not seek to further the

statutory purpose. Nor do they allege any community of

interest of any kind between themselves and the suckers.

To the contrary, they claim a competing interest - an

interest in using the very water that the government

believes is necessary for the preservation of the species.

Because the plaintiffs’ interests consist solely of an eco-

nomic (and recreational) interest in the use of water,

because their claims are at best “marginally related” to

the purposes that underlie the Act, Clarke, 479 U.S. at 399,

Longboy, 697 F.2d 1333, 1337 (9th Cir.1983); Gonzales v. Gorsuch,

688 F.2d 1263, 1266 (9th Cir.1982); Dan Caputo Co. v. Russian

River County Sanitation, 749 F.2d 571, 575 (9th Cir.1984). Seman-

tics aside, Pacific Northwest followed our traditional approach in

assessing the interests asserted by the plaintiffs in that case.

App. 17

107 S.Ct. at 757, and because, as the district court deter-

mined, their interests are inconsistent with the Act’s pur-

poses, we conclude that they lack standing.*

Finally, we are aware that the ESA specifically pro-

vides that the government should consider a variety of

factors — including economic ones - in designating critical

habitat for a species. See 16 U.S.C. § 1533(b)(3). The Act's

inclusion of such directives does not alter our analysis.

We do not believe that in setting forth the factors to be

weighed in formulating a plan for protecting species,

Congress intended to do more than ensure a rational

decision-making process by providing guidance for gov-

ernment officials. Certainly, it did not intend impliedly to

confer standing on every plaintiff who could conceivably

claim that the failure to consider one of those factors

adversely affected him. See Hazardous Waste Treatment

Council v. Thomas, 885 F.2d 918, 922 (D.C.Cir.1989) (hold-

ing that the fact that Congress mandates that certain

methods be used to achieve its goals does not express its

intent to benefit every person who has an interest in

those methods being followed). To interpret the statute in

the manner suggested by plaintiffs would be to transform

provisions designed to further species protection into the

means to frustrate that very goal. See Clarke, 479 U.S. at

397 n. 12, 107 S.Ct. at 756 n. 12. Accordingly, we hold that

the plaintiffs have no standing under the ESA.

* The fact that the ranchers allege that they have an aes-

thetic and recreational interest in lower lake levels does not

change anything. That interest - even though not economic in

nature — does not serve the purpose of preserving any endan-

gered species. Thus, it is not an interest protected by the ESA.

App. 18

Because the plaintiffs have failed to assert an interest

protected by the ESA, they necessarily have no standing

under the APA. Yesler Terrace, 37 F.3d at 447 (zone of

interests test applies to the APA). We also need not con-

sider whether the plaintiffs have standing under the

National Environmental Policy Act. Under the doctrine of

hypothetical jurisdiction, we may dismiss a claim on the

merits, if they are clear, in order to avoid a difficult

jurisdictional inquiry. Clow v. U.S. Department of Housing

& Urban Development, 948 F.2d 614, 616-17 n. 2 (9th

Cir.1991). Here, as the plaintiffs concede, Douglas County

squarely holds that no NEPA claim lies for a violation of

the ESA’s provisions for determining critical habitat.

Douglas County, 48 F.3d at 1502. Accordingly, even if we

assume that the plaintiffs have standing under NEPA,

they have failed to state a claim under that Act.

VI.

Because the plaintiffs lack standing to sue under

either the ESA or the APA, and because they have failed

to state a claim under NEPA, we affirm the district court.

AFFIRMED.

Pee 62 te ee er ee

ee he ek) ne

ee ee eS

App. 19

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

BRAD BENNETT, et al.,

)

) Civil No.

Plaintiffs, ) 93-6076-HO

v. ORDER

MARVIN L. PLENERT, et al., (Filed __)

Defendants. )

)

Plaintiffs filed this action for declaratory and injunc-

tive relief under the Endangered Species Act (ESA) citi-

zens suit provision, 16 U.S.C. § 1540(g)(1)(c), alleging

violations of ESA, 16 U.S.C. §§ 1531 et seq., and its

implementing regulations, 50 CFR part 402, the National

Environmental Policy Act of 1969, as amended (NEPA),

42 U.S.C. § 4321, et seq., and the Administrative Pro-

cedure Act (APA), 5 U.S.C. § 551 et seq.

Plaintiffs seek to compel defendants to withdraw

portions of a biological opinion issued by the Fish and

Wildlife Service (FWS) on July 22, 1992, pursuant to the

agency consultation provisions of ESA.

Plaintiffs allege “(t)he Biological Opinion improperly

concludes that continued operation of Clear Lake reser-

voir in Northern California and Gerber reservoir in

Southern Oregon by the Bureau of Reclamation (“BOR”)

jeopardizes two endangered species, the Lost River

Sucker and the shortnose sucker.” As a consequence of its

erroneous jeopardy conclusion, the Biological Opinion

improperly seeks to impose restrictions on the BOR’s

App. 20

operation of Clear Lake reservoir and Gerber reservoir.”

Complaint (#1), p. 2. Plaintiffs allege that the “restrictions

on lake levels imposed by the Biological Opinion adver-

sely affect plaintiffs by substantially reducing the quan-

tity of available irrigation water.” Id., p. 9.

Plaintiffs also allege “(b)y imposing restrictions on

lake levels in Clear Lake and Gerber Reservoirs, the

Biological Opinion implicitly determines critical habitat

for the endangered suckers” without consideration of the

economic impact of that determination, as required by

section 4 of ESA, 16 U.S.C. § 1533(b)(2),” Ibid, and that

designation of critical habitat is a major federal action to

which NEPA procedural requirements apply. Complaint

(#1), p. 10.

Defendants move to dismiss the complaint (#4) on

the ground that plaintiffs lack standing. Defendants

maintain that the biological opinion “is a non-binding

opinion which in and of itself does not cause any injury

to plaintiffs.” Federal Defendants’ Memorandum (#4),

pp. 2-3. Defendants also contend that plaintiffs lack

standing because their alleged injury is not “a result of

the Secretary’s failure to conserve the two species of fish”

nor can it “be fairly traced to an alleged violation of the

Secretary's obligations under ESA section 7(a)(1).” Fed-

eral Defendants Reply (#9), p. 6. Defendants contend

plaintiffs’ de facto designation of critical habitat claim

should be denied because the “issuance of a biological

opinion does not constitute a designation of critical habi-

tat.” Federal Defendants’ Memorandum (#4), p. 3.

Statutory requirements: Section 7 of ESA requires each

federal agency to “insure that any action authorized,

See a ee

App. 21

funded or carried out by such agency .. . is not likely to

jeopardize the continued existence of any endangered

species or threatened species o1 result in the destruction

or adverse modification of habitat of such species.” 16

U.S.C. § 1536 (a)(2).

To fulfill this obligation, agencies are required to

consult with the Secretary of the Interior (through the

FWS) or the Secretary of Commerce (through the

National Marine Fisheries Service - “NMFS”) depending

on the species involved. The two secretaries have devel-

oped regulations governing the consultation process. See

50 CFR Part 402.!

If during informal consultation the agency deter-

mines, with the written concurrence of the Service, that

the action is not likely to adversely affect a listed species

of critical habitat, the consultation process is terminated

and no further action is necessary. 50 CFR §§ 402.13(a);

402.14(b)(1).

If the agency determines that the proposed action

may affect a listed species, formal consultation is

required. 50 CFR § 402.14(a). Following consultation, the

Service issues a biological opinion “detailing how the

agency action affects the species or its critical habitat.” 16

U.S.C. §1536(b)(3)(A). If jeopardy or adverse modification

is found, the Secretary “shall suggest those reasonable

and prudent alternatives” which he believes would not

' The species at issue in this case are under the auspices of

the Secretary of the Interior. Therefore, all references to “the

Secretary” refer to the Secretary of the Interior; references to

“the Service” refer to FWS.

App. 22

violate the agency's duty under section 1536(a)(2). [bid.

See also, 50 CFR Subpart A — § 402.01.

Although the primary responsibility for implement-

ing section 7 of ESA is on the Secretary, the ultimate

obligation to comply with the substantive obligation

under 16 U.S.C. §1536 (a)(2) is on the agency.

Federal agencies are required to consult and

obtain the assistance of the Secretary before tak-

ing any actions which may affect endangered

species or critical habitat. However, once an

agency has had meaningful consultation with

the Secretary of Interior concerning actions

which may affect an endangered species the

final decision of whether or not to proceed with

the action lies with the agency itself. Section 7

does not give the Department of Interior a veto

over the actions of other federal agencies pro-

vided that the required consultation has

occurred.

National Wildlife Federation v. Coleman, 529 F.2d 359,

(Sth Cir. 1976), cert. den. 429 U.S. 979 (1976).

See also, remarks of Senator Tunny, floor manager of

the ESA bill in the United States Senate. [“So, as I read

the language (of section 7), there has to be consultation.

However, the Bureau of Public Roads or any other agency

would have the final decision as to whether such a road

should be built. That is my interpretation of the legisla-

tion at any rate.” 119 Cong. Rec., S. 14536 (July 24, 1973).]

The Ninth Circuit has stated in describing the ESA

process: “If the biological opinion concludes that the

proposed action would jeopardize the species or destroy

or adversely modify critical habitat . . «the action may not

App. 23

go forward unless the F & WS can suggest an alternative

that avoids such jeopardization, destruction, or adverse

modification. Id. §1536(b)(3)(A).” Thomas v. Petersen, 753

F.2d 754, 763 (9th Cir. 1985).

16 U.S.C. § 1536(b)(3)(A) does not necessarily sup-

port the Thomas court's conclusion that “the action may

not go forward.” In addition, | find this dicta in Thomas v.

Petersen is not controlling in view of Sierra Club v. Marsh,

816 F.2d 1376 (9th Cir. 1987). In that case, the Army Corp

of Engineers declined the FWS’s request to initiate the

consultation process. Citing National Wildlife Federation v.

Coleman, supra, the court held: “The ESA does not give

the FWS the power to order other agencies to comply

with its requests or to veto their decisions.” Id., p. 1386.

The interpretation that biological opinions are not

binding on the action agency is also supported by the

finding in Pyramid Lake Paiute Tribe v. U.S. Dept of Navy,

898 F.2d 1410, 1418 (9th Cir. 1990) that “non Interior”

agencies have the discretion whether to implement con-

servation recommendations put forth by the FWS. See

also, 50 CFR §402.14(j) [“Conservation recommendations.

The Service may provide with the biological opinion a

statement containing discretionary conservation recom-

mendations. Conservation recommendations are advisory

and are not intended to carry any binding legal force.”].

See also, Roosevelt Campobello Intern. Park v. U.S.E.P.A.,

684 F.2d 1041, 1049 (1st Cir. 1982). [“An agency’s duty to

consult with the Secretary of Commerce or Interior,

depending on the particular endangered species, does not

divest it of discretion to make a final decision that ‘it has

taken all necessary action to insure that its actions will

App. 24

not jeopardize the continued existence of an endangered

species.’ ”] Citing National Wildlife Federation v. Coleman,

supra.

Based on the foregoing, I find that the Secretary's

biological opinion is advisory in nature and does not

compel compliance with its recommendations or require

agencies to act or refrain from acting in any particular

manner.?

Consultation between FWS and BOR: In this case, the

BOR requested formal consultation with FWS after com-

pleting a biological assessment which found that three

listed species may be affected by the long term operation

of the Klamath Basin Project. See, Federal Defendants’

Memorandum (#4), Exhibit 1.

On July 22, 1991, FWS issued its biological opinion

finding that the long-term operation of the Klamath Pro-

ject was likely to jeopardize the continued existence of

the Lost River and shortnose suckers. Federal Defen-

dants’ Memorandum (#4), Exhibit 5, p. 2. The Service

recommended a number of measures the BOR could take

to avoid jeopardy to the suckers, Id., pp. 36-39, including

the recommendations regarding maintaining minimum

lake levels at issue in this case.

2 Although the Regional Director of BOR indicated to the

Regional Director of FWS that the BOR “intends to comply with

the requirements of the Biological opinion issued on July 22,

1992, concerning the long-term operation of the Klamath Pro-

ject.” (emphasis added) Federal Defendants Memorandum (#4),

Exhibit 6. :

App. 25

On August 19, 1992, the BOR notified FWS that it

accepted the conclusions of the biological opinion and

that it intended to comply with the recommendations of

the Service. Federal Defendants’ Memorandum (#4),

Exhibit 6.

Standing: The “irreducible constitutional minimum” of

standing requires three elements: (1) an injury in fact — an

invasion of a legally protected interest which is concrete

and particularized and actual or imminent, not conjec-

tural or hypothetical; (2) a causal connection between the

injury and the conduct complained of - the injury must

be “fairly traceable to the challenged action of the defen-

dant and not the result of some third party not before the

court; and, (3) it must be likely as opposed to merely

speculative that the injury will be redressed by a favor-

able decision. Lujan v. Defenders of Wildlife, _. U.S. __,

112 S.Ct. 2130, 2136 (1992).°

When a plaintiff's challenge to an agency action or

inaction is premised upon the allegedly unlawful regula-

tion or lack of regulation of someone else, standing is

“substantially more difficult” to establish. Id., p. 2137.

Where an injury results from “the independent action of

some third party not before the court,” a federal court

lacks jurisdiction under Article III. Simon v. Eastern Ken-

tucky Welfare Rights Organization, 426 U.S. 26, 41 (1976).

[quoting Allen v. Wright, 468 U.S. 737, 758 (1984).]

3 In Lujan v. Defenders of Wildlife, the Supreme Court's anal-

ysis of standing to support an ESA claim was limited to the

application of Article If] (constitutional) requirements. Compare,

Lujan v. National Wildlife Federation, 497 U.S. 871, 883 (1990)

(applying ‘zone of interests’ test to NEPA-FLMPA/ APA claims).

App. 26

Discussion: Defendants contend plaintiffs’ complaint

“fails to allege an injury that can fairly be traced to the

challenged action, or that is likely to be redressed by a

decision in their favor.” Federal Defendants’ Memoran-

dum (#4), p. 10. Defendants argue that plaintiffs’ alleged

injury arises from restrictions on the use of water from

the Klamath Project. “These restrictions, however have

not been imposed by the Fish and Wildlife Service; rather,

the Bureau of Reclamation, who plaintiffs have not

joined, and is consequently not before this court.” Id., p.

11.

Defendants argue the biological opinion is not

reviewable under the APA because it is “merely a recom-

mendation, that the action agency may choose to adopt,

or reject” and not a final agency action. Federal Defen-

dants’ Memorandum (#4), p. 14.

In plaintiffs’ reply to defendants’ motion to dismiss

(#8), plaintiffs contend their “claim is not against the Fish

and Wildlife Service as defendants state. It is against the

Secretary of the Interior” and that “(t)he process giving

rise to this action is the ‘review’ process, not the ‘consul-

tation’ process required by Congress.” Plaintiffs’ Reply

(#8), p. 2.

I agree with defendants that plaintiffs’ reply

“recharacterizes” their claims under ESA. See Federal

Defendants’ Reply (#9). However, because a motion to

dismiss requires the court to determine whether plaintiffs

have alleged “any set of facts in support of his claim

which would entitle (them) to relief,” Conley v. Gibson,

355 U.S. 41, 45-46 (1957), it is appropriate to consider

plaintiffs’ “recharacterized” claim. +

App. 27

However, I find it is not necessary to decide these

issues because plaintiffs fail to meet a more fundamental

standing requirement.

Plaintiffs interest in this case, the use of Klamath

Project water for “recreational, aesthetic and commercial

purposes,” Complaint (#1), p. 4, conflict with the Lost

River and shortnose suckers’ interest in using the water

for habitat. Plaintiffs do not have standing under ESA

based on an interest which conflicts with the interests

sought to be protected by the Act.

This court recently rejected a claim similar to plain-

tiffs’ claim in this case. In Pacific Northwest Generating

Cooperative v. Brown, Civ Nos. 97-973, 92-1260, and

92-1264 (D. Or. April 1, 1993), Judge Marsh held that

plaintiff hydropower users lacked standing to challenge a

biological opinion issued by the National Marine Fish-

eries Service regarding the effects of the Columbia River

Power System hydropower operations on endangered

species of salmon. The court held that the injury alleged

by plaintiffs as a result of the consultation (an increase in

the cost of hydropower) lacked Article III standing

requirements of causation and redressability. The court

further held that where plaintiffs’ interests conflicted

with the species they purport to represent in their claims,

the case or controversy requirement of Article III was not

satisfied and plaintiffs lacked standing.

When [plaintiffs] invoke the Endangered Spe-

cies Act and seek to specifically enforce its

terms, ultimately they run headlong into a clas-

sic conflict of interest - by invoking the ESA

they purport to represent the interest of the

listed species. Yet, when push comes to shove, if

App. 28

the resources become so scarce that truly hard

cheices must be made, plaintiffs’ asserted inter-

ests in the listed species may yield to the basis

for their claimed “injury” les standing under

ESA -— their interest in power and water for

hydroelectric use.

Pacific Northwest Generating Cooperative v. Brown,

supra, p. 62.

Similarly, the “zone of interest” standing requirement

would preclude review under the APA. ESA is designed

“to provide a means whereby the ecosystems upon which

endangered species and threatened species depend may

be conserved, and to provide a program for the conserva-

tion of such endangered and threatened species. ... “ 16

U.S.C. §1531(b). Therefore, the recreational, aesthetic, and

commercial interests advanced by plaintiffs do not fall

within the zone of interests sought to be protected by

ESA.

Conclusion: Based on the reasoning in Pacific Northwest

Generating Cooperative v. Brown, supra, Defendants’ motion

tu dismiss (#4) based on lack of standing is allowed.*

4 1am not persuaded that the Secretary's biological opinion

at issue in this case constitutes a “de facto” determination of

critical habitat for the Lost River and shortnose suckers, for

purposes of plaintiff's third and fourth claims for relief, partic-

ularly in view of Wood, et al. v. Plenert, et al., Civ. No 91-6496-TC

(D. Or.) currently pending in this court. However, nothing in

this opinion should be construed as precluding a NEPA claim

independent of ESA, i.e., if the implementation of the biological

opinion was found to be a “major federal action... ,” NEPA

procedural requirements may apply. However, such a deter-

mination could not be premised upon the assumption that the

biological opinion constitutes designation of critical habitat

under 16 U.S.C. § 1533. ‘

App. 29

DATED this 18th day of November, 1993.

/s/ Michael R. Hogan

UNITED STATES

DISTRICT JUDGE

App. 30

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

BRAD BENNETT, et al

Plaintiffs.

Vv.

Civil No.

MARVIN L. PENERT, et al 93-6076-HO

Defendants.

JUDGMENT

This action is dismissed.

Dated: November 19, 1993.

Donald M. Cinnamond, Clerk

by /s/ Lea Force

Lea Force, Deputy

App. 31

William F. Schroeder, Esq.

OSB#51099

Larry A. Sullivan, Esq.

OSB#78393

P.O. Box 220

Vale, Oregon 97918

(503) 473-3141

John T. Schroeder, Esq.

W. Alan Schroeder, Esq.

P.O. Box 267

Boise, Idaho 83701

(208) 384-1627

Lawyers for Plaintiffs.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

BRAD BENNETT, an individual;

MARIO GIORDANO, an

individual; LANGELL VALLEY Case No.

IRRIGATION DISTRICT, a 93-6076-HO

political subdivision of

the State of Oregon;

HORSEFLY IRRIGATION COMPLAINT

DISTRICT, a political subdivision FOR

of the State of Oregon, DECLARATORY

_ AND

Plaintiffs, INJUNCTIVE

Vs. RELIEF

MARVIN L. PLENERT, in his

official capacity as Regional

Director, Region One, Fish and

Wildlife Service, United States

Department of the Interior;

Nm me me ee ee ee ee ee ee ee ee ee ee ee”

App. 32

JOHN F. TURNER, in his official )

capacity as Director, Fish and )

Wildlife Service, United States )

Department of the Interior; and)

BRUCE BABBITT, in his official )

capacity as Secretary, United )

States Department of the Interior, )

)

Defendants.

PRELIMINARY STATEMENT

1. This is an action for declaratory judgment. Plain-

tiffs seek to compel Defendants to withdraw portions of

the biological opinion issued by the Fish and Wildlife

Service on July 22, 1992, (“the Biological Opinion”), pur-

suant to the agency consultation provisions of the Endan-

gered Species Act (“ESA”). A copy of the Biological

Opinion is attached hereto and incorporated herein as

Exhibit B. The Biological Opinion improperly concludes

that continued operation of Clear Lake reservoir in north-

ern California and Gerber reservoir in southern Oregon

by the Bureau of Reclamation (“BOR”) jeopardizes two

endangered species, the Lost River sucker and the short-

nose sucker. As a consequence of its erroneous jeopardy

conclusion, the Biological Opinion improperly seeks to

impose restrictions on the BOR’s operation of Clear Lake

reservoir and Gerber reservoir. In addition, until the Bio-

logical Opinion was issued, critical habitat for the Los

River sucker and the shortnose sucker has never been

determined by defendants, and these restrictions are

invalid for that reason as well. On information and belief,

Plaintiffs allege that the BOR will abide by the restric-

tions imposed by the Biological Opinion.

State

ak ee

;

‘

App. 33

2. This action arises under and alleges violations of

the ESA, 16 U.S.C. §§ 1531 et seq., and its implementing

regulations, 50 C.F.R. Part 402, the National Environmen-

tal Policy Act of 1969 (as amended) (the “NEPA”), 42

U.S.C. 4321, et seq., and the Administrative Procedure

Act (the “APA”), 5 U.S.C. §§ 551 et seq.

JURISDICTION AND VENUE

3. Jurisdiction over this action is conferred by 16

U.S.C. § 1540 (g)(1)(C) (ESA citizens’ suit) and 28 U.S.C.

§§ 1331 (federal question), and 2201 (declaratory relief). A

copy of plaintiffs’ 60-day Notice of Intent to Sue, dated

November 12, 1992, is attached hereto as Exhibit A.

4. Venue is properly in this Court pursuant to 28

U.S.C. § 1391(e), as some or all of the plaintiffs reside in

this district and a substantial part of the events or omis-

sions giving rise to the claim occurred in this district.

PARTIES

5. The plaintiffs in this action are:

A. Brad Bennett (“Bennett”), a rancher who resides

near Bonanza, Oregon, and who receives most of his

irrigation water from Clear Lake reservoir. Brad Bennett's

ranch is located within the Horsefly Irrigation District.

B. Mario Giordano (“Giordano”), a rancher who res-

ides near Bonanza, Oregon, and who receives irrigation

water from Clear Lake reservoir. Mario Giordano’s ranch

is located within the Langell Valley Irrigation District.

App. 34

C. Horsefly Irrigation District (“HID”) is a political

subdivision of the State of Oregon organized pursuant to

Oregon Revised Statutes chapter 545 for the purpose of

delivering irrigation water to its patrons within the Dis-

trict. The District is located in Klamath County, Oregon,

and it receives irrigation water from Clear Lake reservoir

in northern California via the Lost River, pursuant to

contracts with the United States. The District office ts

located in Oregon in the town of Bonanza.

D. Langell Valley Irrigation District (“LVID") is a

political subdivision of the State of Oregon organized

pursuant to Oregon Revised Statutes chapter 545 for the

purpose of delivering irrigation water to its patrons

within the District. The District is located in Klamath

County, Oregon, and it receives irrigation water from

Gerber reservoir via Miller Creek and Clear Lake reser-

voir in northern California via Lest River, pursuant to

contracts with the United States The District office is

located in Oregon near the town of Bonanza, Oregon.

6. Plaintiffs use Gerber reservoir, Clear Lake reser-

voir, Miller Creek, and Lost River for recreational, aes-

thetic and commercial purposes, as well as for their

primary sources of irrigation water. Plaintiffs’ use of

Clear Lake reservoir, Gerber reservoir, Miller Creek, and

Lost River will be irreparably damaged by defendants’

disregard of their statutory duties, as described below,

and by the unlawful restrictions placed by defendants on

the use of Clear Lake reservoir and Gerber reservoir.

7. Unless the relief prayed for herein is granted, the

above-described recreational, aesthetic, commercial, and

procedural interests of plaintiffs will be adversely

App. 35

affected and irreparably injured by the erroneous conclu-

sion of defendants that the BOR’s continued operation of

Clear Lake reservoir and Gerber reservoir will likely

jeopardize the survival of the Lost River sucker and the

shortnose sucker unless restrictions are placed on such

operation.

8 The defendants in this action are:

A. Marvin L. Plenert, in his official capacity as

director of Region One of the Fish and Wildlife Service,

United States Department of the Interior. Region One of

the Fish and Wildlife Service includes Clear Lake reser-

voir and Gerber reservoir. The Biological Opinion was

issued by the Region One office of the Fish and Wildlife

Service.

B. John F. Turner is the Director of the Fish and

Wildlife Service, United States Department of the Interior.

C. Bruce Babbitt is the Secretary of the United

States Department of the Interior (the “Secretary”). The

Secretary is empowered by the ESA to make jeopardy

determinations concerning threatened and endangered

species pursuant to 16 U.S.C. § 1536(b)(3)(A).

FACTS

9. Clear Lake reservoir and Gerber reservoir were

constructed early in the twentieth century in the eastern

portion of the Klamath Project by the BOR to provide

irrigation water to farmers and ranchers in southern Ore-

gon. Although Clear Lake reservoir and Gerber reservoir

are part of BOR’s Klamath Project, they are operated

separate and distinct from the western portion of the

App. 36

Klamath Project, which consists of the Klamath River and

Upper Klamath Lake in Oregon and Lower Klamath Lake

and Tule Lake in California. A diagram showing the

bodies of water in the Klamath Project is attached hereto

as Exhibit C. The separated systems are different aquar-

iums and aquatic animals within the one cannot naturally

move to the other.

10. The Lost River sucker and the shortnose sucker

were declared endangered under the ESA in 1988 (53

C.F.R. 27130-27135). Both species have been found in the

various bodies of water of the Klamath Project, including

Clear Lake reservoir, but only the shortnose sucker has

been found in Gerber reservoir.

11. Critical habitat for these species of suckers has

never been determined by the Secretary, despite the

ESA’s mandate that he do so “to the maximum extent

prudent and determinable” under 16 U.S.C. § 1533(a)(3)

at the same time the Secretary declares them endangered.

Defendants are responsible for determining critical habi-

tat.

12. The BOR has been following essentially the

same procedures for storing and releasing water from

Clear Lake and Gerber reservoirs throughout the twen-

tieth century, up to the present dav. No natural phenome-

non or human activity has substantially modified the

aquatic environments of Gerber reservoir and Clear Lake

reservoir since their construction except that the Depart-

ment of Fish & Game of the State of California installed

the Sacramento Perch within the Clear Lake Reservoir.

App. 37

13. There is no scientifically or commercially avail-

able evidence indicating that the populations of endan-

gered suckers in Clear Lake and Gerber reservoirs have

declined, are declining, or will decline as a result of any

natural phenomena or human activities, including the

operations of the BOR in the Klamath Project. To the

contrary, the scientifically and commercially available

evidence indicates that the populations of endangered

suckers in Clear Lake and Gerber reservoirs are not

declining and are reproducing successfully.

14. Asa result of concerns over population declines

of the endangered suckers in the Klamath River system in

the Western portion of the Klamath Project, the BOR

initiated consultation with the Fish and Wildlife Service

in 1990 pursuant to section 7 of the ESA, 16 U.S.C. § 1536.

The Biological Opinion is the result of that consultation

and was issued pursuant to section 7(b)(3)(a) of the ESA,

16 U.S.C. § 1536(b)(3)(a).

15. The Biological Opinion makes the following

conclusion:

Biological Opinion

It is our biological opinion that the long-term

operation of the Klamath Project as described

under the Description of the Proposed Action, is

likely to jeopardize the continued existence of

the Lost River and shortnose suckers. It is our

biological opinion that the proposed Project

operation is not likely to jeopardize the contin-

ued existence of the bald eagle. Critical habitat

has not been designated for any of these three

species.

p.2.

App. 38

16. The Biological Opinion notes that “Both Lost

River and shortnose suckers are long-lived, highly

fecund, and well adapted to surviving drought condi-

tions.” (Biological Opinion, p. 18). The Biological Opinion

points out that sucker habitat in Clear Lake differs from

that in the western portion of the Project, at Klamath

Lake and Upper Klamath Lake, “because Clear Lake

appears to have relatively stable sucker populations, has

virtually no aquatic vegetation, and exhibits wider fluctu-

ations in lake elevations during most years.” (Biological

Opinion, p. 18). The Biological Opinion attributes the

stability of the sucker populations in Clear Lake to its

good water quality, in comparison to the poor water

quality in Klamath Lake and Upper Klamath Lake, where

sucker populations have declined. (Biological Opinion, p.

18).

17. The Biological Opinion admits that little is

known about the endangered sucker population in Ger-

ber reservoir, although a study in May of 1992 found over

200 shortnose suckers with a broad range in size,

_ which indicates that the population of shortnose

suckers in Gerber reservoir has successfully recruited in

the last few years . . . ” (Biological Opinion, p. 20). The

May 1992 study also found some evidence of stress in the

collected specimens, possibly due to low reservoir levels.

(Biological Opinion, p. 20). The Biological Opinion notes

that 1992 was one of a series of low water years, and that

the 17-foot depth of Gerber reservoir at its lowest level,

likely to be reached in October, 1992, should be sufficient

to maintain a population of suckers. (Biological Opinion,

p. 20). ‘

App. 39

18. Without any supporting citations, the Biological

Opinion states:

Formally (sic) stable populations, such as those

in Clear Lake, are now threatened by drought

related stresses. Without proposed improve-

ments in water quality and sucker habitat, the

future of these suckers is imperiled and the

present status of habitat condition makes extinc-

tion in most of their current range highly likely.

p. 26.

19. Despite its conclusion that both Clear Lake and

Gerber reservoirs have stable populations of endangered

suckers which are reproducing successfully during the

present drought years, the Biological Opinion imposes

restrictions on the withdrawal of water from both reser-

voirs. Except for compromise years, the restrictions appli-

cable to Clear Lake reservoir include a minimum lake

level of 4524.0 feet between February 1 am. April 15

annually, during the spawning season, and a minimum

lake level of 4523.0 feet during the remainder of the year.

(Biological Opinion, at 37). Except for compromise years,

the restrictions applicable to Gerber reservoir permit no

water releases below 4799.6 feet. (Biological Opinion, at

38).

20. There is no commercially or scientifically avail-

able evidence indicating that the restrictions on lake

levels imposed in the Biological Opinion will have any

beneficial effect on the stable, successfully reproducing

populations of suckers in Clear Lake and Gerber reser-

voirs.

App. 40

21. The restrictions on lake levels imposed in the

Biological Opinion adversely affect plaintiffs by substan-

tially reducing the quantity of available irrigation water.

22. By imposing restrictions on lake levels in Clear

Lake and Gerber Reservoirs, the Biological Opinion

implicitly determines critical habitat for the endangered

suckers. The Biological Opinion does not take into con-

sideration the economic impact of that determination, as

required by § 4 of the ESA, 16 U.S.C. § 1533(b)(2). There is

abundant commercially and scientifically available evi-

dence as to the substantial negative economic impact of

designating the critical habitat of the endangered suckers

at the lake levels set by the Biological Opinion.

23. By imposing restrictions on lake levels in Clear

Lake and Gerber Reservoirs, the Biological Opinion

implicitly determines critical habitat for the endangered

suckers. The designation of critical habitat is a major

federal action to which NEPA procedural requirements

apply.

CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF

VIOLATION OF THE ENDANGERED

SPECIES ACT VIOLATION OF

THE ADMINISTRATIVE PROCEDURE ACT

24. Plaintiffs reallege paragraphs 1 through 23

above.

25. Defendants have violated § 7 of the ESA, 16

U.S.C. § 1536, and its implementing regulations, 50 C.F.R.

Part 402, by improperly concluding on page 2 of the

Biological Opinion that the BOR’s continued operation of

App. 41

the Klamath Project, including Clear Lake and Gerber

reservoirs, is likely to jeopardize the continued existence

of the Lost River and shortnose suckers. Defendants’

violation of the ESA is subject to judicial review under

section 11(g) of the ESA, 16 U.S.C. § 1540(g)(1)(C).

26. Defendants’ inclusion of Clear Lake and Gerber

reservoirs in its jeopardy opinion is arbitrary, capricious,

and an abuse of discretion, and violates the APA, 5 U.S.C.

§ 706(2)(A). Defendants’ violation of the APA is subject to

judicial review under 5 U.S.C. § 701 et seq.

SECOND CLAIM FOR RELIEF

VIOLATION OF THE ENDANGERED SPECIES ACT

VIOLATION OF THE ADMINISTRATIVE

PROCEDURE ACT

27. Plaintiffs reallege paragraphs 1 through 23

above.

28. Defendants have violated § 7 of the ESA, 16

U.S.C. § 1536, and its implementing regulations, 50 C.F.R.

Part 402, by improperly imposing restrictions on the

withdrawal of irrigation water from Clear Lake and Ger-

ber reservoirs, as specifically set forth in paragraph 19

above. Defendants’ violation of the ESA is subject to

judicial review under section 11(g) of the ESA, 16 U.S.C.

§ 1540(g)(1)(C).

29. Defendants’ imposition of restrictions on the

withdrawal of irrigation water from Clecr Lake and Ger-

ber reservoirs is arbitrary, capricious, and an abuse of

discretion, and violates the APA, 5 U.S.C. § 706(2)(A).

Defendants’ violation of the APA is subject to judicial

review under 5 U.S.C. § 701 et seq.

App. 42

THIRD CLAIM FOR RELIEF

VIOLATION OF THE ENDANGERED SPECIES ACT

VIOLATION OF THE ADMINISTRATIVE

PROCEDURE ACT

30. Plaintiffs reallege paragraphs 1 through 23

above.

31. Defendants have violated § 4 of the ESA, 16

U.S.C. § 1533(b)(2), and its implementing regulations, 50

C.F.R. Part 402, by implicitly determining critical habitat

for the Lost River suckers and the shortnose suckers in

Clear Lake and Gerber reservoirs, as more specifically

alleged in paragraph 21 above, without considering the

economic impact of that determination. Defendants’ vio-

lation of the ESA is subject to judicial review under

section 11(g) of the ESA, 16 U.S.C. § 1540(g)(1)(C).

32. Defendants’ failure to consider the economic

impact of its critical habitat determination is arbitrary,

capricious, and an abuse of discretion and violates the

APA, 5 U.S.C. § 706(2)(A). Defendants’ violation of the

APA is subject to judicial review under 5 U.S.C. § 701 et

seq.

FOURTH CLAIM FOR RELIEF

VIOLATION OF THE NATIONAL

ENVIRONMENTAL POLICY ACT OF 1969

VIOLATION OF THE ADMINISTRATIVE

PROCEDURE ACT

33. Plaintiffs reallege paragraphs 1 through 23

above.

App. 43

34. Defendants have violated NEPA, 42 U.S.C.

4332(2)(c) by failing to prepare an environmental assess-

ment prior to determining critical habitat for the Lost

River sucker and the shortnose sucker in Clear Lake and

Gerber reservoirs, as alleged above, and by failing to

consider the economic impact of that determination.

Although NEPA has no provision granting judicial review

of agency decisions reached in violation of its procedural

requirements, defendants’ violation of NEPA is subject to

judicial review under section 702 of the APA. 5 U.S.C.

702.

35. Defendants’ failure to consider the economic

impact of its determination of critical habitat is arbitrary,

capricious. and an abuse of discretion and violates the

APA, 5 U.S.C. 706(2)(A). Defendants’ violation of the APA

is subject to judicial review under 5 U.S.C. 701, et seq.

PRAYER FOR RELIEF

WHEREFORE, plaintiffs request the Court to.

A. Adjudge and declare that defendants have vio-

lated the Endangered Species Act and the Administrative

Procedure Act by including Clear Lake reservoir and

Gerber reservoir in the jeopardy conclusion on page 2 of

the Biological Opinion of July 22, 1992.

B. Adjudge and declare that defendants have vio-

lated the Endangered Species Act and the Administrative

Procedure Act by improperly imposing restrictions on the

withdrawal of irrigation water from Clear Lake and Ger-

ber reservoirs in the Biological Opinion of July 22, 1992.

App. 44

C. Adjudge and declare that defendants have vio-

lated the Endangered Species Act and the Administrative

Procedure Act by implicitly determining critical habitat

for the Lost River suckers and the shortnose suckers in

Clear Lake and Gerber reservoirs in the Biological Opin-

ion of July 22, 1992, without considering the economic

impact of that determination.

D. Adjudge and declare that defendants have vio-

lated the National Environmental Policy Act and the

Administrative Procedure Act by implicitly determining

critical habitat for the Lost River sucker and the short-

nose sucker in Clear Lake and Gerber reservoirs in the

Biological Opinion of July 22, 1992, without considering

the economic impact of that determination.

E. Set aside the Biological Opinion of July 22, 1992,

as unlawful and void of force under the ESA, the NEPA,

and the APA.

F. Award plaintiffs their reasonable fees, costs and

disbursements, including attorney fees.

G. Grant plaintiffs such further and additional relief

as the Court may deem just and proper, including injunc-

tive relief pursuant to 16 U.S.C. Section 1540(g)(1)(A) to

implement the foregoing.

Dated: March 8, 1993.

William F. Schroeder,

Larry A. Sullivan,

John T. Schroeder,

W. Alan Schroeder.

By /s/ W.F. Schroeder

W.F. Schroeder

Plaintiffs’ lawyers.

App. 45

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRAD BENNETT, et al., No. 94-35008

Plaintiff-Appellants, D.C. No. 94-35008

in ORDER

MARVIN L. PLENERT, in his (Filed

official capacity as Regional Oct. 12, 1995)

Director, Region One, Fish and

Wildlife Service, U.S. Department

of the Interior, et al.,

Defendant-Appellees.

ee eee eee ee ie

BEFORE: Pregerson, Canby, and Reinhardt, Circuit

Judges:

The time for filing a petition for rehearing with a

suggestion for rehearing en banc is extended to October

27, 1995. The ex parte application for extension of page

limitation is denied.

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