Amicus Curiae Brief — Bennett v. Spear

Suprame Court, U.S.

FILED

(9) DEC 21 095

No. 95-813 —

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

BRAD BENNETT, ET. AL.

. Petitioners,

MARVIN PLENERT, ET. AL.

Respondents.

On Petition For a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF

THE NATIONAL ASSOCIATION OF HOME BUILDERS

OF THE UNITED STATES

AND THE BUILDING INDUSTRY LEGAL DEFENSE

FOUNDATION IN SUPPORT OF PETITIONERS

Glen Franklin Koontz* Patrick J. Hurd

1201 Fifteenth St., N.W. Keller and Heckman

Washington, D.C. 20005 1001 G Street, N.W.,

(202) 822-0359 Ste. 500 West

Washington, D.C. 20005

Lay C. ectnce (202) 434-4100

ey Drye & Warren

1200 Nineteenth St., N.W. Nick Cammarota

Washington, D.C. 20036 1330 Valley Vista Drive

(202) 955-9600 Diamond Bar, California 91765

Counsel for the National (909) 396-9993

Association of Home Counsel for the Building Industry

Builders of the Legal Defense Foundation

United States *Counsel of Record

TABLE OF CONTENTS

PAGE(S)

pe TTT ee ii

INTEREST OF AMICI CURIAE .............. l

SUMMARY OF REASONS FOR GRANTING THE

SPIE SESE RT CLT EPEAT ELECT 3

REASONS FOR GRANTING THE WRIT........ 3

A. ESA Standing Is A Critical Issue For Property

Owners Throughout The Country............ 3

B. The Ninth Circuit Decision Ignores The Will Of

ee ee 6

C. The Ninth Circuit Decision Rewrites The Zone

Es anes cei bbc beWEWee dees oe 7

D. The Ninth Circuit Decision Closes The

Courthouse Door On Regulated Parties ....... 8

ES Ce ee ee Yd ee eee 10

TABLE OF AUTHORITIES

Cases: PAGE(S)

Association of Data Processing Service Organizations,

Inc. v. Camp,

Oe UR. TG Ge cv ccccccccestuchenanaaee 7

Agins v. City of Tiburon,

S67 UB. GO CR sc ccccnvevecveseeeneaeuen 1

Babbitt v. Sweet Home Chapter of Communities for a

Great Oregon,

BES GS CR, BESv CHUOSD cc cecccevcetvesse anneal 3,4,7,8

Bennett v. Plenert,

GS RIS GES Cas Ge. BOGEN. 6 ee cece leeaeeueen 3,5,6

Clarke v. Securities Industry Ass'n,

ee SO) ee 7

Dolan v. City of Tigard,

B36 ©. Ce, SRP Geen os 00000000 ue eee 1

First English Evangelical Lutheran Church of Glendale

v. County of Los Angeles,

eee eee 1

Florida Key Deer v. Stickney,

864 F. Supp. 1222 (S.D. Fla. 1994) ............. 5

Hazardous Waste Treatment Council v. Thomas

885 F2d 918 (D.C. Cir. 1989).............045. 8

Idaho Farm Bureau Fed'n v. Babbitt,

900 F Supp. 1349 (D. Idaho 1995) ............. 6

Lucas v. South Carolina Coastal Council,

ere ae fF: Perr rt eee ee 1

MacDonald, Sommer & Frates v. County of Yolo,

477 U.S. 340, reh’g denied, 478 U.S. 1035 (1986) .. . 1

NAHB and TxCBA v. Babbitt,

C.A. No. 1:95CV01374 RMU (D.D.C. 1995) ...... 9

NAHB v. Babbitt,

Cit. No. 1:95CV01933 RMU (D.D.C. 1995)....... 2

ii

Nollan v. California Coastal Comm'n,

ES PTET ee

Olmstead v. United States,

ne Sead eoeeed 6ue ee eee coe

San Diego Gas & Electric Co. v. City of San Diego,

tha ds ek oe edecenececse «

Valley Forge Christian College v. Americans United for

Separation of Church and State, Inc.

CNS Bbw osc ccccccecceccccs

Williamson County Regional Planning Commission v.

Hamilton Bank,

ee eked ee eeeecsececees

Yee v. City of Escondido,

es ce ceeceeoenecesccess

NM ccc ccccccccccecsces

EE

ee

RD ccc cccccceces

Nn oe cccceves

CE _

SOUR ORIGINS... o.oo ec cece ccc cees

RD og... cc ccccccccscces

ne og accccccees

42 U.S.C. §§ 7401-7671q ... 0... 0. ccc cece eee

Regulations

De oc cb eee eeeeeececececcoes

57 Federal Register 1796 (1992)... ..........005-

59 Federal Register 5827 (1994)... ..........005.

59 Federal Register 13374 (1994) ............0..

59 Federal Register $8982 (1994) ................

59 Federal Register 65256 (1994) .............00.

Un UMN oOon nan & Ss N

+

> Vt + &

IV

60 Federal Register 5893 (1995) ..............4..

60 Federal Register 10694 (1995) ................

60 Federal Register 25882 (1995) ................

60 Federal Register 40892 (1995) ................

Houston Post (August 28, 1994) ................

General Accounting Office, Endangered Species Act:

Information On Species Protection on Non-Federal

SAGE GED 00.04 cac dan dubs chs ddmek bande

General Accounting Office, Endangered Species Act:

Types and Number of Implementing Actions (1992) .

ee ee

The National Association of Home Builders of the United

States (“NAHB”) has received the written consent of the parties

to file this brief in support of petitioners, and has filed the letters

of consent with the Clerk of this Court.

INTEREST OF THE AMICI CURIAE

The NAHB represents more than 180,000 builders and

associate members organized in approximately 850 affiliated

state and local associations in all fifty states, the District of

Columbia, and Puerto Rico. Its members include not only peo-

ple and firms that construct and supply single-family homes, but

also apartment, condominium, commercial and industrial build-

ers, as well as land developers and remodelers. It is the voice of

the American shelter industry.'

The Building Industry Legal Defense Foundation

(“BILD”) is a not-for-profit corporation organized under the

laws of the state of California. The BILD is a wholly owned

subsidiary of the Building Industry Association of Southern Cali-

fornia (“BIA-Southern California”). BIA-Southern California is

an NAHB affiliate with over 1400 members involved in all

aspects of the building and construction industry. BIA-Southern

' The NAHB has been before this Court either as an amicus curiae in

support of, or as of counsel on behalf of, the property owner in prior cases

involving government land use decisions. Dolan v. City of Tigard, 114 S. Ct.

2309 (1994); Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886

(1992); Yee v. City of Escondido, 112 S. Ct. 1522 (1992); Nollan v. California

Coastal Comm'n, 483 U.S. 825 (1987); First English Evangelical Lutheran

Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987); MacDon-

ald, Sommer & Frates v. County of Yolo, 477 U.S. 340, reh’g denied, 478 U.S.

1035 (1986); Williamson County Regional Planning Comm'n v. Hamilton

Bank, 473 U.S. 172 (1985); San Diego Gas & Electric Co. v. City of San

Diego, 450 U.S. 621 (1981); Agins v. City of Tiburon, 447 U.S. 255 (1980).

The NAHB brief was cited approvingly in this Court's Nollan opinion, 483

U.S. at 840.

2

California members are involved in the construction of 70% of

ail new homes in the Southern California Region.’

The interests of the NAHB and BILD (collectively the

Building Industry Amici) lie in seeing that the implementation of

laws concerning or affecting the use of private property remains

consistent, fair, and cognizant of the need to protect the rights of

the individual when confronted with government actions which

impinge on constitutional guarantees.’ The Building Industry

Amici have a particular interest in the administration of federal

environmental statutes such as the Endangered Species Act, 16

U.S.C. §§ 1531- 1544 (“ESA”), given the far-reaching impact that

these laws have upon private land use and land-use regulation.‘

The Building Industry Amici believe that this brief will

assist the Court in making its decision whether to grant review of

the issues presented in the Petition. The Building Industry

Amici’s concerns are much broader than those of petitioners,

since its members are faced with countless regulatory decisions

on a daily basis across the nation that affect the use of privately

held land. The Building Industry Amici’s brief addresses the

broader public policy reasons why review should be granted.

* The BILD’s mission is to “[dJefend the legal rights of home and

property owners.” The BILD promotes and supports legal cases to secure a

body of favorable court decisions for its members specifically, and property

owners and developers generally.

3 As Justice Brandeis insightfully admonished:

i should teach us to be most on our guard to protect liberty

when the government’s purposes are beneficent . The

dangers to liberty lurk in insidious encroachment by men of zeal, well-

meaning but without understanding.

Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J.,

dissenting).

“ NAHB and BILD have filed an action against Secretary Babbitt —

NAHB v. Babbitt, Civ. No. 1:95CV01973 RMU (D.D.C. 1995) — challeng-

ing the Interior Department's authority to enforce certain provisions of the

Endangered Species Act of 1973 (“ESA”) in connection with its listing of

the Delhi Sands Flower-loving Fly as endangered. That action involves

standing issues similar to those raised by petitioner in this case.

= —

3

SUMMARY OF THE REASONS FOR

GRANTING THE WRIT

The Court should grant Petitioner’s writ because the lower

court has decided a question of national importance in a way that

conflicts with this Court’s precedents. Moreover, the effect of the

lower court’s decision is to abrogate the rights of an enormous

class of citizens to seek legal redress in the face of ever bur-

geoning federal regulations.

REASONS FOR GRANTING THE WRIT

The United States Court of Appeals for the Ninth Circuit's

decision held that “only plaintiffs who allege an interest in the

preservation of endangered species fall within the zone of inter-

ests protected by the ESA.”* According to that court:

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.”

As argued below, the issue of standing to challenge ESA deter-

Ninth Circuit has neutered property owners’ ability to protect

themselves in court from unlawful ESA regulation. Moreover,

the Ninth Circuit only reached its decision by ignoring the will of

Congress and by rewriting this Court’s prudential standing test.

A. ESA Standing Is A Critical Issue For Property Owners

Throughout The Country

The impact of the Ninth Circuit’s decision cannot be under-

stated. As this Court recognized in Babbitt v. Sweet Home Chapter

5 Bennett v. Plenert, 63 F.3d 915, 919 (9th Cir. 1995).

® 63 F.3d at 919.

4

of Communities for a Great Oregon, 115 S. Ct. 2407 (1995), the

ESA provides for the federal regulation of land which constitutes

endangered species’ habitat. Some 965 species are currently

listed as endangered or threatened in the United States, most of

which have habitat on private property. As of May 1993, 90% of

the 781 species listed as endangered or threatened under the

ESA inhabited non-federal lands. Of these listed species, 517

had over 60% of their total habitat on non-federal lands.’

The habitat for these species and the 184 species that have

been listed as endangered or threatened since May 1993 covers

tens of millions of acres, much of it private property, and hun-

dreds, if not thousands, of river miles. The Secretary has already

designated critical habitat for some 115 species covering millions

of acres.’ As this Court held in Sweet Home, Section 9 of the ESA

prohibits the taking of endangered animals, including modifica-

tion of habitat which impairs behavioral patterns, without a per-

mit. Thus, the listing of a species in effect results in federal

regulation of all of that species’ habitat wherever it happens to

be found. Moreover, Section 7(a)(2) of the ESA requires federal

agencies to ensure that their actions do not jeopardize the con-

tinued existence of an endangered or threatened species. 16

U.S.C. § 1536(a)(2). In addition, the designation of critical

habitat imposes on all federal agencies an obligation to ensure

that their actions will not result in the adverse modification of

that critical habitat. Jd. These obligations extend to all types of

7 See General Accounting Office, Species Act: Information

on Species Protection on Non-Federal Lands, 4-5 (Dec. 1994).

8 For example, the Secretary has designated approximately 6.9 million

acres as critical habitat for the Northern spotted owl, 57 Fed. Reg. 1796

(1992); 4.6 million acres for the Mexican spotted owl, 59 Fed. Reg. 5827

(1994); and 6.3 million acres for the gray wolf, 50 C.F.R. §17.95 (a). In

addition, the Secretary has 1,980 miles of the Colorado River

and its tributaries as critical habitat for four fish species, 59 Fed. Reg. 13374

(1994); and has designated the entire Sacramento - San Joaquin River

delta — which lies at the heart of the water system serving much of the

State of California — as critical habitat for the delta smelt, 59 Fed. Reg.

65256 (1994).

5

federal actions, including actions relating to private property,

e.g., federal funding for state, local, and private projects; issuance

of federal permits to discharge dredged or fill material into

wetlands and other waters of the United States pursuant to

Section 404 of the Clean Water Act, 33 U.S.C. § 1344; issuance of

other permits under the Clean Water Act, 33 U.S.C.

§§ 1251-1387; and the Clean Air Act, 42 U.S.C. §§ 7401-76714;

and, the provision of federal flood insurance, see Florida Key

Deer v. Stickney, 864 F. Supp. 1222 (S.D. Fla. 1994). These

prohibitions are likely to be extended to tens of millions of

additional acres in the future as the Secretary designates critica!

habitat for some of the 800 endangered and threatened species

currently lacking critical habitat designations or some of the

more than 3000 species that are currently candidates for listing

under the ESA.'°

Thousands of consultations are conducted every year under

Section 7. See General Accounting Office, Endangered Species

Act: Types and Number of Implementing Actions 30 (1992)

* Thus, no comfort can be drawn from the Ninth Circuit’s disclaimer

that it was not ruling on the standing of directly regulated parties, bu!

rather only on indirectly regulated parties. 63 F.3d at 917, n.2. The effect of

an ESA regulation upon the regulated party is just as real when filtered

through another federal agency.

10 For instance, the Secretary has proposed to designate 4.45 million

acres in three states as critical habitat for the marbled murrelet, 60 Fed

Reg. 40892 (1995), 860,000 acres of lake, stream and shoreline for the Los:

River sucker and the shortnose sucker, 60 Fed. Reg. 5893 (1995), and 20,000

acres on 210 miles of cox stline (10% of the California, Oregon and Wash-

ington coastline) for the Western snowy plover, 60 Fed. Reg. 25882 (1995)

The Secretary at one time considered a proposal to designate portions of

33 Texas counties as critical habitat for the Golden-cheeked Warbler. Scot:

Harper, Endangered: Species or Rights, Houston Post, August 28, 1994 at

Al. Other newly listed and candidate also have extensive ranges

The Southwestern willow flycatcher is thought to inhabit portions of seven

states. 60 Fed. Reg. 10694 (1995). The Northern goshawk, a species which

the Secretary has determined may warrant listing as endangered or

threatened, is found throughout much of the conterminous United States

See 59 Fed. Reg. 58982, 58990 (1994) (goshawk historically has nested in 26

states and regularly visited 19 others).

6

(over 18,000 consultations conducted during the period FY 1987

to FY 1991). These numbers have increased as more species are

added to the list of endangered and threatened species. These

consultations can have a substantial impact on property owners.

However, due to their “competing interest” (ie. — the desire

to use their land), property owners under the jurisdiction of the

Ninth Circuit will not be able to challenge these consultations no

matter how substantially or directly they are affected. Moreover,

while this case involves a Section 7 consultation, the rationale of

the Ninth Circuit’s decision has already been extended to deny

similarly situated parties standing to challenge a decision to list a

species. See Idaho Farm Bureau Fed’n v. Babbitt, 900 F. Supp.

1349 (D. Idaho 1995). This rational would extend to critical

habitat designations as well.

Thus, the Ninth Circuit decision shuts the courthouse doors

to those who are most affected by a wide range of decisions

under the ESA.

B. The Ninth Circuit Decision Ignores The Will Of

Congress

The Building Industry Amici agree with petitioners that it

was error for the Ninth Circuit to apply the zone of interests test

to the subject ESA claims. Congress clearly and unequivocally

extended standing under the ESA to the limits of Article III of

the United States Constitution through its enactment of 16

U.S.C. § 1540 (g)(1). That provision allows any person to bring

suit to challenge the Secretary’s actions under the ESA.

The term “person” is liberally defined in the ESA to mean:

an individual, corporation, partnership, trust, associa-

tion, or any other private entity, or any officer,

employee, agent, department or instrumentality of the

Federal government, of any State or political subdivi-

sion thereof, or any foreign government.

'! 63 F.3d at 921.

7

16 U.S.C. § 1532 (13). Notably, there is no qualification within

this definition such as to exclude a “person” with a “competing

interest” or to restrict standing to a person who only seeks to

further the ESA's statutory objectives. Rather, the standing con-

ferred under the ESA is broad, open-ended, and inclusive.

C. The Ninth Circuit Decision Rewrites The Zone Of

Interests Test

Assuming arguendo, that the zone of interests test does

indeed apply to ESA claims, the Ninth Circuit's decision misap-

plied the test completely, rewriting the test so as to exclude those

persons regulated by the ESA." This is contrary to this Court's

clear mandate that the zone of interests test included those

whose interests fall within either the “zone of interests to be

protected or regulated by the statute or constitutional guarantee

in question.” Association of Data Processing Service Organiza-

tions, Inc. v. Camp, 397 U.S. 150, 153 (1970) (emphasis added).

See also Clarke v. Securities Industry Ass'n, 479 U.S. 388 (1987).

Both petitioners and the Building Industry Amici’s mem-

bers clearly fall within the category of those Congress intended

to regulate under the ESA. Through the “take” provisions con-

tained in 16 U.S.C. § 1538, along with the permitting provisions

of 16 U.S.C. §§ 1536 and 1539, and the accompanying regula-

tions, the ESA acts to closely regulate the use of land which may

be occupied by listed endangered species.'’ Individuals are pro-

hibited from harming endangered animals, including habitat

modifications which significantly impair an animal’s behavioral

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

Great Oregon, 115 S. Ct. 2407 (1995). These provisions become

effective as soon as a species is listed as endangered, requiring

'2 This group would include not only petitioners, but the Building Indus-

try Amici’s members, as well as most all property owners and users

generally.

'3 The “use of land” is, of course, the foundation — both literally and

figuratively — of the building and construction industry. Moreover, in this

case, petitioners are regulated in their use of the water which constitutes

the habitat of the Lost River sucker and the short nose sucker.

8

landowners to immediately conform their conduct to this

requirement.'* Therefore, there can be no argument that peti-

tioners are regulated by the ESA. As such, petitioners should

have standing to challenge ESA determinations in court.

D. The Ninth Circuit Decision Closes The Courthouse Door

On Regulated Parties

The United States Constitution, Article III, limits the juris-

diction of the federal courts to the resolution of “cases” or

“controversies”. Valley Forge Christian College v. Americans

United for Separation of Church and State, Inc., 454 U.S. 464, 471

(1982). Common sense dictates that the essence of an “actual

case or controversy” would necessarily involve the existence of

“competing interest[s]”. The Ninth Circuit, however, in its zeal

to ensure the primacy of endangered species protection, pre-

vents any meaningful challenge to the Secretary’s actions. By

virtue of its decision, only those “persons” with a particular set of

‘competing interest[s]” will be allowed to bring a court challenge

under the ESA. Thus, while environmental interest groups will

be free to act to enforce the ESA to its maximum potential, those

“persons” who bear the burden of the ESA regulation — prop-

erty owners — will be at the mercy of the Department of the

Interior.'’ In the event that a species is mistakenly or improperly

listed, the regulated parties who have an interest in correcting

the mistake, will be forced to rely upon the non-regulated parties

'* As this Court noted, the ESA “encompasses a vast array of economic

and social enterprises and endeavors.” 115 S.Ct. at 2418.

'S “Those whom the agency regulates have the incentive to guard

against any administrative attempt to impose a greater burden than that

contemplated by Congress.” Hazardous Waste ireatment Council v.

Thomas, 885 F.2d 918, 922 (D.C. Cir. 1989).

9

who have no interest in (and, indeed, may be opposed to) cor-

recting the mistake.'°

The ability to protect one’s interests in court historically has

constituted a fundamental American right. Yet the Ninth Cir-

cuit’s decision in this case abrogates that right for those who

possess a “competing interest” with an endangered species. In

other words, property owners will have to trust the Department

of the Interior to administer the ESA in a manner which does not

infringe upon their rights. Moreover, environmental groups who

may Oppose property development and growth will be able to use

the ESA as a sword to prevent property owners’ activities; the

property owners, however, will be without the means to defend

themselves. This result raises due process concerns and could

not have been within the intent of Congress.

'© The NAHB and its affiliate, the Texas Capitol Area Builders Associa-

tion, have filed just such an action. In NAHB and TxCBA v. Babbitt, C.A.

No. 1:95CV01374 RMU (D.D.C. 1995), the district court has been asked to

invalidate a final rule listing 2 species as endangered under the ESA which

was promulgated without undergoing the requisite notice and comment

process.

10

CONCLUSION

Therefore, for the reasons stated above, and in the Petition

for Writ of Certiorari, the NAHB and the BILD pray that this

Court issue a writ of certiorari to review the judgment and opin-

ion of the United States Court of Appeals for the Ninth Circuit.

Respectfully submitted,

GLEN FRANKLIN KOONTZ*

1201 Fifteenth Street, N.W.

Washington, D.C. 20005

(202) 822-0359

THOMAS C., JACKSON

Kelley Drye & Warren

1200 Nineteenth Street, N.W.

Washington, D.C. 20036

(202) 955-9600

Counsel for Amicus Curiae,

The National Association of

Home Builders of the United

States

PATRICK J. HURD

Keller and Heckman

1001 G Street, N.W.

Suite 500 West

Washington, D.C. 20001

(202) 434-4200

NICK CAMMAROTA

1330 South Valley Vista Drive

Diamond Bar, California 91765

(909) 396-9993

Counsel for Amicus Curiae,

The Building Industry Legal

Defense Foundation

*Counsel of Record

December 21, 1995