Amicus Curiae Brief — Bennett v. Spear

No. 95-813

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1995

BRAD BENNETT, ET AL.

Petitioners,

Vv.

MARVIN PLENERT, ET AL.

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE STATES OF

CALIFORNIA, ALASKA, ARIZONA, COLORADO,

KANSAS, MONTANA, SOUTH CAROLINA, TEXAS AND

UTAH IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI

DANIEL E. LUNGREN

Attorney General of the State of California

RODERICK E. WALSTON

(Counsel of Record)

Chief Assistant Attorney General

CHARLES W. GETZ, IV

Assistant Attorney General

CLIFFORD T. LEE

LINUS MASOUREDIS

Deputy Attorneys General

1300 I Street, Suite 1720

Sacramento, California 95814

Telephone: (916) 324-5433

(Additional Counsel listed on inside of front cover)

Attorneys for Amici Curiae

~ ory

ADDITIONAL COUNSEL FOR AMICI STATES

BRUCE M. BOTELHO

Attorney General of the State of Alaska

GRANT WOODS

Attorney General of the State of Arizona

GALE A. NORTON

Attorney General of the State of Colorado

CARLA J. STOVALL

Attorney General of the State of Kansas

JOSEPH P. MAZUREK

Attorney General of the State of Montana

CHARLES MOLONEY CONDON

Attorney General of the State of South Carolina

DAN MORALES

Attorney General of the State of Texas

JAN GRAHAM

Attorney General of the State of Utah

i

QUESTIONS PRESENTED

The "citizen suit" provision of the Endangered Species Act of

1973 ("ESA"), Section 11(g)(1), 16 U.S.C. section 1540(g)(1),

authorizes "any person" to commence a civil suit on his own

behalf to enjoin the United States from violating the ESA or

regulations issued thereunder. The questions presented are:

1. Whether the broad standing mandated by Congress in the

citizen suit provision of the ESA is subject to a "zone of

interests" test as a further prudential limitation on ESA

standing.

2. If the "zone of interests” test applies, whether ESA

standing is limited exclusively to litigants asserting an interest

in preserving endangered species, as the Ninth Circuit held,

and does not include litigants whose economic interests have

been adversely affected by the Government’s violations of the

ESA.

ii.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...ccccccccvcccsess i

TABLE OF ALITROUIREEEEED cc cccccscdseseuseses iv

INTEREST OF AMICI STATES .........05e000- 1

STATEMENT OF THE CASE ........eseeeees 2

A. Nature of the Litigation and the Ninth

Cisroult’s Decistom occ cccccccccseseenus 2

B. Impact of the Ninth Circuit’s Decision on

Administration of the ESA ...........654-. 4

REASONS WHY CERTIORARI

SHOULD BE GRANTED .ccccccccscsessesess 7

A. — This Court Should Resolve An Inter-Circuit

Conflict That Affects Not Just Enforcement

of the ESA, But Also The Interpretation of

Citizen Suit Provisions in Numerous Other

DOMGUNES ow ccc cc sensecssen eee eee 7

B. Even if A "Zone of Interests" Test Applies to

ESA Standing, The Ninth Circuit So

Misapplied That Test As To Necessitate

Guidance From This Court On How

Prudential Limitations May Be Applied In

Citizen Suit Provisioms «nce cccccccsseese 10

Table of Contents Cont.

L. THE NINTH CIRCUIT ERRED IN

IMPOSING THE PRUDENTIAL "ZONE OF

RESTRICTION UPON CITIZEN SUIT

Il. IF A “ZONE OF INTERESTS" TEST

APPLIES TO ESA STANDING, THE

NINTH CIRCUIT NONETHELESS

MISAPPLIED AND MISCONSTRUED

TEMG Was 656 ees beec ccc. 15

CONCLUSION

iv.

TABLE OF AUTHORITIES

Page

Cases:

Adarand Constructors, Inc. v. Pena

SP Gs EE co cedueteoseccececndecess 9

Association of Data ag

Service v. Camp

SOU GE SOUT Sen dvedseedec’ Gdéediune. 15, 17

Babbitt v. Sweet Home Chapter of Communities

for a Greater Oregon J

Sap GU ST ED bode abadccvdsvsbwuedeins 11

Bacchus Lid. v. Dias

TP GMGPEEED Suctecees cecdiedsctiicedax 9

Bennett v. Plenert

GD Tube Dap Goes Ge, BAUR) ccc cccccccccccs 4, passim

Block v. Community Nutrition Institute

Sy CS SN ee rr et ht 12

Blue Chip Stamps v. Manor Drug Stores,

Te Gar PGE -« Sec euéunnecessduusecueus 14

Bryant v. Yellen

Cer Gat GE 6.6 wa 60646 50d eke eeeene weeuK 9

Clarke v. Securities Industry Assn.

GP ly SE bh Gene eel ee oo. Se 10, passim

Competitive Enterprise Institute v. National

Highway Traffic Safety Administration

SSS Ce SOU Ce GE BEUED cccccccscccccccecs 12

Table of Authorities Cont.

Page

Consumers Union v. Federal Trade Commission

691 F.2d 575 (D.C. Cir. 1982)

(en banc), aff'd, 463 U.S. 1216 (1983) ............. 12

& Brass Fabricators v. Dept. of the Treasury

G79 P26 S51 (DL. Cis. BIFEZ) on cc cece cccccccces 10

Defenders of Wildlife v. Hodel

851 F.2d 1035 (8th Cir. 1988),

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

rev'd on other , Lujan v. Defenders of Wildlife,

112 S.Ct. 2130 (1992) penebs Ceeenne ceeercaceses 7

Director, Office of Workers

v. Newport News Shipbuilding and Dry Dock Co.

SES T BE GE ccc ccccccscescvcecess 12, 13

_Family and Children’s Center v. School City

“13 F.3d 1052 (7th Cir.), cert. denied,

BES BER. GE GID cccccccccccccsesecesccess 12

Gladstone, Realtors v. Village of Bellwood

441 US. 91 (1979) ..... intennes comeeeeeese 11, 12

Gollust v. Mendell

a & FPP Pereeeereiererr Tree 11

Havens Realty Corp. v. Coleman

GD SE Se GHD. wc weevcs cocccccocecces vex 11

Humane of the United States v. Hodel

OOD P26 4S GAG, Ge. TRGB) 2c ccc ccccccccccccccs 8

v. Defenders of Wildlife

~ {7 ape 6, passim

vi.

Table of Authorities (Cont.)

Page

National Audubon v. Hester

See See Gam Ce GE UD cc bcccceccetcoccacs 8

National ‘or Women v. Scheidler

SOC CUE wW octet aneens duds enacbocede i)

Pacific Northwest Generating Co-op v. Brown

Se Oe Se Gs BSED cbc ciccesccsevcecccor 14

Sierra Club v. Morton

Se GE EEE Sc becéetedddaeetdekeedesk 14

Swan View Coalition, Inc. v. Turner

824 F.Supp. 923 (D.Mont. 1992) ................. 12

v. Metropolitan Life Insur. Co.

Sy a aE cccececesceentoncesceneet 11

Valley Forge College v. Americans United

454 US. 46 EPG 66666 Cedbeeeccesdecceees 14, 15

Warth v. Seldin

— fe PPT TT TPT TTP TOPE Tiie 11

v. Oklahoma

CEE 6.6.66 6646606 Ceube Dobene ewes i)

Codes, Statutes and Other Authorities:

15 U.S.C.

Dt: -+ 6466600 CRO EES a6 eee oh eet owuare &

16 U.S.C.

TD 6609646666660 06 600 6 eee Ceub awe 1

Wit ats bde gees de ewe hee aaeebenseneendae 1

WEED: cosccccaceacdwoeesecececonsess 3

Table of Authorities (Cont.)

Page

16 U.S.C.

|) errr rere reeeee er 6

BFP PTTTOrerr Eee Te Ee rrr 1

4) rer reeee reer +23

2}. |} ere eee i, 1, 2

30 U.S.C.

§ 1270 (Surface Mining Control and

PepeMND AED . wc ccccccccccesevceces 8

33 U.S.C.

§ 1365 (Clean Water Act) .......--- 52 ee eeeeee 8

§ 1415(g) (Marine Protection, Research

and Sanctuaries Act) ......-2-0seeeeeeees 8

42 US.C.

§ 300j-8 (Safe f- Perret rrrrre 8

§ 4911 (Noise Control Act of 1972) ...........-+.. §

§ 6305 Policy and Conservation Act) ....... 8

§ 6972 (Solid Waste Disposal Act) .........-....-- 8

§ 7604 (Clean Air Act) ... 2.2... 00 eee cece e ee eee 8

§ 9659 (Com Environmental Response,

tion, and Liability Act) ........... 8

§ 11046(a)(1) en Aa) Planning and Community :

43 U.S.C.

§ 1349 (Outer Continental Shelf Lands Act) ........ 8

50 C.F.R.

G GERIMGNE) nn cc cccccccccccccccccesecess 3

' § OPPrTererrTirirrrrrrrees rire Te 6

Administrative Procedure Act

bh BPTI TIITIViririrriire ia 13, 16

Table of Authorities (Cont.)

Page

Endangered Species Act of 1973

De), aceekkheOun Obeebececedee ch vanwens 1

DU cb deen bulecge eNeeeebensensecceeence? 1, 3

PGE ccuccccececceesoeseceecocivess? 3, 6

Di ac6s 000 te céoeeet chkeenne ot eeuerh a 6

De BU dew eebeeecccasecenétiancneneen 1, passim

DE Secs eheeeeeneesenccsaekaess whbek 3

DR 0.60 6:0000+nbenesncdetséoackedeen’s 1, 2

Securities Exchange Act of 1934

Pe GUS deeb se cdnnceccennd cen Ws 66034008) 11

Miscellaneous:

2 A Legislative History of the Endangered Species

Act of 1973, As Amended in 1976, 1977, 1978, 1979,

and 1980 Cong. Research Serv.(1982)

S. GEPES vee be deco eerenerasnscevcbereess 6

S Perrrirrrin. ec rT eT eee eTerer 6

Coyle, Standing of Third Parties to Challenge

Administrative Agency Actions, 76 Calif. L. Rev.

See CED hos Hee doreeheeeorecestosceeeses 10

June, The Structure of Standing Requirements

for Citizen Suits and the Scope of Congressional

Power, 24 Envtl. L. 761 (1994) ..........0200005. 10

Scalia, The Doctrine of Standing as an Essential

Element of the Se, ion of Powers,

17 Suffolk U. L. Rev. 881 (1983) .............0.. 15

Sealander, Standing Behind

- -Subsidized Bipartisanship,

60 Geo. Wash. L. Rev. 1580 (1992) .............. 10

ix.

Table of Authorities (Cont.)

Page

Tribe, American Constitutional Law |

§ 3.19 at 143 (2d Ed. 1988) .. 6... . 2 eee eee. 10

13A Wright, Miller & Cooper, Federal Practice and

Procedure: Jurisdiction 2d, § 3531.13 at 69-73,

a |: PPPPTEPECrrE Eee

Wen ee eo ee ke er el ee ae Oe Se dee CON Be ie OR te ee

1.

No. 95-813

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1995

BRAD BENNETT, ET AL.

Petitioners,

V.

MARVIN PLENERT, ET AL.

Respondents.

BRIEF AMICUS CURIAE OF THE STATES OF

CALIFORNIA ET AL. IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI

INTEREST OF AMICI STATES

Amici States are vitally interested in the scope of

standing under the citizen suit provision of the Endangered

Species Act ("ESA"), Section 11(g)(1), 16 U.S.C. section

1540(g)(1). Because States are "persons" within the meaning

of the ESA, see section 3(13), 16 U.S.C. section 1532(13), they

are entitled to sue under the citizen suit provision.

Consequently, the Ninth Circuit’s narrow interpretation of

citizen suit standing directly and adversely affects the States’

ability to pursue judicial remedies for violations of the ESA

and its regulations.

Amici States also have a strong interest in the

implementation of the ESA provisions that were allegedly

violated in this case, sections 4 and 7 of the ESA, 16 U.S.C.

sections 1533, 1536. A great deal of land, resources, and

productive economic activity within amici States is subject to

regulation under sections 4 and 7 of the ESA. If litigants

whose economic interests are harmed by the Government’s

violation of sections 4 and 7 lack standing to challenge those

2.

ESA violations, then the economic well-being of States and

their citizens will be diminished unlawfully without judicial

recourse. Because so many endangered species are found

within the geographic area of the Ninth Circuit, the decision

below has a major impact on the overall administration of the

ESA.

In sum, amici States have a strong interest in, and are

directly affected by, the decision below. They respectfully

submit this amicus brief in support of the petition for writ of

certiorari,

STATEMENT OF THE CASE

A. a of the a and the th uit’s

Decision

Petitioners are ranchers and irrigation districts which

receive water from a U.S Bureau of Reclamation ("Bureau")

water project, the Klamath Project, pursuant to contracts with

the Bureau. See Appendix to Petition for Writ of Certiorari

("App.") 33-34, 95. As a result of a section 7 ESA

consultation between the Bureau, as operator of the Klamath

Project, and the U.S. Fish and Wildlife Service ("FWS"), water

in two Kiamath Project reservoirs that otherwise would have

gone to petitioners was kept in the reservoirs, allegedly to

avoid jeopardy to two endangered species of fish that live in

the reservoirs. App. 37-40, 1914-19, 21.

Petitioners filed suit against respondents, the Secretary

of the Interior and FWS officials, pursuant to the citizen suit

provision of the ESA+’. Their complaint alleged that

1. Section 11(g)(1), 16 U.S.C. section 1540(g)(1) provides, in

pertinent part:

"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 . . . who

is alleged to be in violation of any provision of this chapter or

regulation issued under the authority thereof" (Emphasis

added)

a ee oe es ee

Ree eet ae a eee.

Pat Mt ak ee oe

See ees oe ee we ON

3.

respondents violated the ESA by:

(1) failing to use the “best scientific and commercial data

available", as is required under section 7(a)(2) of the ESA,’

in formulating the Biological Opinion for the Klamath Project

and concluding that project water was needed to avoid

ry 37-41, 1913, 20, 25, 28;

“2 by issuing a Biological Opinion for the endangered fish

which, by setting forth hydrologic requirements in the

reservoirs where the e red fish live, implicitly determined

“critical habitat" for the fish under section 4 of the ESA

without considering the economic impacts of that critical

habitat designation, as is a under section 4(b)(2) of the

ESA. App. 40-42, 919122, 31

district court granted respondents’ motion to

dismiss for lack of standing, and the court of appeals affirmed.

2. Section 7(a)(2), 16 U.S.C. section 1536(a)(2) provides in

pertinent part:

"Each federal agency shall, in consultation with and with the assistance

of the Secretary, insure that any action authorized, funded, or carried

out by such agency. . is not likely to jeopardize the continued

existence of any endangered species or threatened species or result in

the destruction or adverse modification of habitat of such species

which is determined . . to be critical, unless such agency has been

granted an exemption for such action . . In fulfilling the requirements

of this paragraph each agency shall use the best scientific and

commercial data available." (Emphasis added).

See also 50 C.F.R. section 402.14(g)(8) (“in formulating its biological

opinion, any reasonable and prudent alternatives, and any reasonable

and prudent measures, the [FWS] will use the best scientific and

commercial data available"). (Emphasis added).

3. Section 4(d)(2), 16 U.S.C. section 1533(b)(2) provides, in

pertinent part:

"The Secretary shall designate critical habitat . . on the basis of the

best scientific data available and after taking into consideration the

economic impact, and any other relevant impact, of specifying any _

particular area as critical habitat." (Emphasis added).

.

Bennett v. Plenert, 63 F.3d 915 (9th Cir. 1995) (App. 1-18).

In an opinion by Judge Reinhardt, the Ninth Circuit

rejected petitioners’ contention that the prudential "zone of

interests" test had been rendered inapplicable by the broad

grant of standing in the ESA citizen suit ision. App. 8.

The court held that petitioners failed the "zone of interests"

test because “only plaintiffs who allege an interest in the

preservation of endangered species fall within the zone of

interests protected by the ESA." App. 11. (Emphasis in

original). The court thought that only species preservation

interests satisfy the "zone" test because "[t]he overall purposes

of the ESA are singularly devoted to the goal of ensuring

species preservation; they do not embrace the economic and

recreational interests that underlie the [petitioners’] challenge."

App. 12-13. Because petitioners’ wanted to use project water

for irrigation and recreation, not species preservation, the

court of appeals thought that petitioners were asserting a

“competing interest" in the water that was “inconsistent with

the [ESA’s species preservation] purposes". App. 17. Finally,

the court said that even though the ESA required the FWS to

consider the economic impacts of designating critical habitat,

Congress “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." Jd.

B. Impact of the Ninth Circuit’s Decision on

Administration of the ESA

The Ninth Circuit’s decision essentially means that the.

only people who can sue under the citizen suit provision of the

ESA to challenge a variety of ESA actions -- for example,

listing species as threatened or endangered, designating land

and resources as critical habitat, making section 7 jeopardy

determinations, formulating reasonable and _ prudent

alternatives and measures, etc. -- are litigants (most probably

environmental! organizations) who assert a species preservation

_ St Ra A ct sR NR Re MR as a lw

5.

interest All other litigants who allege that the

Government’s violation of the ESA has harmed their

economic, recreational, or any other interest besides species

preservation (which includes almost al] landowners and

economic interests burdened by ESA regulation) have no

citizen suit standing under the ESA.

This means that ESA enforcement in the Ninth Circuit

is now completely one-sided. If one alleges that the

Government has under ‘the ESA because the

Government failed to adequately protect endangered species,

then one is asserting a species preservation interest, and one

has standing. But if a litigant alleges that the Government

overregulated based, for example, on the failure to use valid

scientific data, or to consider economic impacts (as alleged in

this case), then the interest being asserted is contrary to

species preservation, and the courthouse door is closed for

lack of standing.

This is a judicial prescription for regulatory failure.

By removing legal checks on overregulation and permitting

only suits alleging underregulation, the Ninth Circuit’s one-

sided standing rule will skew agency implementation of the

ESA away from the type of implementation and decision-

making that Congress intended.

It is inconceivable that Congress could have intended

this result. In requiring the FWS to consider the economic

impacts of designating critical habitat, who could Congress

have intended to protect other than people like petitioners

whose economic interests are adversely affected if economic

impacts are not considered? The Ninth Circuit has essentially

written out of the ESA the section 4(b)(2) duty to consider

4. Some economic interests may assert a derivative interest in

species preservation for economic reasons; for example, fishermen may

seek to protect endangered salmon so they can fish for salmon when the

species recovers. But the usual advocates of species preservation

interests under the ESA are environmental organizations, not economic

interests. The Ninth Circuit also left open the possibility that some

other standing rule might apply to parties “directly subject to. .

regulatory action", App. 6, n.2, without detailing how such “directly

regulated" parties are identified.

6.

economic impacts because the only parties who would enforce

this ESA requirement are economic interests adversely affected

by non-compliance with section 4(b)(2). Environmental

organizations or persons championing a species protection

objective are not about to complain about the failure to

consider economic impacts in species-protective actions, like

designation of critical habitat.

The economic impact requirement in section 4(b)(2)

was added to the ESA in 1978 so that critical habitat would be

designated more judiciously without needed

development projects. See 2 A Legislative History of the

Endangered Species Act of 1973, As Amended in 1976, 1977,

1978, 1979, and 1980 ("ESA Legis. Hist.") Cong. Research Serv.

(1982) at 813-814 (colloquy between Rep. Buchanan and

Bevill). Moreover, the ESA and regulations thereunder

provide for notice, opportunity for comment, and public

hearings on the designation of critical habitat. See section

4(b)(5), 16 U.S.C. section 1533(b)(5); 50 C.F.R. section 424.16.

The evident intent of these provisions was to allow persons

adversely affected by critical habitat designations to participate

in the designation process. See e.g., ESA Legis. Hist. at 1218

(Conf. Rept. 1804, 95th Cong., 2d Sess.) These public

participation rights, as well as the substantive requirement to

consider economic impacts in designating critical habitat are

meaningless if persons like petitioners have no standing to sue

to enforce section 4(b)(2).

Finally, in the wake of the Ninth Circuit’s decision it

is unclear if there is anything left of "procedural injury" or so-

called “footnote 7" standing under Lujan v. Defenders of

Wildlife, 112 S.Ct. 2130 (1992). See 112 S.Ct. at 2142 n.7.

Footnote 7 of Lujan indicates that litigants have standing to

challenge procedural violations of the ESA provided they

satisfy constitutional standing requirements and establish injury-

in-fact to concrete interests. Jd. However, because the Ninth

Circuit superimposes its "zone of interests" test upon any

“footnote 7" standing, see App. 5, n. 1, injury-in-fact to

concrete economic or recreational interests (or any interest

other than a species-preservation interest) disqualifies one

from “footnote 7" standing.

The Ninth Circuit’s decision drastically changes the

landscape of ESA enforcement. The citizen suit provision is

i PL a lat, A

:

:

|

:

)

7.

now largely the exclusive domain of environmental! plaintiffs,

and ESA regulatory incentives are skewed in the direction of

overregulation.

REASONS WHY CERTIORARI SHOULD BE GRANTED

A. This Court Should Resolve An Inter-Circuit Conflict

That Affects Not Just Enforcement of the ESA, But

Also The Interpretation of Citizen Suit Provisions in

Numerous Other Statutes

Lujan v. Defenders of Wildlife, supra, 112 S.Ct. 2130,

held that persons suing under the citizen suit provision of the

ESA must satisfy constitutional requirements for standing. As

Lujan explained, constitutional standing requirements must be

superimposed upon any ional grant of standing to

ensure that courts only decide Article III "cases" or

"controversies", and avoid intruding on the separation of

powers. Jd., 112 S.Ct. at 2143-2146.

This case presents the issue of prudential standing

under the ESA which was left unresolved in Lujan. The issue

here is: if a person suing under the citizen suit provision of

the ESA satisfies constitutional standing requirements, can the

courts nonetheless impose ja] limitations on the

broad standing mandated in the ESA citizen suit provision.

Put another way, this case is the flip-side of the separation of

powers issue in Lujan. If Lujan holds that Congress may not

require the Courts to entertain anything less than an Article

II "case" or “controversy”, the issue here is whether the Ninth

Circuit has intruded on Congress’ prerogative to specify --

once constitutional Article II] requirements are met -- those

litigants who are authorized to enjoin violations of the ESA.

The courts of appeals have split on this important

ESA pp standing issue. The Eighth Circuit in

Def of Wildlife v. Hodei, 851 F.2d 1035 (8th Cir. 1988),

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

other grounds, Lujan v. Defenders of Wildlife, 112 S.Ct. 2130

(1992) held that Congress’ broad grant of standing in the

citizen suit provision of the ESA left no room for further

prudential! limitations on standing, and that a litigant “need

meet only the constitutional requirements for standing for . .

8.

clams under the ESA” 851 F.2d at 1039. (Emphasis

added).?/

In contrast, the Ninth Circuit here held that "the ESA

does not automatically confer standing on every plain tiff who

satisfies constitutional requirements", ae a | and that

the citizen-suit

Whether and to what extent prudential standing

limitations apply to citizen suit provisions is an issue that

transcends the Spe OS Seeeeeee Se Sates

numerous environmental, consumer, and civil ts provisions.

See 13A Wright, Miller & Cooper, F Practice and

Procedure: Jurisdiction 2d, §3531.13 at _—- ns. 8-10 (1984)

(giving examples)2/ Consequently, the split in the circuits

over whether and when prudential limitations may be imposed

5. Because this Court reversed in Lujan on grounds that

environmental! plaintiffs failed to satisfy constitutional standing

requirements, there was no occasion to reach the Eighth Circuit's

prudential standing ruling.

6. The District of Columbia Circuit also assumed, without much

discussion, that the prudential "zone of interests" test applied to ESA

standing when it upheld the standing of environmental plaintiffs. See

National Audubon Society v. Hester, 801 F.2d 405, 407 n. 2 (D.C. Cir.

1986); Humane Society of the United States v. Hodel, 840 F.2d 45, 60-61

(D.C. Cir. 1988).

7. For example, almost every major environmental statute contains

a citizen suit provision similar to that in this case. See Clean Water

Act, 33 U.S.C. section 1365; Clean Air Act, 42 U.S.C. section 7604;

Comprehensive Environmental Response, Compensation, and Liability

Act, 42 U.S.C. section 9659; Toxic Substances Control Act, 15 U.S.C.

section 2619; Surface Mining Control and Reclamation Act, 30 U.S.C.

section 1270, Marine Protection, Research and Sanctuaries Act, 33

U.S.C. section 1415(g); Safe Water Act, 42 U.S.C. section

300j-8; Noise Control Act of 1972, 42 U.S.C. section 4911; Energy

Policy and Conservation Act, 42 U.S.C. section 6305, Outer Continental

Shelf Lands Act, 43 U.S.C. section 1349, Solid Waste Disposal Act, 42

U.S.C. section 6972; Emergency Planning and Community Right-to-

Know Act, 42 U.S.C. section 11046(a)(1).

t

.

9.

upon ESA citizen suit standing has major implications for

many of the Nation’s laws.

The prudential standing issue in this case is cleanly

presented because petitioners clearly satisfy constitutional!

standing requirements. the Ninth Circuit did not

expressly so rule, it as much by stating: “The issue

before us is not the have satisfied the

constitutional standing requirements but whether their action

is precluded by the zone of interests test, the prudential

standing limitation". App. 4-5. Since the case was disposed of

on motion to dismiss, petitioners’ burden of establishing

constitutional standing at the stage is a modest one.

See National ization for Women v. Scheidler, 114 S.Ct.

798, 803 (1994).

Petitioners clearly suffered “injury-in-fact" because

water that otherwise would have gone to them under their

contracts was reallocated to the endangered fish pursuant to

the ESA. Indeed, the Ninth Circuit’s characterization of

petitioners’ interests as being in direct conflict with the

interests of the e fish, see App. 16, is essentially a

restatement of the “injury-in-fact" that petitioners suffered as

a result of the Section 7 consultation. causation element

of constitutional standing is satisfied because the alleged failure

of federal officials to comply with the ESA resulted in the

j Biological Opinion and Section 7 consultation that

brought about the reallocation of project water from

petitioners to the fish. Finally, redressability is satisfied

because setting aside the Biological Opinion and enjoining

federal officials from failing to comply with sections 4 and 7

would restore petitioners to the priority for project water

which they otherwise had under their contracts. Petitioners’

economic injuries here are much more direct and immediate

than the economic injuries that have afforded standing in other

cases.£/

Consequently, the important issue of prudential

8. Compare Bryant v. Yellen, 447 U.S. 352, 366-368 (1980);

Wyoming v. Oklahoma, 112 S.Ct. 789, 797-798 (1992); Adarand

Constructors, Inc. v. Pena, 115 $.Ct. 2097, 2104-2105 (1995); Bacchus

Imports, Ltd. v. Dias, 468 U.S. 263, 267 (1984).

10.

standing under the ESA, which was unresolved in Lujan, upon

which the circuits have divided, and which has major

implications for citizen suit provisions in numerous other

statutes, merits this Court’s attention.

Assuming arguendo that a "zone of interests" test

applies to citizen suit provisions, the applicability of the "zone"

test in “non-APA" cases like this (i.e., where a regulatory

statute other than the Administrative Procedure Act ("APA")

authorizes judicial review), is an area largely

uncharted by this Court. Clarke v. Securities Industry Assn., 479

U.S. 388 (1987) is ambiguous as to whether and what extent

a "zone" test, or something like it, may be appropriate in non-

APA cases. See Jd. at 400 n.16. Commentators have also

noted the uncertainty on this score.2/

The Ninth Circuit essentially converted the "zone of

interests” test into a "statutory purpose" test which uses an

oversimplified definition of a statute’s "purpose" to deny

9. See Tribe, American Constitutional Law, §3.19 at 143 (2d Ed.

1988) (noting that in the non-APA context, “the ‘zone of interests’ test

is a doctrine of uneven application and uncertain meaning."); Coyle,

Standing of Third Parties to Challenge Administrative Agency Actions, 76

Calif. L. Rev. 1061, 1077 (1988) (noting “nagging questions over

applicability” of the "zone" test outside the APA context); Sealander,

Standing Behind Government-Subsidized Bipartisanship, 60 Geo. Wash. L.

Rev. 1580, 1592 (1992) (“confusion exists as to the applicability of the

‘zone of interests’ test outside of the APA context"); June, The Structure

of Standing Requirements for Citizen Suits and the Scope of Congressional

Power, 24 Envtl. L. 761, 779-785 (1994). See also Copper & Brass

Fabricators v. Dept. of the Treasury, 679 F.2d 951, 954 (D.C. Cir. 1982)

(Ginsburg, J., concurring) (“The absence of a cogent explanation by the

Supreme Court of the purpose, scope, or proper application of the

‘zone of interests’ test has bred confusion and divergent approaches

among lower federal courts.")

ee ee

11.

standing to litigants whose claims purportedly conflict with this

statutory purpose. Because the "zone" test threatens to evolve

into something it was never intended to be, the Court should

use this case to clarify the proper use of the "zone" test in

non-APA cases.

Moreover, if the Ninth Circuit is right that economic

injury is not within the ESA’s “zone of interests", then this

Court should not have reached the merits last term in Babbitt

v. Sweet Home of Communities for a Greater Oregon,

115 S.Ct. 2407 (1995). In Sweet Home, landowners and timber

harvesting interests challenged the ESA’s “harm” regulation

alleging that the regulation “injured them economically." Jd.

at 2410. Consequently, the only basis for ESA standing in

Sweet Home was economic injury like that of petitioners in this

case.

ARGUMENT

I. THE NINTH CIRCUIT ERRED IN IMPOSING THE

PRUDENTIAL "ZONE OF INTERESTS" TEST AS A

FURTHER RESTRICTION UPON CITIZEN SUIT

STANDING UNDER THE ESA

It is clear that "Congress may, by legislation, expand

standing to the full extent permitted by Art. III, thus

permitting litigation by one ‘who otherwise would be barred by

prudential standing rules.” Gladstone, Realtors v. Village of

Bellwood, 441 U.S. 91, 100 (1979), quoting Warth v. Seldin, 422

U.S. 490, 501 (1975). Applying this principle, the Court has

held that the broad grant of standing in Section 812 of the

Fair Housing Act of 1968 “extend[s] to the full limit of Art.

III", Gladstone, supra, 441 US. at 103, n.9, and that "courts

accordingly lack the authority to create prudential barriers to

standing in suits brought under that section." Havens Realty

Corp. v. Coleman, 455 U.S. 363, 372 (1982). See also

Trafficante v, Metropolitan Life Insur. Co., 409 U.S. 205, 209

(1972). More recently, in Gollust v. Mendell, 501 U.S. 115

(1991), the Court refused to engraft prudential limitations

upon standing to sue for insider trading under Section 16(b)

of the Securities Exchange Act of 1934, stating: "in light of the

congressional policy of lenient standing, we wil] not read any

12.

further condition into the statute, beyond the requirement that

a §16(b) plaintiff maintain a financial interest in the outcome

of the litigation sufficient to . . avoid constitutional standi

difficulties." Lower courts have also held that broad statutory

authorizations of suit eliminate prudential standing

limitations.22

The Ninth Circuit’s imposition of prudential limitations

on ESA standing was erroneous for at least three reasons.

First, whether citizen suit provisions are subject to further

prudential limitations is a question of congressional intent.

See Clarke, supra, 479 U.S. at 400. Consequently, courts

should use the traditional indicia of congressional intent, like

the words of the statute authorizing judicial review, see

Director, Office of Workers’ Compensation Programs v. Newport

News Shipbuilding and Dry Dock Co., 115 §.Ct. 1278, 1283-1284

(1995), the legislative history of the relevant laws, Gladstone,

supra, 441 U.S. at 105-107, and the structure of the legislation,

Block v. Community Nutrition Institute, 467 U.S. 340, 345-348

(1984), 352 to answer the congressional intent question. Here,

the Ninth Circuit failed to undertake any serious inquiry-into

congressional intent, and automatically assumed that the

10. See Family and Children’s Center v. School City, 13 F.3d 1052,

1061 (7th Cir.), cert. denied, 115 S.Ct. 420 (1994) (Individuals With

Disabilities Act provision authorizing suit by “any person aggrieved"

meant that litigants “need not run the gauntlet of prudential standing

tests, satisfying Art. II] is enough"); Competitive Enterprise Institute v.

National Highway Traffic Safety Administration, 901 F.2d 107, 118-119

(D.C. Cir. 1990) (Energy Policy and Conservation Act ("EPCA")

provision authorizing suit by “any person who may be adversely affected

by any rule" eliminated prudential standing limitations); Consumers

Union v. Federal Trade Commission, 691 F.2d 575, 576 (D.C. Cir. 1982)

(en banc), aff'd, 463 U.S. 1216 (1983) (Federal Trade Commission

Improvements Act provision authorizing “any interested party” to

challenge the congressional veto provisions of the Act was “intended to

permit standing . . to the full extent permitted by Article III."); Swan

View Coalition, Inc. v. Turner, 824 F.Supp. 923, 928-929 (D.Mont. 1992)

(prudential standing limitations do not apply to ESA, and plaintiff suing

under the citizen suit provision of the ESA “need only meet the

constitutional requirements for standing in order to bring their claim

under the ESA").

13.

prudential "zone of interests" test applied to the ESA.

Because the "zone of interests" test was developed as

a gloss on the phrase “aggrieved agency action within the

meaning of a relevant statute" in section 10 of the APA,

Clarke, supra, 479 U.S. at 394-397, there is no reason why it

should automatically apply to the altogether different language

of the ESA which grants “any person" standi to enjoin

violations of "any n" of the ESA. Clarke

emphasized that the "zone of interests" test "is not a test of

universal application". 479 U.S. at 400, n. 16. The Ninth

Circuit’s transfer of the "zone" test from its original APA

setting to a non-APA context, without any serious analysis of

congressional intent, is contrary to this Court’s exposition of

the "zone" test, and wrongly intrudes on Congress’ power to

specify who it wants to enforce its statutes.

Second, there is no justiciability rationale for imposing

prudential standing limitations in this case. Petitioners were

not denied standing because they are unlikely to adequately

present the disputed issues in a sharply focused adversarial

context. Because petitioners’ water rights were directly and

adversely affected by the Section 7 consultation and FWS

‘ Biclogicai Opinion, petitioners were in the best position to

ensure the requisite adverseness. The Ninth Circuit’s apparent

belief that the Bureau of Reclamation, not petitioners, is a

more appropriate plaintiff, see App. 6, actually selects the

Jeast appropriate party. It is unrealistic to think that the

Bureau can sue the FWS, a fellow agency within the

Department of Interior under the common contro] of the

Secretary of the Interior, a named defendant in the action.

This is hardly an alignment of parties guaranteeing adversity

of interest and avoidance of collusion. Moreover, such a party

alignment “would put the federal courts into the regular

business of deciding intrabranch and intraagency policy

disputes -- a role that would be most inappropriate." Director,

Office of Workers’ Compensation Programs, supra, 115 S.Ct. at

11. Given the plain meaning of “any person", the Ninth Circuit

should have started with the presumption that Congress intended to

abrogate prudential limitations on ESA citizen suit standing, and then

proceeded to determine if there was any evidence of contrary intent.

14.

1284-1285. (Emphasis added).

While prudential limitations may be justified in certain

cases for judicial management reasons, like avoiding difficult

problems of proof when distant purchasers have standing, and

minimizing the opportunity for vexatious litigation, see Blue

Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 737-749

(1975), none of those considerations apply here.

Nor are prudential limits justified because petitioners

are asserting the interests of third parties. See Valley Forge

College v. Americans United, 454 U.S. 464, 474 (1982). Instead,

petitioners are asserting that their water and contract rights --

rights personal to them -- have been adversely affected by the

challenged regulatory action.

The distinction between plaintiffs who are and are not

the "object" of the regulatory action at issue, see Lujan, supra,

112 S.Ct. 2137, is also no basis for imposing prudential

limitations. The "object" of ESA regulation is the Klamath

Project and its operations upon which ESA constraints were

imposed. Because the Bureau is not an appropriate party to

sue the FWS, petitioners, who derive their water from the

Project, are the real "object" of the ESA _ regulation.

Presumptively, they should have standing.

Alternatively, if the "object" of ESA regulation is taken

to be the species itself,#/ then all other parties, be they

environmental or economic interests, have "derivative" standing.

There is no reason, at least in terms of the "object" of

regulation, why "derivative" environmental interests should have

any greater standing than "derivative" economic interests.

12. Outside of Justice Douglas’s dissent in Sierra Club v. Morton,

405 U.S. 727 (1972), see id at 741-742, and a few commentators, the

notion that species should have standing has not been widely accepted.

The Ninth Circuit, however, comes close in this case with its notion that

the touchstone for standing should be whether the interests of a litigant

conflict or are congruent with the interests of the species. See App. 16;

See also Pacific Northwest Co-op v. Brown, 38 F.3d 1058,

1063 (9th Cir. 1994) (in ESA case, describing district court’s rationale

that endangered salmon were “in effect, a ward of the court, or like a

ward of the court, and concluding that all plaintiffs were disabled from

representing the salmon by a conflict of their interests with the

salmon’s").

15.

Finally, there is no separation of powers justification

for prudential limitations in this case. Petitioners are not

asserting a "generalized grievance", which is "pervasively shared

and most appropriately addressed in the representative

branches." Valley Forge supra, 454 U.S. at 475; see

also Lujan, supra, 112 S.Ct. at 2143-2146. Indeed, this case is

the reverse of the "generalized grievance" situation. Here, the

burdens of regulation are disproportionately concentrated upon

persons like petitioners, and the environmental benefits of the

regulation are broadly diffused. Yet, standing is accorded to

diffuse beneficiaries who re free to allege claims of

underregulation, but denied to those who bear the

concentrated burdens of regulation and who seek to allege

claims of overregulation. Standing is justified here both to

protect minority interests that disproportionately bear

regulatory burdens, see generally Scalia, The Doctrine of

Standing as an Essential Element of the Separation of Powers,

17 Suffolk U. L. Rev. 881, 894-896 (1983), and to avoid

dysfunctional incentives towards "overregulation."

In sum, the Ninth Circuit wrongly imposed prudential!

limitations on citizen suit standing without analyzing evidence

of congressional intent, and without any justiciability or

separation of powers justification for doing so. Instead, the

Ninth Circuit substituted its own notion of what ESA policies

should be advanced and by whom, thereby undermining

Congress’ prerogative to control standing as it sees fit through

legislation.

Il. IF A "ZONE OF INTERESTS" TEST APPLIES TO

ESA STANDING, THE NINTH CIRCUIT

NONETHELESS MISAPPLIED AND

MISCONSTRUED THAT TEST

The Ninth Circuit misapplied the "zone of interests"

test in several ways. First, the "zone" test accords standing to

litigants whose interests are “arguably within the zone of

interests to be protected or regulated by the Statute . . in

question." Association of Data Processing Service tions

v. Camp, 397 U.S. 150, 153 (1970) (emphasis added): see also

Clarke, supra, 479 U.S. at 396. The Ninth Circuit ignored the

"regulation" part of the “zone” test, and required that a

16.

litigant’s interest be "protected" by the relevant statute. This

is contrary to the admonitions in Clarke that one need not

show an “indication of congressional purpose to benefit the

would-be plaintiff’, id, 479 U.S. at 399-400; that the "zone"

test is “not meant to be especially demanding", id. at 399; and

that to satisfy the test a litigant need only demonstrate a

"plausible relationship" to the policies underlying the relevant

statute. Jd. at 403. (Emphasis added). Since the "zone" test is

a gloss on section 10 of the APA which grants standing to

persons "aggrieved by agency action", the "zone" test includes

not just those benefitted by a statute, but the "aggrieved" who

feel the bite of a regulatory program. Consequently, litigants,

like petitioners here, who pay the costs of regulatory

compliance fall within the zone of interests "regulated" by the

statute. The "zone" test was never intended to be applied as

narrowly as the Ninth Circuit applied it in this case.

Even if one construes the "zone" test to only include

interests benefitted by, rather than burdened by, the ESA,

petitioners are still clearly within the "zone." The substantive

requirement to consider the economic impacts of critical

habitat designation, and the right of the public to participate

in the critical habitat designation rulemaking, can only have

been intended to benefit people like petitioners. Who else

could Congress have intended to benefit other than landowners

and economic interests that bear the economic burdens of

critical habitat designations? Therefore, petitioners satisfy

even the most stringent "zone" test.

Second, the Ninth Circuit’s notion that petitioners’

interests are "inconsistent with the [ESA’s] purposes", App. 17,

cannot withstand scrutiny. The purpose of the ESA was not

to protect species through arbitrary decision-making which

lacks a valid scientific basis. Nor was the purpose of the ESA

to designate critical habitat without considering economic

impacts. Both of these requirements -- of using good science

and considering economic impacts -- go to the heart and

integrity of governmental decision-making (and species-

protection efforts) under the ESA. Therefore, petitioners’

allegations that these statutory provisions were violated is

consistent with and furthers the purposes of the ESA, contrary

to the Ninth Circuit’s conclusion.

The fact that petitioners are in competition with the

=~

:

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;

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‘

17.

endangered fish for water is not a basis for denying standing.

Competitors of regulated industries or entities have interests

contrary to those of the regulated party but have long had

standing under the "zone of interests" test. See e.g., Camp,

supra, 3°7 U.S. 150.

The Ninth Circuit’s mistake was in using an

oversimplified definition of the "purpose" of the ESA as a

litmus test for standing. Interests, for purposes of the "zone"

test, have to be defined and evaluated in relation to the

particular statutory provisions and the relevant legislative intent

behind them, not some judicial distillation of the (single)

"purpose" of an act. "[I]t is not unusual for legislation to

contain diverse purposes that must be reconciled, and the most

reliable guide for that task is the enacted text." City of Chicago

v. Environmental Defense Fund, 114 S.Ct. 1588, 1594 (1994).

Consequently, the touchstone for standing should not be a

court’s definition of a statute’s "purpose", and whether certain

litigants will or will not further that purpose.

Insofar as Clarke, supra, referred to certain interests

as not being within the zone of interests if they are "so

marginally related to or inconsistent with the purposes implicit

in the statute", 479 U.S. at 399, the Court was simply saying

that the impact on plaintiffs may not be so attenuated and

indirect, (i.e., "[iJn cases where the plaintiff is not itself the

subject of the contested regulatory action", id.), and that the

interests being asserted cannot be so far removed and remote

from the concerns of the statute that "it cannot reasonably be

assumed that Congress intended to permit the suit." Jd. That

is not the case here. The adverse economic impacts on

petitioners is direct and immediate. Moreover, when Congress

crafted the requirements to use the best scientific data and to

consider economic impacts in administering the ESA, it

undoubtedly had in mind the interests of people like

petitioners who bear the burdens of ESA regulation.

The ranchers and farmers who depend on Klamath

Project water will do their part to fulfill the Nation’s

commitment to protect endangered species. But they should

have access to the courts when the impositions upon them go

beyond the law.

18.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

DANIEL E. LUNGREN

Attorney General of the State of California

RODERICK E. WALSTON

(Counsel of Record)

Chief Assistant Attorney General

CHARLES W. GETZ, IV

Assistant Attorney General

CLIFFORD T. LEE

LINUS MASOUREDIS

Deputy Attorneys General

(Additional Counsel listed on inside of front

cover)

Attorneys for Amici States