Amicus Curiae Brief — Bennett v. Spear

| i

Supreme Court, U S.

- 2 oe

DEC 20 1995

No. 95-813

-_ "CLERK

In the

Supreme Court of the United States

October Term, 1995

+

BRAD BENNETT, et al.,

Petitioners,

Vv.

MARVIN L. PLENERT, et al.,

Respondents.

—~@--

Petition for Writ of Certiorari

to the United States Court of Appeals,

for the Ninth Circuit

+

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION, CALIFORNIA FARM BUREAU

FEDERATION, AND CALIFORNIA CATTLEMEN’S

ASSOCIATION IN SUPPORT OF PETITIONERS

+

*RoBIN L. RIVETT

*Counsel of Record

MARK T. GALLAGHER

Of Counsel

Pacific Legal Foundation

2151 River Plaza Drive, Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amici Curiae

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ............ 2

STATEMENT OF THECASE ............... 3

SUMMARY OF ARGUMENT ............... 5

GD 1 dis SONaeed Sean 4 Chis i kc cu 6

REASONS FOR GRANTING

THE PETITION FOR WRIT OF CERTIORARI

THIS COURT SHOULD RESOLVE THE

CONFLICT OVER WHETHER THE ZONE

OF INTERESTS TEST APPLIES TO

ACTIONS FILED UNDER THE CITIZEN-

SUIT PROVISION OF THE ENDANGERED

ee 7

THE NINTH CIRCUIT’S OPINION IS

IN CONFLICT WIT THE PRECEDENTS

GP CED occ ccccccccese 11

THIS CASE INVOLVES IMPORTANT

ISSUES OF LAW THAT SHOULD BE

RESOLVED BY THIS COURT ....... 14

A. The Ninth Circuit’s Opinion

Ignores Congressional Intent

to Protect the Rights of

State and Local Water Districts .... 15

Page

B. The Ninth Circuit's Opimion

Ignores the Numerous ESA

Amendments Designed to Protect

DE .¢i 6 ooeeeeces 16

i vette tes ks 6s eee eee e < 19

iii

TABLE OF AUTHORITIES CITED

Cases

Air Courier Conference of America v. American

Postal Workers Union, 498 U.S. 517 (1991) ..... 14

Barlow v. Collins, 397 U.S. 159 (1970) ........ 14

Bennett v. Plenert, 63 F.3d 915

aa GE bbe erbbee es obese wah: 3-5,8,10-14

Clarke v. Securities Industries Association,

CG Se 14

Defenders of Wildlife v. Hodel, 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,

ee 8-9

Douglas County, Oregon v. Babbitt,

SU ST Rho cer eb eebccteccccetien 2

Gladstone, Realtors v. Village of Bellwood,

G55 GS. SE GHSUED oc we cease ececcecces 9,12-13

Gonzales v. Gorsuch, 688 F.2d 1263 (9th Cir. 1982)... 3

Humane Society of the United States v. Hodel,

oon 7.20 & GAS. Gee. TE cc ceescecevcess 9

Lujan v. Defenders of Wildlife, 504 U.S. 555

SD s's-u.a bd ths cnet ced ells ated 7,9

Pacific Legal Foundation v. Andrus, 657 F.2d

Sa Gee as Ee-6 oc candle ae conde 0 40% 2

Marbury v. Madison, 5 U.S. (1 Cranch) 137

Ge -acdunedndasee cee cedeeees isk. 19

State of Idaho By and Thru Idaho Public Utilities

Commission v. Interstate Commerce Commission,

oe Pane ae GK. Ge, TER oc cc ccccebecctes 9

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

SPE 90066 065.066 566 RSs dite dee ce 2

Trafficante v. Metropolitan Life Insurance Co.,

Gp US. Sap e010 caene +6 és'c 640 e8 12-13

Warih v. Seldin, 422 U.S. 490 (1975) ........ 11,13

Statutes

Civil Rights Act of 1968 § 810(a) ............ 12

v

Page

Lo PP TRUCE LT TeeTTee 12-13

SPs D MND Sec ese beWeocccvese 15

DERREEED cece cee ee wedecccccccccces 8

SUED bee obec USE o's eV ee eevee 4,16

WU 6866 Cece be seHeencensocececees 16

a es es ee a ee ree 4

PD +ccoewceveverwesedadctie 17

Po git LALA CIT TTT Tee 18

PEED SOS chee geseseeeocecsees 18

PS Ss CICA UAE in oc S23 8-9

See oe S008 Seb SAN Ie ek 4

GP Ue GONE Secccoccbccceeeedcces 12

Rules

Supreme Court Rule 10.1(a)................. 7

DU SeeGheeekehbeeedeacececcaceas 7

EY Geb SnCeaeeesasecenccccosobéis ]

vi

Page

United States Constitution

REED ES cc cccccecusccscdbawewiex 5-7,10,13

Miscellaneous

Chief Justice Vinson, Address Before the American

Bar Association, Sept. 7, 1949, 69S. Ct. v, vi ... 67

Ike Sugg, Caught in the Act: Evaluating the

Endangered Species Act, Its Effects on

Man and Prospects for Reform, 24 Cumb.

Sn Ee BG bin 6.0.0.00.0.06.06.0680600 00's 16

Laurence H. Tribe, American Constitutional Law,

Dt Tn -.«6eeeeneaueeseéeessés 11

H.R Rep. No. 567, 97th Cong. 2nd Sess.

OS ee i ered ee 17-19

No. 95-813

—>

In the

Supreme Court of the United States

October Term, 1995

Petition for Writ of Certiorari

to the United States Court of Appeals,

for the Ninth Circuit

—--+>-

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION,

CALIFORNIA FARM BUREAU FEDERATION,

AND CALIFORNIA CATTLEMEN’S ASSOCIATION

2

INTEREST OF AMICUS CURIAE

The California Farm Bureau Federation (CFBF) is a

nonprofit, tax-exempt corporation existing under the laws of

the State of California. Its members are 53 county farm

bureaus located throughout California through which it

represents owners and operators of farms and ranches, as

well as other residents of the state who are interested in the

welfare of agriculture.

The California Cattlemen’s Association (CCA), a

nonprofit corporation, founded in 1917, represents the state’s

beef cattle industry in legislative and regulatory affairs. Beef

cattle producers operate over 40 million of California’s 100

million acres and contributed $1.5 billion to the state’s $19.7

billion agriculture economy in 1993. The industry provides

more than 26,000 jobs from the ranch level to the processing

level in the State of California.

Pacific Legal Foundation is a nonprofit, tax-exempt

corporation organized under the laws of the State of

California for the purpose of litigating in the public interest.

PLF has over 20,000 supporters nationwide. Policy for PLF

is set by a Board of Trustees composed of concerned

citizens, many of whom are attorneys. PLF’s Board of

Trustees evaluates the merits of any contemplated legal

action and authorizes such legal action only when the

Foundation’s position has broad support within the general

community. PLF’s Board of Trustees has authorized the

filing of an amicus curiae brief in this matter.

PLF has participated in numerous cases involving the

Endangered Species Act and has a history of helping

landowners that have been injured by government action

taken pursuant to the ESA. PLF was a party of record in

Pacific Legal Foundation v. Andrus, 657 F.2d 829 (6th Cir.

1981), and the Foundation participated as amicus in Babbitt

v. Sweet Home Chapter of Communities for a Great Oregon,

__U.S. __, 63 U.S.L.W. 4665 (1995); Douglas County,

Oregon v. Babbitt, Case No. 95-371; and Tennessee Valley

Authority v. Hill, 437 U.S. 153 (1978). PLF attorneys have

3

also litigated the issuc of standing under environmental

statutes. For example, PLF attorncys were counsel of record

in Gonzales v. Gorsuch, 688 F.2d 1263 (9th Cir. 1982), a

case which involved standing under the Clean Water Act’s

Citizen-suit provision.

PLF seeks to augment the argument in the petition for

writ of certiorari. PLF believes that its public policy

STATEMENT OF THE CASE

This case addresses the issue of which plaintiffs have

standing to challenge governmental actions taken pursuant to

the Endangered Species Act. In Bennett v. Plenert, 63 F.3d

915 (9th Cir. 1995), the Ninth Circuit gave a very narrow

4

Klamath Project. The Bureau informed FWS that it

intended to comply with this recommendation.

Petitioners filed suit in the United States District Court

for the District of Oregon under the ESA’s citizen suit

provision. 16 U.S.C. § 1540(g)(1). Petitioners’ complaint

alleged that there was no evidence to support FWS’

determination that the sucker fish were threatened by the

operation of the Klamath Project. On the contrary,

according to the petitioners, the two species of fish were

reproducing successfully, and thus were not in need of

federal protection. Specifically, the complaint charged that

FWS had not complied with the consultation provisions of

Section 1536(a), and that they had failed to consider the

economic impact of their decision in violation of Section

1533(b)(2). In an unpublished decision, the District Court

concluded that petitioners lacked standing to challenge the

FWS determination and dismissed their suit.

On appeal the Ninth Circuit concurred with the District

Court and held that only those plaintiffs “who allege an

interest in the preservation of endangered species fall within

the zone of interests protected by the ESA." Bennett,

63 F.3d at 919 (emphasis in original).'

Although recognizing that the Eighth Circuit had found

that the ESA’s broad citizen-suit provision “necessarily

abrogated any zone of interest test," the Ninth Circuit held

that notwithstanding the citizen-suit provision, Congress had

not waived the zone of interests test with respect to actions

brought under the ESA. Jd. at 918 n.3. According to the

Bennett court, because the ESA is “singularly devoted to the

' The Ninth Circuit only addressed the issue of whether

petitioners were within the zone of interests protected by the

ESA and did not determine whether they had satisfied the

constitutionally based standing requirements. Bennett v.

Plenert, 63 F.3d at 917.

SUMMARY OF ARGUMENT

The Ninth Circuit opinion only adds to the confusion

the court has not yet defined exactly which interests are

within the zone protected by the ESA. In Bennett, the Ninth

Circuit held that the zone of interest does apply to the ESA

Court should grant the writ of certiorari to resolve this

conflict of authority.

The opinion of the Ninth Circuit also failed to properly

apply the decisions of this Court which make it clear that

Congress may waive prudential standing limitations. This

Court has interpreted legislation similar to the citizen-suit

provision at issue in this case and has determined that it

6

demonstrates a congressional intent to define standing as

broadly as is permitted by Article III of the Constitution.

Although the court below recognized congressional ability to

supplant prudential standing elements, it held that despite the

broad language used by Congress in drafting the ESA citizen-

suit provision the zone of interest applies to suits filed under

the Act. This ruling is in direct conflict with the decisions

of this Court.

The opinion below also fails to effectuate congressional

intent thereby raising issues of national importance which

should be resolved by this Court. According to the Ninth

Circuit the ESA is “singularly devoted" to the goal of

preserving wildlife. While it is true that the ESA was

enacted to protect and preserve species, this narrow reading

of the ESA fails to recognize the numerous provisions of the

Act adopted in order to protect economic interests. Passed

in 1973, the ESA has gone through a series of amendments

designed to incorporate a flexible approach to balancing

species preservation with economic interests. The opinion

rendered in Bennett fails to recognize that the plain language

of the Act, as well as its legislative history, demonstrates that

Congress intended to protect the economic interests of

individuals such as the petitioners in this case.

_—

ARGUMENT

REASONS FOR GRANTING THE

PETITION FOR WRIT OF CERTIORARI

"The debates in the Constitutional Convention make

clear that the purpose of the establishment of one supreme

national tribunal was, in the words of John Rutledge of South

Carolina, ‘to secure the national rights & uniformity of

Judgments.’" Chief Justice Vinson, Address Before the

American Bar Association, Sept. 7, 1949, 69 S. Ct. v, vi

7

(emphasis added). Chief Justice Vinson’s observations are

codified in Supreme Court Rule 10.1(a) which lists among

the considerations governing review on certiorari the

circumstance when a Usited States Court of Appeals has

rendered a decision in conflict with the decision of another

United States Court of Appeals on the same matter. Rule

10.1(c) includes as grounds for review when a United States

Court of Appeals has decided an important question of

federal law which has not been, but should be, settled by this

Court, or has decided a federal question in a way that

conflicts with applicable decisions of this Court. Each of

these grounds for review is present in this case.

THIS COURT SHOULD RESOLVE THE

CONFLICT OVER WHETHER THE

ZONE OF INTERESTS TEST APPLIES

TO ACTIONS FILED UNDER THE

CITIZEN-SUIT PROVISION OF

THE ENDANGERED SPECIES ACT

In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992),

this Court held that the citizen suit provision contained in the

ESA was not sufficient, in and of itself, to satisfy the

requirements of Article III. This Court reiterated the now

familiar standard that at an “irreducible constitutional

minimum" the plaintiff seeking relief in the federal courts

must establish an injury in fact, a causal connection between

the injury and the conduct of the defendant, and that the

injury is likely to be redressed by a favorable decision.

Lujan, 504 U.S. at 560-61. This Court did not, however,

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

waived the prudential standing requirement that the plaintiff

be within the zone of interests sought to be protected by the

Statute in question. The United States Courts of Appeals

have split on this issue and two conflicting lines of authority

have emerged. Bennett v. Plenert provides this Court with

an opportunity to resolve the irreconcilable conflict of

authority which currently divides the Circuit Courts.

The language employed by Congress in drafting the

ESA's citizen-suit provision is without limits or ambiguity.

The provision provides:

(1) Except as provided in paragraph (2) of

this subsection any person may commence a civil

suit on his behalf

(A) to enjoin any person, including the

United States and any other governmental instru-

mentality or agency (to the extent permitted by

the eleventh amendment to the Constitution), who

is alleged to be in violation of any provision of

this chapter or regulation issued under the

authority thereof.

16 U.S.C. § 1540(g). Further evidence of

congressional intent can be gleaned from the equally

expansive definition of “person” found in the Act. That term

is defined under the ESA to mean “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 of any foreign

government." 16 U.S.C. § 1532(13). Despite the clear

language used by Congress in drafting these provisions courts

have reached extremely divergent views on whether this text

is evidence of legislative desire to obviate the zone of

interests inquiry.

The Eighth Circuit has concluded that the ESA’s citizen

suit provision “necessarily abrogated” the zone of interests

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

9

1039 (8th Cir. 1988), opinion after remand, 911 F.2d 117

(8th Cir. 1990), rev'd on other grounds, Lujan v. Defenders

of Wildlife, 504 U.S. 555. In Hodel, the court began its

analysis of the zone of interests question by recognizing the

fundamental principle that Congress may eliminate the

prudential standing requirements by legislation. Hodel,

851 F.2d at 1039 (citing Gladstone, Realtors v. Village of

Bellwood, 441 U.S. 91, 100 (1979)). The court then

examined the plain language of the Act’s citizen suit

provision and concluded that the text of that provision

evidenced a congressional intent to waive the prudential

standing requirements under the ESA. The ESA provides

that “any person” may commence a suit to enjoin any person

who is alleged to be in violation of the Act. 16 U.S.C.

§ 1540(g). According to the Hodel court, because the

plaintiffs were “persons” as defined by the Act they needed

only to satisfy the constitutionally based requirements in

order to have standing under the ESA. Hodel, 851 F.2d

at 1039. Although Hodel was eventually overturned by this

Court in Lujan v. Defenders of Wildlife, nothing in this

Court’s Lujan opinion disturbed the Eight Circuit’s

conclusion that the plain text of the ESA waived the

prudential zone of interests test.

The reasoning employed by the Eighth Circuit in Hodel

is made exceptional only by its uniqueness. Other circuits

have refused to rely on the plain language of the citizen-suit

provision, and have decided that the broad language of that

subsection does not provide sufficient evidence that Congress

intended to waive the zone of interests test. The District of

Columbia Circuit has held that the zone of interests test does

apply to the ESA. State of Idaho By and Thru Idaho Public

Utilities Commission v. Interstate Commerce Commission,

35 F.3d 585, 592 (D.C. Cir. 1994); Humane Society of the

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

Although finding that the zone of interests test applies to

actions filed pursuant to the ESA, the D.C. Circuit has yet

10

to clearly delineate the parameters of that zone.

Significantly, unlike the Ninth Circuit im Bennes, the D.C.

Circuit has not used the zone of interests inquiry to deny

standing to plaintiffs asserting an economic injury under the

ESA.

In Bennett the Ninth Circuit stated, “notwithstanding

the broad language 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."

Bennett v. Plenert, 63 F.3d at 918. The Bennett court then

went a step further than the D.C. Circuit and held that only

plaintiffs’ alleging an interest in the preservation of species

fall within the zone of interests protected by the ESA.

Bennett, 63 F.3d at 919. Because the plaintiffs alleged no

such interest they were outside of the ES.A’s zone of interest

and, thus, without standing. The Ninth Circuit expressly

recognized that its decision was patently inconsistent with the

position taken by the Eighth Circuit, however, the court

made no attempt to reconcile these two cases. Bennett,

63 F.3d at 918 n.3.

As it now stands, the ability to brimg a claim under the

ESA alleging an interest other than species preservation is

entirely dependent upon the accident of geography. Plaintiffs

suffering an economic injury under the ESA in the Eighth

Circuit may look to the federal courts to windicate their rights

and protect their interests. Plaintiffs im the Ninth Circuit,

suffering an identical injury, however, will find the court

house doors closed to them. The Eighth Circuit has

determined that the broad language of the citizen-suit

provision waived the prudential zone of imterests test and that

plaintiffs need only satisfy the requirements of Article III in

order to have standing under the ESA. The District of

Columbia Circuit has held that the zone of interests test does

apply to the ESA, however, that court has yet to clearly

define which interests fall within the zone. The Ninth

Circuit has taken an extreme position and proclaimed that the

11

zone of interests test applies to ESA and that only plaintiffs

alleging an interest in the preservation of endangered species

have standing to challenge actions taken pursuant to the Act.

The United States Courts of Appeals are in disarray.

Bennett v. Plenert provides this Court with an opportunity to

settle the issue of whether the ESA waived the prudential

zone of interests test. In the alternative, if this Court

concludes that the zone of interests does apply, Bennett

allows the Court the chance to clearly define which interests

fall within the zone protected and regulated by the ESA.

This Court should grant the petition for writ of certiorari to

THE NINTH CIRCUIT’S OPINION

IS IN CONFLICT WITH THE

PRECEDENTS OF THIS COURT

One of the corner stones of the modern standing

doctrine is the principle that Congress has the ability to

waive the zone of interests requirement. This Court has

explicitly recognized that “Congress may grant an express

right of action to persons who otherwise would be barred by

prudential standing rules." Warth v. Seldin, 422 U.S. 490,

501 (1975). In Association of Data Processing Service

Organizations, Inc. v. Camp, 397 U.S. 150, 154 (1970), the

case which first defined with precision the zone of interests

inquiry, this Court noted “Congress can, of course, resolve

the question one way or another, save as the requirements of

Article III dictate otherwise." Commentators have also

standing) doctrines, in any event, are wholly subject to

supplantation by Congress, as long as disputes thus allowed

remain of an otherwise justiciable nature.“ Laurence H.

Tribe, American Constitutional Law, 135 (2d ed. 1988). The

12

court in Bennett acknowledged congressional ability to

override the zone of interests requirement, however, the

court concluded, “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." Bennett, 63 F.3d at 919. This reasoning is

inconsistent with previous holdings of this Court.

In Trafficante v. Metropolitan Life Insurance Co.,

409 U.S. 205 (1972), this Court interpreted a provision of

the Fair Housing Act that bears a striking resemblance to the

citizen-suit provision at issue in the current case. The

provision before the Court in Trafficante was Section 810(a)

of the Civil Rights Act of 1968, which states in relevant part:

Any person who claims to have been injured

by a discriminatory housing practice or who

believes that he will be irrevocably injured by a

discriminatory housing practice that is about to

occur (hereafter “persons aggrieved") may file a

complaint with the Secretary.

42 U.S.C. § 3610{a). Section 810(d) of the Civil Rights Act

provides that if the Secretary is unable to secure voluntary

compliance with the Act the person aggrieved may file suit

in the appropriate United States District Court. Speaking for

the Court, Justice Douglas recognized that the language

employed by Congress in drafting this provision was “broad

and inclusive." Trafficante, 409 U.S. at 209. This Court

concluded that Section 810(a) demonstrated congressional

intent to define standing as broadly as is permitted by Article

Ill of the Constitution. id.

Seven years later, this Court was again called upon to

determine which plaintiffs had standing to bring suit alleging

a violation of the Fair Housing Act. Gladstone, Realtors v.

Village of Bellwood, 441 U.S. 91. In this case, however, the

Court was asked to interpret the reach of Section 812(a) of

13

the Civil Rights Act.’ This Court stated: “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,

441 U.S. at 100 (quoting Warth v. Seldin, 422 U.S. at 501).

Starting from this premise, this Court reached the inevitable

conclusion that standing under this provision of the Fair

Housing Act was “as broa[{d] as is permitted by Article III of

the Constitution." Gladstone, 441 U.S. at 109 (quoting

Trafficante, 409 U.S. at 209). These cases leave no doubt as

to congressional ability to expand the class of potential

plaintiffs so long as it does not invade the “core” Article III

based standing requirements. Unfortunately, the Ninth

Circuit failed to apply this well-settled rule to the ESA

citizen-suit provision. Bennett directly conflicts with both

Trafficante and Gladstone and this Court should grant the

writ to resolve this conflict.

? Section 812 provides in part:

(a) The rights granted by sections 803, 804,

805, and 806 may be enforced by civil actions in

appropriate United States district courts without

regard to the amount in controversy and in

appropriate State or local courts of general

jurisdiction.

14

iil

THIS CASE INVOLVES

IMPORTANT ISSUES OF LAW

THAT SHOULD BE RESOLVED BY THIS COURT

In analyzing the zone of interests test this Court

explained, “at bottom the reviewability question turns on

stressed that the zone of interests test was “not meant to be

legislative history of the statute in question. Barlow v.

Collins, 397 U.S. 159, 164 (1970); Air Courier Conference

of America v. American Postal Workers Union, 498 U.S.

517, 524-26 (1991). In Bennett the Ninth Circuit held that

15

A. The Ninth Circuit’s Opinion

to Protect the Rights of

State and Local Water Districts

The plain language of the ESA clearly contemplates the

importance of state and local water rights. In a statement of

the Act’s policy, the statute reads: "[I)t 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.” 16 U.S.C. § 1531(c)(2). Congress recognized that

the laudable goal of species preservation could potentially

infringe upon the autonomy of local agencies with regard to

water issues. In an attempt to strike a balance between

species preservation on the one hand, and water rights on the

chen, Geamentnmnipeantantaebetnanealt

local water districts. This provision provides compelling

evidence that Congress intended water districts to fall within

the boundaries of the ESA’s zone of interests.

Two of the petitioners in this case, Langell Valley

Irrigation District and Horsefly Irrigation District, are

political subdivisions of the State of Oregon; more

specifically they are local irrigation districts. These districts

are the kind of “local agency" which Congress expressly

declared the federal government should cooperate with to

resolve water resource issues. In concluding that the water

districts fell outside of the Act’s zone of interests, the court

failed to make any mention of this provision mandating

cooperation between the different levels of government.

Given the high priority Congress placed on the rights of local

water agencies, and the need to balance water resources

issues with species preservation, this Court should grant the

writ of certiorari in order to effectuate congressional intent.

16

B. The Ninth Circuit’s Opinion

Ignores the Numerous ESA Amendments

Designed to Protect Economic Rights

In addition to the preservation of water rights, the ESA

also attempts to protect economic interests which might

otherwise be trampled upon in the government’s haste to

protect threatened species of wildlife. Since its genesis in

1973, the ESA has evolved through a series of amendments

which have incorporated a more balanced approach to species

preservation. These amendments reflect a congressional

understanding of the need for added flexibility in the Act’s

decision-making process. In 1978, the Act was amended to

mandate that the government consider economic

factors in designating critical habitat for a species. 16 U.S.C.

§ 1533(0)(2). That provision declares: “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 available and after taking into consideration the

economic impact, and any other relevant impact, of speci-

fying any particular area as critical habitat." 16 U.S.C.

§ 1533(>)(2) (emphasis added).

In 1982 Congress further amended the ESA in an

attempt to provide more economic protection under the Act.

The most significant amendments added in 1982 created an

exemption process to the ESA’s taking prohibition which one

commentator noted, "is the principle way in which economic

considerations are intended to factor into application of the

ESA." Ike Sugg, Caught in the Act: Evaluating the

Endangered Species Act, ay ep oR ee me

Reform, 24 Cumb. L. Rev. 1, 37 (1993). The exemption

process created the Endangered Species Committee, which is

allowed to circumvent the strict takings prohibitions of the

ESA if such action is found to be in the public interest.

16 U.S.C. § 1536.

17

The 1982 Amendments also offered relief to private

property owners and other persons that might otherwise be

adversely affected by strict compliance with the ESA’s

provisions. The amendments allow for the "incidental"

taking of a listed species. 16 U.S.C. § 1539(a)(1)(B). An

incidental taking is the taking of a species that occurs as the

by-product “of carrying out an otherwise lawful activity."

Id. With the Secretary’s permission, such incidental takings

are not considered a violation of the ESA. The legislative

history behind this section provides clear evidence of what

Congress intended to accomplish by enacting this provision.

This provision establishes a procedure whereby

those persons whose actions may affect

endangered or threatened species may receive

permits for the incidental taking of such species,

continued existence of the species. This provision

addresses the concerns of private landowners who

are faced with having otherwise lawful actions

not requiring Federal permits prevented by

section 9 prohibitions against taking.

H.R. Rep. No. 567, 97th Cong., 2nd Sess. (1982) (emphasis

added). Congress recognized that the interests of landowners

in the productive use of their land may be in conflict with the

goal of conservation. Rather than adopting a hard and fast

rule against the “taking” of a species, Congress instead chose

to steer a middle course between these two competing

interests and adopted a flexible approach to the problem. /d.

(Sections 6 (1) and (2) give the Secretary more flexibility in

regulating the incidental taking of endangered species.

Thus, economics and reasonable property uses were made

relevant interests to be considered and respected under the

ESA.

—

18

This flexible approach is also found in the ESA

amendments allowing for hardship exemptions. 16 U.S.C.

§ 1539(b). If the listing of a species will cause undue

economic hardship to an individual who has entered into a

may exempt that individual from the application of the ESA.

Id. This subsection also makes special allowances for natives

of Alaska, provided the taking is “primarily for subsistence

purposes." 16 U.S.C. § 1539(e)(B). Congress understood

the vast array of human activities which may be jeopardized

in an unbridled attempt to preserve species and set out to

provide a better mechanism to protect these activities. The

reasoning employed by the Ninth Circuit in this case fails to

recognize Congress’ attempt to protect and preserve

economic interests.

Any doubt as to the intent behind the 1982 revisions

disappears upon reading the legislative history supporting

those amendments. The House Report accompanying the

1982 amendments details the goals sought to be achieved by

the Act:

The Endangered Species Preservation Act of 1966

and the Endangered Species Conservation Act of

1969 preceded the 1973 Act to address the same

problem, but it was the last statuie which

constructed a comprehensive means to balance

economic growth and development with adequate

conservation measures.

H.R. Rep. No. 567, 97th Cong., 2nd Sess. (1982) (emphasis

added). The legislative history also traces the evolution of

the ESA from 1973 through 1982:

Subsequent to its passage, the Act was amended

in 1976, 1978 and 1979 to increase the flexibility

19

in balancing species protection and conservation

with development projects.

Id. (emphasis added). Economic protection under the ESA

reached its apex with the 1982 amendments. The provisions

added in that year, as well as the legislative history

explaining those provisions, demonstrate beyond all doubt

that economic interests are within the zone of interests

protected and regulated by the ESA. The Ninth Circuit's

opinion fails to recognize these economic protections and

leaves those plaintiffs suffering an economic injury without

a remedy. This Court should grant the writ of certiorari to

ensure that congressional intent to protect economic interests

under the ESA is not ignored.

o-

CONCLUSION

For nearly two centuries it has been axiomatic that "the

very essence of civil liberty certainly consists in the right of

every individual to claim the protection of the laws,

whenever he receives an injury." Marbury v. Madison,

5 U.S. (1 Cranch) 137, 163 (1803). The federal courts stand

as a bulwark between the United States government and the

rights of private citizens. If the petitioners in this case are

denied standing to challenge this action the FWS would be

given unbridled discretion under the ESA and would be

immunized from judicial attack by those individuals forced

to bear the burden of governmental regulations. Surely

Congress could not have intended such an illogical and

arbitrary result. The Ninth Circuit’s decision is contrary to

the decisions of other circuits and this Court. This Court

20

should grant the petition for writ of certiorari and give effect

to Congress’ intent to confer standing to the limits of

Article ll.

DATED: December, 1995.

Respectfully submitted,

*Rosin L. RIVETT

*Counsel of Record

MARK T. GALLAGHER

Of Counsel

Pacific Legal Foundation

2151 River Plaza Drive, Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amici Curiae