Reply Brief — Bennett v. Spear

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No. 95-813

== .

In The

Supreme Court of the United States

October Term, 1995

.

BRAD BENNETT, et al.,

Petitioners,

VS.

MICHAEL SPEAR, et al.,

Respondents.

S

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

e

REPLY BRIEF FOR PETITIONERS

«

Best Best & Kriecer LLP

Grecory K. WILKINSON

(Counsel of Record)

ZACHARY R. WALTON

3750 University Avenue, Suite 400

P.O. Box 1028

Riverside, California 92502

(909) 686-1450

WILLIAM F. SCHROEDER

Caro. DEHAVEN SKERJANEC

Attorneys at Law

280 “A” Street East

P.O. Box 229

Vale, Oregon 97918

(503) 473-3141

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

OR CALL COLLECT (402) 342-2831

——

TABLE OF CONTENTS

i cc cstv eseesseires se ens ee whewirech es

I.

IIf.

THE COMPLAINT AMPLY MEETS THE

REQUIREMENTS FOR STANDING UNDER

EE Eb 3 6 ub 65 06o5sen see sés enapaene scss0

RESPONDENTS’ STATUTORY INTERPRETA-

TION ARGUMENTS SHOULD BE REMANDED

pom SS ee errr rer

RESPONDENTS’ PROPOSED SCHEME OF JUDI-

CIAL REVIEW OF ESA ACTION IS FLAWED..

18

TABLE OF AUTHORITIES

Cases

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) .... 18

Adams Fruit Co. Inc. v. Barrett, 494 U.S. 638 (1990).... 13

Babbitt v. Sweet Home Chapter of Communities, 515

U.S. —_, 132 L.64.26 S07 (1998)... eee 1]

Columbia Broadcasting System v. United States, 316

U.S. 407 (1942) ..... 4000000800605 55 eee 18

Connecticut National Bank v. Germain, 503 U.S. 249

1h’) PP 13, 14

Dalton v. Specter, 511 U.S. __, 128 L.Ed.2d 497

(1994)... ac vsenccevicecese eu esse ain ennneelnnnnn 16, 20

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

Civ. 1968) .... 2000000000050 8s eee 11

Director, Office of Workers’ Compensation Programs

v. Newport News Shipbuilding and Dry Dock Co.,

314 U.S. __, 131 L.Bd.28 166 (9908) (eee 15

District of Columbia v. Greater Washington Bd. of

Trade, 306 U.S. 125 (1992)... ...+s+000ue eee 12

Dugan v. Rank, 372 U.S. 609 (1963)................... 5

Escondido Mutual Water Co. v. La Jolla Band of

Mission Indians, 446 U.S. 765 (1984)................ 6

Fogerty v. Fantasy Inc., 510 U.S. __, 127 L.Ed.2d

455 (1994)... 0ceccececeeee sy © senna 18

Franklin v. Massachusetts, 505 U.S. 788, 120 L.Ed.2d

636 (1992). .....000s0000005 68 6 Coun 16, 17

Garcia v. United States, 469 U.S. 70 (1984)........ 12, 16

Harrison v. PPG Industries, Inc., 446 U.S. 578 (1980) .... 10

TABLE OF AUTHORITIES ~- Continued

Page

International Primate Protection League v. Tulane

Educational Fund, 500 U.S. 72 (1991).............. 14

Japan Whaling Assn. v. American Cetacean Sox iety,

Nec ecee. 12

Lujan v. Defenders of Wildlife, 504 U.S. 555. 119

I ccc ccc c cc ccecccccen, passim

Lujan v. National Wildlife Federation, 497 U.S. 87)

Ne ce ec ccccccccecccece, 4, 18

Mackey v. Lanier Collection Agency & Service, 486

cae cccce. 14

Madera Irr. Dist. v. Hancock, 985 F.2d 1397 (9th Cir.

Se coc cccccecccccece, 5

Mausolf v. Babbitt, 913 F.Supp. 1334 (D. Minn. 1996)... 11

Northeastern Fla. Chapter, Associated Gen. Contrac-

tors of America vy. Jacksonville, 508 U.S. 656, 124

No cccoececccce, 8

Pilot Life Ins, Co. v. Dedeaux, 481 U.S. 41 (1987)..... 12

Regents of University of California v. Bakke, 438 US.

Nee ic ccccceeececece, 8

Reynolds v. Int'l Amateur Athletic Federation. 505

EE ane )

Rubin v. United States, 449 U.S. 424 (1981)........... 12

Sierra Club v. Morton, 405 U.S. 727 (1972)........__.. 4

Simon v. Eastern Kentucky Welfare Rights Ore., 426

ED Eee 5

Sullivan v. Everhart, 494 U.S. 83 (1990)............_.. 2

iv

TABLE OF AUTHORITIES — Continued

Page

Sullivan v. Hudson, 490 U.S. 877 (1989) .............. 13

Swan View Coalition, Inc. v. Turner, 824 F.Supp. 923

Gee Wares GO cdc encdeutecisnecdeatse es 12

Swift & Co. v. United States, 276 U.S. 311 (1927)...... 9

yee CO Ge Ge Week Ge Se iad acceccciecsaeeais 10

United States v. Gerlach Live Stock Co., 339 U.S. 725

GPE ceccccccpenetisccesteadcuriteeedsabkeemanes 5

United States v. Price, 383 U.S. 787 (1966) ........ 12, 15

United States v. Storer Broadcasting Co., 351 U.S.

Se GUNG vtncducccevececusckeus ERE ORAS Raters 18

Westlands Water District v. United States, 850 F.Supp.

Soe Gane GUN. CU s vce cccccawcachewsscihamavis 12

STATUTES

Administrative Procedure Act

Pee POR a hbde Wea uceees eanekeeeeaubnceoseeelus |

> es PND & Cewalveess eauetenes wousuasmuikt 11

Clean Air Act

Se Ws PON ndcuticnss coeakouuennbuanunnwan add 15

Te Ws, PP 4.0 vkeo ss ub cueonaneanuen uueeu 15

Ce Gass CD vntccccuscctcevcheocesssseccuieuk 15

Endangered Species Act

Te Ges WOU nS uuwkaedeeks cunvancwndumensacheniad !

OD Wien CE ono casccccsecccctensassnaiuen 8

TABLE OF AUTHORITIES —- Continued

Page

Se none dn ebibaneraniadeeemeduenial 13

RRR PO te, ee Be 8

Pe ne CE i Cove cducec gu guer nin cate 19

Ee HO Dee PENT SS 8

Pe ee I ei vchdsietand ade edawte es 8

Se ie I 6 ot ng OR el a es 10

16 U.S.C. 1540(g)(1)(A)... 2.0.2... 9, 10, 12, 13, 15, 18

a Res I in i a ge eh 13, 14

er OI, I i a et a 15

ie te Gt cine ON Hie ee 12, 14

Federal Power Act (16 U.S.C. 797(e)).................. 6

ee ids otra cuts sons eobnie atc 10

Ee Sr eA nen ae OER, tas 19

PP es SED siitkeuscuscdsacdecccceeeeene, 10

Pe Se SY co bnenceasedecubundededeneebal 19

et es SE wis ave ioe Madode bee atecteus tno 19

er ees MI gS Ca cadiwactckcdtenenlcodec.. 16

Jt Fed. Reg. 19926, 19934 (1906).................... 19

I ae epee Pe ae BENE TS 20

ee re Ree Cee 8

vi

TABLE OF AUTHORITIES - Continued

Page

Lecis-ative MATerRiALs

H.R. Rep. 412, 93d Cong., Ist Sess. 19 (1973) ........ 12

H.R. Conf. Rep. No. 740, 93d Cong., Ist Sess. (1973).... 12

H.R. Conf. Rep. No. 835, 97th Cong., 2d Sess. 20..13, 14

H.R. Conf. Rep. 1804, 95th Cong. 2d Sess. 26 (1978) .... 13

S. Rep. 307, 93d Cong., Ist Sess. 11 (1973)........... 12

S. Rep. 418, 97th Cong., 2d Sess. 4 ............... 13, 14

OTHER

SOUS Weeder hdas COR WME sv coe cecnscvdsscccteves 12

l

INTRODUCTION

Respondents’ Brief on the Merits fails to offer any

defense of the “zone of interest” rationale utilized by the

Ninth Circuit in this case.' The brief also avoids both the zone

of interest contentions advanced by the Government in the

courts below (Gov't C.A. Br. 14-23; Gov't D.Ct.Rep.Br. 5-8)

and the prudential standing questions upon which certiorari

was granted by this Court.

Rather than defending the Ninth Circuit's reasoning,

respondents try to bypass the questions in the petition for

certiorari by arguing that the “proper disposition” of this case

does not involve the application of zone of interest standing

principles. (Res. Br. 15) To this end, they advance two argu-

ments outside the scope of the questions upon which cer-

tiorari was granted; neither of which was resolved by the

courts below: (1) that petitioners have failed to demonstrate

Article III standing and (2) that, for reasons of statutory

interpretation, petitioners’ claims are not cognizable under

the citizen suit provision of the Endangered Species Act

(“ESA”). In addition, for the apparent purpose of deflecting

the Court from the ESA, respondents also argue that a remedy

may be available against federal “action agencies” under the

Administrative Procedure Act (“APA”) - although, they

argue, no such remedy may be asserted against the Fish and

Wildlife Service (“FWS”) for its ESA activities. No such

remedy exists in this case, they argue, because petitioners can

point to no “final agency action” for purposes of an APA suit.

The result of these arguments is that respondents would have

the Court affirm the Ninth Circuit, albeit on different

grounds, thus leaving the law of the circuit controlled by the

' Indeed, respondents appear to have conceded that the Ninth Circuit

was wrong when it concluded that because petitioners have no standing

under the Endangered Species Act (16 U.S.C. 1531 et seq.) they also lack

standing under the Administrative Procedure Act (5 U.S.C. 701 ef $eq.).

(Pet.App. 18) According to respondents’ current position, plaintiffs such as

petitioners do have a limited remedy under the APA against a federal

“action agency” — although not in this case. (Res. Br. 46-49)

2

erroneous “zone of interest” analysis rendered below. More-

over, the chaotic split among the circuits on .he applicability

of prudential standing requirements to the ESA's citizen suit

provision — which may have been a factor in the acceptance of

this case for review — would remain unresolved.

Petitioners believe it is important to correct the law of

the Ninth Circuit and to close the split which exists among the

circuits on the application of zone of interest concepts to the

ESA’s citizen suit provision. This can occur, we believe, by

reversing the Ninth Circuit for the reasons raised in peti-

tioners’ merits brief (Pet. Br. 17-44) — none of which are

challenged by respondents. Petitioners also believe it is

appropriate to address whether the present litigation presents

a real “case or controversy” within the meaning of Article III

of the Constitution. That issue was raised in respondents’

opposition to certiorari (Cert. Opp. 9-11).

On the other hand, it would be inappropriate for the

Court to attempt to resolve the statutory interpretation argu-

ments in Part Il of respondents’ brief. None of the arguments

raised therein are within the scope of the questions upon

which certiorari was granted; none were resolved by the

courts below and the half-page argument on cognizability of

claims that appeared in respondents’ opposition to certiorari

(Cert. Opp. 11) failed to provide notice of the kinds of

arguments respondents now attempt to present on the merits.

Accordingly, the Court should decline to address these issues

in the first instance and, instead, remand for disposition by

the courts below. (See, e.g., Sullivan v. Everhart, 494 U.S. 83,

95 (1990)) Such proceedings may, in fact, obviate the need to

2 Nor was sufficient notice of respondents’ arguments provided in the

courts below. None of respondents’ Part I] arguments regarding the ESA's

citizen suit provisions were raised in the district court. In the court of

appeals, respondents did argue that the FWS cannot be sued for over-

regulating for the benefit of endangered species (Gov't C.A. Br. 23-24) but

provided no indication of the statutory interpretation contentions now

raised in their merits brief.

3

give further consideration to the claims respondent has

raised.*

Respondents’ statutory interpretation arguments rai.

highly important and far-reaching questions of law whos

resolution will have a substantial impact upon the administra

tion of much of the nation’s environmental legislation |:

essence, respondents are striving to preclude citizen sui

review of the discretionary activities of the agencies charged

by Congress with responsibility for administering the ESA

As petitioners briefly explain herein, resolution of the statu

tory interpretation issues now raised by respondents ts no!

nearly as easy or as uncomplicated as respondents would have

the Court believe. Of equal importance, respondents’ ne»

arguments cannot receive a complete response by petitioner

in the few pages available for that purpose in this necessar

brief reply.

Petitioners strongly suggest that this Court nor attempt |

resolve the statutory interpretation arguments which respor

dents have decided to raise in lieu of the “zone of interes!

contentions they argued to the courts below. Instead. th

Court should decide the standing issues resolved by the lower

courts and upon which certiorari was granted and reverse the

’ For example, insofar as the Government argues that an APA ola"

is not cognizable because there is no “final agency action,” petitioners . ar

allege, in good faith, that the Bureau did, in fact, comply with the |¥%-

biological opinion at issue in this case. Thus, if the current allegation in (he

complaint that the Bureau “will abide” by the biological opinion (Pet App

32) and the Bureau's commitment on the record to doing so (Res B:

27-28, n. 14) are insufficient to establish “final agency action,” petitioner

would almost certainly be granted leave below to allege actua! Burea.

compliance. The Government's cognizability objection would thus >e

resolved as a factual matter in the district court.

Whether petitioners have alleged a cognizable ESA claim uncer

section 1540(g)(1)(C) for breach of a nondiscretionary duty is also 4

pleading issue that should not come before this Court until opportunity |

amendment has been exhausted, particularly since the Government make.

no claim that a plaintiff can never allege the breach of a nondiscretionar,

Secretarial duty under section 7 of the ESA.

4

Ninth Circuit's decision. Upon remand, the lower courts can

consider respondents’ statutory interpretation arguments in

the first instance.

1. THE COMPLAINT AMPLY MEETS THE REQUIRE-

MENTS FOR STANDING UNDER ARTICLE III

A. Because this case was dismissed at the pleading

stage, the allegations of injury needed to satisfy Article III are

minimal. In Lujan v. Defenders of Wildlife, 504 U.S. 555, 119

L.Ed.2d 351 (1992), the Court stated: “At the pleading stage,

general factual allegations of injury resulting from the defen-

dant’s conduct may suffice, for on a motion to dismiss we

‘presume that general allegations embrace those specific facts

that are necessary to support the claim.’ ” (119 L.Ed.2d 351 at

364, see also, Lujan v. National Wildlife Federation, 497 U.S.

871, 889 (1990)). Here, this modest obligation is met by

petitioners’ allegation that, “The restrictions on lake levels

imposed in the Biological Opinion adversely affect plaintiffs

by substantially reducing the quantity of available irrigation

water.” (Pet.App. 40, emphasis added) Not only does such

language allege injury to petitioners themselves (Sierra Club

v. Morton, 405 U.S. 727, 734-35 (1972)) it alleges that their

injury results from respondents’ conduct; viz, through restric-

tions on lake levels imposed in the biological opinion.

Respondents’ assertion that petitioners must also raise

allegations regarding the Bureau's allocation practices and the

precise quantity of water they received as a result is, at best,

premature. While it is reasonable to expect that “specific

facts” will be set forth in affidavits in response to a summary

judgment motion and that those facts will be “supported

adequately by the evidence adduced at trial,” (Lujan v.

Defenders of Wildlife, supra, 119 L.Ed.2d at 365) this case is

before the Court on a judgment of dismissal, not a summary

judgment or judgment after trial. Petitioners have had no

opportunity to produce affidavits much less conduct discovery

regarding the Bureau’s allocation practices. Moreover,

respondents’ related assumption that no cognizable injury, for

Article IIL purposes, can arise from a reduction of water

5

supplies in the aggregate (Res. Br. 19) is simply incorrect.

Not only has this Court found a reduction of water supply, in

the aggregate, to be actionable (Dugan v. Rank, 372 U.S. 609,

623-25 (1963); United States v. Gerlach Live Stock Co., 339

U.S. 725, 752-54 (1949)); but even the Ninth Circuit has

determined that the impairment of an irrigation district's

aggregate contract right to water against the United States

may amount to redressible injury capable of being asserted on

behalf of the district's water users. (See Madera Irr. Dist. v.

Hancock, 985 F.2d 1397, 1401 (9th Cir. 1993)).

B. Respondents argue, however, that the biological

opinion did not “compel” the Bureau to operate the Klamath

Project in accordance with minimum lake level restrictions

and that even though the Bureau’s operation is in accordance

with the precise terms of the opinion, the “proximate cause”

of petitioners’ harm was a decision by the Bureau regarding

the allocation of available water, not the biological opinion

itself. (Res. Br. 22) For purposes of Article III standing, the

issue is whether there is a “causal connection between the

injury and the conduct complained of — the injury has to be

‘fairly traceable to the challenged action of the defendant, and

not the result of the independent action of some third party

not before the court.’ ” (Lujan v. Defenders of Wildlife, supra

119 L.Ed.2d 351, 364; Simon v. Eastern Kentucky Welfare

Rights Org., 426 U.S. 26, 41-42 (1976).

The biological opinion is instructive in this regard. It

describes the “Mitigation Measures” which the Bureau itself

proposed for the Klamath Project to promote “the survival

and recovery of the endangered species that exist in the

Project area.” (Pet.App. 21-31) Not one of these measures

involves the imposition of restrictions on lake levels. Instead,

the concept of maintaining minimum levels in Gerber and

Clear Lake reservoirs originated, in its entirety, from the

Reasonable and Prudent Alternative (“RPA”) developed by

the FWS. (J.A. 88-90) When respondents concede (Res. Br.

27-28, n. 14) that the Bureau decided to modify its intended

operation of the Project to conform to the RPA even betore

the case was filed, they effectively concede that the dispute

herein is “fairly traceable” to the FWS.

6

The Bureau's acquiescence in the RPA is not difficult to

understand. While respondents assert (Res. Br. 26, n. 13) that

the RPA and the immunity from criminal and civil liability

afforded the Bureau by the opinion’s Incidental Take State-

ment are “separate and distinct” (apparently for the sole

reason that the RPA appears at J.A. 86-92 while the Take

Statement appears at J.A. 92-96) they fail to mention that the

Take Statement was described by the FWS itself as a state-

ment of “Incidental Take Under Reasonable and Prudent

Alternative.” (J.A. 92, emphasis added) Not surprisingly,

respondents also concede that, “as a practical matter” action

agencies are unlikely to risk criminal and civil penalties by

deviating from the take statement (Res. Br. 26, n. 13) and that

they “very rarely” choose to engage in conduct determined by

the FWS to cause jeopardy to a listed species (/d., 21). In

fact, respondents fail to cite even a single example of action

agency deviation from the terms of a biological opinion -

hardly the track record one would expect of a truly “indepen-

dent” third party.

Nonetheless, in pursuit of their “independent” action

agency theory, respondents propose to bar all future direct

challenges to biological opinions issued by the FWS. (Res.

Br. 22-24) Instead, only litigation against “action agencies”

would be allowed, with the “rationality” of the FWS’ biolog-

ical analysis tested indirectly through a judicial determination

of the propriety of the action agency's decision to proceed in

reliance upon the opinion. (/d.) In short, an agency without

notable biological expertise would be required to defend a

biological opinion which it did not author, with which it may

harbor internal disagreement and for which it was provided

only a truncated administrative record (Res. Br. 24, n. 12).

This convoluted process would not further Article III’s pur-

pose of ensuring real “cases or controversies”.4

* Such a result is certainly not mandated by Escondido Mutual Water

Co. v. La Jolla Band of Mission Indians, 446 U.S. 765 (1984) (Res. Br. 23,

n. 11). Not only was Escondido driven by the specific procedures mandated

by Congress in Section 4(e) of the Federal Power Act (16 U.S.C. 797(e))

7

C. Respondents also argue that the injury suffered by

petitioners will not be redressed by a favorable judicial rul-

ing. (Res. Br. 26-29) More specifically, they assert that it is

“purely speculative whether a judicial order running against

the FWS would enable petitioners to obtain additional water.”

(/d., 27) In essence, their contention is that even if the courts

overturn the minimum reservoir level restrictions in an action

brought against the FWS, the Bureau itself ‘could simply

decide to re-operate the Klamath Project in accordance with

such restrictions. These contentions are wide of the mark in

several respects.

First, the Bureau has already indicated how it would

operate the Klamath Project in the absence of the biological

opinion. While some 20 mitigation measures would be

employed to protect endangered species, none would entail

operating the Project to minimum reservoir levels. (J.A.

21-31) Further, any judicial order that is issued would not run

simply against the FWS. The Complaint herein also names the

Secretary of Interior as a defendant. If, as respondents con-

tend, an action against the Secretary also binds the FWS (Res.

Br. 24, n. 12) then such an action would be equally binding

upon the Bureau — a co-equal agency within the Department

of Interior, that also reports to the Secretary. In short, the

notion that the Bureau would simply elect to operate in

accordance with restrictions it had never before proposed and

which had been invalidated in an action binding upon the

Secretary is, itself, nothing more than doubtful speculation.

Equally dubious is respondents’ assertion that. to Satisfy

Article III requirements, petitioners must demonstrate that a

judicial order running against the FWS would enable them to

obtain more water. According to the Ninth Circuit. petitioners

are in competition (with the fish) for the limited water sup-

plies available in Gerber and Clear Lake reservoirs. (Pet.App.

but the Court's rationale — that the Commission had no discretion to change

the conditions set by the Secretary of the Interior (466 U.S. at 778) is flatly

inconsistent with respondents’ argument regarding the powers of an

“action agency” under the provisions of the ESA.

8

16) In such circumstances, it is not necessary for petitioners

to show they would obtain more water but for the biological

opinion; instead, it is enough to show that if the FWS follows

the law by considering the economic consequences of its

actions, petitioners will be in a better position to compete for

the limited water available. (Northeastern Fla. Chapter, Asso-

ciated Gen. Contractors of America v. Jacksonville, 508 U.S.

___, 124 L.Ed.2d 586, 597 (1993); Regents of University of

California v. Bakke, 438 U.S. 265, 280- 81, n. 14 (1978)).

Here, the legislative history of the amendments which added

the economic balancing obligations invoked by petitioners

indicates they were incorporated into the ESA precisely for

the purpose of providing a more level playing field when

consultations are undertaken and critical habitat determina-

tions are made. (See Pet. Br. 32, 38)

Finally, it is significant that each of the claims asserted

by petitioners is in the nature of a procedural right. Peti-

tioners have a right to protect their contract-based interest in

the Klamath Project by requiring respondents to undertake

procedures which involve: (1) consideration of the economic

impact of designating critical habitat> (16 U.S.C. 1533(b)(2)):;

(2) consideration of the economic feasibility of an RPA in the

event of a jeopardy finding (16 U.S.C. 1536(b)(3)(A)); (3) the

use of scientific data in fulfilling the consultation requirement

(16 U.S.C. 1536(a)(2)); and (4) the resolution of water

resource issues in concert with the conservation of endan-

gered species (16 U.S.C. 1531(c)(2)). As recognized in

‘ Respondents assert that the obligation of the Secretary to take

economic impacts into consideration when specifying critical habitat

applies only to the “official designation” of critical habitat pursuant to

Section 4 of the ESA. (Res. Br. 38 n. 23) Nowhere does the Act make such

a distinction. Moreover, since the “official designation” of critical habitat

for the Lost River and shortnose suckers cited by respondents (59 Fed. Reg.

61744) is constructed around the same minimum reservoir level concept

found in the biological opinion, respondents’ assertion is nothing more

than an invitation to authorize the Secretary to do in a biological opinion

that which he could not do otherwise; viz, designate critical habitat

unaccompanied by the burden of an economic balancing procedure.

9

Lujan,, supra, these procedural rights are special and may be

asserted without meeting the standards for redressibility normally

applicable under Article HI. (119 L.Ed.2d 351, 372 n. 7)®

il. RESPONDENTS’ STATUTORY INTERPRETATION

ARGUMENTS SHOULD BE REMANDED TO THE

LOWER COURTS

A. Respondents’ argument that the citizen suit provi-

sion of the ESA only authorizes suits against regulated par-

ties (1.e., federal “action agencies” or private parties) but not

regulators like the FWS or the Secretary, is contrary to the

plain language of the citizen suit provision itself. Section

1540(g)(1)(A) authorizes suit against, “any person, including

the United States and any other governmental instrumentality

or agency.” (Emphasis added) In turn, the Act defines “per-

son” to include “any officer, employee, agent, department or

instrumentality of the Federal Government.” (16 U.S.C.

1532(13), emphasis added) Thus, the FWS and the Secretary

fall within the literal scope of the “persons” subject to suit

under the ESA.

The ESA’s citizen suit provision also does not distinguish

between the types of violations which may be redressed.

© Respondents assert three reasons for the inapplicability of

Defenders of Wildlife footnote 7 standing to the present case. (Res. Br. 29,

n. 15) Two of these involve Article III standing considerations

(“independent action by a third party not before the court” and “injury in

fact”) already responded to hereinabove. The third reason is the contention

that petitioners should be required to assert their procedural challenges

only after the Bureau has made its final decision regarding the allocation of

Klamath Project water. Here, however, petitioners did not commence this

litigation until after the Bureau had already indicated its intent to abide by

the provisions of the biological opinion. (Res. Br. 27, n. 14) If respondents

are asserting that petitioners must delay seeking injunctive relief until after

they have already suffered harm, the law of this Court is decidedly to the

contrary. (E.g., Swift & Co. v. United States, 276 U.S. 311, 326 (1927);

Reynolds y. Int'l Amateur Athletic Federation, 50S U.S. 1301 (1992) (Opn.

of J. Stevens, Circuit Judge, staying court of appeals decision denying

relief).

10

Instead, the statute simply provides that persons may be sued

who are “in violation of any provision of this chapter or

regulation thereunder.” (16 U.S.C. 1540(g)(1)(A), emphasis

added)’ Thus, respondents’ suggestion that “enforcement”

violations but not “implementation” violations are covered by

the citizen suit provision (Res. Br. 39) finds no support in the

statutory language. (See, Harrison v. PPG Industries, Inc.,

446 U.S. 578, 589 (1980), statute authorizing judicial review

of “any other final action” means “exactly what it says,

namely, any other final action.” (Emphasis in original)) More-

over, since Congress also authorized suit for the violation of

any ESA “regulation” (16 U.S.C. 1540(g)(1)(A)) and since

agency regulations invariably concern the administration and

implementation of the regulatory statute, the language of the

citizen suit provision, itself, rebuts respondents’ artificial

distinction between implementation and enforcement viola-

tions.®

Applying respondents’ proposed cognizability distinc-

tions also leads to anomalous distortions of the statutory

language. For example, when the FWS is an “action agency,”

it could be sued under section 1540(g)(1)(A) according to

respondents, but not when the FWS acts as the administrator

? The Government’s concession that “[cJonduct by the Secretary that

is inconsistent with [ESA] provisions might in a sense be said to constitute

a ‘violation’ of the Act or regulations,” (Res. Br. 39) is an understatement.

That is the common sense understanding of to be “in violation of.” (Cf. TVA

v. Hill, 437 U.S. 153, 168, 172-174 (TVA “in violation of” section 7 of the

ESA by not taking action to avoid jeopardy to endangered species as

required by section 7)

8 The Secretary has adopted regulations governing section 7

interagency consultation. (50 C.F.R. sections 402.01-.16) Section 7 and

these regulations confer rights upon private permit applicants against the

FWS. See, e.g., 16 U.S.C. 1536(b)(1)(B); 50 C.F.R. sections 402.14(e),

402.14(g)(5). Under the Government's interpretation, the violation of a

section 7 regulation by the FWS would be exempt from the citizen suit

provision but the violation of a section 7 regulation by an “action agency”

would be cognizable under section 1540(g)(1)(A) even though the statutory

language authorizes suit for the violation of “any” regulation.

of the ESA. Thus, the FWS would sometimes be a “person”

under the citizen suit provision and sometimes not. Similarly,

respondents admit that the Secretary's violation of section 7

requirements would be subject to APA review under § U.S.C.

706(2)(A). One basis for invalidating agency action under

section 706(2)(A) and thus establishing “arbitrary and capri-

cious” administrative conduct, is to show that the agency

action is “not in accordance with law;” i.e., that it violates the

ESA. Thus, under respondents’ argument, the Secretary's vio-

lation of the ESA would constitute action “not in accordance

with law” for purposes of APA review, but not action “in

violation of” the ESA for purposes of the ESA's citizen suit

provision. Whether one focuses on the “any person” or “in

violation of any provision” language of the citizen suit provi-

sion, the judicial review scheme proposed by respondents

makes a shambles of the statutory language.

Significantly, prior suits alleging that Secretarial viola-

tions of the ESA’s administration are cognizable and remedia-

ble under the citizen suit provision, have not been questioned.

For example, in Babbitt v. Sweet Home Chapter of Commu-

nities, SIS U.S. __, 132 L.Ed.2d 597 (1995) and Lujan v.

Defenders of Wildlife, supra, the citizen suit provision was

used as a vehicle for challenging the Secretary's adoption of

regulations implementing section 7 (Lujan) and section 9

(Sweet Home). Neither the Government nor this Court raised

any concern that such challenges to the Secretary's adminis-

tration of the ESA were not cognizable under the plain mean-

ing of the citizen suit provisioi

* See Lujan, supra, 304 U.S. 555, 571-572; Defenders of Wildlife \.

Hodel, 851 F.2d 1035, 1037-1038 (8th Cir. 1988) (describing section

1540(g)(1 (A) claim that the Secretary violated section 7(a) in adopting the

regulation at issue in Lujan); Joint Appendix in Babbitt v. Sweet Home

Chapter of Communities for a Great Oregon, No. 94-859, at 17, 4 2; 24-26

(complaint allegations), 30 4 2 (Government's answer admitting

jurisdiction under the ESA citizen suit provision, 16 U.S.C. section

1540(g)). Other citizen suits have been brought under section

1S40(g 1A) alleging that FWS biological opinions have been issued in

violation of the ESA. (See Mausolf v. Babbitt, 913 F.Supp. 1334, 1344 (D.

12

Ordinarily, one should “give [ | effect to the ‘deliberately

expansive’ language chosen by Congress,” (District of

Columbia v. Greater Washington Bd. of Trade, 506 U.S. 125,

129 (1992), quoting Pilot Life Ins, Co. v. Dedeaux, 481 U.S.

41, 46 (1987)) and “accord it a sweep as broad as its lan-

guage.” (United States v. Price, 383 U.S. 787, 801 (1966)).

“[Ojnly the most extraordinary showing of contrary intent. ns

[from the legislative history] would justify a limitation on che

‘plain meaning’ of the statutory language.” (Garcia v. United

States, 469 U.S. 70, 75 (1984); see, also, Rubin v. United

States, 449 U.S. 424, 430-31 (1981)). In this regard, it ts

important to recognize that section 1540(g)(1)(A) was part of

the original 1973 ESA legislation and there is nothing in the

legislative history indicating any intent to exclude Secretarial

or FWS violations of the ESA from the broad scope of the

citizen suit language.'® Nor is there any evidence that APA

review of Secretarial action was intended to substitute for

suits against the Secretary under the ESA.'!

Minn. 1996), Swan View Coalition, Inc. v. Turner, 824 F.Supp. 923, 929

(D. Mont. 1992); Westlands Water District v. United States, 850 F.Supp.

1388, 1424 (E.D. Cal. 1994))

'© House Report 412 said only that the citizen suit provision

authorized suits “to enforce the provisions” of the ESA, and allowed

injunctive relieve “for violations or potential violations of the Act.” (See

H.R. Rep. 412, 93d Cong., Ist Sess. 19 (1973); see, also, S. Rep. 307, 93d

Cong., Ist Sess. 11 (1973) (citizen suits permit “private actions to enforce

the provisions of this Act.”))

'! The 1973 Conference Committee rejected provisions of the Senate

bill which provided for modified APA procedures and judicial review. (See

H.R. Conf. Rep. No. 740, 93d Cong., Ist Sess. (1973); 1973

US.C.CA.A.N. (93 Stat.) 3003-4) Instead, the Conference Committee

included some of those APA-type procedures in section 4 of the ESA, and

adopted the House approach of making no reference to APA review in the

legislation thereby permitting APA review by default. (/d.; see also, Japan

Whaling Assn. v. American Cetacean Society, 478 U.S. 221, 231 n. 4

(1986). The 1973 legislation also included a “savings clause” in 16 U.S.C.

1540(g)5) which provides that injunctive relief under the citizen suit

provision shall not restrict remedies under any other statute or the common

13

Thus confronted with an unsupportive legislative history,

respondents attempt to narrow the scope of the citizen suit

language of section 1540(g)(1)(A) enacted in 1973, by point-

ing to the purportedly negative implications to be drawn from

other ESA provisions added to the ESA after 1973. Such

negative implications, however, are a weak basis for disre-

garding the plain meaning of a statute. (See Connecticut

National Bank v. Germain, 503 U.S. 249, 253-54 (1992);

Adams Fruit Co. Inc. v. Barrett, 494 U.S. 638, 644-45 (1990);

Sullivan v. Hudson, 490 U.S. 877, 891-92 (1989)). The fact

that section 1540(g)(1)(C) was subsequently added to the

ESA in 1982 to ensure judicial review of nondiscretionary

acts or duties of the Secretary under section 4 (16 USC.

1533) hardly indicates that Congress intended it to be the

exclusive means by which to challenge Secretariai violations

of the ESA.'? Section 1540(g)(1)(A) is a broad provision

law “including relief against the Secretary.” Thus, while Congress was

aware that APA review would be available, there was no intent to restrict

the scope of section 1540(g)1)(A) because of any supplemental APA

remedies; instead, the “savings clause” indicates an intent to preserve

multiple avenues of judicial review, including ones against the Secretary.

'2 The 1982 ESA amendments imposed nondiscretionary deadlines

for listing and other actions by the Secretary under section 4. Previously,

there were no deadlines for such actions, and consequently the timing of

such action was purely “discretionary” with the Secretary. (See H.R. Conf.

Rep. No. 835 97th Cong., 2d Sess. 20 (amendments “replace the

Secretary's discretion with mandatory, nondiscretionary duties”) Section

1540(g)(1)(C) simply ensured that these nondiscretionary deadlines would

be judicially enforced. (See S. Rep. 418, 97th Cong., 2d Sess. 4 (“by

and publish decisions . . . to list or delist, [the bill] would force judicially

reviewable action”) Congress may have chosen not to rely upon the

existing section 1540(g)(1)(A) as a means of judicial enforcement simply

to avoid any uncertainty whether the Secretary's failure to act constituted

action “in violation of” the ESA under section 1S40(g 1A). (Cf. BLR.

Conf. Rep. 1804, 95th Cong. 2d Sess. 26 (1978) (1978 amendment

clarifying language in the penalty provisions of the ESA “to make it clear

that [the act's] sanctions apply to violations involving an omission or

failure to act as well as to violations involving the commission of a

14

covering any violations of the ESA or its regulations by any

government official, whereas section 1540(g)(1)(C) is more

narrowly targeted at the nondiscretionary acts and duties of

the Secretary under section 4 of the Act. Any partial overlap

between the two provisions has little significance. Redun-

dancy is only an issue when two statutes enacted at the same

time are rendered duplicative. (Mackey v. Lanier Collection

Agency & Service, 486 U.S. 825, 839, n. 14 (1988)). A partial

overlap between statutes enacted at different times is under-

standable because “[rjedundancies across statutes are not

unusual events in drafting.” (Connecticut National Bank.

supra, 503 U.S. at 253). In such circumstances, the primary

canon of statutory construction is not the avoidance of redun-

dancy but giving effect to the plain meaning of the language

used (/d., at 253-54) particularly where, as here, any redun-

dancy can be explained by uncertainty over the coverage of

different statutes. (See, International Primate Protection

League v. Tulane Educational Fund, 500 U.S. 72, 81-82

(1991)).'3

When Congress intended for judicial review of ESA

administrative activity to take place exclusively under the

prohibited act”)). Moreover, contrary to the Government's narrow reading

of the scope of section 1540(g)(1)(C), the legislative history indicates that

review of “nondiscretionary acts” under section 4 would include review of

the sufficiency of the scientific evidence upon which section 4 decisions

were based. (See H.R. Conf. Rep. No. 835, supra, at 21, 23: S. Rep. No.

418, supra, at 13-14).

'* The Government's own argument also fosters redundancy because

a litigant could challenge the Secretary's failure to comply with a

nondiscretionary section 4 duty under both section 1540(g)(1)(C) and the

APA. Even more importantly, Congress, in section 1540(g)(5) ensured

duplicative judicial remedies when it expressly provided that ESA

injunctive relief would not preclude a litigant from Pursuing any other

relief “including relief against the Secretary” under any other statute or the

common law. Any marginal redundancy between sections 1540(g)( 1 (A)

and 1540(g1)(C) should not be a vice when Congress made such

redundancy a virtue in section 1540(g)(5), and when the Government's

own scheme of judicial review assumes such redundancy. —

15

APA, it knew how to say so. Thus, for example, in section

1536(n), Congress provided for APA review in the courts of

appeal of exemption decisions by the Endangered Species

Committee. This specialized judicial review provision sug-

gests that if Congress had intended other administrative

actions under the ESA to be subject exclusively to APA and

not citizen suit enforcement, it would have specifically so

provided. Respondents’ attempted analogy to the citizen suit

provision of the Clean Air Act (42 U.S.C. 7604) relies on

language found in the Clean Air Act which is not present in

the Endangered Species Act. Unlike the ESA. the Clean Air

Act specifies that the administrator’s implementation of the

Act should not be subject to judicial review via the citizen

suit provision. (See 42 U.S.C. 7607(e)). Because the ESA

contains no comparable provision, the opposite inference is

appropriate for the ESA.'4 (See Director. Office of Workers’

Compensation Programs v. Newport News Shipbuilding and

Dry Dock Co., 514 U.S. __, 131 L.Ed.2d 166, 169-70

(1995)).

Importantly, respondents offer no policy reasons why

Secretarial violations of the ESA should not be covered by the

citizen suit provision. Instead, they concede that essentially

the same type of review would be available under the APA.

Because the dispute here is uncomplicated by any policy

concerns, we thus end where we began: with the plain lan-

guage of a citizen suit provision which Says that “any person”

can sue “any person,” including government officials, who

are in violation of “any provision . . . or regulation” of the

ESA. The Court should not “seek ingenious analytical instru-

ments” to read exemptions into this broad language. (Price,

supra, 383 U.S. at 801)'5 Nor should it narrow the plain

'* In addition, the Clean Air Act citizen suit provision also specifies

the particular types of violations covered by the provision. (See 42 U.S.C.

7604(a)(1)) By contrast, section 1540(g)(1)(A) of the ESA is much broader

and allows suit for violations of “any” ESA provision or regulation.

'S For example, contrary to respondents’ suggestion, the fact that the

60-day notice provision in section 1540(g2)A) provides for notice to

16

meaning of this language on the basis of some “gestalt judg-

ment” about Congress’ conceivable intent. (Garcia, supra,

469 U.S. at 78)

B. Respondents’ companion argument that the FWS’

biological opinion is not subject to APA review until the

Bureau issues a final water allocation decision for the

Klamath Project, goes well beyond any “finality” requirement

in this Court’s cases, including Franklin v. Massachusetts,

505 U.S. 788, 120 L.Ed.2d 636 (1992) and Dalton v. Specter,

511 U.S. __, 128 L.Ed.2d 497 (1994). The “core question”

for finality is two-pronged: “whether the agency has com-

pleted its decisionmaking process, and whether the result of

that process is one that will directly affect the parties.”

(Franklin, supra, 120 L.Ed.2d at 648) Both requirements are

satisfied in this case.

First, there is no question that the FWS took final action

on the biological opinion, thereby concluding the section 7

consultation requested by the Bureau. (See 50 C.F.R.

402.14(1)(1)) Moreover, even assuming the Bureau was not

“legally obligated” by the terms of the ESA to automatically

comply with the biological opinion, the Bureau, in fact, made

a decision to do so. (See Res. Br. 27-28, n. 14) Once the

Bureau committed to comply with the biological opinion, the

decisionmaking process on the biological opinion was final as

to both the FWS and the “action agency,” the Bureau. This

fact distinguishes the present case from Franklin and Dalton,

supra. In both of those cases there was a second decision-

maker (the President) who had not yet decided whether to

adopt the decision or follow the recommendation made by a

subordinate agency, and who retained authority to change or

both the Secretary and “any . . . violator” does not mean that the Secretary

or the FWS cannot be a “violator.” The notice provision was simply drafted

to be inclusive and to cover the situation where the violator is someone

other than the Secretary. Where, as here, it is the FWS’ conduct which is at

issue, separate 60-day notices would be sent to the Secretary and to the

particular Fish and Wildlife Service official who was the actual “violator”

who approved the biological opinion or engaged in the particular section 7

consultation being challenged. (Sec. J.A. 2)

17

modify the agency decision or recommendation. Here, on the

other hand, the Bureau has already made a definitive decision.

on the record, to abide by the biological opinion. Any later

water allocation decision necessarily assumes compliance

with the opinion and then factors in other variables — such as

how much precipitation occurred or is projected, current

water storage, priorities among contractors, etc. Thus, insofar

as the biological opinion was concerned, the decisionmaking

process was complete, and the first prong of Franklin satis.

fied, once: (1) the FWS issued its biological opinion in fina!

form and (2) the Bureau committed to comply with it

The second Franklin prong — whether the result of the

decisionmaking process will directly affect petitioners — |.

also satisfied. How much water a particular contractor wi!!

receive from the Klamath Project depends upon a number of

factors. For example, whether a year is wet or dry wil! affect

not only the amount of water that a contractor receives, but

may also determine whether an allocation decision might be

modified during the course of the season. However, once the

Bureau committed to complying with the biological opinion.

it became certain, at that moment, that part of the water in the

Project would be allocated first to the endangered fish rather

than anyone else. The Bureau’s commitment to implement the

biological opinion meant that specified “minimum pools’ of

water would be left in Gerber and Clear Lake reservoirs for

the fish and that the Project’s contractors would only have a

claim to the water remaining after these minimum pools were

established. The fact that the Bureau would make a later

water allocation decision for each contractor based on add)-

tional factors (such as the amount of precipitation, storage

and priority) does not change the fact that once the Bureau

committed to the biological opinion, petitioners suffered an

immediate and direct injury: whatever amount of water nature

bestowed upon southern Oregon, a significant portion would

automatically go “off the top” to the fish, and everyone else

would divide only what was left.

This Court has applied the doctrine of finality in a prag

matic fashion and found agency action to be final even when

further administrative steps in enforcement or implementation

18

need to be taken. (See Abbott Laboratories v. Gardner, 387

U.S. 136, 149-152 (1967); (United States v. Storer Broadcast-

ing Co., 351 U.S. 192, 198-199 (1956); Columbia Broadcast-

ing System v. United States, 316 U.S. 407, 417-421 (1942).

Utilizing a similar approach in the present case, there is

simply no question that the decisionmaking process regarding

the biological opinion was complete and that there was an

immediate and direct practical impact on the amount of water

that petitioners could ever hope to receive from the Klamath

Project.

Ill. RESPONDENTS’ PROPOSED SCHEME OF JUDI-

CIAL REVIEW OF ESA ACTION IS FLAWED

Respondents’ proposed scheme of judicial review of ESA

action has three main flaws. First, respondents give economic

interests or resource-user plaintiffs the same disfavored status

that such litigants receive under the Ninth Circuit's decision,

only respondents do so via their construction of section

1540(g)(1)(A) rather than through a “zone of interest” test.

According to respondents, environmental plaintiffs complain-

ing about underregulation under the ESA are free to sue

“action agencies” under the citizen suit provision, section

1540(g)(1)(A), but resource users complaining of overregula-

tion under the ESA have no remedies under section

1540(g)(1)(A) and can only sue under the APA. A similar

attempt to take “party-neutral” statutory language and create a

dual standard for different classes of litigants was rejected in

Fogerty v. Fantasy Inc., 510 US. 127 L.Ed.2d 455

(1994).

Respondents say that resource users are not disfavored

because they have an APA remedy, and would fall within the

zone of interests protected by the relevant resource statute

(here, the Reclamation Act of 1902). (Res. Br. 50, n. 34) But

the relevant statute for purposes of the APA “zone” test is the

ESA — “whose violation is the gravamen of the complaint”

(Lujan v. National Wildlife Federation, supra, 497 U.S. 871,

886) — not the Reclamation Act. Under the Ninth Circuit's

holding in this case, resource users, like petitioners, do not

Ss

19

fall within the zone of interests of the APA. Therefore, unless

the Ninth Circuit's ruling in this case is reversed petitioners

will have no remedy at all under the APA. Respondents’

assurance that resource users will always have a viable APA

remedy is thus a false promise.

Second, respondents argue that the FWS can never “over-

regulate” because even if reasonable and prudent alternatives

in a biological opinion go beyond what is needed to avoid

jeopardy, federal agencies still have a duty under section

7(a)(1) (16 U.S.C. section 1536(a)(1)) to conserve endangered

species; therefore, there is nothing wrong with “overprotec-

tive” species regulation. (Res. Br. 46-49, and n. 33) This

argument is contrary to the statute, the section 7 regulations,

and the position that FWS took when it adopted its section 7

regulations. The duty to avoid jeopardy in section 7(a)(2), and

the duty to conserve species in section 7(a)(1) are two sepa-

rate and distinct duties under the ESA. Biological opinions

and reasonable and prudent alternatives apply solely to the

duty to avoid “jeopardy” under section 7(a)(2), not the duty to

conserve species under section 7(a)(1). If the FWS finds that

a proposed agency action will not jeopardize species, FWS

cannot specify as RPAs various “conservation” measures

which might help species. That is why the section 7 regula-

tions distinguish between “conservation recommendations” —

which are purely voluntary and separate from RPAs (50

C.F.R. section 402.14(j)) — and RPAs which are based on the

jeopardy standard. (/d., sections 402.14(g), (h)).'®

'© When it adopted its section 7 regulations, the FWS rejected

comments urging it to use biological opinions to promote species

conservation goals. (51 Fed. Reg. 19926, 19934 (1986) (“The Service will

not, nor does it have the authority to, mandate how or when other Feceral

agencies are to implement their responsibilities under section 7(a)(1), nor is

the Service authorized to issue a biological opinion under section 7(a)(1) of

the Act.”); id., (“The commenters’ argument would require Federal actions

to halt if they failed to conserve listed species, a result clearly not intended

by Congress. Congress intended that actions that do not violate section

7(ay(2) . . . be allowed to proceed.”); id., (“the Service lacks authority to

issue biological opinions under [section 7(a)(1)], and the Act does not

20

Finally, respondents’ notion that the FWS can only be

brought into section 7 ESA litigation indirectly through the

device of suing the “action agency” rather than the FWS, is

needlessly complex. Since the validity of the FWS’ biological

opinion, its administrative record, and its alleged expertise

are in issue, the FWS should be a named party under ordinary

principles of administrative law. Certainly when the FWS is

alleged to have committed procedural violations, it is hard to

see why the action agency is “vicariously” responsible for

such violations. (See Dalton, supra, 128 L.Ed.2d 497) Iron-

ically, while respondents say that there is no need to name the

FWS in order to obtain full review of the FWS’ biological

opinion, they insist that not naming the Bureau as a defendant

is a fatal flaw even though the Bureau's superior, the Secre-

tary of the Interior, is a named defendant. Respondents’

arcane scheme of who needs to be named as a defendant and

who does not appears to be based less on traditional princi-

ples of administrative law, and more on achieving a particular

result in this case.

Dated: August 14, 1996

Respectfully submitted,

Best Best & Kriecer LLP

Grecory K. Wi LkInson

(Counsel of Record)

Attorneys for Petitioners

mandate particular actions to be taken by Federal agencies to implement

7(a)(1)”)). In commenting on the proposed regulations, the House

Committee on the Merchant Marine and Fisheries emphasized that

conservation recommendations should be strictly voluntary and separate

from a biological opinion, (51 Fed. Reg. 19954), and the FWS agreed: (/d.)