# Amicus Curiae Brief — Bennett v. Spear

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 154

## Text

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MAY #2

' a

No. 95-813

Supreme Court of the Gnited States

OCTOBER TERM, 1995

BRAD BENNETT, ef ai.,
Petitioners,
V.

MARVIN PLENERT. ef ai.,
Respondents.

On Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE
AMERICAN FOREST & PAPER ASSOCIATION,
AMERICAN PETROLEUM INSTITUTE,
NORTHWEST FOREST RESOURCE COUNCIL, AND
SOUTHERN TIMBER PURCHASERS COUNCIL,
IN SUPPORT OF PETITIONERS

Of Counsel: STEVEN P. QUARLES
WILLIAM R. MURRAY Counsel of Record
AMERICAN FOREST & CLIFTON S. ELGARTEN
PAPER ASSOCIATION THOMAS R. LUNDQUIST
1111 19th Street, N.W. CROWELL & MORING
Suite 800 1001 Pennsylvania Ave., N.W.

Washington, D.C. 20036 Washington, D.C. 20004-2595
(202) 624-2500

Attorneys for Amici Curiae

PRESS OF BYRON S. ADAMS @ WASHINGTON, D.C. @ 1-800-347-8208

= lg lit A

at Ma.

QUESTIONS PRESENTED
Amici will address the following questions:

1. Does § 11(g) of the Endangered Species Act
("ESA") -- which authorizes citizen suits by "any person" for
"any" alleged "violation" of the ESA and provides that the
"district courts shall have jurisdiction" over any such suit, 16
U.S.C. § 1540(g) -- provide standing to its Article Ill
jurisdictional limits and thereby eliminate prudential barriers
to standing, such as the "zone of interests" test, which applies
to actions brought under the Administrative Procedure Act?

2. Is an ESA §7, 16 U.S.C. § 1536, biological
opinion subject to judicial review, at least when a federal
agency takes action in conformance with that opinion?

3. Cana biological opinion violate constraints in ESA
§ 7, so that there are potentially viable grounds for an ESA
§ 11(g) citizen suit brought by an economically-injured person?

TABLE OF CONTENTS

EE iv

STATUTORY AND REGULATORY PROVISIONS ... |!

INTERES! OF AMICICURIAE ............... 2
SUMMARY OF THE ARGUMENT ............. 5
ST PC Eee 6

I. THE ESA'S CITIZEN SUIT PROVISION
ELIMINATES PRUDENTIAL
Duper BARRIERS ... 1... ee eeees 8

Il. RESPONDENTS’ ALTERNATIVE ESA
ARGUMENTS LACK MERIT .......... 18

A. Biological Opinions Are Subject To
ET A:a'a's 6 6 = 9 660+ 6 0 « 20

B. There Are Viable Claims That ESA § 7
Has Been Violated By Over-Regulation . 24

EE ee 30

(ili)

(iv)
TABLE OF AUTHORITIES

CASES PAGE
Alvarez v. Longboy, 697 F.2d 1333 (9th Cir. 1983) ... 16
Association of Data Processing Serv.

Orgs., Inc. v. Camp, 397 U.S. 150 (1970) . . 10, 11, 29
Babbitt v. Sweet Home Chapter of

Communities for a Great Oregon,

115 S.Ct. 2407 (1995) ........ 4, 5, 11, 13, 14, 29
Bangor Hydro Electric Co. v. FERC,

Re J tee S| Pee 24

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

Center for Auto Safety v. National Highway Traffic
Safety Admin., 793 F.2d 1322 (D.C. Cir. 1986) .. . 16

Clarke v. Securities Indus. Ass'n,

SFO U.S. SEB IGS) 2 wc cee cc ccc eees 11, 18, 29
Competitive Enter. Inst. v. National Highway Traffic

Safety Admin., 91 F.2d 107 (D.C. Cir. 1990)... . 16
Connor v. Burford, 848 F.2d 1441 (9th Cir. 1988),

cert. denied, 489 U.S. 1012 (1989) ........... 22
Consumers Union v. FTC, 691 F.2d 575 (D.C. Cir. 1982)

(en banc), aff'd, 463 U.S. 1216 (1983)......... 16
Dan Caputo Co. v. Russian River County Sanitation

Dist., 749 F.2d 571 (9th Cir. 1984) ........... 8

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 sub nom. Lujan v. Defenders of Wildlife,
- Bb eS. 7), ere 5, 15, 18

(v)

TABLE OF AUTHORITIES—Continued

CASES PAGE
Endangered Species Comm. of the Building Indus. Ass'n

v. Babbitt, 852 F. Supp. 32 (D.D.C. 1994) ...... 26
Family and Children's Ctr. v. School City, 13 F.3d 1052

(7th Cir.), cert. denied, 115 S.Ct. 420 (1994) .... 16
FCC v. Sanders Bros. Radio Station,

ee ee EE oss 6 na eb Eee ewe ee 10
Forest Conservation Council v. United States Forest Serv.,

Se Ser es ha ce eset ce nces’s 4
Fouke Co. v. Brown, 463 F. Supp. 1142

DE GO «ccdtvetnbeecacsecvcwe’ 16

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) .. 14
Gladstone, Realtors v. Village of Bellwood,

8? S28 See ee 5, 12, 13, 14, 18
Greenpeace Action v. Franklin, 14 F.3d 1324

DG SE coc eb eb eceunusessdbedsc i 22
Humane Soc'y v. Hodel, 840 F.2d 45 (D.C. Cir. 1988) . 16
Idaho v. ICC, 35 F.3d 585 (D.C. Cir. 1994) ....... 16
Idaho Conservation League v. Minma, 956 F.2d 1508

Sn oe cahacessaeesneee see estes 8

Idaho Dep't of Fish and Game v. National Marine
Fisheries Serv., 850 F. Supp. 886 (D. Or. 1994),
dismissed as moot, 56 F.3d 1071 (9th Cir. 1995) .. 22

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .. 13

Mausolf v. Babbitt, 913 F. Supp. 1334
ee eee ee ra 22, 29

(vi)

TABLE OF AUTHORITIES—Continued

CASES PAGE

Middlesex County Sewerage Auth. v. National Sea
Clammers Ass'n, 453 U.S. 1 (1981) ..........

National Audubon Soc'y v. Hester, 801 F.2d 405
ee a, I con ote a ra Gwe wlk-ae a's a aca

Pacific Northwest Generating Co-Op. v. Brown,
ae

Pacific Rivers Council v. Thomas, 30 F.3d 1050
(9th Cir. 1994), cert denied,
Se i oe de ee ate wc

Portland Audubon Soc'y v. Hodel, 866 F.2d 302
(9th Cir.), cert. denied, 492 U.S. 911 (1989)... ...

Public Interest Research Group v. Powell Duffryn
Terminals, Inc., 913 F.2d 64 (3d Cir. 1990),
cert. denied, 498 U.S. 1109 (1991) ...........

Pyramid Lake Paiute Tribe of Indians v. United States
Dep't of Navy, 898 F.2d 1410 (9th Cir. 1990) ....

Region 8 Forest Service Timber Purchasers Council v.
Alcock, 736 F. Supp. 267 (N.D. Ga. 1990),
aff'd due to lack of constitutional standing,
993 F.2d 800 (ilth Cir. 1993), cert. denied,
SOUS cp ck cacuesneanebven

Sierra Club v. EPA, 995 F.2d 1478 (9th Cir. 1995) ... .
Sierra Club v. Glickman, 67 F.3d 90 (Sth Cir. 1995) . .
Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987) . .
Sierra Club v. Morton, 405 U.S. 727 (1972) ..... 9,
Sierra Club v. Robertson, 28 F.3d 753 (8th Cir. 1994) . .

(vii)

TABLE OF AUTHORITIES—Continued

CASES PAGE
Silver v. Babbitt, 68 F.3d 481, 1995

ls GG ED ccc ew cet wcceeea 8
Swan View Coalition, Inc. v. Turner,

824 F. Supp. 923 (D. Mont. 1992) ........ 15, 22

Sweet Home Chapter of Communities for a Great
Oregon v. Lujan, 806 F. Supp. 279 (D.D.C. 1992),
rev'd on rehearing as to legality of "harm" regulation,
17 F.3d 1463 (D.C. Cir. 1994), reh'g denied,
30 F.3d 190 (D.C. Cir. 1994), rev'd sub nom,
Babbitt v. Sweet Home Chapter of Communities for

Great Oregon, 115 S. Ct. 2407 (1995)... ... 13, 14
Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978)... 28
Thomas v. Peterson, 753 F.3d 754 (9th Cir. 1995)... . . 9
Trafficante v. Metropolitan Life Ins. Co.,

Ce. occckencenee ess 5, 13, 17
Village of False Pass v. Clark, 733 F.2d 605

Pe 11

Westlands Water Dist. v. United States
Dep't of the Interior, 850 F. Supp. 1388
DOPE sccvcaoecaebeubes bt 22, 28, 29

CONSTITUTIONAL AND STATUTORY PROVISIONS

ee 3 ee 5, 12, 13, 15
Administrative Procedure Act,
win soos ee secee bee 6.8.65 10, 11, 12
a a dee ee 24
a | fn near Sarr 12

(viii)

TABLE OF AUTHORITIES—Continued

PAGE
Civil Rights Act of 1968, 82 Stat. 85 (1968) ....... 12
Endangered Species Act of 1973 ("ESA"),
as amended, 16 U.S.C. §§ 1531-44
BSA 63, 16 U.S.C. § 1552 .. wc eevee a. Se
ESA $4, 16 U.S.C. § 1533 ..........- ee
ESA § S, 16 U.S.C. § 1534 ... 1... eee ween: 14
ESA § 7, 16 U.S.C. § 1336 .......---:- passim
ESA § 9, 16 U.S.C. § 1538 ....... 2, 3, 4, 12, 27
ESA § 10, 16 U.S.C. § 1839 .........555--, 29
ESA § 11, 16 U.S.C. § 1540 ........... passim
Federal Water Pollution Control Act,
Ue Oe on a eee ear bees aeews 15
Marine Protection, Research, and Sanctuaries Act,
a ee ee coy’ a eek 0 bos 8 ae hb Olde ee 15

National Environmental Policy Act, 42 U.S.C. $ 4332 .. 8

Surface Mining Control and Reclamation Act of 1977,
lb tae Deere rig se ee 17

ADMINISTRATIVE AND EXECUTIVE MATERIALS

. lot 2 Mb: » Sere a ee ee ie 4,14
- lod 2 ES) rere er ear rire peer ee 3, 26, 27
la 2 RS ere ere ee a ee 3
J lt FY of reer eer 6, 19, 26, 27, 28
( tet FF 8 ee cee 21, 26
51 Fed. Reg. 19937 (June 3, 1986) ........-.-++-: 27

51 Fed. Reg. 19956 (June 3, 1986) .........---- 21

(ix)

TABLE OF AUTHORITIES—Continued

PAGE
OTHER AUTHORITIES
H.R. Rep. No. 218, 95th Cong., ivi Sess. (1977),
reprinted in 1977 U.S.C.C.A.N. 593........... 17

H.R. Rep. No. 412, 93d Cong., Ist Sess. (1973) .... 1?

S. REP. No. 451, 92nd Cong., 2nd Sess. (1972),
reprinted in 1973 U.S.C.C.A.N. 4234... 0... 17

Craig Arnold, Conserving Habitats and Building
Habitats: The Emerging Impact of the Endangered
Species Act on Land Use Development,
10 STAN. L. REV. 1 (1991)...........-.. 4.19

Michael Bean, THE EVOLUTION OF NATIONAL
WILDLIFE LAW (Praeger 1983) ........... 21

Martha Calhoun & Timothy Hammill, Eywironmental
Standing in the Ninth Circuit; Wading Through the

Quagmire, 15 PUBLIC LAND L. REv. 249 (1994). &
Albert Gidari, The Endangered Species Act: Impact

Of Section 9 On Private Landowners,

26 Beevie. L. SID CIGRS) 2 ww eee: 4

James Kilbourne, The Endangered Species Act Under
the Microscope: A Closeup Look from A Litigator’s
Perspective, 21 ENVTL. L. 499 (1991) .... 26, 27, 28

Steven Quarles, John Macleod, and Thomas Lundquist,
Sweet Home and the Narrowing of Wildlife "Take"
Under Section 9 of the Endangered Species Act,

ENVTL. L. REP. 10003 (Jan. 1996) ....... 4

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995

BRAD BENNETT, et ai.
Petitioners,
Vv.

MARVIN PLENERT, et ai.,
Respondents.

BRIEF AMICUS CURIAE OF THE
AMERICAN FOREST & PAPER ASSOCIATION,
AMERICAN PETROLEUM INSTITUTE,
NORTHWEST FOREST RESOURCE COUNCIL, AND
SOUTHERN TIMBER PURCHASERS COUNCIL
IN SUPPORT OF PETITIONERS’

STATUTORY AND REGULATORY PROVISIONS

The Endangered Species Act ("ESA") is codified at 16
U.S.C. §§ 1531-44. ESA § 11(g) provides for citizen suits
and states in pertinent part:

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

any person may commence a civil suit on his own behalf -
(A) to enjoin any person, including the United
States and any other governmental instrumentality . .
. who is alleged to be in violation of any provision of
this chapter or regulation issued under the authority
thereof ....

Consents to the filing of this brief are on file with the Clerk.

2

The district courts shall have jurisdiction . . . to enforce
any such provision or regulation.

16 U.S.C. § 1540(g). ESA § 11(g) refers to a suit brought by
"any person." The ESA defines "person" as "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,
municipality, .... "16 U.S.C. § 1532(13).

INTEREST OF AMICI CURIAE

Amici represent companies that are regulated, directly and
indirectly, under ESA §§ 4, 7 and 9. 16 U.S.C. §§ 1533,
1536 and 1538. ESA § 4 requires a public rulemaking process
to list a species as an endangered species or threatened species
("listed spécies") and to designate critical habitat.

ESA §7 describes the special obligations of federal
agencies toward listed species and critical habitat. These
obligations extend to both federal agency actions and private
actions requiring some type of federal permit or authorization.
ESA § 7 obligations include: (1) the substantive limitations that
the federal agency can only approve actions that are "not likely
to jeopardize the continued existence of" a listed species or to
result in the "adverse modification of [designated critical]
habitat" for a listed species; and (2) the procedural duty to
assess potential impacts on listed species "in consultation with
_. . the Secretary,"? who prepares a biological opinion on

The ESA delegates most authority to the "Secretary," which
refers to the Secretary of the Interior for most listed species and to the
Secretary of Commerce for certain marine species. See 16 U.S.C.
§ 1532(15). The Interior Secretary has delegated his ESA responsibilities
to the U.S. Fish and Wildlife Service ("FWS"), while the National
Marine Fisheries Service ("NMFS") performs that role for the Commerce

(continued...)

3

whether the action would jeopardize a listed species' existence
or adversely modify critical habitat. 16 U.S.C. § 1536(a)(2)
and (b). ESA § 9 prohibits certain acts by “any person,” such
as the "take" of an endangered species. /d. § 1538(a)(1).

Amici represent the forest products and petroleum
industries. The American Forest & Paper Association is the
national trade association representing the forest products
industry. The American Petroleum Institute is the national
trade association representing the petroleum industry. These
national organizations are joined by two regional trade
associations representing the forest products industry: the
Northwest Forest Resource Council and the Southern Timber
Purchasers Council.

Amici are interested in ensuring that their members have
Standing to assert that federal agencies are violating ESA
limitations by engaging in over-regulation. Such over-
regulation can establish inappropriate and unlawful standards
and constraints that bar their members -- under pain of potent
criminal and civil sanctions and injunctions, see 16 U.S.C.
§ 1540(a), (b), (e)(6), and (g) -- from pursuit of their
economic livelihood. The decision below (63 F.3d 915, Pet.
App. 1-18) denies ESA standing to persons who are

*(...continued)

Secretary. 50 C.F.R. §§ 17.11, 402.01(b). This brief will refer to
FWS. FWS has ESA authority over the listed fish species of concern in
this case and over the majority of listed species. ESA authority is even
more broadly shared because, though FWS and NMFS perform an
expert's “consultation” role under ESA § 7(a)(2), all federal agencies
proposing “agency action[s]” have the ultimate agency responsibility for
determining compliance with ESA § 7(a)(2). 16 U.S.C. § 1536(a)(2).

4

economically injured by alleged violations of the ESA.
Accordingly, Amici appear here in support of Petitioners.

Regulation of federal and private lands under ESA §§ 4,
7, and 9 has adversely affected the availability of timber and
petroleum resources that Amici's members rely on for their
economic livelihood. As more species are listed and as federal
agencies become more aggressive in their ESA interpretations,
the ESA is becoming a pervasive constraint on, and even a bar
(0, private economic activity. See generally Craig Arnold,
Conserving Habitats and Building Habitats: The Emerging
Impact of the Endangered Species Act on Land Use
Development, 10 STAN. L. REV. | (1991).

Overly strict and unlawful regulation, in excess of ESA
§§ 7 and 9 limitations and requirements, is a continuing
problem. Apparent overreaching by FWS and others on what
constitutes a wildlife "take" under ESA § 9 and its constituent
term "harm," as defined in 50 C.F.R. § 17.3, provided the
impetus for the Sweet Home suit, which came to the Court last
Term.’ There, the Court found that the "harm" regulation is
not facially invalid, if "harm" is limited to acts that do
actually, proximately, and foreseeably kill or injure members
of a listed wildlife species. Sweet Home, 115 S.Ct. 2407,
2412 n.9, 2414 and n.9, 2415, 2418 (1995); see id at 2418-21
(concurring opinion of Justice O'Connor).

* Babbitt v. Sweet Home Chapter of Communities for a Great
Oregon, 115 S.Ct. 2407 (1995) ("Sweet Home"). The broad
interpretations of “harm” that prompted the Sweet Home suit are
discussed in Steven Quarles, John Macleod, and Thomas Lundquist,
Sweet Home and the Narrowing of Wildlife "Take" Under Section 9 of
the Endangered Species Act, ENVTL. L. RPTR. 10003, 10004-05 (Jan.
1996); Albert Gidari, The Endangered Species Act: Impact Of Section 9
On Private Landowners, 24 ENVTL. L. 419, 426 (1994).

5

This beneficial clarification and limitation of "harm" (and
‘take") would not have occurred had the Ninth Circuit's view
of standing been the law of the land. Because the Sweet Home
plaintiffs’ standing was predicated on “economic[]" injury, 115
S.Ct. at 2410, those plaintiffs would have been denied standing
under the Ninth Circuit's rule.

SUMMARY OF THE ARGUMENT

ESA § 11(g) eliminates prudential barriers to Standing,
such as the "zone of interests” test. This is clear from the
statutory language. [t broadly authorizes citizen suits by "any
person" for "any" alleged "violation" of the ESA and provides
that the "district courts shall have jurisdiction" over any such
suit. 16 U.S.C. § 1540(g)(1). The identical "any person"
language in § 810 of the Civil Rights Act of 1968 has been
held to “providef] standing to the fullest extent permitted by
Art. Ill." Gladstone, Realtors v. Village of Bellwood, 44}
U.S. 91, 100 (1979); Trafficante v. Metropolitan Life Ins. Co.,
409 U.S. 205, 208-12 (1972). The Sweet Home decision and
lower court decisions such as Defenders of Wildlife v. Hodel,
851 F.2d 1035, 1039 (8th Cir. 1988), provide further grounds
for concluding that no "zone of interests" test applies to suits
under ESA §11(g). See generally Section I.

Respondents, in their Opposition to the Petition in this
case ("Cert. Opp."), suggest they will not seek to defend the
"zone of interests" holding of the court below. Rather, they
may seek affirmance on alternate grounds which they stylize
as a lack of constitutional Standing and lack of enforceable
ESA § 7 limits on biological opinions. See Cert. Opp. at 9-
14. To the extent that such issues are reached by the Court,
it is essential to affirm that biological opinions are not immune
from judicial review in ESA suits brought by economically-
affected parties. See generally Section II.

6

A considerable body of lower court case law subjects
biological opinions to searching judicial review. This is as it
must be. ESA § 7(a)(2) and (b) make biological opinions the
centerpiece for ESA compliance. FWS's biological opinions
are sometimes mistaken. At least when federal agencies
conform their actions to FWS's biological opinion (which
occurs with relatively rare exceptions) and those actions affect
citizens, there is a justiciable controversy that warrants
searching review of the biological opinion. See Section II.A.

Respondents also argue on the merits that ESA § 7 places
no substantive limits on biological opinions, so "a flawed
biological opinion would not place FWS or the Secretary ‘in
violation of’ the ESA," as required for a successful ESA
citizen suit. Cert. Opp. at 11-12. However, a biological
opinion may overreach and violate ESA § 7 in several ways.
Examples of viable ESA citizen suits brought by economically-
injured persons include claims that a biological opinion:
(1) incorrectly concluded that a federally-assisted action would
jeopardize a listed species, in violation of ESA § 7(a)(2) and
(b); (2) was not based on the "best scientific and commercial
data available,” in violation of ESA § 7(a)(2); (3) offered a
"reasonable and prudent alternatives" to the action that were
not “economically feasible," in violation of ESA § 7(b)(3) and
50 C.F.R. § 402.02; and (4) required "reasonable and prudent
measures" for an incidental take statement that were not
economically reasonable, in violation of ESA § 7(b)(4) and 50
C.F.R. § 402.02. See Section II.B.

ARGUMENT
Judge Reinhardt's opinion below reaches the incongruous
result that -- although ESA § 11(g) broadly authorizes citizen
suits by "any person" for "any" alleged violation of the ESA
and provides that the "district courts shall have jurisdiction"

5

over any such suit -- ESA § 11(g) nonetheless poses a barrier
to standing that is not required by Article III of the
Constitution. Notwithstanding the breadth of standing affordea
by the ESA's text, the court below found that a stringent "zone
of interests test applies." Pet. App. 11. The Ninth Circuit's
express “holding [is] that only plaintiffs who allege an interest
in the preservation of endangered species fall within the zone
of interests protected by the ESA" and have standing. /d

Petitioners are irrigation interests whose water withdrawals
from federal Bureau of Reclamation ("BOR") reservoirs are
constrained as a result of BOR's adherence to the "reasonable
and prudent alternatives" that FWS's ESA § 7 biological
opinion found were needed to avoid jeopardy to Lost River
and shortnose suckers, two listed species of fish inhabiting the
reservoirs. The court below found that Petitioners lacked
prudential standing to argue violations of ESA §§ 7 and 4.
"[S]uits by plaintiffs who are interested only in avoiding the
burdens of that preservation effort" purportedly are outside the
ESA's zone of protected interests. Pet. App. 14.

The court below has inappropriately closed the courthouse
door to economically-injured plaintiffs who wish to argue that
federal agencies have violated ESA §§ 7 and 4. Notably, the
Cert. Opp. did not defend the "zone of interests" test
employed by the court below. Instead, the Cert. Opp. (at 9-
14) suggested that Respondents would seek affirmance largely
on other grounds. Whatever positions on other issues
Respondents may take in their merits brief, this Court should
reverse the holding of the court below that a prudential "zone
of interests" barrier to standing applies to ESA § 11(g) citizen
Suits.

8

I. THE ESA'S CITIZEN SUIT PROVISION
ELIMINATES PRUDENTIAL STANDING BARRIERS

The Bennett v. Plenert decision is part of a disturbing
trend in Ninth Circuit jurisprudence. That court tends to grant
broad rights of standing and intervention to environmental
interests, but to deny equal rights to economic interests.‘ By

. For example, the Ninth Circuit has found that environmental
groups have standing to bring facial challenges to forest plans in
situations in which other courts have found that a justiciable controversy
is absent. Compare Idaho Conservation League v. Mumma, 956 F .24
1508 (9th Cir. 1992), with Sierra Club v. Robertson, 28 F.3d 753 (8th
Cir. 1994). In the decision below -- and in cases like Pacific Northwest
Generating Co-Op. v. Brown, 38 F.3d 1058 (9th Cir. 1994), and Dan
Caputo Co. v. Russian River County Sanitation Dist., 749 F.2d 571 (9th
Cir. 1984) -- the Ninth Circuit found that environmental interests have
citizen suit standing under the ESA and Clean Water Act, while
economically-affected entities do not. See generally Martha Calhoun and
Timothy Hammill, Exvironmental Standing In the Ninth Circuit: Wading
Through The Quagmire, 15 PUBLIC LAND L. REV. 249 (1994).

With respect to intervention, the Ninth Circuit initially imposed
what amounts to a "zone of interests” test that precluded economically-
affected entities from intervening to protect their Rule 24 “interests” in
suits brought under environmental statutes. Portland Audubon Soc'y v.
Hodel, 866 F.2d 302, 309 (9th Cir.), cert. denied, 492 U.S. 911 (1989)
(denying intervention to timber interests). That court later supposedly
eliminated the "zone of interests” barrier to intervention in suits other
than those under the National Environmental Policy Act ("NEPA").
Sierra Club v. EPA, 995 F.2d 1478, 1483-85 (9th Cir. 1993). However,
the Ninth Circuit has still denied intervention to entities whose contract
rights were impaired by an injunction on the unpersuasive ground that the
impairment would be short-lived under the injunction. Eg, Silver v.
Babbitt, 68 F.3d 481, 1995 WL 597667 (9th Cir. 1995). Through an
unwarranted parsing of a single civil action into a merits phase and relief
phase, the Ninth Circuit has prevented an economically-affected entity
from intervening in the merits phase of a NEPA case, and has restricted
intervention to briefing the propriety of injunctive relief (which is

(continued. ..)

9

denying economic interests the right to be heard, the decision
below fails an elemental test for fairness: a level playing field.

The inevitable result of such a one-sided standing doctrine
is that the law will move in the direction of the (here,
environmental) plaintiffs granted standing. The nature of the
judicial process is such that, when only one side of a
continuing public controversy may seek recourse in the courts,
the law moves incrementally towards institutionalizing and
legitimizing the position of the interest group that has the
ability to invoke the courts’ jurisdiction. The position of the
party barred from the courts is never heard, is never embraced
by the courts, and achieves no legitimacy. The skewed law of
standing also results in substantive changes in agency behavior,
as an agency evaluates its obligations against the backdrop of
judicial decisions construing those obligations and with an eye
towards those who can sue the agency. The Court should be
reluctant to believe that Congress intended to so skew the
development of standing law and substantive law when
Congress passed the ESA and the Administrative Procedure
Act ("APA"), 5 U.S.C. §§ 701-06.

There has been a trend “toward recognizing that injuries
other than economic harm are sufficient" for standing. Sierra
Club v. Morton, 405 U.S. 727, 738 (1972). This does not
mean, however, that now only environmental interests have

*(...continued)
virtually a foregone conclusion in the Ninth Circuit once a violation of
an environmental statute is found). Forest Conservation Council v.
United States Forest Serv. , 66 F.3d 1489, 1499 and n.11 (9th Cir. 1995);
see Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985) (“absent
‘unusual circumstances,’ an injunction is the appropriate remedy for a
NEPA violation).

10

standing, while economic interests do not. The law of
standing has not turned that topsy-turvy.

This expansion of standing beyond its historical core of
economic injury nonetheless retains that core. The "fact of
economic injury is what gives a person standing." /d at 737.
"Certainly he who is ‘likely to be financially’ injured, FCC v.
Sanders Bros. Radio Station, 309 U.S. 470, 477, may be a
reliable private attorney general to litigate the issues of the
public interest." Association of Data Processing Serv. Orgs.,
Inc. v. Camp, 397 U.S. 150, 154 (1970). Accordingly, the
economically-injured Petitioners should be able to argue the
public interest inherent in ensuring compliance with the ESA.

No “zone of interests" test or other prudential barrier to
standing should apply to ESA § 11(g) citizen suits for the
following reasons:

1. “[Pjalpable economic injuries have long been
recognized as sufficient to lay the basis for standing, with or
without a specific statutory provision for judicial review” like
ESA § 11(g). Sierra Club v. Morton, 405 U.S. at 733-34.
Thus, the Court should presume that ESA § 11(g) provides
access to the courts for those alleging economic injury.

The Court should also presume that the ESA citizen suit
provision broadens standing beyond the "zone of interests" test
that applies to suits brought under the APA.’ Otherwise, ESA

> For suits brought under the APA, the plaintiff must be
“adversely affected or aggrieved by agency action within the meaning of
a relevant statute.” 5 U.S.C. § 702. From this language, the Court
derived a prudential standing test for APA suits. This is the "zone of
interests” test of “whether the interest sought to be protected by the
complainant is arguably within the zone of interests to be protected or
(continued...)

11

§ 11(g)'s references to suits against federal agencies are
surplusage, as they add nothing to the right of review already
provided by the APA. See Sweet Home, 115 S.Ct. at 2413
(there is a "reluctance to treat statutory terms as surplusage”).

2. The expansive language of ESA § 11(g) precludes the
creation of any prudential barriers to standing in ESA citizen
suits. This Court derived the prudential "zone of interests"
test from the APA requirement that the plaintiff be "aggrieved
by agency action within the meaning of a relevant statute."
Data Processing Serv., 397 U.S. at 153 (quoting 5 U.S.C.
§ 702). Subsequently, in Clarke v. Securities Indust. Ass'n,
479 U.S. 388, 395, 400 n.16 (1987) ("Clarke"), the Court
emphasized that the "zone of interest" test "is most usefully
understood as a gloss on the meaning of § 702."°

*(...continued)
regulated by the statute or constitutional guarantee in question.” Data
Processing Serv., 397 U.S. at 153.

* — The court below read Clarke differently. It interpreted Clarke
as providing for the use of the “traditional zone of interests test” in
actions "not brought under the Administrative Procedure Act.” Pet. App.
6. Clarke made precisely the opposite point. The Clarke Court stated
that the APA “zone of interests” test “is not a test of universal
application,” though statutory review provisions other than the APA
“may” create their own “prudential standing” tests. Clarke, 479 U.S. at
400-01 n.16. As developed in the text, the plain meaning and established
judicial meaning of the broad “any person” language of ESA § 11(g)
leave no room for courts to apply a "zone of interests" analysis. This
remains true even if the APA does apply to ESA citizen suits to the
extent of specifying the standard of judicial review, as several lower
courts have held. Eg, Sierra Club v. Glickman, 67 F.3d 90, 96 (Sth
Cir. 1995); Village of False Pass v. Clark, 733 F.2d 605, 609-10 (9th
Cir. 1984). The logic of these decisions is that the APA acts as a gap-
filler: that because ESA § 11(g) does not provide any standard for

(continued...)

12

Congress may freely eliminate the "zone of interests" test.
"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. ESA § 11(g) lacks APA-like
language suggesting that the plaintiff must be aggrieved within
the meaning or purposes of the ESA. Instead, ESA § 11(g)
broadly authorizes citizen suits by “any person" for "any"
alleged violation of the ESA. 16 U.S.C. § 1540(g)(1). This
broad language clearly encompasses a suit brought by
Petitioners or any other economically-injured "person" who is
alleging that ESA limitations have been violated.

This is confirmed by the definition of "person" and its use
in other ESA sections. Since ESA § 3(13) defines "person" to
include a “co:poration" and other economically-motivated
entities, 16 U.S.C. § 1532(13), ESA § 11(g) should be read as
including economically-motivated suits. ESA § 9 makes it
unlawful for "any person," including an economically-
motivated entity, to "take" an endangered species. 16 U.S.C.
§ 1538(a)(1). Accordingly, the same "any person" language
in ESA § 11(g) should also include economic entities.

The ESA further provides that the "district courts shall
have jurisdiction" over a suit brought by "any person." 16

°(...continued)
judicial review when suing a federal agency, the APA (in 5 U.S.C.
§ 706(2)(A)) provides the relevant review standard. However, because
ESA § 11(g) itself provides a right of review and its “any person”
language signifies that Congress removed prudential barriers to standing,
there is no persuasive reason to engraft onto the ESA the APA right of
review provision (5 U.S.C. § 702) and its "zone of interests” test.

13

U.S.C. § 1540(g)(1). This signifies that Congress eliminated
prudential barriers to jurisdiction.

3. This Court's precedents confirm that ESA § | 1(¢)
permits suits by economically-injured plaintiffs and eliminates
prudential barriers to standing.

a. The language in § 810 of the Civil Rights Act of
1968, allowing a suit by "any person,” has been found to
provide "standing to the fullest extent permitted by Art. III.”
Gladstone, 441 U.S. at 100; Trafficante v. Metropolitan Life
Ins. Co., 409 U.S. 205, 208-12 (1972). The identical "any
person" language in the ESA (and in the citizen suit provisions
in many other environmental laws) should be construed to
provide standing to the fullest extent permitted by Article II!
Moreover, the Court has implicitly so construed ESA § | |()
in two decisions discussed below.

b. The six Justices who commented on ESA § | |(g)
in the 1992 constitutional standing decision in Luan \
Defenders of Wildlife, 504 U.S. 555 (1992), apparently
assumed that it expanded standing to its Article II] limits
Those Justices opinions focused on why Congress could not go
beyond Article III limits and create standing where there was
no imminent injury-in-fact. /d at 555, 571-74, 578, 580

c. This 1992 understanding of ESA § 11(g) may
explain why the ESA standing of economically-injured
plaintiffs was not questioned by the government or any of the
three reviewing courts in Sweet Home.’ Sweet Home was an

"Sweet Home Chapter of Communities for a Great Oregon \
Lujan, 806 F. Supp. 279 (D.D.C. 1992), affd, 1 F.3d 1 (D.C. Cir
1993), rev'd on rehearing as to legality of "harm" regulation, 17 F 34
1463 (D.C. Cir. 1994), reh'g denied, 30 F.3d 190 (D.C. Cir. 1994).

(continued

14

ESA citizen suit in which plaintiffs contended that FWS had
engaged in over-regulation -- specifically that the "harm"
regulation at 50 C.F.R. § 17.3 violated limitations found in
ESA §§ 5, 7, and 9. See page 4, above.

The Sweet Home plaintiffs’ standing was clearly premised
on economic injury. "Their complaint alleged that application
of the ‘harm' regulation . . . had injured them economically."
Sweet Home, 115 S.Ct. at 2410. “Plaintiffs claim that those
restrictions [on timber harvesting] have forced them to lay off
employees, . . . and placed some of the plaintiffs in the
position of being unable to support their families." Sweet
Home, 806 F. Supp. at 282.

Although the Court was “under an independent obligation"
to question standing if there was a legitimate standing issue
(FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31
(1990)), no such standing issue was raised in Sweet Home.
(Nor did the government raise a standing issue or "zone of
interests" before any of the three ccurts in Sweet Home.)
After noting that plaintiffs had been "injured . 4
economically" by an ESA regulation, this Court proceeded
directly to the merits. Sweet Home, 115 S.Ct. at 2410.

Thus, this Court's merits disposition in Sweet Home
signifies that the court below erred in holding that "economic
interests" or other persons desiring to reduce ESA "burdens"
are disqualified from ESA standing, and erred in holding that

(...continued)
rev'd finding the "harm" regulation facially valid sub nom. Babbitt v.
Sweet Home Chapter of Communities for a Great Oregon, 115 S.Ct.
2407 (1995). Amici include one of the plaintiffs in that case (the
Southern Timber Purchasers Council). Counsel for Asmici served as
counsel for plaintiffs in Sweet Home.

15

“only plaintiffs who allege an interest in the preservation of
endangered species fall within the zone of interests" that can
bring ESA § 11(g) citizen suits. Pet. App. at 11-12, 14.

d. The Court has construed the citizen suit language
in the Federal Water Pollution Control Act (33 U.S.C. § 1365)
-- and seemingly the citizen su*t ‘anguage of the Marine Act,
33 U.S.C. § 1415, that was the model for ESA § 11(g) (see
page 16 n.10, below) -- as allowing suits by all citizens
suffering constitutional injury-in-fact. It allowed a suit by
“respondents who assert that they have suffered tangible
economic injuries because of statutory violations." Middlesex
County Sewerage Auth. v. National Sea Clammers Ass'n, 453
U.S. 1, 16-17 (1981). Accordingly, the economic injuries
suffered by Petitioners here should not preclude their standing
under another environmentally-oriented statute.

4. The better-reasoned lower court opinions have
concluded, consistent with this Court's opinion in Gladstone,
that the "any person" language provides standing to the fullest
extent permitted by Article III. The Eighth Circuit and at least
three other lower courts have concluded that ESA § 11(g)
eliminates the prudential "zone of interests" test:

Unlike the constitutional requirements, Congress may
eliminate the prudential limitations [on standing] by
legislation. . . . In this case, the ESA provides that "any
person" may commence a suit to enjoin any person who
is alleged to be in violation of the ESA. ... Defenders
therefore need meet only the constitutional requirements
for standing for their claims under the ESA.*

* Defenders of Wildlife v. Hodel, 851 F.2d 1035, 1039 (8th Cir.
1988), opinion after remand, 911 F.2d 117 (8th Cir. 1990), rev'd on
(continued...)

16

Other appellate decisions have correctly read indistinguishable
citizen suit provisions as removing prudential barriers to

standing.”

*(...continued)
other grounds, Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); see
Swan View Coalition, Inc. v. Turner, 824 F. Supp. 923, 929 (D. Mont.
1992) (plaintiffs suing under the ESA “need only meet the constitutional
requirements for standing”); Region 8 Forest Service Timber Purchasers
Council v. Alcock, 736 F. Supp. 267, 273 (N.D. Ga. 1990) ("the citizen
suit proviso of the Species Act ‘clearly removes the judicial authority to
create prudential barriers'” to standing), aff'd due to lack of constitutional
standing, 993 F.2d 800 (11th Cir. 1993), cert. denied, 114 S.Ct. 683
(1994); Fouke Co. v. Brown, 463 F. Supp. 1142, 1144 (E.D. Cal. 1979).

° Eg, Family and Children's Ctr. v. School City, 13 F.3d 1052,
1061 (7th Cir.), cert. denied, 115 S.Ct. 420 (1994); Public Interest
Research Group v. Powell Duffryn Tex.ainals Inc., 913 F.3d 64, 70 n.3
(3d Cir. 1990), cert. denied, 498 U.S. 1109 (1991); Competitive Ent.
Inst. v. National Highway Traffic Safety Admin., 901 F.2d 107, 118-19
(D.C. Cir. 1990); Center for Auto Safety v. National Highway Traffic
Safety Admin., 793 F.2d 1322, 1336-37 (D.C. Cir. 1986); Alvarez v.
Longboy, 697 F.2d 1333, 1336 (9th Cir. 1983); Comswmers Union v.
FTC, 691 F.2d 575, 576 (D.C. Cir. 1982) (en banc}, affd, 463 U.S.
1216 (1983). Given this long line of D.C. Circuit authority, it is
surprising the D.C. Circuit assumed that a prudential "zone of interests"
test applied under the ESA in three cases cited by the court below. Pet.
App. 8 n.3, citing Idaho v. ICC, 35 F.3d 585, 592 (D.C. Cir. 1994);
Humane Soc'y v. Hodel, 840 F.2d 45, 60-61 (D.C. Cir. 1988); National
Audubon Soc'y v. Hester, 801 F.2d 405, 407 n.2 (D.C. Cir. 1986).
Because the applicability of a "zone of interests” test apparently was not
opposed by the plaintiffs in those cases and standing was found, those
cases’ statements about the "zone of interests” test were not necessary to
the decisions. Additionally, the most recent opinion cites the ESA
§ 1l(g) “any person” language as meaning that the "ESA specifically
authorizes a State to bring an action to enforce its provisions.” /daho,
35 F.3d at 592. Thus, the /daho opinion can be read as endorsing broad
ESA standing, and D.C. Circuit decisions provide little support for the
Ninth Circuit opinion under review.

17

5. The direct legislative history of ESA § 11(g) does
nothing to contradict the broad statutory language. It does nof
suggest an intent to restrict access to the courts.'°

Moreover, Congress has stated that citizen suit provisions
with simila- language push standing to its constitutional limits.
The Surface Mining Control and Reclamation Act of 1977
contains a provision allowing "any person having an interest
which is or may be adversely affected" to commence a citizen
suit, and provides that the "district courts shall have
jurisdiction." 30 U.S.C. § 1270(a). The House Report stated
that this language "shall be construed to be coterminous with
the broadest standing requirements enunciated by the U.S.
Supreme Court." H.R. REP. No. 218, 95th Cong., Ist Sess.,
reprinted in 1977 U.S.C.C.A.N. 593, 626. The identical
language in ESA § 11(g) should be similarly construed to
eliminate prudential barriers to standing.

10

The House Report repeats the “any person” language employed
in the ESA text and identifies the model for the ESA language:

It allows any person, including a Federal official, to seek remedies
involving injunctive relief for violations or potential violations of the
Act. The language is parallel to that contained in the recent Marine
Protection, Research and Sanctuaries Act of 1972, and is to be
interpreted in the same fashion.
H.R. REP. No. 412, 93d Cong., Ist Sess. 19 (1973). The model is the
citizen suit subsection of the ocean dumping section of the Marine Act,
33 U.S.C. § 1415(g). The legislative history of the referenced Marine
Act also states that this “subsection provides for a civil suit by arty person
on his own behalf to enjoin violations of the Act or violations of
regulations.” S. REP. NO. 451, 92d Cong., 2d Sess., reprinted in 1972
U.S.C.C.A.N. 4234, 4249 (emphasis added). Thus, the legislative
history of ESA § 11(g) provides no basis for questioning the obvious
breadth of the statutory language.

18

6. In sum, the Court should hold that no "zone of
interests" test or other prudential barrier to standing applies to
ESA § 11(g) suits. The contrary holding of the court below
should be reversed."

Il. RESPONDENTS' ALTERNATIVE ESA
ARGUMENTS LACK MERIT

In opposing this Court's grant of certiorari, the
government did not directly defend the "zone of interests”
holding of the court below. Instead, the government sought to
invoke a theory of constitutional standing to sustain the
judgment (Cert. Opp. at 9-11), and argued on the merits that
even a "flawed biological opinion would not place FWS or the
Secretary ‘in violation of' the ESA." Cert. Opp. at 11-12.

In part because it is unclear what the government will
argue now that the Court has granted review, Amici will not
attempt to address in this brief the intricacies of whether the
case as now constituted presents a justiciable controversy over
the biological opinion in question. The issues of constitutional

‘' Tt can be asked: How did the court below reach such an
obviously mistaken result? One answer is that the court below seemed
more interested in extending the one-sided theory of standing expressed
in other questionable Ninth Circuit decisions than in confronting the ESA
statutory language and cases broadly construing the “any person”
language. For example, the court below blithely brushed aside the ESA
§ 11(g) language by stating “our court, and others, have regularly
employed the zone of interests test in determining standing despite
Congress’ enactment of expansive citizen suit provisions.” Pet. App. at
8-9. But the legislative judgment is controlling as to whether prudential
barriers to standing should be applied. Clarke, 479 U.S. at 394 n.7;
Gladstone, 441 U.S. at 100. This Court's precedents in Gladstone and
Trafficante were not even mentioned in the opinion below; Clarke was
misinterpreted; and contrary circuit court precedents like Defenders of
Wildlife were relegated to a foomote. See Pet. App. at 8 n.3.

19

standing, final agency action, and proper governmental
defendants, to which the government has alluded are beyond
the scope of this brief.

Amici are very concerned, however, that the government's
effort to demonstrate the nonjusticiability of the instant case is
based on arguments that would undermine the ability of parties
economically injured by biological opinions to mount effective
challenges to erroneous opinions in any suit. Specifically, in
Section II.A, Amici will show that biological opinions have
been, and properly are, subject to judicial review in a wide
range of circumstances. In Section II.B, Amici will show that
ESA § 7 does place constraints on a biological opinion, so a
"flawed biological opinion" can violate the ESA.

These issues are significant because of the brosd range of
economic activity that is adversely affected by ESA § 7. 16
U.S.C. § 1536. While ESA § 7 concerns the responsibilities
of federal agencies, it also imposes restrictions on private
activities that require any form of federal authorization.’
Under ESA § 7(a)(2), the private activity cannot be conducted:
(1) until the federal agency whose authorization is needed
("action agency") completes an ESA consultation process with

2 The regulations implementing ESA § 7 broadly define a covered
“Action” as “all activities or programs of any kind authorized, funded,
or carried out, in whole or in part, by Federal agencies.” These include:
(1) the "granting of licenses, contracts, leases, easements, rights-of-way,
permits, or grants-in-aid” to the private sector; and (2) allowing private
economic uses of federal lands that “directly or indirectly caus{e]
modifications to the land, water, or air.” 50 C.F.R. § 402.02; see id at
definition of “effects of the action.” Due to the "wide range of projects
involving federal permits, approvals, funding, or participation, the
potential impact of section 7 [on “private” activities] is quite extensive.”
Arnold, 10 STAN. ENVTL. L. J. at 1-2; see Brief Amicus Curiae of the
National Association of Homebuilders in Support of Certiorari at 4-6.

20

FWS or NMFS, the government's expert agencies on ESA
matters; and (2) if the action agency concludes that the action
‘is likely to jeopardize the continued existence of any listed
species or adversely modify any designated critical habitat:

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
(hereinafter in this section referred to as an "agency
action") 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 by the Secretary, after
consultation as appropriate with affected States, to be
critical .

16 U.S.C. § 1536(a)(2). FWS carries out its formal
"consultation" role by preparing a biological opinion on the
effects of the proposed agency action pursuant to ESA § 7(b),
16 U.S.C. § 1536(b). In Section II.B, we will explain some
of the ESA § 7(b) constraints on biological opinions.

A. Biological Opinions Are Subject To Judicial Review

1. Because the expert agency's biological opinion was
intended by Congress to, and does in practice, normally
control the action agency's final action, the highly signifiqant
and determinative biological opinion should be subject to
judicial review. The ESA's structure suggests Comgress did
not expect that biological opinions would escape. review."

'* In other words, one can agree with ‘the Solicitor General's
premise that FWS's biological opinion is advisory and leaves the action
agency (at least theoretically, if not in pracctice) with the ultimate agency
authority to determine compliance with. ESA § 7(a\(2). See Cert. Opp.
at 10-11. However, this premise doves mof warrant the conclusion that
biological opinions forever escape ‘judicial review

a ee

21

ESA § 7(a)(2) and (b) establish an extensive process for
consulting with the ESA-expert agency (FWS or NMFS). The
process includes obtaining expert agency's biological opinion
on whether the agency action would jeopardize a listed species,
obtaining in the opinion the expert's "reasonable and prudent
alternatives" if jeopardy is found, and obtaining in the opinion
the expert's judgment on the “reasonable and prudent
measures” needed to obtain an incidental take statement. 16
U.S.C.§ 1536(a)(2), (b); SOC.F.R. § 402. 14(g)-(j). Congress
made the biological opinion the centerpiece of this extensive
process because it expected that action agencies would adhere
to the expert's biological opinion.

Respondents have suggested, however, that the action
agency's ultimate decision on ESA compliance for a federally-
assisted action is not sufficiently influenced by (or, in
“standing” parlance, is “not fairly traceable to") the content of
a biological opinion. Cert. Opp. at 10-11. That argument
renders meaningless ESA § 7(b), and does not accord with
legal and practical realities. Courts have found that an action
agency that acts contrary to a biological opinion does so at its
considerable peril."* Thus, as a practical matter, action
agencies must and do comply with FWS's biological opinions.

* Eg. Sierra Club v. Marsh, 816 F.2d 1376, 1388 (9th Cir
1987) (FWS “is primarily responsible for protecting endangered species
_ . » » We defer to the agency [FWS] with the more appropriate
expertise"); Michael Bean, THE EVOLUTION OF NATIONAL WILDLIFE
LAW 362, 368 (Praeger 1983) (courts have “erect{ed] a major hurdle for
an agency that chooses to [proceed with a project] . . . in the face of an
adverse biological opinion"); 51 Fed. Reg. 19956 (June 3, 1986)
(preamble to final ESA § 7 regulations stating “courts have accorded
Service biological opinions great deference”).

22

In fact, BOR complied with FWS's biological opinion
here. BOR agreed to follow the “reasonable and prudent
alternatives” that FWS's biological opinion said were necessary
to avoid jeopardy to the listed fish species (minimum reservoir
levels). See Pet. App. 3-4, 24-25, 32, 39-40.

In sum, a biological opinion was intended to and does
normally dictate the action agency's decision. Accordingly,
economic injuries can be fairly traced to the biological opinion,
at least when (as here) the action agency follows that opinion.

2. Any argument that a biological opinion might be
shielded from a searching judicial review flies in the face of
numerous lower court decisions that have reviewed the
adequacy of biological opinions. E.g., Greenpeace Action v.
Franklin, 14 F.3d 1324, 1336-37 (9th Cir. 1992); Connor v.
Burford, 848 F.2d 1441, 1451-58 (“th Cir. 1988), cert.
denied, 489 U.S. 1012 (1989); Mausolf v. Babbitt, 913 F.
Supp. 1334 (D. Minn. 1996); Westlands Water Dist. v. United
States Dep't of the Interior, 850 F. Supp. 1388, 1425-26 (E.D.
Cal. 1994); Idaho Dep't of Fish and Game v. National Marine
Fisheries Serv., 850 F. Supp. 886 (D. Or. 1994), dismissed as
moot, 56 F.3d 1071 (9th Cir. 1995); Swan View Coalition,
Inc. v. Turner, 824 F. Supp. 923, 932-36 (D. Mont. 1992).
Biological opinions have been reviewed in suits brought by
persons trying to reduce ESA burdens, such as the plaintiffs in
Mausolf and Westlands. \n two prior suits, constitutional
standing to challenge a biological opinion was contested on
grounds like those the government may present here, and
standing was found to exist. Mausolf, 913 F. Supp. at 1341-
43; Swan View Coalition, 824 F. Supp. at 929-32.

Pyramid Lake Paiute Tribe of Indians v. United States
Dep't of Navy, 898 F.2d 1410 (9th Cir. 1990), cited by the
government (Cert. Opp. at 10), is not to the contrary.

23

Because that plaintiff failed to name FWS as "a party to this
action” (898 F.2d at 1415), the court found the plaintiff could

not directly question FWS's biological opinion. Here, since
Petitioners named FWS as a defendant and challenged its

biological opinion, the Pyramid Lake logic does not apply.

3. Thus, the legally-significant and normally-
determinative biological opinion is and should be subject to a
searching judicial review at some stage -- it cannot evade
judicial review forever. We take no position on whether the
biological opinion at issue here, viewed in isolation at the time
of its issuance, is subject to judicial review or whether the
Complaint should be characterized as bringing that type of
challenge. In at least some factual situations, the existence of
an adverse biological opinion does seem to cause a sufficient

injury to create a justiciable controversy. '°

'* Just as ESA § 11(g) provides standing to its constitutional
limits, see Section I, ESA § 11(g) seems to extend the jurisdictional
concepts of ripeness and reviewable agency action to their constitutional
lumits. ESA § 11(g) purports to provide district court “jurisdiction” over
“any” claim that any “agency” action, including FWS's issuance of a
biological opinion, is “in violation of” the ESA. 16 U.S.C. § 1540(g)(1).

When, for example, the issuance of an adverse biological opinion
lowers property values or causes a bank to refuse to lend money for a
federally-assisted project, this economic injury may require judicial
review of the opinion even in the absence of a decision by the action
agency. Another compelling example concerns the Ninth Circuit's logic
that, after a mew species is listed under the ESA, ongoing timber
harvesting and activities in a national forest containing that species must
be enjoined until ESA consultation is completed on the forest plan for
that national forest. Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th
Cir. 1994), cert. denied, 115 S.Ct. 1793 (1995). If FWS issues an
allegedly-mistaken biological opinion, there appears to be a sufficient
economic injury (due to the continuing injunction) for present judicial
review of the opinion, rather than letting injuries continue unti] an action
is taken based on the allegedly-mistaken opinion.

24

Although a challenge to a biological opinion at the time of
its issuance should be considered ripe to address any injury the
opinion inflicts, once the action agency has relied on a
biological opinion and aas taken a final action that threatens
immediate injury to a plaintiff, there certainly is a concrete
controversy for review. The constitutional minima for
standing also clearly would be satisfied. Plaintiff's alleged
injury would be fairly traceable to the biological opinion when
the action agency simply structured its action to conform with
the opinion. The plaintiff's economic injury would likely be
redressed if a court required correction of the biological
opinion, because the action agency likely would follow FWS's
less-onerous opinion.

Additionally, once a plaintiff is in court, and affected by
the biological opinion through final agency action, judicial
review necessarily extends to the biological opinion that
formed the basis for the agency's ultimate action. Accord
Bangor Hydro Electric Co. v. FERC, 78 F.3d 659 (D.C. Cir.
1996) (searching review of FWS's fisheries prescriptions on
review of FERC order adopting those prescriptions). This
proposition reflects ordinary rules of administrative law. The
APA provides for full review of a "preliminary, procedural,
or intermediate agency action or ruling” during the review of
the "final agency action." 5 U.S.C. § 704. Thus, to the
extent a biological opinion is viewed as only an "intermediate"
ruling, the opinion is subject to full judicial review during
review of an action agency's final action.

B. There Are Viable Claims That ESA § 7 Has Been

Violated By Over-Regulation

Thus, there is no jurisdictional bar to subjecting 4
biological opinion to searching judicial review. This leaves
Respondents’ merits argument that "a flawed biological opinion

25

would not place FWS or the Secretary ‘in violation of' the
ESA" because ESA § 7 lacks substantive limits enforceable by
an economically-injured plaintiff. Cert. Opp. at 11-12.

As shown below, ESA §7 and the implementing
regulations at 50 C.F.R. Part 402 do establish legal constraints
on biological opinions. If an opinion exceeds such constraints,
there has been a “violation of a[] provision of this [ESA]
chapter or regulation" that can be enjoined. 16 U.S.C.
§ 1540(g)(1)(A). Thus, as the examples below demonstrate,
ESA § 7 provides numerous grounds for economically-injured
persons to bring successful ESA § 11(g) citizen suits.

1. The ESA and regulations establish a maximum time
period for ESA consultation and issuance of a biological
opinion on any federally-assisted action involving a private
“applicant,” unless the applicant agrees to a time extension.
See 16 U.S.C. § 1536(b)(1)(B); 50 C.F.R. § 402.14(e). Thus,
there is a viable suit that FWS has violated ESA § 7 when it
has taken longer than the maximum period to provide its
biological opinion, and thereby unlawfully delayed a needed
federal authorization.

2. Closer to the claims in this case, FWS violates its ESA
§ 7 duty to issue an accurate biological opinion when it
concludes that a federally-assisted action would jeopardize the
continued existence of a listed species, if the plaintiff can show
that the jeopardy conclusion is factually inaccurate or is based
on an incorrect legal standard. Petitioners bring a claim that
FWS has "improperly conclud[ed]" that continued operation of
the reservoirs "is likely to jeopardize” listed species of fish.
Pet. App. 40-41. There are several ways that a plaintiff can
demonstrate that a jeopardy opinion is mistaken.

26

a. A biological opinion must be based on the "best
scientific and commercial data available." 16 U.S.C.
§ 1536(a)(2). Thus, a jeopardy conclusion based on outdated
or inaccurate data violates ESA § 7(a)(2). Accord Endangered
Species Comm. of the Building Indus. Ass'n v. Babbitt, 852 F.
Supp. 32 (D.D.C. 1992) (example where FWS failed to
disclose the questionable data for an ESA § 4 listing decision).

b. A biological opinion should be restricted to "how
the agency action affects the species or its critical habitat" and
whether the incremental effects of the "agency action” cause
jeopardy or adversely modify critical habitat. 16 U.S.C.
§ 1536(b)(3). WS, instead of restricting its opinion to the
effects of the "agency action" (defined in § 1536(a)(2) as the
specific portion of a private action that requires federal
authorization), sometimes finds jeopardy based on the current
status of the species under the "environmental baseline,” on the
indirect effects of interrelated private actions that do not
require a federal approval, or on the “cumulative effects” of
unrelated actions. See 50 C.F.R. §§ 402.02 (definitions of
"cumulative effects” and "effects of the action"), 402.14(g)(3)
and (4); James Kilbourne, The Endangered Species Act Under
the Microscope: A Closeup Look from A Litigator's
Perspective, 21 ENVTL. L. 499, 531-34 (1991). When the
"agency action” itself would not cause jeopardy itself, there
is a credible argument that a jeopardy opinion violates the
above-quoted portions of ESA § 7(a)(2) and (b)(3).

c. As another example of legally-mistaken jeopardy
opinions, a threatened species usually has a sizable number of
members over the listed area (e.g., the grizzly bear, which 50
C.F.R. § 17.11(h) lists as threatened in the conterminous 48
United States). However, FWS sometimes determines
jeopardy, not with respect to the entire "threatened species,"

27

but with respect to a smaller "population" (e.g., grizzly bears
in the Selkirk Mountains). This approach finds jeopardy more
frequently, since it is easier to jeopardize a smal! population
than an entire species.

There is a convincing argument that such a biological
opinion violates ESA § 7(a)(2). FWS will not have determined
jeopardy with respect to the "endangered species or threatened
species” unit which is listed in 50 C.F.R. § 17.11(h), as 16
U.S.C. § 1536(a)(2) explicitly requires.

3. Two provisions in ESA § 7(b) require that a biological!
opinion offer economically reasonable solutions to ESA
compliance problems. When FWS does not do so, there are
viable claims that the opinion violates ESA § 7(b)(3) or (b) 4)

a. If the biological opinion concludes that the
proposed action would jeopardize a listed species, the opinion
"shall suggest those reasonable and prudent alternatives which
he believes would not violate subsection (a)(2) of this section
and can be taken by the Federal agency or applicant in
implementing the agency action." 16 U.S.C. § 1536(b)(3)(A)
As the statutory language suggests and implementing
regulations confirm, the "reasonable and prudent alternatives”
must be economically "reasonable" and still allow the private
applicant to implement an alternative form of its desired
action. FWS's biological opinion must identify alternatives
that are "economically and technologically feasible" and that
"can be implemented in a manner consistent with the intended
purpose of the action." 50 C.F.R. § 402.02 (definition of
"reasonable and prudent alternatives"); see 51 Fed. Reg
19937 (June 3, 1986) (explanation in preamble to final rules).
Kilbourne, 21 ENVTL. L. at 543.

28

Thus, there is a viable claim that FWS has violated ESA
§ 7(b)(3) and the regulations if its biological opinion suggests
"reasonable and prudent alternatives" that are not economically
reasonable. See Westlands Water Dist., 850 F. Supp. at 1425-
26 (example of such a claim by irrigation interests).

b. A biological opinion may also violate an economic
limitation in 16 U.S.C. § 1536(b)(4). ESA § 7(b)(4) provides
for the issuance of an incidental take statement which excuses
the federally-assisted action from any incidental "take" (see
ESA § 7(0)) otherwise barred by ESA § 9, if the action meets
ESA § 7(a)(2)'s minimum standard of avoiding jeopardy to the
listed species as a whole. A person who desires the benefit of
an incidental take statement must agree to go beyond the
minimum required to avoid jeopardy at the species level and
adopt "those reasonable and prudent measures that the
Secretary" specifies in the biological opinion to minimize
"takes" of individuals. 16 U.S.C. § 1536(b)(4)(B)(ii).

"Reasonable and prudent measures" also must be
economically reasonable. "[TJhey should be minor changes
that do not alter the basic design, location, duration, or timing
of the action." 51 Fed. Reg. 19937 (June 3, 1986) (preamble
explaining the 50 C.F.R. § 402.02 definition of "reasonable
and prudent measures"). See Kilbourne, 21 ENVTL. L. at 554-
56. Accordingly, there is a viable claim that a biological
opinion violates ESA § 7(b)(4) if it adopts learners and
prudent measures" that are not economically prudent. '®

‘© The ESA, as originally enacted in 1973, may have reflected a
goal of reversing the "trend towards species extinction, whatever the
cost." Tennessee Valley Auth v. Hill, 437 U.S. 153, 184 (1978). But
the ESA amendments Congress adopted in 1978, 1979, and 1982 in

reaction to the 7VA decision -- such as 16 U.S.C. §§ 1533(b)(2),
(continued. ..)

29

Additionally, a biological opinion can violate ESA
§§ 7(b)(4) and 9 when it identifies as "incidental take" (and
imposes "reasonable and prudent measures" to minimize such
incidental take) an activity that is not "take" under this Court's
decision in Sweet Home. See Mausolf v. Babbitt, 913 F.
Supp. at 1344 (example of such a successful claim).

c. Petitioners assert violations of ESA § 7(b)(3) and
(4). FWS's biological opinion found that continuation of past
operating regime for the BOR reservoirs is likely to jeopardize
listed fish species, even though the fish species obviously
survived during the past operating regime. FWS specified
minimum lake or reservoir levels as ESA § 7(b)(3) reasonable
and prudent alternatives to avoid jeopardy -- and, apparently,
as ESA : 7(b)(4) reasonable and prudent measures to minimize
"take" -- and BOR agreed to adopt these alternatives and

'°(_. continued)
1536(a)(2), (b6)(3), (b)(4), (e)-(h), 1539(a) -- signify that economics do
count and some costs are too great to bear.

Moreover, in the unlikely event that a "zone of interests” test
applies to ESA citizen suits, ESA § 7(b)(3) and (b)(4) make it clear that
economic interests are protected under ESA §7. Accordingly,
Petitioners meet the standard "zone of interests" test of whether “'the
interest sought to be protected by the complainant [is] arguably within the
zone of interests to be protected or regulated by the statute'” in question.
Clarke, 479 U.S. at 396 (quoting Data Processing Serv., 397 U.S. at
153). Contrary to Judge Reinhardt's miserly approach to the "zone of
interests," the “test is not meant to be especially demanding.” Clarke,
479 U.S. at 399. The test is not pyaar >i because a plaintiff's
interests only “arguably” must be within the zone of interests either
"regulated" or “protected” by some aspect of the statute the plaintiff
seeks to enforce. Petitioners meet both alternative tests. See Westlands
Water Dist., 850 F. Supp. at 1425 (if a "zone of interests” test applies,
water interests which will be constrained under the authority of ESA § 7
meet that test for ESA § 7 challenges).

30

measures. See Pet. App. 3-4, 24-25, 32, 37-40. Petitioners
challenge those minimum lake levels as a violation of ESA § 7
in their second claim for relief. Pet. App. 41. Hence,
Petitioners’ notice pleading brings potentially-viable ESA
§ 7(b)(3) and (b)(4) claims.

CONCLUSION
The judgment of the court of appeals should be reversed.

Respectfully submitted,

Of Counsel: STEVEN P. QUARLES
WILLIAM R. MURRAY Counsel of Record
AMERICAN FOREST & CLIFTON S. ELGARTEN
PAPER ASSOCIATION THOMAS R. LUNDQUIST

1111 19th Street, NW CROWELL & MORING

Suite 800 1001 Pennsylvania Ave., NW

Washington, D.C. 20036 Washington, D.C. 20004-2595
(202) 624-2500
Attorneys for Amici Curiae
Dated: May 1996

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0666%3A13. Public record. Not legal advice.