Amicus Curiae Brief — Bennett v. Spear

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\ MAY 24 1996

CLERK

No. 95-813 I

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

BRAD BENNETT, ET AL.

y Petitioners,

MARVIN PLENERT, ET AL.

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF AMICI CURIAE IN SUPPORT OF PETITIONERS

FOR THE NATIONAL ASSOCIATION OF HOME BUILDERS

OF THE UNITED STATES, THE CALIFORNIA BUILDING

INDUSTRY ASSOCIATION, THE BUILDING INDUSTRY

LEGAL DEFENSE FOUNDATION, THE NATIONAL MULTI

HOUSING COUNCIL, THE NATIONAL APARTMENT

ASSOCIATION, AND THE NATIONAL ASSOCIATION OF

INDUSTRIAL AND OFFICE PROPERTIES

Glen Franklin Koontz* Patrick J. Hurd

1201 Fifteenth Street, N.W. Keller and Heckman

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

(202) 822-0359 Ste. 500 West

Washington, D.C. 20001

(202) 434-4100

Thomas C. Jackson Nick Cammarota

Kelley Drye & Warren 1330 Valley Vista Drive

1200 Nineteenth Street, N.W. Diamond Bar, California 91765

Washington, D.C. 20036 (909) 396-9993

Counsel for Amici Curiae

*Counsel of Record

i

TABLE OF CONTENTS

PAGE(S)

Tees Ge CRF RUIE SUED 6 6 v8 52000 Vek dWereesce ii

INTEREST OF AMICI CURIAE ................. 1

SUMMARY OF ARGUMENT ................... 3

ROE CNC CERES NDC esecscoeesiecnespunet 3

A. ESA Standing Is A Critical Issue For Property

Owners Throughout The Country .............. 4

B. ESA Regulations Create Real Problems For Real

POE hase cava hese cneceesceecadetesneuns 6

C. The Ninth Circuit Decision Ignores The Will of

SE cacccceccancceucdnnunsuecseaneees 9

D. The Ninth Circuit Decision Rewrites The Zone Of

RINNE TOD onc cccccceccccecesecoebesnenes 9

E. The Ninth Circuit Decision Closes The Courthouse

Door On Regulated Pasties .. 0... cc cccsccccces 11

CRIES oc hide sons enencabunusesweepit-uswens 12

TABLE OF AUTHORITIES

CASES

Association of Data Processing Service

Organizations, Inc. v. Camp, 397, U.S. 150,

SE AEP ETC Te Te Te eee ee

Agins v. City of Tiburon, 447 U.S. 255 (1980). .

Babbitt v. Sweet Home Chapter of Communities

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

Bennett v. Plenert, 63 F3d 915 919 (1995) ....

Clarke v. Securities Industry Ass'n, 479, U.S.

ee eee le Cheb oi 564s 4000006

Dolan v. City of Tigard, 114 S.Ct. 2309 (1994) .

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S.

EE

Hazardous Waste Treatment Council v. Thomas

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

Lucas v. South Carolina Coastal Council, 112

es eee ied 6500464064

MacDonald, Sommer & Frates v. County of

Yolo, 477 U.S. 340, reh’g denied, 478 U.S.

is aoa soe 6 -465'9 6.06000 0

Mausolf v. Babbitt, 913 F. Supp. 1334 (D.

EE ee re

Nollan vy. California Coastal Commn., 483 U.S.

I en eee

Olmstead v. United States, 277 U.S. 438

eee

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

Diego, 450 U.S. 621 (1981) ... 2.0... cea.

Valley Forge Christian College v. Americans

United for Separation of Church and State,

oe

PAGE(S)

passim

passim

ll

PAGE(S)

Williamson County Regional Planning

Commission v. Hamilton Bank, 473 U.S. 172

DUCAh ee Rbdebedudeepecceeesccese’ ]

Yee v. City of Escondido, 112 S.Ct. 1522

ER ae ]

STATUTES

BP Wie UUUOPESOS cc ccc ccc cccccccecs 3

MD. ¢coccceseeceeséoeses 4

(jj sie sceoeceeesevtvereeeds 10

BP Wiis UU OED oc ccc ccc cc cccee: 5

i iso ce se cee éeéesesées 7 10

CE re 10

CE ede TS See y

PU EMPEY ccc cccccccrceccces 5,11

ME scaeeceeceecccccececce: 5

42 U.S.C. §§6901-6992(k) ............005. 11

42 U.S.C. §§7401-7671q .. 0... 0.0. 0.00085. 5,11

REGULATIONS

PETE co ciccccecceess er Prre 8

DD occcccccccecccceceess 5

MISCELLANEOUS

59 Federal Register 5827 (1994) ........... 5

59 Federal Register 13374 (1994) .......... 5

59 Federal Register 58982-58990 (1994) ..... 6

59 Federal Register 65256 (1994) .......... 5

60 Federal Register 5893 (1995) ........... 5

60 Federal Register 10694 (1995) .......... 6

60 Federal Register 25882 (1995) .......... 5

61 Federal Register (May 15, 1996)...... | 4

Houston Post (August 28, 1994) ........... 5,6

General Accounting Office, Fndangered

Species Act: Information On Species

Protection on Non-Federal Lands (GAO)

i sea'ede6e0e eee eecee se 4

The Building Industry Amici have received the written con-

sent of the parties to file this brief in support of petitioners, and

have filed the letters of consent with the Clerk of this Court.

INTEREST OF THE AMICI CURIAE

The National Association of Home Builders of the United

States (“NAHB”) represents more than 180,000 builders and

associate members organized in approximately 850 affiliated

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

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

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

also apartment, condominium, commercial and industrial build-

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

the American shelter industry.'

The California Building Industry Association (“CBIA’) is a

not-for-profit corporation organized under the laws of the State

of California. CBIA represents over 5,000 members who employ

over 100,000 people. CBIA’s members are involved in all aspects

of the building and construction industry.’

The Building Industry Legal Defense Foundation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

U.S. at 840.

? NAHB, CBIA, and the Building Industry Association of Southern

California are affiliated trade associations working in concert for the bene-

fit of the entire home building industry.

2

subsidiary of the Building Industry Association of Southern Cali-

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

an NAHB affiliate with over 1400 members involved in all

aspects of the building and construction industry. BIA-Southern

California members are involved in the construction of 70% of

all new homes in the Southern California Region.’

The National Multi Housing Council (“NMHC”) repre-

sents the interests of the Nation’s largest owners and operators

of multifamily rental housing, including ownership, building,

financing, and management involving millions of rental housing

units. Since its formation in 1978, the NMHC has been actively

involved in all facets of public policy that are of strategic impor-

tance to participants in the multifamily housing industry.

The National Apartment Association (“NAA”) brings

together state and local associations of owners, builders, inves-

tors, developers, and managers of multifamily properties. It pro-

vides education and training for the multifamily industry and

works on local, state, and national legislative issues. NAA repre-

sents over 26,000 members who own and manage over 3 million

multifamily units nationwide.

The National Association of Industrial and Office Proper-

ties (“NAIOP”) is a professional organization of 5,000 individu-

als engaged in owning, managing, and developing industrial and

office buildings in the United States and around the world.

NAIOP’s members include commercial real estate developers,

architects, brokers, master planners, engineers, property manag-

ers, banks, and insurance companies.

The Building Industry Amici’s interests lie in seeing that

the impiementation of laws concerning or affecting the use of

private property remains consistent, fair, and cognizant of the

need to protect the rights of the individual when confronted with

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

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

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

owners and developers generally.

3

government actions which impinge on constitutional guaran-

tees. The Building Industry Amici have a particular interest in

the administration of federal environmental statutes such as the

Endangered Species Act of 1973 (“ESA”), 16 U.S.C.

§§1531-1544, given the far-reaching impact that these laws have

upon private land use and land-use regulation.

SUMMARY OF ARGUMENT

The effect of the Ninth Circuit’s decision is to remove any

judicial check on the Interior Department’s administration and

enforcement of the ESA. The Ninth Circuit would close the

courthouse doors to regulated parties who bear the burdens of

ESA regulation and give free rein to environmental groups to

encourage and, indeed, force the ESA's expansion. This result,

stripping regulated parties of any means to defend themselves, is

without precedent. This Court should reverse the Ninth Circuit's

decision.

ARGUMENT

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

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

preservation of endangered species fall within the zone of inter-

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

Given that the clear purpose of the ESA is to ensure

the protection of endangered species, we conclude that

suits by plaintiffs who are interested only in avoiding

* As Justice Brandeis insightfully admonished:

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

when the government’s purposes are beneficent ... The greatest

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

meaning but without understanding.

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

dissenting).

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

4

the burdens of that preservation effort “are more likely

to frustrate than to further statutory objectives.” ©

As argued below, the issue of standing to challenge

ESA determinations is of critical importance to prop-

erty owners generally, and the Building Industry

Amici’s members specifically. The Ninth Circuit has

neutered property owners’ ability to protect themselves

in court from unlawful ESA regulation. Moreover, the

Ninth Circuit only reached its decision by ignoring the

will of Congress and by rewriting this Court’s pru-

dential standing test.

A. ESA Standing Is A Critical Issue For Property Owners

Throughout The Country

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

stated. As this Court recognized in Babbitt v. Sweet Home Chap-

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

ESA provides for the federal regulation of land which constitutes

endangered species’ habitat. As of May 1993, 90% of the 781

species listed as endangered or threatened under the ESA

inhabit non-federal lands. Of these listed species, 517 have over

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

The habitat for these species and the 185 species that have

been listed as endangered or threatened since May 1993 covers

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

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

designated critical habitat for some 115 species covering millions

of acres. § The designation of such critical habitat imposes on all

® Bennett, 63 F.3d at 919.

7 See General Accounting Office, Endangered Species Act: Information

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

§ For example, the Secretary has designated approximately 6.9 million

acres as critical habitat for the Northern spotted owl in this case. The

Secretary has also designated 3.9 million acres as critical habitat for the

marbled murrelet, 61 Fed. Reg. (decision announced on May 15,

(footnote continues)

5

federal agencies an obligation to ensure that their actions will

not result in the adverse modification of that critical habitat 16

U.S.C. §1536(a)(2). This obligation extends to all types of fed-

eral actions, including actions relating to private property, e.g.,

federal funding for state, local, and private projects; issuance of

federal permits to discharge dredged or fill material into wet-

lands and other waters of the United States pursuant to Section

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

permits under the Clean Water Act, 33 U.S.C. §§1251-1387; and

the Clean Air Act, 42 U.S.C. §§7401-7671q; and, the provision of

federal flood insurance.’ These prohibitions are likely to be

extended to tens of millions of additional acres in the future as

the Secretary designates critical habitat for some of the 800

endangered and threatened species currently lacking critical

habitat designations or some of the more than 3000 species that

are currently candidates for listing under the ESA. '”

(footnote continued)

1996); 4.6 million acres for the Mexican spotted owl, and its tributaries, 59

Fed. Reg. 5827 (1994); and 6.3 million acres for the gray wolf, 50 C.FR.

$17.95 (a). In addition, the Secretary has designated 1,980 miles of the

Colorado River as critical habitat for four fish species, 59 Fed. Reg. 13374

(1994); and has designated the entire Sacramento — San Juaquin River

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

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

65256 (1994).

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

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

rather only on indirectly regulated parties. Bennett, 63 F.3d at 917, fn. 2.

The effect of an ESA regulation upon the regulated party is just as real

even when filtered through another federal agency.

'0 For instance, the Secretary has proposed to designate 860,000 acres of

lake, stream and shoreline for the Lost River sucker and the shortnose

sucker, 60 Fed. Reg. 5893 (1995), and 20,000 acres on 210 miles of coastline

(10% of the California, Oregon and Washington coastline) for the Western

snowy plover, 60 Fed. Reg. 25882 (1995). The Secretary at one time consid-

ered a proposal to designate portions of 33 Texas counties as critical habitat

for the Golden-cheeked Warbler. Scott Harper, Endangered: Species or

(footnote continues)

6

The designation of critical habitat, particularly on this scale,

can have significant environmental impacts on property owners.

However, due to their “competing interest’! (i.e. — the desire

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

Ninth Circuit will not be able to challenge critical habitat desig-

nations under the ESA.

B. ESA Regulations Create Real Problems For Real People

The burdens imposed by the ESA upon individuals, as well

as upon state and local governments, are neither hypothetical or

imagined; indeed, the following examples illustrate that these

burdens are not overstated.

For instance, the listing of the Delhi Sands Flower-loving

Fly (“Fly”) resulted in the United States Fish & Wildlife Service

(“Service”) requiring San Bernardino County to move the “‘foot-

print” of its new County Medical Center 250 feet in order to

lessen the impact of construction upon an estimated 6-8 Flies.

This requirement cost San Bernardino County citizens more

than $4,000,000.00, approximately $500,000.00 per Fly. '* The

Service also demanded that San Bernardino County close Inter-

state 10 during the months of August and September annually,

or, alternatively, to lower the speed limit to 15 m.p.h. '° The

(footnote continued)

Rights, Houston Post, August 28, 1994 at Al. Other newly listed and candi-

date species also have extensive ranges. The Southwestern willow fly-

catcher is thought to inhabit portions of seven states. 60 Fed. Reg. 10694

(1995). The Northern goshawk, a species which the Secretary has deter-

mined may warrant listing as endangered or threatened, is found through-

out much of the conterminous United States. See 59 Fed. Reg. 58982, 58990

(1994) (goshawk historically has nested in 26 states and regularly visited 19

others).

'l Bennett, 63 F.3d at 921.

'2 The application of these monies to the provision of healthcare would

have treated 522 inpatients or 24,993 outpatients.

'3 Interstate 10 is an eight lane freeway providing the primary road

access to Los Angeles from the east. The apparent thinking by the Service

was that a Fly could wander onto the highway only to be struck by a passing

(footnote continues)

7

Service is also currently blocking the improvement of a road

intersection critical to providing emergency access to the new

County Medical Center.

The Service’s decision to restrict logging in Arizona's

Kaibab National Forest as a measure of affording protection to

the Mexican Spotted Owl has virtually destroyed the Kaibab

Forest Products Company. The Service closed approximately

30,000 acres to logging operations, a decision affecting 10 owls.

The provision of almost 3,000 acres per owl cost Kaibab Forest

Products Company more than $3,000,000.00. Moreover, over

1400 people lost their jobs due to the company’s sudden inability

to harvest timber.

Twenty-eight families lost their homes in Riverside County,

California when the Service refused to let them clear fire-breaks

to protect their homes from wildfires. The Service’s position was

that the vegetation removal inherent in clearing fire-breaks

would destroy habitat for the Stephens Kangaroo Rat. 'SThese

families who heeded the Service’s threats of criminal and civil

sanctions ended up losing their habitat.

On August 18, 1993, the Service listed as endangered two

(2) so-called “cave bugs” — the Coffin Cave Mold Beetle and

the Bone Cave Harvestman — without undergoing any of the

requisite notice and comment procedures. The listing of the

Bone Cave Harvestman forced Austin, Texas home builder Ed

Wendler, Jr. to set aside 90 acres of real property for the benefit

(footnote continued)

motor vehicle. This accidental contact would, technically speaking, result in

a “take” of the Fly in violation of 16 U.S.C. §1538 (a)(1)(B).

'* NAHB, CBIA, BILD, Colton, Fontana, and San Bernardino County,

California have filed an action against Secretary Babbitt — NAHB v.

Babbitt, Civ. No. 1:95CV01973 RMU (D.D.C. 1995) — challenging the

Interior Department’s authority to enforce certain provisions of the ESA in

connection with its listing of the Fly as endangered. That action involves

Standing issues similar to those raised by petitioners in this case.

'S This ignores, of course, the fact that fires would accomplish the same

result.

8

of this “cave bug”. The cost of the land alone was

$1,170,000.00.'° This loss was the direct result of an endangered

species listing by “executive fiat” in violation of the ESA."

Finally, the Sierra Club — a group not adversely affected by

the Ninth Circuit’s decision — sued pursuant to the ESA's citizen

suit provisions to block development in San Antonio, Texas

based upon the potential impact on the Edwards Aquafier. The

Aquafier is not only a major source of water for the region, it is

also the habitat of the Texas Blind Salamander and the San

Marcos Salamander. The effect of that suit and its remedy will be

to tie up thousands of acres of private property.

All of these actions, and many more, were administrative

actions taken by the Service pursuant to the ESA. Most all

Service actions concerning “habitat” arise from the regulatory

definitions contained in 50 C.F.R. §17.3.'* The regulations are

not promulgated by Congress, nor are the regulations subjected

to Congressional review. Thus, in light of the fact that regula-

tions are promulgated, administered, and enforced by the Execu-

tive Branch, the judicial branch is the only place where aggrieved

regulated parties can turn for relief.

'6 Other costs include more than $100,000.00 which Mr. Wendler was

forced to spend on biological surveys, as well as lost prefits for the antici-

pated construction and sale of homes lost to “cave bug” preservation.

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

tion (“TxCBA’), have challenged this action. In NAHB and TxCBA v.

Babbitt, C.A. No. 1:95CV01374 RMU (D.D.C. 1995), the district court has

been asked to invalidate a final rule listing 2 species as endangered under

the ESA which was promulgated without undergoing the requisite notice

and comment process. The Interior Department has challenged NAHB’s

and TxCBA’s standing to bring this action predicated upon the Ninth

Circuit's decision.

'8 The Service's regulatory definition of “harm” was the subject of this

Court's decision in Sweet Home.

9

C. The Ninth Circuit Decision Ignores The Will Of

Congress

The Building Industry Amici agree with petitioners that it

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

to the subject ESA claims. Congress clearly and unequivocally

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

the United States Constitution through its enactmeni of

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

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

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

an individual, corporation, partnership, trust, associa-

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

employee, agent, department or instrumentality of the

Federal government, of any state or political subdivi-

sion thereof, or any foreign government.

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

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

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

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

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

D. The Ninth Circuit Decision Rewrites The Zone Of

Interests Test

Assuming arguendo that the zone of interests test does

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

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

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

clear mandate that the zone of interests test included those

whose interests are sought to be protected which fall within

either the “zone of interests to be protected or regulated by the

Statute or constitutional guarantee in question.” Association of

Data Processing Service Organizations, Inc. y. Camp., 397 U.S.

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

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

generally.

10

150, 153 (1970). See also Clarke v. Securities Industry Ass'n., 479

U.S. 388 (1987).

Both petitioners and the Building Industry Amici’s mem-

bers clearly fall within the category of those Congress intended

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

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

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

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

be occupied by listed endangered species.”° Individuals are pro-

hibited from harming endangered animals, including habitat

modifications which significantly impair an animal’s behavioral

partners. See Sweet Home, 115 S.Ct. 2407 (1995). These provi-

sions become effective as soon as a species is listed as endan-

gered, requiring landowners to immediately conform their

conduct to this requirement. ?'Therefore, there can be no argu-

ment that petitioners are regulated by the ESA. As such, peti-

tioners should have standing to challenge ESA determinations in

court.

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

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

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

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

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

and social enterprises and endeavors.” Sweet Home, 115 S.Ct. at 2418.

1]

E. The Ninth Circuit Decision Closes The Courthouse Door

On Regulated Parties

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

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

“controversies”. Valley Forge Christian College v. Americans

United for Separation of Church and State, 454 U.S. 469, 471

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

case or controversy” would necessarily involve the existence of

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

to ensure the primacy of endangered species protection, pre-

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

virtue of its decision, only those “persons” without any “compet-

ing interest[s]” will be allowed to bring a court challenge under

the ESA. Thus, while environmental interest groups will be free

to act to enforce the ESA to its maximum potential, those “per-

sons” who bear the burden of the ESA regulation — property

owners — will be at the mercy of the Department of the Inte-

rior.* In the event that a species is mistakenly or improperly

listed, the regulated parties who have an interest in correcting

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

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

recting the mistake.”

*2“Those whom the agency regulates have the incentive to guard

against any administrative attempt to impose a greater burden <han that

contemplated by Congress.” Hazardous Waste Treatment Council v.

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

*3 Nor is the ESA the only environmental statute potentially affected by

the Ninth Circuit’s ruling. The Clean Water Act, 33 U.S.C. §§1251-1387,

Clean Air Act 42 U.S.C. §§7401-7671(q), and Resource Conservation and

Recovery Act, 42 U.S.C. §§6901-6992(k), all contain broadly worded citi-

zen suit provisions similar to that contained in the ESA. Assuming argu-

endo the correctness of the Ninth Circuit’s decision, there is no logical

impediment to its extension to these statutes, preventing regulated parties

from challenging administrative actions. The end result will be to insulate

federal agencies from any check upon their actions by adversely affected

parties.

12

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

constituted a fundamental American right. Yet the Ninth Cir-

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

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

other words, property owners will have to trust the Department

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

infringe upon their rights.* Moreover, environmental groups

who may oppose property development and growth will be able

to use the ESA as a weapon to prevent property owners’ activi-

ties; the property owners, however, will be without the means to

defend themselves.

CONCLUSION

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

Petitioners, the Building Industry Amici pray that this Court

REVERSE the judgment and opinion of the United States

Court of Appeals for the Ninth Circuit.

Respectfully submitted,

GLEN FRANKLIN KOONTZ*

1201 Fifteenth Street, N.W.

Washington, D.C. 20005

(202) 822-0359

*4 Based upon past actions, there is little basis for property owners to

“trust” the Interior Department. Indeed, on at least (1) occasion, the

Interior Department has taken the position that when it acts for the benefit

of endangered species, its actions are immune from challenge, and not

subject to judicial review. See Mausolf v. Babbitt, 913 F. Supp. 1334, 1342 fn.

13 (D. Minn. 1996). In Mausolf, the District Court rejected the Interior

Department’s dubious claim, stating that it was “unwilling to adopt the

view that the FWS [Service] is unrestrained if it cloaks any of its acts in the

laudable robe of endangered and threatened species protection. This is a

form of totalitarian virtue... . ” Mausolf, 913 F. Supp. at 1342. The

reversal by this Court of the Ninth Circuit’s decision is absolutely necessary

to protect property owners from the Interior Department’s “totalitarian

virtue.”

"Counsel of Record

May 24, 1996

13

PATRICK J. HURD

Keller and Heckman

1001 G Street, N.W.

Suite 500 West

Washington, D.C. 20001

(202) 434-4200

THOMAS C. JACKSON

Kelley Drye & Warren

1200 Nineteenth Street, N.W

Washington, D.C. 20036

(202) 955-9600

NICK CAMMAROTA

1330 South Valley Vista Drive

Diamond Bar, California 91765

(909) 396-9993

Counsel for Amici Curiae. The

National Association of Home

Builders of the United States, The

California Building Industry Associ-

ation, The Building Industry Legal

Defense Foundation, The National

Multi Housing Council, The

National Apartment Association.

and The National Association of

Industrial and Office Properties