# Amicus Curiae Brief — Bennett v. Spear

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0666%3A16

## Record

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

## Text

No. 95-813 : RAY 23 1996

+
In The cron

Supreme Court of the United States

October Term, 1995
o

BRAD BENNETT, et al.,

Petitioners,
VS.

MARVIN PLENERT, et al.,

Respondents.
¢

On Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit

«

BRIEF OF
AMERICAN HOMEOWNERS FOUNDATION
AMERICAN LAND RIGHTS ALLIANCE
AS AMICI CURIAE*
IN SUPPORT OF PETITIONERS

o

Nancie G. MARZULLA
Lisa M. JAEGER
Barry C. Hopce
DEFENDERS OF PROPERTY RIGHTS
6235 33rd St., NW
Washington, DC
20015-2405
(202) 686-4197
May 24, 1996

*Amici listing continued on next page

[CONTINUED FROM COVER]
BRIEF AMICI CURIAE OF

CENTER FOR THE DEFENSE OF FREE

ENTERPRISE,

CITIZENS FOR CONSTITUTIONAL PROPERTY

RIGHTS,
COALITION TO PROTECT AND PRESERVE
PRIVATE PROPERTY RIGHTS,

DAVIS MOUNTAINS TRANS-PECOS HERITAGE

ASSOCIATION,
FRONTIERS OF FREEDOM,

HILL COUNTRY HERITAGE ASSOCIATION,
INDEPENDENT FOREST PRODUCT
ASSOCIATION,

MAINE CONSERVATION RIGHTS INSTITUTE,
NATIONAL ASSOCIATION OF
MANUFACTURERS,

NATIONAL COALITION FOR PUBLIC LANDS
AND NATURAL RESOURCES
(PEOPLE FOR THE WEST!)
NATIONAL HARDWOOD LUMBER
ASSOCIATION,

NATIONAL WILDERNESS INSTITUTE
OREGONIANS IN ACTION LEGAL CENTER,
PENNSYLVANIA LANDOWNERS’
ASSOCIATION,
SOUTHEASTERN LUMBER MANUFACTURERS
ASSOCIATION,

TEXAS JUSTICE FOUNDATION,
TEXAS WILDLIFE ASSOCIATION,
TRANS TEXAS HERITAGE ASSOCIATION, and
DEFENDERS OF PROPERTY RIGHTS

QUESTION PRESENTED FOR REVIEW

Whether a court may pick and choose among those provisions

which it will allow to be enforced by way of a Citizens suit
provision?

TABLE OF CONTENTS

QUESTION

SERRE SEER ASR AES By tt a BF emcee Blaha i
TABLE OF

i iii
IDENTITIES AND INTERESTS OF

FO ETERS ADT RETA ar 1 er Ds ae 3
STATEMENT OF THE CASE ....................:.:.c:c0ee000 i)
SUMMARY OF ARGUMENT.............................. 12
ii 17

1. THE ROLE OF THE COURT IN ENFORCING
CITIZEN’S SUITS PROVISIONS IS TO UPHOLD
THE INTENT OF CONGRESS AS EVIDENCED
BY THE LANGUAGE OF THE ACT .............. 17

II. PROTECTING PRIVATE PROPERTY RIGHTS
AND ECONOMIC INTERESTS FURTHERS THE
INTENT OF CONGRESS TO PROTECT

A. THE ESA DESIGNED TO CONSERVE
ENDANGERED SPECIES AND IS ALSO

B. PROTECTING PROPERTY RIGHTS AND
ECONOMIC INTERESTS IS AN INTEGRAL
ASPECT OF ACHIEVING PROTECTION
OF ENDANGERED SPECIES. .................. 26

SNOT necccasssssccsccnss. seccinnsstesousessttiinniddots 30

TABLE OF AUTHORITIES

U.S. CONSTITUTION

8 SERED a eee 17
STATUTES
ns ceadiaas 10
Se el i cieaetl 10
16 U.S.C. § 1539(a)(2)(A)i-iV) «2... ec c cece eee ee ees 26
en MO 12,18
FWPCA § 505 (a)(1), 33 § 1365 (a)(1) .....0. 0 15
CASES

Ass'n of Data Processing Serv. Organiz., Inc. v.
RE Se ae 13
Babbitt v. Sweet Home Chapter of Communities

for a Great Or., 115 S. Ct. 2407 (1995) ................. 19,23
Block v. Community Nutrition Institute,
RENEE CEES SR Oe 15
Board of Governors of the Fed. Reserve Sys. v.

Dimension Fin. Corp., 474 U.S. 361 (1986) ............... 20

IV
Catron County Bd. of Commr’s v. United States,
No. 94-2280, 1996 U.S. App. LEXIS 1479 at * 5

1 3 OU Se 16
Clarke v. Securities Industry Ass'n.,

4) SO eee 13,16,30
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264

IIIT osondatubanionusaunsauaimeusermmnemenaeanaainits 12
Dan Caputo Co. v. Russian River County Sanitation,

749 F.2d 571 (9th Cir. 1984)... ees 14
Garcia v. United States, 469 U.S. 70 (1984)................ 21

Nevada Land Action Ass'n. v. U.S. Forest Service,
Ge §. § | & eee 16

Tennessee Valley Authority v. Hill, 437
a, Cee. Ga inteneitinintaitentiemeniiniianintnibtiinns 19,27

United Food and Commercial Workers Union Local 751 v.
Brown Group, Inc. No. 95-340, 1996 U.S. LEXIS
2956, at *9 (U.S. May 13, 1996).........0.. 0s 19,21

United Ford and Commercial Workers Union, Inc., No.
95-340, 1996 U.S. LEXIS 2956 (U.S.

BE Calis See snnenesnccscousdininansngsennnesceeseseussesess 14,18
Warth v. Seldin, 422 U.S. 490 (1975)..................60005. 13
MISCELLANEOUS

M. Lynne Com, Congressional Research Serv.,
Endangered Species Act Issues | (1992)..................... 26

Hank Fisher et al., “Building Economic Incentives Into

The Endangered Species Act,” Endangered Species
Technical Bulletin Vol. 19, No. 2, p. 4 (U.S. Fish

and Wildlife Service 1994)... 2.0.2.0... 0... ccc ccc ccc cece ceeee 26

v
Frankfurter, Some Reflections on the Reading
of Statutes, 47 Colum. L. Rev. 527 (1947).................. 20

Ralph K.M. Haurwitz, Travis County's Balcones
Conservation Plan Takes Off, Austin American-

Statesman, May 4, 1996, at 2.000.000... 23
House Task Force on Endangered Species
ST Gilt, SE isthceiicitiedantidanemmannnedisiineetrensecanens 29

National Wilderness Institute, “Going Broke?
Costs of the Endangered Species Act as Revealed in
Endangered Species Recovery Plans”, 1994................. 28

PERC, The Endangered Species Act: Making Innocent
Species The Enemy 12 (Jane S. Shaw ed., 1995) ...... 27,29

U.S. Fish and Wildlife Service, Federal and State
red Species Expenditures: Fiscal Year
I iinet Rica ciceeiialeiialaatiactinanadeimiedonesessecenes 28

U.S. Fish and Wildlife Service, Federal and State
Endangered Species Expenditures: Fiscal Years
1991, 1990 and 1989 (1992) 0.0.00... cece eee ees 27

U.S. Fish and Wildlife Service, U.S. Department of the
Interior Budget Justifications: Fiscal Year
II cicink: caitnrieiekbbiniianieiddaiaaneinminanecepresoecssse 28

U.S. General Accounting Office, Endangered Species
Act, Information on Species Protection on Nonfederal

TT Fst SF 24
119 Cong. Rec. 25,669 (1973).............ccccccececeeeeeees 24
119 Cong. Rec. 31,062 (1973)..........cccccceeeeeceeeeeeeees 25
1996 WL 222408 (D.O.1.)........... ccc cc cece ee ee ee ee ee ee ees 23

No. 95-813

In the
Supreme Court of the United States
October Term, 1995

BRAD BENNETI1, et al.,
Petitioners,
VS.

MARVIN PLENERT, et al.,
Respondent.

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit

BRIEF OF
AMERICAN HOMEOWNERS FOUNDATION,
AMERICAN LAND RIGHTS ALLIANCE,
CENTER FOR THE DEFENSE OF FREE
ENTERPRISE,
CITIZENS FOR THE DEFENSE OF FREE
ENTERPRISE,
CITIZENS FOR CONSTITUTIONAL PROPERTY
RIGHTS,
COALITION TO PROTECT AND PRESERVE
PRIVATE PROPERTY RIGHTS,
DAVIS MOUNTAINS TRANS-PECOS HERITAGE
ASSOCIATION,
FRONTIERS OF FREEDOM,

HILL COUNTRY HERITAGE ASSOCIATION,
INDEPENDENT FOREST PRODUCTS
ASSOCIATION,

MAINE CONSERVATION RIGHTS INSTITUTE,
NATIONAL ASSOCIATION OF
MANUFACTURERS,

2

NATIONAL COALITION FOR PUBLIC LANDS
AND NATURAL RESOURCES
(PEOPLE FOR THE WEST!)
NATIONAL HARDWOOD LUMBER
ASSOCIATION,

NATIONAL WILDERNESS INSTITUTE
OREGONIANS IN ACTION LEGAL CENTER,
PENNSYLVANIA LANDOWNERS’
ASSOCIATION,
SOUTHEASTERN LUMBER MANUFACTURERS
ASSOCIATION,

TEXAS JUSTICE FOUNDATION,
TEXAS WILDLIFE ASSOCIATION,
TRANS TEXAS HERITAGE ASSOCIATION, and
DEFENDERS OF PROPERTY RIGHTS,

AS AMICI CURIAE
IN SUPPORT OF PETITIONERS

3
Pursuant to Rule 37.3 of the Rules of this Court, the amici
curiae submit the brief in support of Petitioners. Consent to
the filing of this brief has been granted by counsel for
Respondents and counsel for Petitioners, and has been lodged
with the Clerk of this Court.

IDENTITIES AND INTERESTS OF
AMICI CURIAE

Defenders of Property Rights is the nation's only legal
defense foundation devoted exclusively to protecting private
property rights. Defenders was founded as a non-profit,
public interest firm in 1991 in recognition that property rights
are today under siege by excessive government regulations and
actions which have the effect of rendering the Constitution
worthless. Defenders mission is to protect vigorously those
nights considered essential by the framers of the Constitution,
and to promote a better understanding of the relationship
between private property rights and individual rights and
liberties.
American Homeowners Foundation (Arlington, VA) is
an independent education and research organization serving the
nation's sixty-five million homeowners and millions of future
homeowners. AHF believes that home owners’ constitutional
nghts are the primary concern when enacting regulations and
therefore must be protected by elected and appointed officials
and the judicial system.
American Land Rights Association (Battle Ground,
WA) is a non-partisan grassroots coalition of farmers,

4
ranchers, private property owners, rights holders, loggers,
miners, and outdoor recreation advocates in or near federally
managed areas or who are affected by federal land use or
environmental laws and regulations.
Center for the Defense of Free Enterprise (Bellevue,
WA) is a non-profit foundation engaged in the study of issues,
economic trends, and governmental regulations as they relate
to the operation of the free market. CDFE is dedicated to
defending the right of individual American citizens and
businesses to participate in the free market without the
unmerited hindrance of the government, and seeks to further
promote free market principles within contemporary American
society.
Citizens for Constitutional Property Rights, Inc.
(Crestview, FL) is a statewide grassroots organization whose
mission is to secure private property guarantees provided in
the Bill of Rights. CCPR engages in public advocacy projects
that foster an awareness of programs that violate the United
States Constitution by eroding private property rights. CCPR
played a major role in promoting the enactment of strong
property rights protections at the state level in 1995.
Coalition to Protect and Preserve Private Property
Rights (Bakersfield, CA) is a non profit corporation
organized and existing under the laws of the State of California
whose mission is to educate and assist private property owners
in the protection and preservation of their nght to owns and
use private property as afforded by the United States
Constitution, The Bill of Rights, and as an American Ideal.

5

Davis Mountains Trans-Pecos Heritage Association
(Alpine, TX) is an association of Texas citizens formed in
response to the abridgment of p:ivate property rights in the
Davis Mountains and Trans-Pecos areas. The Association
Supports private property rights protection through research,
public educaticn, and other activities. Its mission embraces
conservation of natural resources in conjunction with respect
for private property rights, which underlie all other individual
liberties.

Frontiers of Freedom (Arlington, VA) is a grassroots
membership organization founded by Senator Malcolm Wallop
to promote the basic ideas of the Founding Fathers as
articulated in the Constitution to ensure the maximum amount
of individual and economic freedom for every American.

Hill Country Heritage Association (Lampasas, TX)
was formed in response to the proposed dedication of twelve
Texas counties as habitat for an endangered species. Members
of HCHA embrace the concept and practice of the conservation
of natural resources in conjunction with respect for individual
property nights.

Independent Forest Products Association (Portland,
OR) represents small independent forest products
manufacturers in the western, inter-mountain, and upper
midwestern states who are dependent on federal lands for a
stable timber supply. Many of IFPA's members are family-
owned businesses located in rural communities that rely on
tumber as the economic backbone of their long-term business
outlooks.

6
Maine Conservation Rights Institute (Lubec, ME) is a
research and educational institute serving the land-owning
public of Maine. MECRI keeps landowners informed of
government policy, including proposed and existing programs
that undermine private property nghts. MECRI encourages
private conservation and wise use land policies. MECRI is
also the sponsor of the annual Conservation Rights Congress,
which addresses contemporary land rights issues.
National Association of Manufacturers (Washington,
DC) is the nation's oldest and largest broad-based industrial
trade association. Its nearly 14,000 member companies and
subsidiaries, including 10,000 small manufacturers, employ
approximately eighty-five percent of all manufacturing
workers and produce over eighty percent of the nation’s
manufactured goods. More than 158,000 additional
businesses are affiliated with the NAM through its
Associations Council and National Industrial Council. The
NAM supports the rights of private property owners and
believes that all federal statutes, rules, and regulations
impacting private property must be applied in a fair and just
manner according to mandated legislative authority.
National Coalition for Public Lands and Natural
Resources (Pueblo, CO) -- popularly known as People for
the West! -- is a non-profit, grassroots organization formed to
create a coalition to promote multiple use on public lands,
individual private property rights, and the responsible
production of our nation's natural resources. Its over 20,000

7
members advocate policies that balance environmental
protection with economic growth.
National Hardwood Lumber Association (Memphis,
TN) is a non-profit trade association composed of over 1,300
member firms who produce, sell, and use hardwood lumber.
For almost a century, NHLA has maintained an order,
structure, and ethical framework for the hardwood
marketplace, and promoted the responsible stewardship of
hardwood forests. It also plays a prominent role in educating
lawmakers and the public about good forest management and
the importance of private property ownership.
National Wilderness Institute (Washington, DC) is a
national public interest group dedicated to the wise
management of natural resources, unique and specific wildlife
habitat, and wetlands. NWI encourages environmentally
sound, site- and situation-specific practices that harness the
dynamic and creative forces of the private sector -- including
protection of private property nights -- and that reduce the
regulatory burden of the federal government. NWI has
applied a significant amount of its resources to the study and
analysis of the impact of the Endangered Species Act on
private property.
Oregonians in Action Legal Center (Tigard, OR) is a
nonpartisan, non-profit, public interest law center involved in
litigation to protect the constitutional rights of landowners and
counter excessive land use regulation. It is financed entirely
through the voluntary contribution of time and money from
individuals, families, businesses, and foundations on a

8
continuing basis. OIA-LC successfully represeinted the
Petitioner in the United States Supreme Court case of Dolan vy.
Tigard.
Pennsylvania Landowners’ Association (Waterford,
PA) was formed to educate the citizens of the Commonwealth
of Pennsylvania about the threat to their property and personal
freedom posed by increasingly intrusive 7egulations on land
use, to generate public debate on the issue, and develop and
implement a strategy to restore reason and balance to
environmental regulation.
Southeastern Lumber Manufacturers Association
(Forest Park, GA) is a non-profit trade association
representing more than 380 independent lumber manufacturers
in fifteen southeastern states. Its purpose is to promote the
interests of its membership of small sawmill and planning mil!
operators. The timber supply on which their mills depend
comes from both public and private lands throughout the
southeast, a region most notably affected by the National
Forest Service regulations to maintain the habitat of the
“endangered” red-cockaded woodpecker.
Texas Justice Foundation (San Antonio, TX) seeks,
through litigation and education, to protect the fiundamenta!
rights essential in providing and maintaining a bulwark of
freedom for the individual against excessive gowernment
intrusion into their homes, affairs, and businesses. TJF
provides legal representation to protect individual rights, limit
government to its appropriate role, and promote a better
business climate for job growth in Texas.

9
Texas Wildlife Association (San Antonio, TX) was
formed in 1985 to serve as an advocate for the benefit of
wildlife and for the rights of wildlife managers, landowners,
and hunters in educational, scientific, political, regulatory,
legislative, and legal arenas. It is a non-profit organization
whose membership controls (either through ownership or
leasing or consulting obligations) millions of acres of wildlife
habitat in Texas. Its members are dedicated to the
maintenance, management, and enhancement of wildlife
habitat on private land. Its mission is to insure that wildlife --
especially on private property -- remains an enduring part of
Texas.
Trans Texas Heritage Association (Alpine, TX) is a
statewide organization dedicated to the protection of landowner
nghts. Its members collectively own over fifteen million acres
of land in Texas and other states. Members of TTHA believe
that private property nghts are the cornerstone of the freedoms
and liberties protected by the Constitution, and that
environmental regulations and zoning restrictions often
unreasonably limit private property ownership and
development.
STATEMENT OF THE CASE

In the early 1900's the Bureau of Reclamation (Bureau)
built reservoirs in northeastern California and southern Oregon
for the purpose of providing irrigation water to farmers and
ranchers in southern Oregon. This water system, known as
the Lamath Project, includes Clear Lake and Gerber
reservoirs, which are located in the project's eastern portion.

10

Throughout the century the Bureau has stored and released
water from Clear Lake and Berber reservoirs pursuant to
procedures which have remained essentially the same for
decades. These long-standing practices have resulted in a
steady supply of water relied upon by farmers and ranchers for
decades.

Among those who rely on this water supply are
Petitioners, Brad Bennett and Mario Giordano, who ranch in
southern Oregon. Their ranching operations depend directly
on their ability to receive irrigation water from Clear Lake and
Gerber reservoirs. Changes in water management of these
reservoirs directly affects the irrigation districts and the
economic interests and property nghts (water nights) of the
ranchers who have petitioned for review of the decision
below.

Due to concerns about population declines of two
endangered species of fish (the Lost River Sucker and the
shortnose sucker) in the western portion of the Klamath
Project, the Bureau consulted with the United States Fish and
Wildlife Service (Service), in accordance with the Endangered
Species Act ("ESA" or "Act"). The ESA provides that in
determining critical habitat for an endangered species the
economic impact of such a determination must be considered.
(16 U.S.C. § 1533(b)(2)). Furthermore, if economic adverse
impact is determined, then reasonable and prudent alternatives
are to be suggested in order to preserve the endangered
species. (16 U.S.C. § 1536 (b)(3)(A)).

11

The Service rendered a biological opinion stating that Clear
Lake had relatively stable sucker populations because the
habitat was different from that in the western portion of the
Klamath Project. The biological opinion reached a similar
conclusion regarding Gerber Reservoir. However, the Service
concluded that long term operation of the Klamath Project was
likely to threaten extinction of two species of fish. One of the
Service's recommendations was that the Bureau maintain a
minimum water level in both Clear Lake and the Gerber
Reservoir in order to preserve the fish. The Bureau agreed
with this recommendation and decided to implement it as a
reasonable, prudent alternative.

Contrary to Section 4 of the ESA, the Service did not
consider the economic impacts of its decision on the
Petitioners and their water rights in rendering its biological
opinion. Thus, the biological opinion prepared by the Service
did not reflect the fact that maintaining the recommended
minimum water level will jeopardize Petitioners’ ranching
operations as well as adversely affect the ability of the
imgation districts to provide a reliable supply of water to
farmers and ranchers in their districts.

Faced with the extinction of their livelihoods and the loss
of their property nights, Petitioners as well as the irrigation
districts filed a “citizen's suit" in federal district court under
Section 11 (g)(1) of the ESA. Petitioners’ suit was dismissed
by the district court. The U.S. Court of Appeals for the Ninth
Circuit upheld that dismissal on the ground that Petitioners’

12
economic interests did not fall within the "zone of interests"
protected by the ESA.
SUMMARY OF ARGUMENT

As Justice Marshall once stated, courts have "no more
right to decline the exercise of jurisdiction which is given than
to usurp that which is not given." Cohens v. Virginia, 19
U.S. (6 Wheat.) 264, 404 (1821). The language of the ESA
citizen's suit provision at issue in this case plainly purports to
confer jurisdiction upon the Petitioners:

"[A]ny person” may sue “the United States or any other
governmental instrumentality or agency . . . who is alleged to
be in violation of any provision of this Chapter or regulation

issued under the authority thereof.” 16 U.S.C. § 1540 (g)(1).

Nevertheless, the court below upheld dismissal of the
Petitioners’ challenge to a biological opinion which serves as
the basis of critical habitat designation and which threatens to
infringe Petitioners’ constitutionally protected property rights
(water rights), even though the Endangered Species Act itself
plainly states that such interests are to be taken into account in
designating critical habitat. Ignoring both the citizen's suit
provision itself and the other provisions of the Act, the court
below focused on the reason why the ESA was enacted --
clearly to protect endangered species. The court below then
simply excised from enforcement any provision from the Act
which the court believed did not further that purpose.
Specifically, the court believed that economic interests and
property nghts (water rights) do not further the purposes of

13
endangered species protection, and it therefore excluded as
enforceable those provisions in the Act.!

The court below asserted that it was entitled to inquire into
the motives of the plaintiffs seeking to enforce the Act because
of an applicable prudential test of standing -- the zone of
interest test. Namely, the court below concluded that the
motives of the Petitioners were not to protect endangered
species, because Petitioners were seeking to protect their
economic interests, and the court believed those interests are
unrelated to protection of endangered species.

The “zone of interest" test precludes standing to a person
who rests his claim on the legal rights of others, "even when
the plaintiff has alleged [personal] injury sufficient to meet the
‘case or controversy’ requirement." See Warth v. Seldin, 422
U.S. 490, 500 (1975). The zone of interest test is normally
used as an interpretative aid in ascertaining who is within the
regulatory circle of the statute, where Congress has not
provided a statutory cause of action. See, e.g., Ass'n of Data
Processing Serv. Organiz., Inc. v. Camp., 397 U.S. 150, 154
(1979); Clarke v. Securities Industry Ass'n, 479 U.S. 388,
400 (1987)(National Bank Act contained no citizen's suit

! The logical implication of the holding by the court below is that no
persons has standing to a citizen's suit -- only plants and animals do. As
the court below rightly observed, the Endangered Species Act is intended
to protect species of plants and animals other than human beings -- a goal
which benefits all persons equally. Nothing in the Act suggests that
protection of the short-nosed sucker is intended to benefit one class of
persons more than another. Thus all persons possess an equal night to
enforce the functioning of the ESA according to the requirements of the
statute and regulations -- or no one does. To date, this Court has never
held that animals or plants possess legal rights enforceable against human
beings or the government.

14
provision so court applied the "zone of interest” test to
determine whether plainuffs had standing to bring suit).
However, contrary to the court below's application, the zone
of interest test is not a means whereby the court can avoid
engaging in the usual rules of statutory construction. United
Food and Commercial Workers Union Local 751 v. Brown
Group, Inc., No. 95-340, 1996 U.S. LEXIS 2956, at * 9
(U.S. May 13, 1996).

Put another way, the question that should have been asked
by the court below is not why the ESA was enacted, but how
did Congress decide endangered species should be protected.
That question is answered by looking to the statute itself. As
the Act reveals, Congress chose one way of protecting
endangered species, it enacted a complex regulatory scheme
containing eleven different sections. For example, Congress
defined “take” in Section 7. Other sections relate specifically
to private property rights and economic interests at issue in this
case. For example, Section 5 sets up a federal land and water
rights acquisition program and Section 4 specifically states that
economic interests are part of the critical habitat designation
process.

The citizen's suit provision contained in the ESA gives the
nght to enforce the entire statute, not just those provisions
which the court believes should be enforced. Not only does
selective enforcement of the Act vitiate congressional intent
that all eleven provisions of the ESA be enfaxced, but selective
enforcement destroys the balancing of interests which takes
place in the legislative process and which is reflected in the

15
entire statute. Put simply, the Act reflects Congress’
understanding as to the best way to protect endangered species
by ensuring that economic and constitutional nghts likewise be
protected within the context of achieving that goal. The court
cannot unilaterally decide for itself how it believes endangered
species should be protected. See Block v. Community
Nutrition Institute, 467 U.S. 340, 352-53 n.4 (1984)(structure
of Agricultural Marketing Agreement Act of 1937 implied that
Congress did not intend to allow consumer challenges to
Secretary's market orders). However, the court below chose
to substitute its own belief as to how endangered species
should be saved and simply refused to enforce those
provisions which it believed would not lead to saving
endangered species.

The court below also pointed to two other environmental
Statutes as a basis for concluding that persons with economic
interests should not have standing to sue to enforce
environmental statutes. However, neither of those two
Statutes have citizen's suits similar to the provision in the ESA.
For example, the citizen's suit provision in the Clean Water
Act (Federal Water Pollution Control Act)(CWA), states that
“any person" shall have standing to sue "any person... who
is alleged to be in violation of (A) an effluent standard or
limitation under this chapter or (B) an order issued by the
Administrator or a State with respect to such a standard or
limitation .. ." FWPCA § 505 (a)(1), 33 § 1365 (a)(1).
Given the more narrowly focused citizen's suit provision in
the CWA, it is no surprise that the court concluded as it did in

16

Dan Caputo Co. v. Russian River County Sanitation, 749
F.2d 571 (9th Cir. 1984), that a plaintiff alleging that it was
deprived of grant funds lacked standing under the CWA to
sue. Likewise, NEPA has no citizen's suit provision at all;
challenges brought pursuant to that Act must be brought under
the Administrative Procedures Act. See Nevada Land Action
Ass'n. v. United States Forest Service, 8 F.3d 713 (9th Cir.
1993). But see Catron County Bd. of Commr's vy. United
States, No. 94-2280, 1996 U.S. App. LEXIS 1479, at * 5
(10th Cir. Feb. 2, 1996).

Finally, the question of how Congress intended to protect
endangered species is answered by looking at the statute.
Here the court below again erred. Looking to the citizen's suit
provision itself and to the various provisions of the Act which
Congress intended to be enforced, the Petitioners in the instant
action are well within the regulated community under the
ESA.? The biological opinion, by limiting use of the waters of
the Lake and Reservoir, regulates Petitioners directly since a
draw-down of the waters would be a “take” in violation of
Section 9 of the ESA. Further, contrary to the court below ’s
assertion, the zone of interest test applies only where the
plaintiff himself is not regulated. Clarke v. Securities Industry
Ass'n, 479 U.S. 388, 399 (1987).

In short, just as the court below would have erred had it
enlarged its jurisdiction to grant standing to a plaintiff outside

2 The court below erroneously stated that "(njone of the plaintiffs is
directly subject to the regulatory action. Rather, it is the Bureau of
Reclamation which would be required to act if any rules regarding
reservoir water levels are ultimately adopted.” Pet. App. at 6 n.2.

17

the scope of the ESA, the court below erred by collapsing its
jurisdiction to suit its own preferences. Congress drafted the
ESA and the court's role is simply to enforce the Act as
written. U.S. Const. art. 1, § 7. Because the court below failed
to do this, and in so doing has concocted a rule of standing
which vitiates the balancing of interests contained in the Act
designed to foster protection of endangered species, the
decision below should be reversed.

ARGUMENT
I. THE ROLE OF THE COURT iN ENFORCING
CITIZEN'S SUITS PROVISIONS IS TO UPHOLD
THE INTENT OF CONGRESS AS EVIDENCED BY
THE LANGUAGE OF THE ACT.

The citizen's suit provision contained in the ESA and at
issue in this case is one of the broadest standing provisions
imaginable. Indeed, it is hard to envision an aggrieved
individual who, having satisfied Article III standing
requirements,*> would not be entitled to sue under the ESA

citizen's suit provision:

3 Clearly Congress cannot confer standing to sue beyond the
constitutional requirements of “case or controversy.” But the court below
takes this obvious point and erroneously concludes that Congress cannot
confer standing co-terminus with Article III standing, as it seems to have
done with the ESA citizens suit provision: "We note that, whether or not
the zone of interests test applies, the class of plaintiffs that Congress had
in mind was necessarily more limited than the literal language of the
citizen suit provision suggests. As Lujan makes clear, Congress may not
permit suits by those who fail to satisfy the constitutionally mandated
standing requirements. For that reason, suits under the ESA, no less than
suits under any statute, are clearly not available to ‘any person’ in the
broadest possible sense of that term.” Pet. App. at 8-9 n. 4.

18

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
or agency (to the extent permitted by the eleventh
amendment to the Constitution), who is alleged to
be in violation of any provision of this chapter or
regulation issued under the authority thereof.

(16 U.S.C. § 1540(g)(1)).

This Court has recently held that courts are to construe
strictly such language, rather than speculate as to whom
Congress intended have standing to enforce the statute:
"Speculation loses, for the more natural reading of the statute's
text, which would give effect to all of its provisions, always
prevails over a mere suggestion to disregard or ignore duly
enacted law as legislative oversight." United Ford and
Commercial Workers Union, Inc., No. 95-340, 1996 U.S.
LEXIS 2956 (U.S. May 13, 1996).

Nevertheless, the court below engaged in analysis
expressly rejected by this Court and refused to implement the
plain language of the ESA holding instead that "the fact that a
statute contains a Citizen-suit provision does not necessanly
establish that Congress intended that any particular plainuff
have standing to assert a violation.” Pet. App at 11. According
to the court below, courts are free to ignore the plain language
of a citizen's suit provision if the court believes that the
language chosen by Congress interferes with the court's view
as to the "real" purpose of the statute in question:

In light of our consistent use of the zone of
interests test in determining the standing of

19

plaintiffs who have sued under citizen-suit
provisions, we hold that the ESA does not
automatically confer standing on every plainuff
whose satisfies constitutional requirements and
claims a violation of the Act's procedures. A
contrary ruling would permit plaintiffs to sue even
though their purposes were plainly inconsistent
with, or only ‘marginally related’ to, those of the
Act.

Id.

Employing the "zone of interest” test, a judicially imposed
limitation on standing that is "malleable" by Congress, the
court be!ow ignored the text of the ESA and instead turned to
court decisions, specifically Tennessee Valley Authority v.
Hill, 437 U.S. 153 (1978) and Babbitt v. Sweet Home
Chapter of Communities for a Great Or., 115 S. Ct. 2407
(1995), for discerning the intent of Congress in passing the
ESA. However, even when analyzing this prudential standing
question, this Court has held that the starting point for
determining whether a plaintiff's claim is within a statute's
zone of interest can only be determined by looking at the
Statute itself. United Food and Commercial Workers Union,
Inc. v. Brown Group, Inc., No. 95-340, 1996 U.S. LEXIS
2956 (U.S. May 13, 1996).

By failing to follow the rules of statutory construction the
court took the overall goal of the ESA -- which is obviously to
protect endangered species -- and simply refused to enforce
those provisions of the Act which the court believed were
inconsistent with that purpose. Indeed, rather than focusing
on the means chosen by Congress to protect endangered
species, the court below tried to explain away the plain

20
language of the Act, to the point of absurdity: "Certainly,
[Congress] did not intend impliedly to confer standing on
every plaintiff who could conceivably claim that the failure to
consider one of those factors adversely affected him.” Pet.
App. at 17.

However, the role of the court is not to come up with its
own means of accomplishing a statute’s objective; rather, its
role is to effectuate the means chosen by Congress. Contrary
to the view expressed by the court below, under our
constitutional scheme, the function of courts when dealing
with the meaning of a statute is limited to ascertaining and
effectuating the meaning of the statute. Only when the
language of the statute is vague or ambiguous on its face is it
appropriate for the court to inquire into legislative history. As
Justice Frankfurter once cogently observed, statutory
interpretation is not "an opportunity for a judge to use words
as ‘empty vessels into which he can pour anything he will’ --
his caprices, fixed notions, even statesmanlike beliefs in a
particular policy.” Frankfurter, Some Reflections on the
Reading of Statutes, 47 Colum. L. Rev. 527, 529 (1947).

Thus, the only acceptable evidence of the meaning of a
statute is the text of the statute itself, read in the context of the
entire statute, including any legislative purpose articulated in
that statute, and legislative history. Board of Governors of the
Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361,
372 (1986)("[t}he ‘plain purpose’ of the legislation . . . is
determined in the first instance with reference to the plain
language of the statute itself."). As the Board of Governors

—

2!
Court went on to explain, failure of the court to interpret the
Statute as wnitten vitiates the compromises and balancing of
interests that goes into crafting every complex statutory
scheme: "Invocation of the ‘plain purpose’ of iegislation at the
expense of the terms of the statute itself takes no account of the
processes of compromise and, in the end, prevents the
effectuation of congressional intent." /d. See also Garcia v.
United States, 469 U.S. 70, 78 (1984)(This Court stated that
it was “not willing to narrow the plain meaning of even a
criminal statute on the basis of a gestalt judgment as to what
Congress probably intended.").

The court below completely failed to give effect to the plain
language of the citizen's suit provision contained in the ESA
and instead substituted its own narrow "gestalt judgment” as to
how it believed endangered species should be protected. In
so doing, the court below has destroyed Congress’ clear intent
to accomplish conservation of endangered species through a
Statutory program which also protects the economic interests
and constitutional property rights of individuals -- such as the
Petitioners in this action.

As this Court just held on May 13, 1996, in a case
involving the nght of plaintiffs to sue to enforce the Worker
Adjustment and Retraining Notification Act: "As we noted in
Warth, prudential limitations are rules of ‘judicial self-
governance’ that Congress may remove . . . by statute... . It
has done so without doubt in this instance." United Food and
Commercial Workers Union, Inc. v. Brown Group, Inc., No.

22
95-340, 1996 U.S. LEXIS 2956, at *23 (U.S. May 13,
1996).

Likewise, in the instance case, Congress has without
doubt removed the prudential limitations to Petitioners’ right to
sue to enforce the ESA.

Il. PROTECTING PRIVATE PROPERTY RIGHTS
AND ECONOMIC INTERESTS FURTHERS THE
INTENT OF CONGRESS TO PROTECT
ENDANGERED SPECIES.

In 1973 Congress enacted the ESA, which was this
nation's first attempt to achieve by law protection of
endangered and threatened species of floral aind fauna. The Act
made clear, however, success depended upom al! sectors of
our society -- both public and private -- being involved in
achieving that purpose. Hence, there are vamous provisions in
the Act which address issues of private concern; notably,
economic interests and private property nghts.

Through the decades of enforcement, the Act's balanced
approach to achieving protection of endangewed species has
been underscored. Recently Secretary of the Interior Bruce
Babbitt discussed the importance balancing of interests
reflected in the ESA in achieving its goals as reflected in the
Act's habitat conservation plan program:

"The Balcones Canyonlands Conservation Plan is part of
the Administration's focus on using the flexilbility of the
Endangered Species Act to find cooperative solutions that
protect species. More than 140 habitat conservation plans that
balance development with species protection under the

23

Endangered Species Act are now in place.” 1996 WL 222408
(D.O.1.)4

The decision below destroys that balance reflected in the
Act by closing the door to its full enforcement as envisioned
by Congress.°

A. THE ESA IS DESIGNED TO CONSERVE
ENDANGERED SPECIES AND IS ALSO
PROTECTIVE OF ECONOMIC INTERESTS AND
PROPERTY RIGHTS.

* Habitat conservation plans created pursuant to the Act are an unportant
way that balancing of interests are achieved under the Act. For example,
with respect to the recently approved Balcones Habitat Conservation Plan
commentators have observed: “[T)he plan enjoys broad support among
environmental and business groups and represents a surprising consensus
on am important issue in a city that thrives on debate.” Ralph K.M.
Haurwitz, Travis County's Balcones Conservation Plan Takes Off. Austun
American-Statesman, May 4, 1996, at 2.

> Likewise, as has been pointed out by EPA in its comments regarding
an amendment to Requirements for Authonzed State Permit Programs
under Section 402 of the Clean Water Act, citizens suits provisions are an
important part of citizens parucipation im a government permitting
program. When citizens are barred from challenged state-issued permits
because of restrictive standing requirements in state law, the public's
ability to parucipate effectively in the permitting process 1s significantly
“chilled:” “As EPA noted when it proposed today's rule on March 17,
1995 (60 FR 1488), when citizens are denied the opportunity to challenge
execuliv. agency decisions in court, their ability to influence permitung
decisions through other required elements of public participation, such as
public comments and public hearings on proposed permits, may be
senously compromised. If citizens perceive that a State administrative
agency ts not addressing their concerns about 402 permits because the
citizens have no recourse to an impartial judiciary, that perception has a
chilling effect on all remaining forms of public parucipation in the
permitting process. Without the possibility of judicial review by
citizens, public participation before a State administrative agency could
become a paper exercise.” Amendment to Requirements for Authonzed
State Permit Programs Under Section 402 of The Clean Water Act, 40
C.F.R. Part 123 (1996) (emphasis supplied)

24

The purpose of the ESA, as demonstrated through its text
and its legislative history, is to set out a program whereby
endangered and threatened species are conserved. Congress
adopted a system which is to accomplish this purpose through
(1) federal land acquisition of private property; (2) outright
avoidance of adverse impacts on endangered species by the
federal government; and, (3) pre aibitions on the “taking” of
endangered species by any person or entity.

Through its land acquisition program, the ESA reflects
Congress’ intent to avoid foisting off on individuals the whole
burden of achieving the objectives of the Act, by requiring the
federal government to condemn private property necessary to
protect a species. Explaining the purposes of the land
acquisition program, floor manager for the ESA, Senator
Tunney, stated: “Through these land acquisition provisions,
we will be able to conserve habitats necessary to protect fish
and wildlife from further destruction.” 119 Cong. Rec.
25,669 (1973). Representative Sullivan, the floor manager for
H.R. 37 -- the House version of the bill -- confirmed this

approach:

For the most part, the principal threat to animals stems
from the destruction of their habitat. .. . Whether it is
intentional or not, however, the result is unfortunate
for the species of animals that depend on that habitat,
most of whom are already living on the edge of

survival. H.R. 37 will meet me perme by
providing funds for acquisition of critical habitat

the use of the land and water conservation
fund. It will also enable the Department of Agriculture
to cooperate with willing landowners who desire to
assist in the protection of endangered species, but

25

who are understandably unwilling to do so at
excessive cost to themselves.

119 Cong. Rec. 31,062 (1973).

See also Babbitt v. Sweet Home Chapter of Communities for a
Great Or., 115 S. Ct. 2407, 2415 (1995), in which this Court
discusses the purposes of the Section 5 land acquisition
procedure is to allow the government to protect habitat before
activity harms an endangered or threatened animal.

Other sections of the Act likewise reflect an attempt by
Congress to protect private property nights. The consultation
process under Section 7 can affect private landowners if a
project or activity on private land requires some form of
federal approval, such as a permit, or involves the expenditure
of federal funds.

The habitat conservation planning process under section 10
provides a mechanism to address situations in which
nonfederal projects or activities not requiring federal
authorization or funding are in potential conflict with the
protection of listed species; that is, such projects or activities
may result in a prohibited taking of a listed animal or plant.
Through this process, private landowners with activities or
projects that may harm listed species can obtain a permit that
allows the incidental taking of a listed species. /d.

To obtain an “incidental take” permit, the private
landowner must develop a habitat conservation plan (HCP) --
a formal plan that specifies the effects that landowners’
activities are likely to have on listed species, the measures that
will be taken to minimize and mitigate these effects, the
alternatives that the applicant considered and reasons why such

26
alternatives were not implemented, and any other measures the
Service may require. (16 U.S.C. § 1539(a)(2)(A)(i-iv)).

B. PROTECTING PROPERTY RIGHTS AND
ECONOMIC INTERESTS IS AN INTEGRAL
ASPECT OF ACHIEVING PROTECTION OF
ENDANGERED SPECIES.

As noted above, in 1973 Congress passed the Endangered
Species Act which is today widely regarded as one of the most
important and powerful environmental laws in the country.
See generally M. Lynne Corn, Congressional Research Serv..,
Endangered Species Act Issues | (1992). Although a major
component of the ESA is achieved by prohibitions placed on
the federal government on public land ESA § 7, another large
component of the ESA places prohibitions on certain actions
by private individuals on privately owned land ESA § 9.

In fact, since one-half of the endangered species in this
county live on privately owned land (and the habitat for
endangered species is almost exclusively on private land), the
ESA contains specific provisions discussed above that balance
those private land and economic interests with the need to
protect endangered species. See Hank Fisher et al., “Building
Economic Incentives Into The Endangered Species Act,”
Endangered Species Technical Bulletin Vol. 19, No. 2, p. 4
(U.S. Fish and Wildlife Service 1994)

Contrary to the conclusion of the court below, as the Act
itself reflects, Congress perceived protecting these private
interests as being directly and critically related to the purpose
of protecting endangered species. Indeed, no conservation

27
policy can succeed without the support of the regulated
community.

Thus, as the Act clearly reflects, the likelihood of
protecting endangered species is significantly increased
when property rights and economic interests are
respected. Moreover, examples of successful
partnerships are well documented. See Generally
PERC, The Endangered Species Act: Making Innocent
Species The Enemy 12 (Jane S. Shaw ed., 1995).

And, despite the fact that this Court held shortly
after the Act was passed that protection of endangered
species were to be protected "whatever the cost”
(Tennessee Valley Authority v. Hill, 437 U.S. 153,
184 (1978)), in practice endangered species recovery
has proven to be very costly. Indeed, one of the most
widely discussed impacts of the ESA is its cost. While
no definitive study on the total economic impact of the
ESA has been performed, U.S. Fish and Wildlife
Service data reflect direct cost estimates® for only 306

© According to the U.S. Fish and Wildlife Service, even these estimates
do not reflect all costs:

"A good faith effort was made to develop species by species expenditures
for this report. However, the information presented again this year does
not reflect the total governmental (federal and state) effort toward
threatened and endangered species conservation and presents an incomplete
funding picture .. . A significant portion of . . . conservation activities at
all levels include law enforcement, consultation, recovery coordination,
and other actions that are not easily or reasonably funded by species. .
Accounting procedures for staff salanes and operational, maintenance and
other support services are not normally creditable towards individual
species totals. Also, there exists significant variability among the
various federal and state agency reports.” “Federal and State Endangered

28
recovery plans of over $4 million (expressed in 1994
dollars). National Wilderness Institute, Going Broke ?
Costs Of The Endangered Species Act As Revealed In
Endangered Species Recovery Plans (1994).

Looking at other government data pertaining to all
species, the cost estimates are staggering. In 1990, the
U.S. Department of Interior Inspector General
estimated the potential future recovery costs for all
endangered species to be over $4.6 billion. This figure
was based on a conservative estimate by the Service
based on a ten-year recovery plan. U.S. Fish and
Wildlife Service, Federal and State Endangered Species
Expenditures: Fiscal Year 1990 (1991).

Recovery, of course, is only one aspect of
endangered species protection. According to the
Service, in 1992, for every one dollar spent by the
Service on actual species recovery, $2.26 were spent by
the same agency on related activities including
permitting, consultation, enforcement and listing. U.S.
Fish and Wildlife Service, U.S. Department of the
Interior Budget Justifications: Fiscal Year 1993 (1993).
Other federal agencies, too, must spend money to
comply with the Act. For example, in 1992 the U.S.
Army Corps of Engineers spent $5.2 million to protect
the California least tern. The Department of the Navy
spent $.5 million that year on that same species.

Species Expenditures for Fiscal Years 1991, 1990 and 1989, U.S. Fish
and Wildlife Service" (1992).

- te

— a>

29
Indeed, in 1992, other federal and state agencies spent
5.4 times more on ESA compliance than the Service and
the National Marine Fisheries Service, the two agencies
primarily charged with implementing the Act.

Further, these figures do not include indirect costs borne
by the private sector. Indeed, the court below's decision of
particularly unfortunate given that one of the chief criticisms of
the ESA is that the Act does has not been implemented in a
way that adequately protects private property nghts and
economic interests. Assistant Secretary of Interior, Fish,
Wildlife, and Parks, George T. Frampton, Jr., has testified
that future enforcement "must reduce administration,
economic, and regulatory burden on small landowners while
providing greater incentives to conserve species.” House Task
Force on Endangered Species. (May 18, 1995).

Likewise, Environmental Defense Fund attorney, Michael
Bean, recently told a group of U.S. Fish and Wildlife officials
that "some private landowners are actively managing their land
SO as to avoid potential endangered species problems.”

PERC, The Endangered Species Act: Making Innocent Species
The Enemy 8-9 (Jane S. Shaw ed., 1995). He emphasized
that these actions are "not the result of malice toward the
environment” but are "fairly rational decisions, motivated by a
desire to avoid potentially significant economic constraints.”
Id. Bean further described the actions as being a “predictable
response to the familiar perverse incentives that sometimes
accompany regulatory programs, not just the endangered
species program but others.” /d.

30

Thus, while the Act as currently drafted reflects a need to
protect economic interests and property rights, many believe
that even greater protections should be contained in the Act.
But, of course, the way to strike a different balance is through
new legislation; not by judicial fiat.

CONCLUSION

The zone of interest test used to bar these Petitioners from
enforcing certain provisions of the ESA has been held by this
Court to be a prudential standard which bars only those
plaintiffs whose interests "are so marginally related to or
inconsistent with the purposes implicit in the statute that 't
cannot be reasonably be assumed that Congress intended to
permit the suit." Clarke v. Securities Industry Ass'n., 479
U.S. 388, 399-400 (1987)(footnote omitted).

Here the interests of Petitioners are central the purpose of
the ESA and the citizen's suit provision gives them explicit
standing to bring suit to protect those interests. Hence, the
amici curiae strongly urge this Court to reverse the decision
below.

Dated: May 24, 1996

31

Respectfully submitted,

Nancie G. Marzulla

Lisa M. Jaeger

Barry C. Hodge
DEFENDERS OF
PROPERTY RIGHTS
6235 33rd Street, N.W.
Washington, D.C. 20015
202-686-4197

Counsel for amici curiae

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0666%3A16. Public record. Not legal advice.