Amicus Curiae Brief — Bennett v. Spear

Supreme Coort; U.S.

FILE OD

No. 95-813 MAY 23 ]

IN THE SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1995

BRAD BENNETT, ET AL., Petitioner.

V.

MARVIN PLENERT, ET AL., Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

AMICUS CURIAE BRIEF OF THE STATES OF

CALIFORNIA, ALASKA, ARIZONA, ARKANSAS,

COLORADO, HAWAII, IDAHO, KANSAS, MISSOURI,

MONTANA, NEBRASKA, OHIO, UTAH AND WEST

VIRGINIA ON THE MERITS IN SUPPORT OF

PETITIONERS

DANIEL E. LUNGREN

Attomey General

RODERICK E. WALSTON

Chief Assistant Attorney General

(Counsel of Record)

CHARLES W. GETZ, IV

Assistant Attorney General

LINUS MASOUREDIS

Deputy Attorney General

1300 I St., Suite 125

P.O. Box 944255

Sacramento, CA 94244-2550

Telephone: (916) 324-5433

Counsel for Amici Curiae

ADDITIONAL COUNSEL FOR AMICI STATES

BRUCE M. BOTELHO

Attorney General of the State of Alaska

GRANT WOODS

Attorney General of the State of Arizona

WINSTON BRYANT

Attorney General of the State of Arkansas

GALE A. NORTON

Attorney General of the State of Colorado

MARGERY S. BRONSTER

Attorney General of the State of Hawaii

ALAN G. LANCE

Attorney General of the State of Idaho

CARLA J. STOVALL

Attorney General of the State of Kansas

JEREMIAH W. NIXON

Attorney General of the State of Missouri

JOSEPH P. MAZUREK

Attorney General of the State of Montana

DON STENBERG

Attorney General of the State of Nebraska

BETTY D. MONTGOMERY :

Attorney General of the State of Ohio

JAN GRAHAM

Attorney General of the State of Utah

DARRELL V. McGRAW, JR.

Attorney General of the State of West Virginia

QUESTIONS PRESENTED

Under the "citizen suit" provision of the Endangered

Species Act of 1973 ("ESA"), section 11(g)(1), 16 U.S.C. §

1540(g)(1), “any person" may commence a civil suit on his

own behalf to enjoin the United States from violating the ESA

or regulations issued thereunder. The questions presented are:

1. Whether the broad standing mandated by

Congress in the citizen suit provision of the ESA is subject to

a "zone of interests" test as a further, judicially imposed,

prudential limitation on standing.

2. If standing to sue under the ESA is subject to

prudential limitations, whether standing is limited exclusively

to litigants asserting an interest in preserving endangered

species, as the Ninth Circuit held, and does not include litigants

whose economic interests have been adversely affected by the

Government's violations of the ESA.

TABLE OF CONTENTS

INTEREST OF AMICI STATES

STATEMENT OF THE CASE

A. Nature of the Controversy

B. Proceedings Below

SUMMARY OF ARGUMENT

ARGUMENT

I. PETITIONERS HAVE STANDING

UNDER SECTION 10 OF THE

ADMINISTRATIVE PROCEDURE

ACT.

A. Constitutional Standing

B. Prudential Standing

C. Legislative History

Il. PETITIONERS HAVE STANDING UNDER

THE CITIZEN SUIT PROVISION OF THE

ENDANGERED SPECIES ACT

CONCLUSION

23

Cases

Arnold Tours, Inc. v. Camp

401 U.S. 45 (1970) 5, 12, 13

Association of Data Processing Service Organizations,

v. Camp

397 U.S. 150 (1970) 5, 6

Barlow v. Collins

397 U.S. 159 (1970) 18

Block v. Community Nutrition Institute

467 U.S. 340 (1984) 17

Clarke v. Securities Industries Association

479 U.S. 388 (1987) 5, 6, 11, 12, 13, 23

Columbia Broadcasting System, Inc. v. United States

316 U.S. 407 (1942) 15

Cort v. Ash

422 U.S. 66 (1975) 1!

Cotovsky-Kaplan Physical Therapy Assn., Lid. v.

United States

507 F.2d 1363 (7th Cir. 1975) 15

Dan Caputo Co. v. Russian River County Sanitation, et al.

749 F.2d 571 (9th Cir. 1984) 29

Data Processing Service Organizations, Inc. v. Camp

397 U.S. 150 (1970) 11, 12, 13

iv Vv

TABLE OF AUTHORITIES, CONT'D TABLE OF AUTHORITIES, CONT'D

Federal Communications Commission v. Sanders Bros. | Simon v. Eastern Ky. Welfare Rights Organization

Radio Station . 426 U.S. 26 (1976) 9

309 U.S. 470 (1940) 14

State of Nebraska v. State of Wyoming

Gladstone, Realtors v. Vilage of Bellwood 325 U.S. 589 (1945) 6, 16

441 U.S. 91 (1979) 11, 12, 23, 24

Trafficante v. Metropolitan Life Insurance Co.

Gollust v. Mendell 409 U.S. 205 (1972) 24

501 U.S. 115 (1991) 23, 24

TVA v. Hill

Gonzales v. Gorsuch . 437 U.S. 153 (1978) 19

688 F.2d 1263 (9th Cir. 1982) 29

United Food and Commercial Workers Union Local 751

Ickes v. Fox v. Brown Group, Inc.

300 U.S. 82 (1937) 6, 16 ___ U.S. ___, 1996 USLW 241649 (May 13, 1996) 23

Investment Company Institute v. Camp | United States v. Ron Pair Enterprises, Inc.

401 U.S. 617 (1971) 5, 12, 13 | 489 U.S. 235 (1989) we 24

Joint Anti-Fascist Committee Refugee Committee | United States v. Storer Broadcasting Co.

v. McGrath | 351 U.S. 192 (1956) 15

341 U.S. 123 (1951) 17 |

vee Valley Forge Christian College v. Americans United

Lujan v. Defenders of Wildlife 454 U.S. 464 (1982) 9, 11

504 U.S. 555 (1992) 9. 11

Warth v. Seldin

Nevada v. United States 422 U.S. 490 (1975) 23

463 U.S. 110 (1983) 6, 16, 17

Yakus v. United States

Shaughnessy v. Pedreiro 321 U.S. 414 (1944) 18

349 U.S. 48 (1955) 27

Sierra Club v. Morton Constitutional Provisions

405 U.S. 727 (1972) 9, 25, 28

Article If], U.S. Constitution 7, 9, 23, 24, 29

vi

Federa! Regulations

50 Code of Federal Regulations

§ 402.14 10

§ 402. 14(i)(5) 3, 10

53 Fed.Reg. 27130-27134 (1988) 2

59 Fed. Reg. (1994)

pp. 61744-61758 2

p. 61744 a

p. 61745 4

p. 61750 4

pp. 61754-61755 4

pp. 61756-61758 4

Federal Statutes

Administrative Procedure Act

§ 10 4, 8, 9, 23, 27, 29

§ 12 8, 27

Bank Service Corporation Act

§ 4 13

Endangered Species Act

§ 2(c)(2) 22

§ 3(13) , l

§ 4 1, 3, 22

§ 4(b)(2) 3, 6, 16, 18, 19

§ 7 1, 2, 3, 6, 16, 18, 20, 22

§ 7(a) 21

§ 7(a)(2) 3, 10, 21

§ 7(c) 21

TABLE OF AUTHORITIES, CONT'D

Vii

Endangered Species Act Cont'd

§ 11(g)(1)

§ 114g)(1)(A)

§ 1i¢g)(1)(B)

§ 11(g)(1)(C)

5 United States Code

§ 559

§ 702

16 United States Code

§ 1531(c)(2)

§ 1532(13)

§ 1533

§ 1533(b)(2)

§ 1536(b)(3)(A)

§ 1536

§ 1536(a)(2)

§ 1536(c)(2)

§ 1536(e)-(p)

§ 1536(0)(2)

§ 1540(a)

§ 1540(b)

§ 1540(g)

§ 1540(g)(1)

§ 1540(g)(1)(A)

§ 1540(g)(1)(B)

§ 1540(g)(1)(C)

§ 1540(g)(5)

30 United States Code

§ 1270

43 United States Code

§ 371 et seq.

Vill

TABLE OF AUTHORITIES, CONT’D

Pub. L. 93-205,

§ 4(b), 87 Stat. 887

§ 11(g)(1)(A), 87 Stat. 900

§ 11(g)(1)(B), 87 Stat. 900

Pub. L. 95-632

§ 3, 92 Stats. 3753

§ 3, 92 Stat. 3753

§ 11, 92 Stat. 3764

§ 11(4), 92 Stat. 3765

§ 11(7), 92 Stat. 3766

Pub. L. 96-159

§ 4(1), 93 Stat. 1226

Pub. L. 97-304

§ 7(2), 96 Stat. 1425

Act of Feb. 9, 1905, ch. 567, 33 Stat. 714

tat t

Cal. Stats. 1905, ch. 6, p. 4

Congressional Documents

H.R. Rep. 1491(1), 94th Cong., 2d Sess. 26 (1976)

H.R. Rep. 218, 95th Cong., Ist Sess. 90 (1977)

TABLE OF AUTHORITIES, CONT’D

< H.R. Rep. 1625, 95th Cong., 2d Sess. (1978)

24 ted

24 pp. 10-11

p. 13

p. 14

19 p. 17

- H.R. Conf. Rep. 697, 96th Cong., Ist Sess. 10 (1979)

~ H.R. Rep. 567, 97th Cong., 2d Sess. 10 (1982)

H.R. Conf. Rep. 835, 97th Cong.,2d Sess. 35 (1982)

aI S. Conf. Rep. 1236, 92d Cong., 2d Sess., 146 (1972)

24 S. Rep. 307, 93rd Cong., Ist Sess. 11 (1973)

? S. Rep. 874, 95th Cong., 2d Sess. (1978)

p. 2

p. 3

S. Rep. 418, 97th Cong., 2d Sess. 25 (1982)

118 Cong. Rec. 33717 (1972)

119 Cong. Rec. 25676 (1973)

% 125 Cong. Rec. (1979)

pp. 28940-28941

25 p. 28941

p. 29050

124 Cong. Rec. (1978)

p. 21132

pp. 21131-21132

19,

22

25

TABLE OF AUTHORITIES, CONT’D

124 Cong. Rec. (1978) Cont'd

21133

21136

. 21137

21138

21142

21347

37115

37116

. 38123

p. 38123-38124

. 38125

38126

38127

38128

38131

38132

38133

38134

. 38138

pp. 38145-38146

p. 38156

p. 38666

pp. 98803-98804

p. 98805

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18

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INTEREST OF AMICUS CURIAE

Amici States are vitally interested in the scope of standing

under the citizen suit provision of the Endangered Species Act

("ESA"), section 11(g)(1), 16 U.S.C. § 1540(g)(1). Because States

are "persons" within the meaning of the ESA, see section 3(13), 16

U.S.C. § 1532(13), they are entitled to sue under the citizen suit

provision. Consequently, the States’ ability to pursue judicial

remedies for violations of the ESA is directly affected by the

interpretation of the scope of ESA standing.

Amici States also have a strong interest in the implementation

of the ESA provisions that were allegedly violated in this case,

sections 4 and 7 of the ESA, 16 U.S.C. §§ 1533, 1536. A great

deal of land, resources, and productive economic activity within

amici States is subject to regulation under sections 4 and 7 of the

ESA. If litigants whose economic interests are harmed by the

Federal Government’s violation of sections 4 and 7 lack standing to

challenge those ESA violations, then the economic well-being of

States and their citizens will be diminished unlawfully without

judicial recourse.

The State of California also has a particular interest in this

case. The Klamath Project, which is the reclamation project at

issue in this case, is located partly in California. The State of

California ceded land to the United States, and authorized the

lowering of the levels of certain lakes, including Clear Lake, for the

Klamath Project. See Cal. Stats. 1905, ch. 6, p.4. Clear Lake

Reservoir, one of the two reservoirs involved in this litigation, is

located entirely in California. See Pet. App. 32, 41; 34, 45 C, D.

Consequently, California has a close connection with, and strong

interest in, this controversy over the operation of the Klamath

Project, and the allocation of water from Clear Lake Reservoir.

STATEMENT OF THE CASE

A. Nature of the Controversy

The Klamath Project was an early reclamation project

undertaken by the U.S. Bureau of Reclamation ("Bureau") pursuant

to the Reclamation Act of 1902 (codified at various provisions of 43

U.S.C. section 371 et seq.). Pet. App. 35. Authorized by

Congress in 1905, see Act of Feb. 9, 1905, ch. 567, 33 Stat. 714,

the Klamath Project consists of several dams and reservoirs along

the California-Oregon border. /d. at 35-36. The purpose of the

project was to reclaim certain lands, and store and deliver irrigation

water to the reclaimed lands for agricultural and other productive

uses. Gerber Reservoir, located in Oregon, and Clear Lake

Reservoir, located in California, are parts of the Project. /d. at 34.

Petitioners, Horsefly Irrigation District and Langell Valley

Irrigation District, have water supply contracts with the Bureau to

receive water from the Gerber and Clear Lake Reservoirs. /d. at

34. Petitioners Bennett and Giordano are ranchers and members of

these irrigation districts who receive water from Clear Lake

Reservoir under the irrigation district contracts with the Bureau.

For most of this century, the Bureau has stored and released water

from these reservoirs according to standard operational procedures

which maintained a reliable supply of irrigation water to farmers

and ranchers in the area. /d. at 36.

In 1988, the U.S. Fish and Wildlife Service ("FWS") listed the

Lost River sucker and the shortnose sucker as endangered species

of fish under the ESA. 53 Fed. Reg. 27130-27134 (1988). The

shortnosed sucker is found in Gerber and Clear Lake Reservoirs,

and the Lost River sucker is found in Clear Lake Reservoir, among

other places. Pet. App. 36; see also 59 Fed. Reg. 61744-61758

(1994) (proposed designation of critical habitat for the Lost River

and shortnosed suckers).

Following the listing of the fish as endangered, the Bureau

entered into formal consultation with the FWS pursuant to section

7 of the ESA, 16 U.S.C. § 1536. The purpose of this consultation

was to assess the effects of the long-term operation of the Klamath

Project upon the endangered fish. As a result of this consultation,

the FWS issued a 1992 Biological Opinion which concluded that

Klamath Project operations, including releases of water from the

Clear Lake and Gerber Reservoirs for irrigation pursuant to long-

Standing operational procedures, would likely jeopardize the

continued existence of the fish. The FWS also specified in its

Biological Opinion "reasonable and prudent alternatives" that the

FWS believed would avoid jeopardy to the fish. These reasonable

and prudent alternatives included restrictions on releases of

irrigation water and the maintenance of certain lake levels in the

Gerber and Clear Lake Reservoirs. The Biological Opinion also

contained an “incidental take" statement describing the “take" or

loss of endangered fish that was expected to occur if the Bureau

operated the project in accordance with the FWS’ reasonable and

prudent alternatives. So long as the Bureau operated the Klamath

Project in accordance with the reasonable and prudent alternatives

specified in the biological opinion -- including the requirement to

maintain certain lake levels in Gerber and Clear Lake Reservoir --

this “incidental take" statement would immunize the Bureau from

civil and criminal liability for the "take" of endangered suckers

resulting from operation of the Klamath Project. See 16 U.S.C. §

1536(0)(2); 50 C.F.R. § 402.14(i)(5).

B. Proceedings Below

Petitioners filed suit against respondents, the Secretary of the

Interior and FWS officials, alleging that respondents violated the

ESA and the Administrative Procedure Act ("APA") in the section

7 consultation over the Klamath Project. Pet. App. 33, 40-42.

Petitioners alleged that the maintenance of certain lake levels in the

Gerber and Clear Lake Reservoirs pursuant to the Biological

Opinion deprived them of irrigation water that otherwise would be

available for release from the reservoirs. /d. at 34, 40. The

complaint alleged two main theories why the Biological Opinion

was invalid and should be set aside. The first was that respondents

failed to use the “best scientific data available," as required under

section 7(a)(2) of the ESA, in formulating the Biological Opinion,

and in concluding that irrigation releases from the reservoirs were

jeopardizing the endangered fish and that maintaining certain lake

levels would help the fish. Jd. 37-41. The second theory was that

the Biological Opinion implicitly determined “critical habitat" for

the endangered fish without considering the economic impacts of

such designation, as is required under section 4(b)(2) of the ESA,

16 U.S.C. § 1533(b)(2). According to the complaint, the

specification in the Biological Opinion of certain lake levels that had

to be maintained in Gerber and Clear Lake Reservoirs was

essentially a determination of the "critical habitat" for the fish.

Section 4 of the ESA specifies that the FWS must consider

economic impacts when designating critical habitat for a species.

However, by using the Biological Opinion as a vehicle for

designating critical habitat, the FWS had wrongly circumvented the

section 4 requirement to consider economic impacts.!’

The Ninth Circuit affirmed the district court's dismissal of the

action for lack of standing. The Ninth Circuit reasoned that the

prudential "zone of interests" test applied, and that “only plaintiffs

who allege an interest in the preservation of endangered species fall

within the zone of interests protected by the ESA." Pet. App. 11

(emphasis in original). The Ninth Circuit expressed the view that,

because petitioners wanted to use project water for irrigation and

recreational purposes rather than species preservation, they were

asserting a "Competing interest" in the water that was “inconsistent

with the [ESA’s species preservation] purposes." /d. at 17. This

Court granted certiorari on March 25, 1996.

SUMMARY OF ARGUMENT

I

Under section 10 of the APA, any person “aggrieved by

agency action within the meaning of a relevant statute" is authorized

to maintain an action challenging such agency action. 5 U.S.C. §

702. This Court, however, has adopted prudential standing

requirements limiting the right of persons to challenge agency action

under the APA. Under these prudential requirements, actions can

1. The FWS’ subsequent actions lend credence to petitioners’ theory of

“implicit designation” of critical habitat. When the FWS listed the suckers

as endangered in 1988, it postponed designation of critical habitat for the

fish. Environmental organizations then sued the FWS in 1991 for failure to

designate critical habitat for the fish. See 59 Fed. Reg. 61745 (1994)

(describing the litigation). The FWS subsequently proposed critical habitat

for the fish in 1994 which included specified lake levels for the Gerber and

Clear Lake Reservoirs, known as “full pool elevation". See 59 Fed. Reg.

61744, 61750, 61754-61755, 61756-61758 (1994). Therefore, the FWS has

acknowledged that maintaining specified lake levels of the Gerber and Clear

Lake Reservoirs--which is what the 1992 Biological Opinion purported to

do--constitutes the designation of critical habitat for the endangered suckers.

0 eal

be maintained only by persons whose interests fall within the "zone

of interests" that are “protected or regulated" by the relevant

statute. Clarke v. Securities Industries Association, 479 U.S. 388

(1987); Association of Data Processing Service Organizations, Inc.

v. Camp, 397 U.S. 150, 153 (1970). The "zone of interests” test

is a guide for determining whether Congress intended to authorize

particular plaintiffs to maintain actions challenging particular agency

actions.

The “zone of interests" test, by providing that both "protected"

and "regulated" parties have standing to challenge agency action,

ensures that litigants have access to the courts regardless of whether

they benefit from, or are burdened by, the statutory scheme.

Litigants whose interests are “protected” by a statute have an

incentive to guard against lax agency enforcement, and to ensure

that the agency protects their interests as vigorously as Congress

intended. In contrast, litigants whose interests are “regulated” by

the statute have an incentive to guard against overzealous

administrative enforcement which goes beyond the bounds set by

Congress. In other words, those who are “protected” have an

incentive to guard against underregulation, and those who are

"regulated" have an incentive to guard against overregulation. The

"zone of interests" test thus affords standing both to those who

benefit from the regulatory scheme and those who are burdened by

it. The Ninth Circuit, by holding that prudential standing extends

only to those who pursue environmental goals, allows parties who

are perceptibly benefitted by the statute to challenge agency action,

but not parties who are burdened by it. Thus, the Ninth Circuit

decision effectively allows challenges by those who charge that the

agency has underregulated, but not by those who charge that the

agency has overregulated.

In several cases involving the standing of competitors, this

Court has held that parties have standing to challenge agency action

if they are directly affected by the agency action, whether or not the

agency action promotes their interests or otherwise directly applies

to them. Data Processing, 397 U.S. 150; Arnold Tours, Inc. v.

Camp, 401 U.S. 45 (1970); Investment Company Institute v. Camp,

401 U.S. 617 (1971); Clarke, 479 U.S. 388. It is sufficient, this

Court has stated, that the plaintiffs, although not directly regulated

by the statute, are in competition with those who are directly

regulated. Such plaintiffs have standing because they are “directly

affected" by the agency action. Clarke, 479 U.S. at 399 n. 14;

Data Processing, 397 U.S. at 157.

The petitioners in this case meet prudential standing

requirements under the ESA and are authorized to maintain an

action under the APA, just as the plaintiffs were held to have

standing in the competitor cases. The Secretary of the Interior has

issued a Biological Opinion recommending that the Bureau of

Reclamation reduce water deliveries to its contractors, including the

petitioners, in order to protect certain endangered species in the

reservoir. Under the ESA, the Bureau of Reclamation is subject to

civil and criminal liability if it improperly jeopardizes an

endangered species; the Bureau is immune from such liability,

however, if it complies with the recommendations in the Secretary's

Biological Opinion. Therefore, as a practical matter, the Bureau

has no choice other than to comply with the Secretary's

recommendation. Accordingly, the Secretary's Biological Opinion

adversely affects the water rights held by the petitioners. The

petitioners’ interests are directly affected by agency action in the

same way that the plaintiffs’ interests were directly affected in the

competitor cases. Moreover, this Court has recognized that water

users, such as petitioners, who have contractual rights to water

developed under the federal reclamation laws are the beneficial

owners of the water. Nevada v. United States, 463 U.S. 110, 122-

126 (1983); State of Nebraska v. State of Wyoming, 325 U.S. 589,

614-616 (1945); Ickes v. Fox, 300 U.S. 82, 94-95 (1937). Hence,

the petitioners fall within the regulatory ambit of the ESA, and are

authorized to maintain their action under the APA.

The petitioners are not only “regulated” by the ESA, but also,

in a sense, are “protected” by it. Section 4(b)(2) of the ESA

requires the Secretary to consider “economic impact([s]" in

designating critical habitats. 16 U.S.C. § 1533(b)(2). Section 7 of

the ESA requires the Secretary to use the “best scientific data” in

determining whether to list endangered species. 16 U.S.C. § 1536.

Thus, the ESA requires the Secretary of the Interior to follow

certain procedures and apply certain methodologies in listing

endangered species and designating critical habitats. These

provisions impose constraints on agency action under the ESA for

the benefit of those, such as petitioners, who may be burdened by

a

the species protection goals of the ESA. When these constraints are

not followed, the economic interests of the petitioners--who are in

“competition” with fish for scarce water--are impaired. In short,

the statutory goals of the ESA in protecting endangered species are

carried forth through methodologies and procedures that inure to the

benefit of the petitioners. The petitioners are within the zone of

interests protected and regulated by the ESA for this additional

reason.

II

The citizen suit provision of the ESA broadly provides that

“any person" has standing to challenge an agency action that is in

“violation” of the act. On its face, this language suggests that

Congress intended to wholly abrogate prudential standing

requirements as applied to parties who maintain actions under the

ESA, subject only to the limitation that such parties must meet

Article III standing requirements. To be sure, the legislative history

of the citizen suit provision of the Clean Water Act indicates that

Congress’ primary objective was to ensure that parties would have

standing to pursue environmental goals, whether or not they have

economic interests at stake. Thus, it can be argued that Congress

meant to abrogate prudential standing requirements only for those

who pursue environmental goals.

The better view, the amici states believe, is that Congress

meant to abrogate prudential standing requirements for all parties

who allege a violation of the ESA, whether or not they pursue

environmental goals. This view is clearly and unambiguously

supported by the statutory language, which is a more reliable

indicator of the congressional intent than the legislative history.

Moreover, although the legislative history indicates that Congress

intended to broaden standing for those seeking to promote

environmental goals, the legislative history does not indicate that

Congress did not intend to similarly broaden standing for parties

who assert economic interests that are in competition with

environmental goals. Thus, the citizen suit provision, properly

construed, abrogates prudential standing requirements for all who

maintain actions under the ESA, including those, such as the

petitioners, who assert economic interests.

Whether or not the citizen suit provision abrogates prudential

standing requirements for those who assert economic rather than

environmental interests, the provision does not reduce or alter the

standing that such parties might have under other statutory

provisions to challenge agency action under the ESA. The citizen

suit provision is not the exclusive remedy for ESA violations, and

was not intended to preclude review of administrative action under

the APA. Indeed, the citizen suit provision expressly provides that

"[t}he injunctive relief provided by this subsection shall not restrict

any right which any person . . . may have under any statute or

common law to seek enforcement of any standard or limitation or

to seek any other relief (including relief against the Secretary or a

State agency)." 16 U.S.C. § 1540(g)(5) (emphasis added). Section

12 of the APA, 5 U.S.C. § 559, also provides that subsequent

legislation shall not supersede or modify the right of review granted

by section 10 of the APA unless the language in a subsequent

statute “expressly” so provides. Here, petitioners have asserted

their claims under both the citizen suit provision of the ESA and

section 10 of the APA. As explained above, the petitioners have

standing to challenge agency action under section 10 of the APA.

Therefore, they are authorized to maintain their action regardless of

how the citizen suit provision is construed.

Finally, whether or not the citizen suit provision of the ESA

abrogates prudential standing requirements for those asserting

economic interests, the provision clearly affords a cause of action

for such persons if they are able to satisfy prudential standing

requirements. The contrary view would wholly disregard the clear

statutory language affording a cause of action to “any person" who

asserts a “violation” of the ESA. As indicated above, the

petitioners meet prudential standing requirements under the ESA,

and thus are authorized to maintain an action under the citizen suit

provision in any event.

ARGUMENT

I. PETITIONERS HAVE STANDING UNDER

SECTION 10 OF THE ADMINISTRATIVE

PROCEDURE ACT.

A. Constitutional Standing

Under section 10 of the APA, any person “aggrieved by

agency action within the meaning of a relevant statute" may

maintain an action challenging such agency action. 5 U.S.C. § 702.

Notwithstanding this provision, Article III of the Constitution

authorizes such persons to challenge agency action only (1) they

suffer "injury in fact"; (2) there is a “causal connection" between

the injury and the agency action; and (3) it is "likely" that the injury

will be "redressed" by a favorable decision. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-561 (1992); Valley Forge Christian

College v. Americans United, 454 U.S. 464, 472 (1982); Simon v.

Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42

(1976); Sierra Club v. Morton, 405 U.S. 727, 740-741 (1972). To

be cognizable under Article III, “injury in fact" must be to a

"legally protected interest” that is both (1) “concrete and

particularized” and (2) “actual or imminent, not ‘conjectural or

hypothetical."" Lujan, supra, at 560. The “causal connection"

must be such that the injury is "traceable" to the agency action, and

is not the result of "independent action of some third party not

before the court.” Id.”

The Solicitor General argued in his opposition to the petition

for writ of certiorari that the petitioners lack constitutional standing

because--although they may have suffered injury in fact--there is no

causal connection between their injury and the agency action of

which they complain, and their injury cannot be redressed by a

2. One who asserts “procedural rights,” such as failure to hold a

hearing prior to denial of a license or failure to prepare an environmental

impact report for a project located next door, may not be required to meet

“all the normal standards for redressability and immediacy.” Lujan, supra,

504 U.S. at 572 n. 7.

10

favorable decision. According to this argument, the Biological

Opinion merely provided certain recommendations, and the Bureau

voluntarily complied with the recommendations by reducing water

deliveries to the petitioners; therefore, the agency action that caused

the petitioners’ injury was that of the Bureau rather than the

Secretary.

The Solicitor General's argument is misplaced for two reasons.

First, the Ninth Circuit and the district court specifically declined

to consider the argument. Pet. App. 4, 27. Therefore, the

argument should not be considered by the Court in this proceeding,

but should only be considered on remand if this Court reverses the

judgment below.

Second, the Solicitor General’s argument is erroneous on the

merits. Under the ESA, the Secretary is required to issue a

biological opinion after determining that a proposed federal agency

action may affect an endangered species or its critical habitat, and

iS required to suggest "reasonable and prudent alternatives” in cases

where "jeopardy [of the species] or adverse modification [of critical

habitat]" is found. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. §

402.14. The federal agency--in this case, the Bureau--is required,

after consultation with the Secretary, to ensure that its action "is not

likely to jeopardize the continued existence of any endangered

species or threatened species" or result in the destruction of the

“critical habitat" of any such species. Section 7(a)(2), 16 U.S.C.

§ 1536(a)(2). Obviously the way that the federal agency fulfills its

obligation of avoiding jeopardy to endangered species is by

complying with the recommendations in the Secretary’s Biological

Opinion. Indeed, the federal agency is subject to liability under the

ESA if it fails to avoid jeopardizing an endangered species or

impairing critical habitat. 16 U.S.C. §§ 1532(13) (federal agencies

are "“persons"), 1540(a) (civil penalties), 1540(b) (criminal

penalties), 1540(g) (injunctive relief). Typically, as in this case, the

Biological Opinion contains an “incidental take" statement

describing the "take" or loss that is expected to occur if the federal

agency follows the reasonable and prudent alternatives in the

opinion; the federal agency is immunized from civil and criminal

liability if it follows these alternatives. See 16 U.S.C. §

1536(c)(2); 50 C.F.R. § 402.14(i)(5). In short, the federal agency

has a defense to liability if it complies with the secretarial

11

determinations, and lacks such a defense if it does not. Therefore,

although the ESA does not specifically require the Bureau to comply

with the secretarial determination here, the Bureau has little choice,

as a practical and legal matter, other than to comply.

This Court has held that constitutional standing requirements

are satisfied if the plaintiff's injury is "fairly traceable” to the action

of a particular agency, and if it is “likely” that the injury will be

redressed if the agency action is reversed. Lujan, supra, 504 U.S.

at 560 (emphasis added). Certainly the Bureau would not have

restricted water deliveries to petitioners if the Secretary had not

issued his Biological Opinion. By the same token, the Bureau

obviously would not continue such restrictions if the Secretary's

opinion were reversed. Therefore, the petitioners’ injury here is

"fairly traceable" to the Biological Opinion, and will "likely" be

redressed if the Biological Opinion is reversed. Accordingly, the

petitioners satisfy Article III standing requirements.

B. Prudential Standing

Even if a party has satisfied constitutional standing

requirements in challenging agency action under section 10 of the

APA, certain "prudential" limits may still apply. Valley Forge

Christian College, supra, 454 U.S. at 474-475; see Clarke v.

Securities Industry Ass'n, 479 U.S. 388 (1987); Gladstone, Realtors

v. Village of Bellwood, 441 U.S. 91 (1979); Data Processing

Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970); Barlow

v. Collins, 397 U.S. 159 (1970). One such prudential limit is the

requirement that “the plaintiff's complaint fall within ‘the zone of

interests to be protected or regulated by the statute or constitutional

guarantee in question.’" Valley Forge Christian College, supra,

454 U.S. at 475, quoting Data Processing, supra, 397 U.S. at 153;

see also Clarke, supra, 479 U.S. at 396-400.” The "zone of

3. The “zone” test for standing is distinguishable from, and less

stringent than, the test for implying a private right of action. See Clarke,

supra, 479 U.S. at 400 fn. 16. Under Cort v. Ash, 422 U.S. 66, 78 (1975),

a private right of action may be implied only if the litigant is a member of

a class for whose “especial benefit” the statute was enacted. However, under

12

interests" test is a guide for determining whether Congress intended

to authorize particular plaintiffs to bring actions challenging

particular agency actions; Congress presumptively does not intend

to authorize actions by plaintiffs whose interests are “marginally

related to or inconsistent with the purpose implicit" in the statute.

Clarke, supra, 479 U.S. at 399; see Data Processing, supra, 397

U.S. at 164. Because the zone of interests test is a guide in

determining congressional intent, the question whether the test

applies to a particular statute, and the kind of interests that are

included within the zone, must be determined by reference to

congressional intent.

The rationale for the zone of interests test is that Congress

presumptively intends that a plaintiff should have sufficiently

particularized and adverse interests to ensure that he will be a

"reliable attorney general to litigate the issues of the public

interest," Data Processing, supra, 397 U.S. at 154; Clarke, supra,

479 U.S. at 397 n. 12, and to minimize the "potential for disruption

inherent in allowing every party adversely affected by agency action

to seek judicial review," Clarke, supra, 479 U.S. at 397. Litigants

should be allowed to raise questions of "broad social import" only

if they are “best suited to assert a particular claim," and only if

their “individual rights would be vindicated." Gladstone Realtors

v. Village of Bellwood, 441 U.S. 91, 100 (1979). Generally, the

zone of interests is more rather than less inclusive; "[w]here statutes

are concerned, the trend is towards enlargement of the class of

people who may protest administrative action." Data Processing,

supra, 397 U.S. at 154.

In several cases involving the sianding of competitors, this

Court has held that parties have standing to challenge agency action

if they are directly affected by the agency action, whether or not the

agency action promotes their interests or otherwise directly applies

to them. See Data Provessing, supra, 397 U.S. 150, Arnold Tours,

Inc., supra, 400 U.S. 43, Investment Company Institute, supra, 401

U.S. 617, and Clarke, supra, 479 U.S. 388. In these cases, the

the “zone” test for standing, “there need be no indication of congressional

purpose to benefit the would-be plaintiff." Clarke, supra, 479 U.S. at 399-

400.

|

13

Comptroller of the Currency had adopted administrative decisions

allowing banks to enter certain non-banking fields of business. Data

Processing, supra (data processing services); Arnold Tours, supra

(travel services); Investment Company Institute, supra (collective

investment funds); Clarke, supra (discount brokerage services).

Non-banking entities that were already competing in these fields

challenged the Comptroller's decisions, contending that their

economic interests would be injured if the Comptroller’s decisions

were upheld. According to the competitors, the banking laws

restricted the business activities that banks could conduct, and the

Comptroller had violated these laws by allowing banks to enter

these fields.

This Court found that all of these competitor plaintiffs had

prudential standing under the "zone of interests" test. Significantly,

the banking laws were not intended to protect or promote the

economic interests of these bank competitors; Congress had

restricted bank activities not to benefit bank competitors, but to

protect the general public by assuring a sound banking system.“

Moreover, the competitors were not the objects of the challenged

agency action; rather, the agency action applied directly to the

banks. Nonetheless, the competitors were held to have standing

because, as the Court stated, they were “directly affected" by the

agency action. Data Processing, supra, 397 U.S. at 157; Clarke,

supra, 479 U.S. at 399 n. 14. Because of this effect, they were

"reliable attorneys general" for the purpose of litigating the issues

of the public interest. Clarke, 479 U.S. at 397 n. 12, quoting Data

Processing, 397 U.S. at 154. Therefore, the “regulated”

4. See Arnold Tours, Inc. v. Camp, supra, 400 U.S. at 46 ("In Data

Processing we did not rely on any legislative history showing that Congress

desired to protect data processors alone from competition."); Clarke, supra,

479 U.S. at 396 n. 10 (noting that in Arnold Tours, Inc., "{t{he Court found

it of no moment that Congress never specifically focused on the interests of

travel agents in enacting section 4 of the Bank Service Corporation Act")

(emphasis added). As the Court noted in Clarke, Justice Harlan in dissent

in Investment Company Institute had argued that “there was no evidence that

Congress had intended to benefit the plaintiff's class when it limited the

activities permitted national banks" and “[t}he Court did not take issue with

this observation". 479 U.S. at 398 (emphasis added).

: 14

component of the "zone" test accords standing to those who are

directly and adversely affected by the regulation, and thus are

burdened by it.

This pattern of competitive standing applies to the petitioners

here. Just as the bank competitors had standing because they were

injured economically by the Comptroller's decisions allowing banks

to compete with them, the petitioners have standing because they

were economically harmed by the Secretary's decision reallocating

water to the fish with whom they "compete" for scarce water. Just

as the bank competitors’ economic interests were within the zone of

interests of the banking laws even though the purpose of those laws

was not to economically benefit bank competitors, the petitioners’

interests are within the "zone of interests" even though the purpose

of the ESA is not to benefit water users in competition with

endangered fish. In short, the petitioners have standing because,

like the plaintiffs in the competitor cases, their economic injury

flows directly and immediately from the agency action. Like the

competitors, the petitioners are “reliable attorneys general" for the

purpose of litigating the issues of public interest.

The competitor cases build upon earlier cases recognizing

economic injury as a standing basis. In Federal Communications

Comm. v. Sanders Bros. Radio Station, 309 U.S. 470 (1940),

Sanders Brothers’ radio station, which would have been harmed

economically from competition by a new licensee, was held to have

standing to challenge the Federal Communications Commission’ s

("FCC") issuance of a radio Jicense to a rival station. The FCC

argued that the FCC could not permissibly consider economic injury

to competitors in its licensing decisions, and therefore that Sanders

lacked standing under section 10 of the APA to challenge the FCC

decision. Jd. at 472. Although this Court agreed that the FCC

could not permissibly consider the economic injury issue in its

decision, the Court nonetheless held that the competitor’s economic

injury afforded standing to challenge the agency action. As the

Court stated, "It does not follow that, because [Sanders] cannot

resist the grant of a license to another on the ground that the

resulting Competition may work economic injury to him, he has no

standing to appeal from the order of the [FCC] granting the

application." 309 U.S. at 476. Thus, once Sanders had standing

because of his economic injury, he was entitled to challenge the

15

FCC decision on broader “public convenience and necessity"

grounds. As in the competitor cases, the economic interest that

gave Sanders standing need not be recognized as a “purpose” or

“objective” or substantive policy in the relevant regulatory statute.

This Court has also held that a party not directly regulated by

administrative action still has standing to challenge that action if the

action affects the party’s contractual relations with a regulated

party. In Columbia Broadcasting System, Inc. v. United States, 316

U.S. 407 (1942), this Court upheld CBS’ standing to challenge an

FCC regulation restricting network broadcasting, stating that CBS’

standing is “unaffected by the fact that the regulations are not

directed to [CBS] and do not in terms compel action by it or impose

penalties upon it because of its action or failure to act," rather, it is

sufficient that the regulations “purport to operate to alter and affect

adversely [CBS’] contractual rights and business relations with

station owners whose applications for licenses the regulations will

cause to be rejected and whose licenses the regulations may cause

to be revoked." Jd. at 422 (emphasis added). See also United

States v. Storer Broadcasting Co., 351 U.S. 192, 198-200 (1956).

In Cotovsky-Kaplan Physical Therapy Assn, Ltd. v. United

States, 507 F.2d 1363 (7th Cir. 1975), the Seventh Circuit, per

then-Judge Stevens, used the same logic in holding that an party

whose contractual interests were affected by agency action was

within the "zone of interests" of the statute, and thus had standing

to challenge the agency action. The court stated that if a

government agency “regulates the contractual relationships between

a regulated party and an unregulated party, the latter as well as the

former may have interests that are arguably within the regulated

zone for purposes of testing standing." /d. at 1367 (emphasis

added).

Here, petitioners’ water supply contracts with the Bureau were

directly and adversely affected by the Secretary’s action under the

ESA. The Bureau, in order to comply with the reasonable and

prudent alternatives in the biological opinion, was compelled to

reduce petitioners’ entitlement to water under their contracts with

the Bureau; there was no other way that the Bureau could comply

with the Biological Opinion’s reasonable and prudent alternatives

and avoid potential criminal liability for an illegal “take.”

Consequently, even if the Bureau is deemed to be the direct object

16

of the Secretary’s ESA action, petitioners still have Standing based

on the impairment of their contractual relations with the Bureau.

Therefore, the petitioners are, for all practical purposes, the

regulatory objects of the challenged ESA action.

The petitioners are also, to a degree, "protected" by the ESA,

and thus fall within the "zone of interests” for this additional

reason. Section 4(b)(2) of the ESA requires the Secretary to

consider “economic impact{s]" in designating critical habitats. 16

U.S.C. § 1533(b)(2). Section 7 of the ESA requires the Secretary

to use the “best scientific data” in determining whether to list

endangered species. 16 U.S.C. § 1536. Thus, the statutory goals

of the ESA are not only to protect endangered species, but also to

impose certain constraints on agency action for the benefit of those

adversely affected by such regulation. Specifically, the Secretary,

in designating critical habitats, is mandated to consider the

"economic impact[s]" on those, such as petitioners, whose economic

interests would be affected. The Secretary, in determining whether

to list an endangered species, must use the "best" scientific data, to

ensure that the adverse consequences of listing will not occur on the

basis of inadequate data. These constraints protect and inure to the

benefit of those, such as petitioners, whose economic interests are

affected by agency actions listing endangered species and

designating critical habitats. Thus, the petitioners’ interests are

among those that are within the Sweeping regulatory concern of the

ESA. Indeed, this Court has held that parties, like the petitioners,

who hold contracts for delivery of water from federal reclamation

projects are the "beneficial owners" of the water. Nevada v. United

States, 463 U.S. 110, 122-126 (1983); State of Nebraska v. State of

Wyoming, 325 U.S. 589, 614-616 (1945); Ickes v. Fox, 300 U.S.

82, 94-95 (1937). Therefore, the petitioners have a recognized

concern under federal law regarding agency decisions affecting

delivery of water. For these reasons, the petitioners are not only

"regulated" by the act, but also are "protected" by it.

The Ninth Circuit’s view that prudential standing is limited to

those seeking to further environmental goals would lead to

completely one-sided enforcement of environmental statutes, such

as the ESA. Under this view, litigants could challenge agency

action on grounds that the Government underregulated and failed to

adequately protect endangered species, but not on grounds that the

;

ee

17

agency overregulated and failed to base its decision on valid

scientific data, or failed to adequately consider economic impacts.

Thus, the litigant could permissibly challenge the adequacy of the

scientific data that supports the Biological Opinion, if the litigant

argues that scientific data supports greater protection of the species;

the litigant could not, however, make the same argument if the

litigant argues that scientific data supports less protection. The

inequity and absurdity of this result is reflected in the Ninth

Circuit’s view that the petitioners lack standing because they argue

that the biological opinion is "not necessary to preserve the fish”

and that "the suckers are doing just fine.” App. 16. Under this

view, the petitioners cannot even argue that the Secretary’s

Biological Opinion is scientifically unnecessary to preserve the

species, regardless of the effect on their rights. Under the Ninth

Circuit view, the prudential standing doctrine is less a "standing"

doctrine than one that precludes certain causes of action based on

their merits and objectives. This view lacks the requisite

application of neutral principles to be a viable basis for determining

who can gain access to the courts.

Indeed, the Ninth Circuit decision would virtually preclude

chaltenges to Biological Opinions issued under the ESA, to the

extent that such challenges assert that an endangered species has

been overregulated. Certainly environmental plaintiffs are unlikely

to sue the Secretary for overprotecting a species. It is unlikely that

the affected federal agency would sue a sister agency, the FWS, or

its department head, the Secretary, to challenge the Biological

Opinion; under the "unitary" system of the federal government,

interagency differences are generally resolved internally within the

government rather than by litigation between different agencies.

Cf. Nevada v. United States, supra, 463 U.S. at 127-128.

Consequently, only parties situated similarly to the petitioners would

bring lawsuits charging that the Secretary has overregulated under

the ESA. Certainly, the Ninth Circuit failed to identify any

alternative plaintiff better situated to bring such claims. The

likelihood, or lack thereof, that another party may bring the type of

Claims asserted by petitioners is a relevant factor in determining the

standing issue. Block v. Community Nutrition Institute, 467 U.S.

340 (1984); Joint Anti-Fascist Committee Refugee Committee v.

McGrath, 341 U.S. 123, 154 (1951) (Frankfurter, J., concurring);

18

Barlow v. Collins, supra, 397 U.S. at 175 n. 9 (Brennan, J.,

dissenting).

The Ninth Circuit's approach raises significant due process

concerns in that parties whose interests are directly and adversely

affected by agency action apparently lack a remedy to challenge

such action. Cf. Yakus v. United States, 321 U.S. 414, 431-434

(1944). Certainly parties whose rights are unconstitutionally

“taken” or otherwise adversely affected by agency action must have

standing under constitutional principles to seek redress, particularly

if they satisfy Article III standing requirements. Under a proper

application of prudential standing principles, this potential

constitutional problem does not arise, because parties have access

to the courts whether the interests that they seek to vindicate are

congruent with statutory objectives or not.

C. Legislative History

The legislative history of the ESA reveals that the act,

although originally enacted to pursue species protection goals, has

been significantly amended to provide for broader consideration of

economic impacts in competition with those goals. Thus, the

Statutory goals have expanded to provide for more balanced

consideration of economic interests. In this sense, economic

interests are not only "regulated" by the act, but also, to a degree,

are “protected” by it.

As noted earlier, section 4(b)(2) of the ESA requires the

Secretary to consider "economic impact|s}" in designating critical

habitats. 16 U.S.C. 1533(b)(2). This provision was added as part

of the 1978 amendments to the ESA. These amendments were

designed to moderate the species protective character of the original

legislation.” Among other things, the amendments added an

exemption to the section 7 consultation requirement, so that projects

threatening jeopardy to species could nonetheless be authorized in

certain circumstances by the Endangered Species Committee. See

5. See S. Rep. 874, 95th Cong., 2d Sess. 2 (1978); 124 Cong. Rec.

38123 (1978) (Rep. Bowen); id. at 38138 (Rep. Burgener); id. at 9803-

98804 (Sen. Culver); id. at 9805 (Sen. Wallop).

19

Pub. L. 95-632, Section 3, 92 Stats. 3753, now codified at various

provisions of 16 U.S.C. § 1536(e)-(p). In addition to requiring that

economic impacts be considered in designating critical habitat, the

1978 amendments also provided for greater public participation in

the habitat designation process, particularly by those in the affected

area. Pub. L. 95-632, § 11, 92 Stat. 3764.

The 1978 amendments were described in the congressional

debates as introducing greater “flexibility” into the ESA by

requiring some balancing of economic and developmental interests

against the interest in species protection. The intent was to avoid

having important public works projects blocked entirely by ESA

requirements.” Thus, the 1978 amendments were partly a

response to this Court's decision in TVA v. Hill, 437 U.S. 153

(1978), which had halted completion of the Tellico Dam because of

a Congressional purpose in the ESA to protect endangered species

whatever the cost.” Because other major development projects

were threatened by ESA requirements, members of Congress

acknowledged the need to introduce “balance” and “flexibility” to

avoid more extreme attempts at repeal of the ESA. See 124 Cong.

6. See H.R. Rep. 1625, 95th Cong., 2d Sess. 14 (1978) (the House bill

introduces “some flexibility which will permit exemptions from the Act's

stringent requirements"); id. at 13 (“flexibility” for Federal actions which

cannot be completed without conflicting with section 7); id. at 17

(“ flexibility” in determining critical habitat); S. Rep. 874, supra, at 3 (noting

the “need for an amendment to the act which will provide flexibility in its

administration"); 124 Cong. Rec. 38123-38124 (1978) (Rep. Bowen); id. at

38128 (Rep. Anderson); id. at 38132 (Rep. Murphy); id. at 38133 (Rep

Leggett); id. at 9804 (Sen. Baker); id. (Sen. Randolph); id. at 21133 (Sen

Culver); id. at 21137 (Sen. Wallop); id. at 21347 (Sen. Culver); see also

H. R. Rep. 567, 97th Cong., 2d Sess. 10 (1982).

7. See 124 Cong. Rec. 37115 (1978) (Rep. Lott); id. (Rep. Whitten):

id. at 38125 (Rep. Beard); id. at 38127 (Rep. Buchanan); id. at 38133 (Rep.

Leggett); id. at 38145-38146 (Rep. Bowen).

8. See H.R. Rep. 1625, supra, at 10-11; S. Rep. 874, supra, at 2; 124

Cong. Rec. 37116 (1978) (Rep. Beard); id. at 38123-38124 (Rep. Bowen);

id. at 38126 (Rep. Dingell); id. at 38131 (Rep. Hughes); id. at 38132

(Rep.Murphy); id. at 38133 (Rep. Leggett); id. at 21131-21132 (Sen.

Culver); id. at 21138 (Sen. Baker).

20

Rec. 38133 (1978) (Rep. Leggett); id. at 38134 (Rep. Lehman); id.

at 9805 (Sen. Wallop); id. at 21132 (Sen. Culver); id. at 21342

(Sen. Baker).

In presenting the conference report, Representative Murphy,

the House floor manager, described the section 4(b)(2) requirement

to consider economic impacts as "the most significant provision in

the entire bill." 124 Cong. Rec. 38666 (1978). Representative

Buchanan explained in the earlier House debates that this provision

would make the Secretary be "more judicious” in specifying critical

habitat so that the construction of needed projects would not be

paralyzed. /d. at 38128. House Report 1625 also noted that with

the requirement to consider economic impacts, the Committee

expected that "the resultant critical habitat will be different from

that which would have been established using solely biological

criteria," and that in some situations "no critical habitat will be

specified." H.R. Rep. 1625, supra, at 17. See also 124 Cong. Rec.

38131 (Oct. 14, 1978) (Rep. Hughes); id. at 38134 (Rep. Leggett):

id. at 38156 (Rep. Buchanan). The beneficiaries of this provision

were “pers~ns living in such areas," id. at 38127 (Rep. Buchanan),

who might be affected by such designations and whose economic

interests should be considered when critical habitat is designated.

Thus, Congress, in adopting requirements for designating critical

habitats, specifically intended to benefit people like petitioners who

were adversely affected by such designations.

Section 7 of the ESA, in requiring the Secretary to use the

“best scientific data" in determining whether to list endangered

species, also includes the petitioners’ interests within its protective

ambit. The original ESA legislation, adopted in 1973, required

listing decisions under section 4 to be based upon the “best

scientific . . . data." Pub.L. 93-205, § 4(b), 87 Stat. 887. The

1978 amendments added more detailed procedures for section 7

consultations, including a “best scientific data” requirement

whenever the Secretary triggered section 7 consultation by advising

a federal agency that listed species were present in the area of a

proposed federal project. See Pub.L. 95-632, § 3; 92 Stat. 3753.

The 1978 amendments also added a “best scientific data”

requirement to the section 4 critical habitat designation process. See

Pub.L. 95-632, §§ 11(4), 11(7); 92 Stat. 3765, 3766. The

legislative history shows that these “best scientific data”

21

requirements were intended to protect economic interests from

species protective actions that did not have a sound scientific basis.

Numerous legislators described episodes where species protective

actions were not scientifically justified.” Regardless of the

accuracy of these environmental “horror stories," they demonstrate

that the “best scientific data” requirement was intended to protect

people like petitioners from species-protective actions that were

based on ideological or policy preference, not good science.

The 1979 ESA amendments divided section 7(a) into three

subsections and added to section 7(a)(2) the current ESA language,

which provides that "[iJn fulfilling the requirernents of this

paragraph each agency shall use the best scientific and commercial

data available." See Pub. L. 96-159, § 4(1), 93 Stat. 1226. This

language was part of a package of amendments offered by

Representative Breaux. 125 Cong. Rec. 28940-28941 (1979).

These amendments were apparently prompted by a General

Accounting Office (GAO) report which, according to Representative

Bauman, “found that further legislative changes to the Endangered

Species Act are needed to better balance species protection and

economic growth and development.” /d. at 28941. One of the

9. Representative Lott noted that ESA restrictions had delayed or halted

important public works projects, and that one of the “worst abuses” had

“occurred in the listing process whereby species of plants and animals have

been listed as endangered without even a scintilla of adequate supporting

evidence”. 124 Cong. Rec. 37115 (1978). Representative Bowen stated that

the 1978 bill would ensure “that there can be economic growth and

development”, because “[flor the first time, we are going to have proposed

final regulations actually based on the best scientific data available -- current,

not old data, but current data.” Jd. at 38123. Representative Beard noted

how the FWS “is actively considering listing species which are not even

threatened or endangered”. /d. at 38125. Representative Buchanan described

a listing decision that he suspected was not based on scientific data but on

the “environmental activism” of FWS personnel. /d. at 38127 He went on

to note that the 1978 legislation “is an attempt to address such problems.”

Id. Senator Wallop also described how the listing of certain alligators in

Florida had not been scientifically based: “The agency representatives

testified that biologically the alligator never did qualify as endangered, but

that its listing as such was an example of emotional rather than biological

reason dictating the species to be listed in the first place.” /d. at 21136.

22

problems identified in the GAO report was "the failure to utilize the

best scientific evidence available." /d. at 29050 (Rep. Bowen).

House Conference Report 697 also described the GAO’s criticism

of listing decisions and GAO’s conclusion that “if the Fish and

Wildlife Service had... obtainfed] adequate information on

proposed species, including the development of the latest and best

available scientific data as required by the Act, the species may

never have been proposed in the first place.” H.R. Conf. Rep.

697, 96th Cong., Ist Sess. 10 (1979). Thus, the 1979 legislative

history also indicates that the “best scientific data" requirement was

intended to benefit those who might otherwise be adversely affected

by species-preservation actions that were based on policy

preferences rather than good science.

Consequently, petitioners are within the zone of interests

encompassed both by the “economic impact” requirement in section

4 and the “best scientific data" requirement in section 7.%

Because these statutory requirements set limits on the species

protection goals of the ESA, they were necessarily intended to be

enforced through claims of overregulation brought by persons, such

as petitioners, whose economic interests had been adversely affected

by noncompliance with these requirements. In this sense, the

petitioners are both “regulated” and “protected” by the ESA.’

10. The “best scientific data” requirement was not intended to solely

protect economic interests from overzealous and unscientific administration

of the ESA. The 1978 legislative history also reveals concern that the FWS

was withholding certain scientifically-justified species protective actions for

fear that the resulting restrictions on development would provoke a political

backlash. See 124 Cong. Rec. 21347 (1978) (Sen. Culver).

11. The policy statement in section 2(c)(2), 16 U.S.C. § 1531(c)(2) that

“Federal agencies shall cooperate with State and local agencies to resolve

water resource issues in concert with conservation of endangered species”

was intended to “recognize the individual States’ interest and, very often, the

regional interest with respect to water allocation.” S. Rep. 418, 97th Cong.,

2d Sess. 25 (1982). Consequently, even if this policy statement did not

change any substantive or procedural requirements of the ESA, id., it does

give special statutory recognition to the particular interest in water allocation

at issue in this case. It is hard to see how such an interest can be excluded

from the zone of interests encompassed by the ESA when the statute itself

. et eS

23

Il. PETITIONERS HAVE STANDING UNDER

THE CITIZEN SUIT PROVISION OF THE

ENDANGERED SPECIES ACT

The zone of interests test was developed as a gloss on section

10 of the APA. Clarke, supra, 479 U.S. at 395, 400 n. 16. This

Court has not determined whether the "zone" test applies to other

statutes authorizing judicial review. /d. at 400 n. 16. Congress

clearly has the power, however, to abrogate all prudential

limitations on standing, and thus to expand standing to the full

extent permitted by Article III of the Constitution. United Food and

Commercial Workers Union Local 751 v. Brown Group, Inc.,

_U.S._, 1996 USLW 241649 (May 13, 1996); Gollust v.

Mendell, 501 U.S. 115, 126 (1991); Gladstone Realtors, supra, 441

U.S. at 100; Warth v. Seldin, 422 U.S. 490, 501 (1975).

Clearly the citizen suit provision of the ESA significantly

broadens the right of persons to challenge agency decisions under

that act. Under that provision, “any person may commence a civil

action on his own behalf . . . (A) to enjoin any person, including

the United States and 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 therec., . . .”

16 U.S.C. § 1540(g)(1). Read literally, the provision would

authorize “any person” to challenge any agency “violation,”

regardless of whether the person has sustained actual injury or met

other constitutional standing requirements. This Court has held,

however, that Congress cannot abrogate the constitutional standing

requirements contained in Article II]. Gladstone, supra, 441 U.S.

at 100. Therefore, notwithstanding the broad language of the

citizen suit provision, any person challenging agency action under

that provision must still satisfy Article III standing recuirements.

On its face, the citizen suit provision, by authorizing actions

by “any person” who asserts a violation of the ESA, appears to

abrogate prudential standing requirements altogether in actions

challenging agency action under the ESA. Thus, the provision

accords the interest in water allocation special recognition.

24

appears to authorize actions regardless of whether the plaintiff's

interests fall within the "zone of interests" protected or regulated by

the ESA, assuming of course that the plaintiff otherwise meets

Article III standing requirements. The reference to "any person"

suggests a congressional intent to broaden standing requirements to

the constitutional limits authorized by Article III. Certainly nothing

in the legislative history of the citizen suit provision suggests an

intent to limit the standing of persons to maintain actions under that

act2 Moreover, in concluding that other statutes expanded

standing to the full constitutional limit, the Court has relied mainly

on the plain language of the statute in reaching its conclusion. See

Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 209

(1972) (construing “person aggrieved" in the Fair Housing Act,

noting “{t}he language of the Act is broad and inclusive");

Gladstone, Realtors, supra, 441 U.S. at 103 (section 812 of the

Fair Housing Act "on its face contains no particular statutory

restrictions on potential plaintiffs"); Gollust v. Mendell, 501 U.S.

115, 122 (1991) ("the statutory definitions identifying the class of

plaintiffs . . who may bring suit indicate that Congress intended to

grant enforcement standing of considerable breadth.") (emphases

added). Because statutes should be read in accordance with their

plain meaning, see e.g., United States v. Ron Pair Enterprises,

Inc.. 489 U.S. 235, 242 (1989), the citizen suit provision of the

12. Section 11(g)(1)(A) and (B), 16 U.S.C. §§ 1540(g)(1)(A) and (B)

were enacted as part of the original 1973 ESA legislation. See Pub. L.

93-205, § 11(g)(1)(A), (B), 87 Stat. 900. Senate Report 307, 93rd Cong.,

ist Sess. 11 (1973), simply said that the citizen suit provision permits

"private actions to enforce the provisions of this Act.” See also 119 Cong.

Rec. 25676 (1973) (Sen. Williams) (commenting that "[cJitizen suits are also

permitted subject to certain conditions”); H.R. Rep. 1625, supra, at 7 ("In

addition {to} the civil and criminal penalty provisions provided already

discussed, the act authorizes any person, private entity, as well as any State

or Federal agency to bring suit to enjoin violations of the act.”). Section

i1(gM IMC), 16 U.S.C. § 1540(g)(1)(C), was added in the 1982 ESA

amendments. See Pub.L. 97-304, § 7(2), 96 Stat. 1425. See also H.R.

Conf. Rep. 835, 97th Cong., 2d Sess. 35 (1982).

25

ESA would appear to abrogate prudential standing requirements

altogether for all plaintiffs.

To be sure, the legislative history of the citizen suit provision

of the Clean Water Act (CWA) suggests a primary congressional

concern to broaden access to the courts for those seeking to promote

the environmental goals of the CWA. Senator Muskie, the principal

sponsor of the CWA, described this purpose in the following

colloquy:

"Mr. Bayh. Would an interest in a clean environment--which

would be invaded by a violation of the Federal Water Pollution

Control Act or a permit thereunder--be an ‘interest’ for the

purposes of this section?

"Mr. Muskie. That is the intent of the conference. ... The

conference report states: ‘It is the understanding of the

conferees that the conference substitute relating to the

definition of the term ‘citizen’ reflects the decision of the

U. S. Supreme Court in the case of Sierra Club v. Morton

(405 U.S. 727 [92 S.Ct. 1361, 31 L.Ed.2d 636)

(1972)].’ . . . It is clear that under the language agreed to by

the conference, a noneconomic interest in the environment, in

13. The legislative history of citizen suit provisions in other

environmental statutes indicates an intent to eliminate all prudential standing

restrictions. For example, in describing the citizen suit provision in the

Surface Mining Control and Reclamation Act, 30 U.S.C. section 1270, the

House Report noted: “It is the intent of the committee that the phrase ‘any

person having an interest which is or may be adversely affected’ shall be

cunstrued to be coterminous with the broadest standing requirements

enunciated by the U.S. Supreme Court.” H.R. Rep. 218, 95th Cong., Ist

Sess. 90 (1977) (emphasis added). The Senate Conference Repcrt on the

Clean Water Act also described the scope of the citizen suit provision as

follows: "It is the understanding of the conferees that the conference

substitute relating to the definition of the term ‘citizen’ reflects the decision

of the U.S. Supreme Court in the case of Sierra Club v. Morton [405 U.S.

727 (1972)]". S. Conf. Rep. 1236, 92d Cong., 2d Sess., 146 (1972). Since

Sierra Club dealt with the constitutional requirement of injury-in-fact,

Congress apparently intended citizen suit standing under the Clean Water Act

to be as broad as was constitutionally permissible.

26

505.

"Further, every citizen of the United States has a legitimate

and established interest in the use and quality of the navigable

waters of the United States. Thus, I would presume that a

citizen of the United States, regardless of residence, would

have an interest as defined in this bill regardless of the

location of the waterway and regardless of the issue involved."

"Mr. Bayh. | thank my good friend from Maine. I believe

that the conference provision will not prevent any person or

group with a legitimate concern about water quality from

bringing suit against those who violate the act or a permit, or

against the Administrator if he fails to perform a

nondiscretionary act. These sorts of citizen suits--in which a

citizen can obtain an injunction but cannot obtain money

damages for himself--are a_very useful additional tool _in

ensorcing environmental protection laws. I am glad to see that

authority for such suits is included in this bill." 118 Cong.

Rec. 33717 (1972) (emphasis added).

Thus, the legislative history of the CWA makes clear that the

citizen suit provision was intended to eliminate prudential standing

requirements for litigants who pursue environmental interests. It is

less clear, however, whether Congress intended to similarly

eliminate prudential standing requirements for parties who assert

economic interests that are in competition with these environmental

interests.

The better view, the amici states believe, is that the citizen suit

provision of the ESA abrogated prudential standing requirements for

all parties who challenge agency action under the ESA, regardless

of whether they seek to further environmental goals or not. The

statutory language--which affords a cause of action for "any person"

who asserts a violation of the statute--is generally a more reliable

indicator of the congressional intent than the legislative history.

Moreover, even assuming that the legislative history of the CWA

is relevant to the ESA, the legislative history indicates only that

Congress meant to broaden standing for those who pursue

environmental goals, and does not indicate that Congress did not

mean to broaden standing for those who pursue economic or other

27

goals.“ Therefore, the petitioners are authorized to maintain

their action under the citizen suit provision.

Whether or not the citizen suit provision of the ESA abrogates

prudential standing requirements for persons who pursue economic

rather than environmental interests, the provision clearly does not

reduce the standing that such persons might have under other

statutory authority to challenge such agency action. Therefore, if

a person has standing to challenge agency action under section 10

of the APA, the action can be maintained regardless of whether the

person has standing under the citizen suit provision. Nothing in the

citizen suit provision suggests an intent to preclude actions that

might otherwise be permissible under section 10 of the APA. On

the contrary, the citizen suit provision expressly provides that [t]he

injunctive relief provided by this subsection shall not restrict any

right which any person . . . may have under any statuie or common

law to seek enforcement of any standard or limitation or to seek any

other relief (including relief against the Secretary or a State

agency)." 16 U.S.C. § 1540(g)(5). Also, section 12 of the APA,

5 U.S.C. § 559, provides that subsequent legislation shall not

supersede or modify the right of review granted by section 10 of the

APA unless the language in a subsequent statute "expressly" so

provides. Shaughnessy v. Pedreiro, 349 U.S. 48, 51 (1955). Thus,

although the citizen suit provision expands standing by authorizing

actions by some persons who may fail to meet the prudential

requirements of the APA, the provision does not reduce standing by

precluding actions by persons who otherwise meet these prudential

requirements. As we have explained, the petitioners in this case

satisfy the prudential standing requirements of the APA. Hence.

they are authorized to maintain their action regardless of whethe:

they have standing under the citizen suit provision.

14. For example, Congress thought that the citizen suit provision of the

Resource Conservation and Recovery Act wou'd be available to police

agency overregulation as well as underregulation. See H.R. Rep. 1491(D),

94th Cong., 2d Sess. 26 (1976) ("It is the Committee’s view that the[re] is

sufficient public input and this coupled with the citizen suit provisions

contained in section 702, and the section permitting petitions for new

regulations provide sufficient protection from both overzealous or lax

regulation.") (emphasis added).

28

Additionally, whether or not the citizen suit provision

abrogates prudential standing requirements for persons pursuing

economic rather than environmental interests, the provision

nonetheless affords a remedy for such persons if they are able to

meeting prudential standing requirements. To conclude otherwise

would be to wholly disregard the statutory language affording a

remedy for “any person" who asserts a “violation” of the act.

Therefore, a person who meets prudential standing requirements has

a remedy under the citizen suit provision, regardless of the interests

that are being asserted. As explained above, the petitioners in this

case meet prudential standing requirements, and thus are authorized

to maintain an action under the citizen suit provision under any

circumstances.

This analysis is consistent with the historical development of

regulation and standing principles. The first forms of regulation

were largely economic: regulation of railroads and transportation by

the Interstate Commerce Commission; economic regulation of

banks, securities, communications during the New Deal era; and the

like. Regulation of "non-economic" interests, such as protection of

the environment and of health and safety, appeared much later, in

the 1960s and thereafter. Consequently, traditional standing

principles, as applied to economic interests adversely affected by

regulation, were developed in the earlier era. See Sierra Club v.

Morton, supra, 405 U.S. at 733 ("Palpable economic injuries have

long been recognized as sufficient to lay the basis for standing, with

or without a specific statutory provision for judicial review."). The

advent of environmental regulation gave rise to conceptual questions

regarding the standing of parties who assert non-economic values

and interests. Sierra Club partially answered the question by

broadening access to courts for environmental plaintiffs who are

able to assert "injury-in-fact." Thereafter, Congress often included

citizen suit provisions in environmental statutes, such as the CWA

and the ESA, to ensure that plaintiffs who satisfied the Sierra Club

standard would have standing to promote Congress’ environmental

goals and policies. This occurred, however, against a backdrop of

well-established standing principles that had been applied to

economic interests adversely affected by government regulation. In

enacting citizen suit provisions, Congress intended to broaden

judicial access for parties who assert environmental interests, but

8 etcete e oe Aol

29

did not intend to eliminate or otherwise restrict standing for parties

who assert economic interests. In short, the congressional intent

was to let "non-economic" or "environmental" plaintiffs into the

standing club, not throw economic interests out of the club.1/

AS. In support of its decision, the Ninth Circuit below cited its earlier

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

by then-Judge Kennedy. There, the court, although holding that the plaintiff

lacked constitutional standing under Article III, stated that the citizen suit

provision of the CWA “was intended to grant standing to a nationwide class,

comprised of citizens who alleged an interest in clean water." 688 F.2d at

1266. Thus, although the court stated that the citizen suit provision affords

standing for those seeking to pursue environmental goals, the court did not

suggest that the provision precludes standing for other litigants pursuing

economic interests. Thus, Gonzales does not contradict our argument that

the citizen suit provision affords standing to such litigants.

The Ninth Circuit also cited its earlier decision in Dan Caputo Co. v.

Russian River County Sanitation, et al., 749 F.2d 571 (9th Cir. 1984),

signed by then-Judge Kennedy. There, the Ninth Circuit held that a plaintiff

who had failed to submit a bid for a contract to build a sewage treatment

facility did not have standing under the citizen suit provision of the CWA to

challenge decisions of the EPA and the State of California awarding the

construction contract to another contractor. In our view, the court erred in

holding that the plaintiff contractor could not maintain his action under the

citizen suit provision because he did not meet prudential standing

requirements, although, to be sure, the State of California argued that the

plaintiff contractor lacked standing under the citizen suit provision. As we

acknowledged above, however, the question whether prudential standing

requirements are abrogated for persons who assert economic interests is a

close one and is not free from doubt. In any event, the plaintiff contractor

in Russian River could not maintain his action under section 10 of the APA

because he did not meet prudential standing requirements, and is thus

distinguished from the petitioners here, who meet prudential standing

requirements and thus are authorized to maintain an action under section 10.

ELE Se eer en ae Re tT ee ty | eee ten | he ee eee ye eT ee, * te

. , Parts ; P 7 eo Pe

CONCLUSION

The Ninth Circuit’s judgment should be reversed.

Respectfully submitted,

DANIEL E. LUNGREN

Attorney General

RODERICK E. WALSTON

Chief Assistant Attorney General

(Counsel of Record) \

CHARLES W. GETZ, IV

Assistant Attorney General

LINUS MASOUREDIS

Deputy Attorney General

Counsel for Amici Curiae

(See additional Counsel on inside front cover)