Amicus Curiae Brief — Bennett v. Spear

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No. 95-813 MAY 23 |

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Supreme Court of the United States

OCTOBER TERM, 1995

BRAD BENNETT, et al., Petitioners

V.

MARVIN PLENERT, et al., Respondents

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE AMERICAN FARM BUREAU

FEDERATION, CALIFORNIA FARM BUREAU,

IDAHO FARM BUREAU, TEXAS FARM BUREAU,

AND OREGON FARM BUREAU

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

JOHN J. RADEMACHER

General Counsel Counsel of Record

RICHARD L. KRAUSE MICHAEL F. ROSENBLUM

American Farm Bureau JEFFREY W. SARLES

Federation TRACY M. FLYNN

225 Touhy Avenue Mayer, Brown & Platt

Park Ridge, Illinois 60068 190 South LaSalle Street

(708) 399-5700 Chicago, Illinois 60603

(312) 782-0600

TIMOTHY S. BISHOP

Counsel for Amici Curiae

[Additional counsel listed on signature page]

Supreme Coor

~

LX

QUESTION PRESENTED

Whether private landowners are within the “zone of

interests” of the Endangered Species Act and thus have

standing to challenge the government’s failure to adhere to

that statute’s enforcement standards and procedures.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ... 1... cccccccccsctt i

INTERESTS OF THE AMICI CURIAE ......... l

ARGUMENT ....0se000000 60 eee 2

I. FARMERS AND RANCHERS ARE WELL WITH-

IN THE ZONE OF INTERESTS OF THE ESA . 3

A. Farmers And Ranchers Are Regulated By The

ESA And Hence Are Within Its Zone Of

I 3

B. The ESA Provides Procedural Protections

Against Needless Economic Harm To Private

Lendowaems ....ccvccsncnnncen 5

C. Farmers And Ranchers Must Have Standing If

The ESA’s Procedural Limits Are To Be

I 9

D. The Court Of Appeals’ Motivation Test For

Standing Would Abrogate An Important Check

On Governmental Misconduct ......... 10

E. The Decision Below Was A Premature And

Partisan Ruling On The Merits ......... 13

F. The Impact Of The Decision Below Extends

Well Beyond The ESA Provisions At Issue

PP 14

-lii-

TABLE OF CONTENTS—Continued

Page

Il. THE COURT OF APPEALS’ DENIAL OF

STANDING VIOLATES SEPARATION OF

POWERS

-iv-

TABLE OF AUTHORITIES

Cases: Page

Air Courier Conf. vy. APWU, 498 U.S. 517 (1991) ... 5

Arnold Tours. Inc. v. Camp, 400 U.S. 45 (1970) .. 5,7

Association of Data Processing Serv. Orgs. v. Camp,

397 U.S. 190 (1D) . 0. ees 3, 5, 7, 10, 15

Babbitt v. Sweet Home Chapter of Communities for a

Great Or., 115 S. Ct. 2407 (1995) ....... 4, 8,9

Barlow v. Collins, 397 U.S. 159 (1970)... ....... 8

Christy v. Lujan, 490 U.S. 1114 (1989) ......... 12

Clarke v. Securities Indus. Ass'n, 479 U.S. 388

CP cc cecceerebeccucesececsess passim

Ferrer Tere ee eee Te 10

Gladstone Realtors v. Village of Bellwood, 441 U.S.

SE Gee ob cece baseeehantba bate xs 9, 16

Idaho Farm Bureau Fed'n v. Babbitt, 900 F. Supp.

1349 (D. Idaho 1995) ......... 2, 4, 10, 14, 15

Investment Co. Inst. v. Camp, 401 U.S. 617 (1971) 5, 13

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

aes ee ee ee 11, 12

Middlesex County Sewerage Auth. v. National Sea

Clammers Ass'n, 453 U.S. 1 (1981)... ...... 16

-Vy-

TABLE OF AUTHORITIES—Continued

Page

Schering Corp. v. FDA, 51 F.3d 390 (3d Cir.), cert.

denied, 116 S. Ct. 274 (1995) ..........., 10

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

PE EE ha ead ei fe ae 16

Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978) .. 7

Statutes:

IC Nites Bec vi ou et ots f 5, 6

4 Pe eee 5, 6,9

a) ee eee ee 3, 16

Miscellaneous:

Albert, Standing to Challenge Administrative Action:

An Inadequate Surrogate for Claim for Relief, 83

We ee PT 6 wh cnc ccnccececenn 13

Soe Came. Gis. SEEDS CISPR . ww we ccc cece 6

Fletcher, The Structure of Standing, 98 Yale L.J. 221

De sesels bi bee tuneeee se eek cele 17

Jaffe, The Citizen as Litigant in Public Actions: The

Non-Hohfeldian or Ideological Plaintiff, 116 U.

3 4 £2 are 16

-Vi-

TABLE OF AUTHORITIES—Continued

Ring & Behrend, Using Plaintiff Motivation to Limit

Standing: An Inappropriate Attempt to Short-

Circuit Environmental Citizen Suits, 8 J. Envtl. L.

& Litig. 345 (1994) 0... eee eee eee

Scalia, The Doctrine of Standing as an Essential

Element of the Separation of Powers, 17 Suffolk

U. L. Rev. 881 (1983)... 2... 2 ee ee ees

Sunstein, What's Standing After Lujan? Of Citizen

Suits, “Injuries,” and Article III, 91 Mich. L. Rev.

tl FRPPrrrereerecry ieee

United States Fish & Wildlife Service, An Ecosystem

Approach to Fish and Wildlife Conservation

C—O eee ee re ee ee

Page

INTERESTS OF THE AMICI CURIAE’

The American Farm Bureau Federation (“AFBF”) is a

voluntary general farm organization organized in 1920 under

the General Not-For-Profit Corporation Act of the State of

Illinois. AFBF was founded to protect, promote, and

represent the business, economic, social, and educational

interests of American farmers and ranchers. AFBF has

member organizations in all 50 states and Puerto Rico

representing more than 4.4 million members and their

families. Amici California, Idaho, Oregon, and Texas Farm

Bureaus are constituent members of AFBF, representing the

interests of farmers and ranchers in their respective states.’

The AFBF and state Farm Bureau amici have a direct

interest in the outcome of this case. Their farmer and rancher

members own or lease significant amounts of property, on

which they depend for their livelihoods and upon which all

Americans rely for food and other basic necessities. Amici’s

members’ use and enjoyment of their land has often been

restricted by application of the Endangered Species Act

(“ESA” or “Act”). The decision below denies amici and

their members the right to bring judicial challenges to such

restrictions, even where an agency flagrantly violates express

provisions of the ESA. In consequence, amici have a strong

interest in reversing the Ninth Circuit’s ruling that farmers

and ranchers who have been harmed by the U.S. Fish and

Wildlife Service’s (“FWS”’s) perverse application of the

ESA have no standing to bring a judicial challenge.

We believe that amici’s experience in litigating ESA

issues will be helpful to this Court in reaching a decision.

For example, the AFBF and Idaho Farm Bureaus have

* The consents of the parties to the filing of this amicus brief

are on file with the Clerk.

' Texas Farm Bureau has additionally endorsed the amicus

curiae brief in support of petitioner filed by the State of

Texas in this case.

2

recently appealed to the Ninth Circuit a decision by a district

court in Idaho that—based on the Ninth Circuit’s ruling in

this case—denied them standing to challenge the govern-

ment’s listing of five species of Snake River snails as

endangered or threatened. See Idaho Farm Bureau Fed’n v.

Babbitt, 900 F. Supp. 1349, 1360 (D. Idaho 1995) (“Five

Snails Case”).

In the Five Snails Case, the Farm Bureau plaintiffs allege

that FWS failed to follow procedures and apply standards

mandated by the ESA, including the requirement that FWS

use the “best scientific and commercial data available” in

making a listing decision. 16 U.S.C. § 1533(b)(2). As a

result, plaintiffs contend, they were denied access to river

waters for recreational and agricultural use and restricted in

the type of agricultural practices they could employ. The

district court, relying heavily on the Court of Appeals’

opinion in this case, held that the plaintiffs lacked standing

because their injuries did not fall within the zone of interests

of the ESA. 900 F. Supp. at 1360.

On appeal in the Five Snails Case, the Farm Bureau

plaintiffs argue that the zone of interests test does not apply

to their situation because they were directly regulated by the

ESA and the FWS’s listings. In the alternative, plaintiffs

contend that even if the zone of interests test does apply,

they satisfied its requirements by showing that they had been

and would continue to be indirectly regulated by the snail

listings. The Five Snails Case illustrates one common and

concrete way in which the ESA harms farmers and ranchers.

If standing is denied them in such cases on the basis of

Bennett, Farm Bureau members will be denied any signifi-

cant avenue of relief against regulatory excesses in the ESA

listing process.

ARGUMENT

Amici agree with Petitioners that the zone of interests

test is not applicable where Congress has expressly made

3

standing coterminous with the reach of Article III by enacting

a broad citizen suit provision like that in the ESA, 16

U.S.C. § 1540(g)(1). Our purpose in this brief, however, is

to show that if the Court finds the zone of interests test

applicable to this proceeding, the text, structure, and purpos-

es of the ESA, as well as this Court’s precedents, mandate

that farmers and ranchers injured by government failure to

adhere to the ESA’s procedures and standards are within the

ESA’s zone of interests and have standing to seek redress.

I. FARMERS AND RANCHERS ARE WELL WITHIN

THE ZONE OF INTERESTS OF THE ESA

The Court of Appeals banished farmers and ranchers

from the zone of interests of the Endangered Species Act.

But this Court has held that persons have standing to chal-

lenge government action that has caused them injury,

provided there is a “plausible relationship” between the

injured party’s interests and the policies incorporated in “the

overall context” of the statute at issue. Clarke v. Securities

Indus. Ass'n, 479 U.S. 388, 401-403 (1987). The policies

embodied in the ESA require government agencies both to

protect endangered species and, in the course of doing so, to

weigh the impact of species-protection measures on private

landowners. Thus, the relationship between the interests of

the plaintiffs in this case and the purposes of the ESA is

more than the “plausible” link demanded in Clarke; the

plaintiffs must have their day in court if the balancing

process contemplated by the ESA is to take place at all.

A. Farmers And Ranchers Are Regulated By The

ESA And Hence Are Within Its Zone Of Interests

It is well-established that injured persons who are

“‘regulated by the statute * * * in question’” are within its

zone of interests. Association of Data Processing Serv. Orgs.

v. Camp, 397 U.S. 150, 153 (1970) (*ADAPSO”). Farmers

and ranchers typically satisfy this test. No one, for example,

is more heavily impacted by FWS’s disregard for the

4

standards imposed by the ESA in the preparation of biologi-

cal opinions than the rancher plaintiffs in this case. Plaintiffs

will have less water available for irrigation and recreation,

which wili determine how they can use their land. Though

this form of regulation may be indirect, it is regulation

nonetheless. It ignores the realities of the situation to

maintain, as did the Court of Appeals (63 F.3d at 917 n.2),

that the government's actions here regulate only itself and not

the plaintiff ranchers.

Another example of how the ESA regulates farmers and

ranchers is the “take” prohibitions of the Act. Once a species

is listed, these prohibitions apply automatically. They often

limit or prevent the most routine agricultural activities, from

clearing land to plowing fields. See Babbitt v. Sweet Home

Chapter of Communities for a Great Or., 115 S. Ct. 2407

(1995). It is pure fiction to pretend that listing decisions do

not regulate the conduct of farmers and ranchers. See Five

Snails Case, supra.

Farmers and ranchers are impacted by the ESA so

immediately and to such a great extent that they are effec-

tively regulated by the statute and are obviously within its

zone of interests. But even if this were not the case, there

can be no doubt that Congress envisioned that procedural

constraints on FWS would benefit landowners and intended

that they have standing to enforce those limits. Farmers’ and

ranchers’ activities would fall outside the ESA’s zone of

interests only if their interests were so “marginally related”

to the statutory scheme that Congress reasonably could not

have intended to permit them to enforce the relevant provi-

sions of the Act. Clarke, 479 U.S. at 399. This test for

standing is not “especially demanding”; in fact, there need

5

be “no indication of congressional purpose to benefit the

would-be plaintiff” at all. Jd. at 399-400.’

B. The ESA Provides Procedural Protections Against

Needless Economic Harm To Private Landowners

Congress sought to protect property owners against

unreasonable and overbroad regulation under the ESA by

requiring responsible agencies to factor the economic impact

of species-protection proposals into their decision-making.

The ESA requires that any action taken by government

agencies to protect endangered species be “reasonable and

prudent” (16 U.S.C. § 1536(b)(3)(A)), that agencies “tak[e]

into consideration the economic impact” of their action in a

balancing process that weighs the respective benefits of

acting or not acting (§ 1533(b)(2)), and that they rely on the

“best scientific and commercial data available”

(§ 1536(a)(2)). The natural and ordinary meaning of these

provisions is that Congress intended that ESA enforcement

should be as aggressive as necessary to prevent species

> Even if the rancher plaintiffs were not subject to ESA

regulation, they should have standing as economic competi-

tors of the endangered fish and their champions. Indeed, the

Court of Appeals justified its denial of standing based on the

plaintiffs’ “competing interest” with the suckers. 63 F.3d at

921. This Court often has granted standing to the economic

competitors of regulated parties. E.g., Clarke, 479 U.S. at

409 (trade association representing securities entities had

standing under statute regulating banks); Air Courier Conf.

v. APWU, 498 U.S. 517, 529 (1991) (“competitors of

regulated entities have standing to challenge regulations”);

see also ADAPSO, 397 U.S. at 156; Arnold Tours, Inc. v.

Camp, 400 U.S. 45, 46 (1970); Investment Co. Inst. v.

Camp, 401 U.S. 617, 620-621 (1971).

6

extinction but not more so, and that enforcing agencies

should minimize any detrimental economic impact of species

protection on property owners. In determining whether the

zone of interests test is satisfied, courts properly consider the

“overall purposes” of the statute in question and are not

limited to consideration of any particular statutory section.

Clarke, 479 U.S. at 401. Although the “economic impact”

consideration is required specifically for designations of

critical habitat (§ 1533(b)(2)), it reaches more widely and

clearly reflects one of the “overall purposes” of the ESA.

For one example, it is impossible to conceive how an

agency decision can satisfy the § 1536(b)(3)(A) requirement

that it be “reasonable and prudent” if that decision was

reached without taking into account its likely economic

impact. Economic consequences always inform a reasonable

and prudent decision. For another, the statute specifically

requires “consideration of the economic impact of * * *

designating critical habitat” (124 Cong. Rec. 38134 (1978)

(Statement of Rep. Leggett)), including “revisions” to and

“exclusion{s]” from habitat designation. § 1533(b)(2).

Properly interpreted, the ESA demands that economic

interests be taken into account at every stage of the species .

protection process.

Other provisions of the ESA likewise indicate a congres-

sional purpose to require that agencies balance the interests

of landowners, broadly conceived, against the goal of species

protection. For example, the Act’s requirement that an

agency conduct a hearing on a listing proposal, if requested

(§ 1533(b)(5)(E)), creates a forum in which competing

interests can be aired. But farmers’ and ranchers’ ability to

demand a hearing and make statements on a listing proposal

would be meaningless if they were denied standing to

challenge the agency’s unreasoned and arbitrary rejection of

their views. Other provisions too—such as notice and

comment requirements more demanding than those imposed

by the Administrative Procedure Act—would be otiose if

7

Congress’ sole concern were to protect endangered species;

they show that a more balanced approach was intended.’

Plaintiffs allege that in preparing its biological opinion on

how to protect two endangered species of suckers, FWS

failed accurately to assess and balance the competing

interests at stake. As a result, FWS developed an unreason-

able and imprudent plan to save the fish, requiring substan-

tially higher-than-necessary water levels in the Klamath

reservoirs and thereby inflicting substantial harm on local

property owners like plaintiffs who depend on that water for

irrigation and other purposes. Because the solution proposed

by FWS and adopted by the Bureau of Reclamation goes far

beyond what was necessary to save the fish, plaintiffs allege,

respondents acted unlawfully and should be restrained.

The ESA contemplates the possibility that agencies will

adopt overbroad species protection measures of the type

alleged by plaintiffs. The Act incorporates standards to guard

against this overreaching. Plaintiffs allege a violation of those

standards and seek to restore agency consideration of the full

array of interests contemplated by Congress. The Court of

Appeals would bar them from doing so.

That Congress did not specifically identify farmers and

ranchers as beneficiaries of the ESA is of no moment. This

Court in Clarke recognized that classes of persons not

specifically mentioned in a statute nevertheless often fall

within its zone of interests and have standing. 479 U.S. at

395-396 & n.10 (citing ADAPSO, 397 U.S. 150, and Arnold

> For all these reasons, amici urge this Court to reconsider

its dictum in Tennessee Valley Auth. v. Hill, 437 U.S. 153,

184 (1978), that Congress intended to authorize species-

protection measures “whatever the cost.” It is very doubtful,

given the plain language and structure of the statute, that ary

agency decision concerning species protection may be made

without first employing cost-benefit analysis.

8

Tours, Inc. v. Camp, 400 U.S. 45 (1970)). Here, concern

for the interests of farmers and ranchers—parties whose

interests are inevitably and obviously affected by the ESA

restrictions—is “[iJmplicit in the statutory provisions,” and

thus their very concrete and substantial injuries fall within

the statute’s “zone of interests.” Barlow v. Collins, 397 U.S.

159, 164 (1970); see also Sweet Home, 115 S. Ct. at 2410

(assuming without discussion that landowners and logging

companies had standing to challenge regulations promulgated

under the ESA).

The Congressional mandate that agencies identify and

weigh economic and other interests when considering

species-protection measures is both eminently reasonable and

completely consistent with contemporary thinking regarding

the interrelated issues of protecting the environment and

promoting agricultural production. Farmers and ranchers are

central players in the ecosystem that the ESA seeks to

protect. They have long prided themselves on being stewards

of the land. Indeed, it is through their dedication to scientific

conservation methods and willingness to develop and em-

brace new technology that the United States is able to

produce, on about 300 million acres of crop land, food and

other essentials that would otherwise require setting aside a

billion or more acres for farming. The efforts of the farming

and ranching community have thus freed some 700 million

acres for other uses, including species conservation.

The FWS itself has recognized that the ESA mandates

this mutually reinforcing approach, defining its own responsi-

bility under the ESA as “protecting or restoring the function,

structure, and species composition of an ecosystem while

providing for its sustainable socioeconomic use,” and

including as its “partners” in that effort “corporate and

individual landowners.” United States Fish & Wildlife

Service, An Ecosystem Approach to Fish and Wildlife

Conservation (1995) (emphasis added). By requiring that the

government’s species protection efforts be “reasonable and

—.

9

prudent” and take account of “economic impact[s],” the ESA

contemplates a lasting and healthy relationship between the

humans and animals who share the land—not the single-

minded pursuit of species protection at any cost.

Agency regulation that fails to take full account of

economic and other consequences upsets the balanced

relationship between agricultural production and species

protection, and thus runs afoul of this broad statutory

purpose. Justice O’Connor, concurring in Sweet Home,

recognized that FWS, in the course of enforcing the ESA,

might well engage in just such “questionable applications” of

its regulations. 115 S. Ct. at 2421. Plaintiffs’ suit—claiming

that the government swept aside the balancing of landowners’

and species protection interests required by the ESA in the

interagency consultation process—strengthens the species

protection program enacted by Congress by inviting judicial

correction of “questionable applications.” The decision below

deprives plaintiffs of the ability to enforce the very part of

the Act designed to protect their interests.

C. Farmers And Ranchers Must Have Standing If

The ESA’s Procedural Limits Are To Be Enforced

It would make no sense to impose a requirement that

species protection be “reasonable and prudent” (16 U.S.C.

§ 1536(b)(3)(A)) if no one had standing to challenge unrea-

sonable and imprudent agency action. By denying the

plaintiffs standing in this case, the Court of Appeals effec-

tively removed overregulation by the challenged agencies

from any judicial oversight. Such an extreme position not

only defies common sense, but also conflicts with the well-

established principle that injury resulting from a regulatory

agency’s failure to abide by required procedures is more than

sufficient to confer standing. E.g., Gladstone Realtors v.

Village of Bellwood, 441 U.S. 91, 103-104 (1979) (complain-

ants had standing where they were “dissatisfied with the

* * * delays” resulting from HUD’s procedural irregulari-

ties).

10

Because farmers and ranchers are regulated and economi-

cally impacted by the ESA, and because their property

houses so many listed species, farmers and ranchers are

“reasonable candidates” (Clarke, 479 U.S. at 403) to serve

as “reliable private attorney[s] general” (ADAPSO, 397 U.S.

at 154) to monitor the government’s compliance with the

Act. In many instances, they may be the only class of

interested parties with the incentive and information neces-

sary to play such a watchdog role. See Five Snails Case,

infra pp. 14-15. Thus, if farmers and ranchers do not have

standing to challenge the government’s overregulation, it is

unlikely that anyone does, and there will exist no judicial

safeguard against a government run amok.

It is essential, then, if FWS and other agencies are to be

constrained within statutory limits, that economically affected

persons like plaintiffs be accorded standing. See also FCC v.

Sanders Bros. Radio Station, 309 U.S. 470, 477 (1940)

(granting standing under the Communication Act of 1934 to

the only class of persons likely to have “a sufficient interest

to bring to the attention of the appellate court errors of law”

by the FCC); Schering Corp. v. FDA, 51 F.3d 390, 396 (3d

Cir. 1995) (pioneer drug manufacturers are “well-positioned”

to monitor the FDA regulations at issue because they possess

the scientific data “to recognize when the FDA may stray

from the legislatively mandated testing requirements”).

Otherwise, those statutory limits effectively will be unen-

forceable.

D. The Court Of Appeals’ Motivation Test For

Standing Would Abrogate An Important Check

On Governmental Misconduct

The Court of Appeals would limit standing under the

ESA to plaintiffs with the “correct” motivation. Only those

purporting to be motivated by “an interest in the preservation

of endangered species” (63 F.3d at 919) would be permitted

to challenge governmental misconduct in enforcing the Act.

The court below thereby effectively transformed the zone of

ll

interests test from an objective check for a minimal nexus

between a plaintiff's interest and the statutory scheme into a

subjective inquiry into the plaintiff's motivation.

As one federal district court correctly reasoned in a

recent case presenting a similar challenge to standing under

the ESA, to deny standing to plaintiffs motivated by their

own economic well-being rather than species protection

would leave FWS “unrestrained” so long as it “cloaks any of

its acts in the laudable robe of endangered and threatened

species protection.” Mausolf v. Babbitt, 913 F. Supp. 1334,

1342 (D. Minn. 1996). And such a blanket exemption from

procedural regularity, the court continued, would be “a form

of totalitarian virtue [and] foreign to the rule of law.” /bid.

(holding that snowmobilers had standing to challenge

National Park Service’s closure of national park areas

without following proper notice and comment procedures

because “interests other than those asserted on behalf of

endangered species also fall within the zone of interests

protected by the ESA”).

Yet, that is precisely the Court of Appeals’ “Catch-22”

holding in this case: if the government's regulatory zeal leads

it to overstep the constraints imposed upon it by the ESA, the

only parties able to challenge the government's misconduct

would be those with no incentive to do so. As a practical

matter, no one would enforce these important statutory

protections. Congress could not have intended such a bizarre

result.

To illustrate the implications of the Court of Appeals’

rule, suppose that federal agencies closed Grand Canyon or

Yellowstone Park on the ground that human visitors threat-

ened the survival of a listed rodent, and did so without

following the ESA’s required procedures. According to the

court below, the affected tourists would have no standing to

sue because their interests would be opposed to those

promoted by the ESA. Likewise, the ruling below would

routinely deny standing to farmers whose livelihoods are

12

directly and significantly impacted by a regulation designed

to protect a listed species, such as the farmer who is told he

may not bring an area of land into productive use because it

harbors a listed mole, or who may not pretect livestock from

the ravages of a protected predator. Cf. “hristy v. Lujan,

490 U.S. 1114, 1115-1116 (1989) (White, J., dissenting).

These hypotheticals may seem far-fetched. But at oral

argument in Mausolf, counsel for the federal government

urged that “there is absolutely no judicial recourse for

persons who contend the FWS acts overzealously on behalf

of listed species.” 913 F. Supp. at 1342 n.13. And, in

response to a hypothetical posed by the court (with reference

to the national park at issue), the government “asserted that

the FWS could close the entire park to human access to

minimize the possibility of any incidental takes of protected

species.” Jbid. (emphasis added). As the court summed up

the government’s “remarkable position,” such an action

would be “immune from challenge, and entirely beyond

review, because it benefits, rather than harms, endangered or

threatened species.” /bid. Congress could not have intended

that government regulation roam so unchecked.

To avert such a radical unleashing of governmental

power, the zone of interests test for standing has not

been—and should not be—treated as a motivation test, as the

Court of Appeals would have it. Courts are ill-suited to

engage in such an inquiry. A motivation test for standing,

moreover, would prevent courts from hearing the variety of

positions that the ESA clearly contemplates is to be consid-

ered as disputes arise over species protection. It would result

in a skewed federal environmental policy reflecting the

positions of only certain favored groups espousing only one

set of the interests incorporated into the ESA's statutory

scheme. See generally Ring & Behrend, Using Plaintiff

Motivation to Limit Standing: An Inappropriate Attempt to

Short-Circuit Environmental Citizen Suits, 8 J. Envtl. L. &

Litig. 345, 355 (1994).

ae °

13

E. The Decision Below Was A Premature And Parti-

san Ruling On The Merits

The Court of Appeals’ ruling was, in effect, a premature

resolution of the merits of plaintiffs’ claims. Standing is a

threshold question, not a stand-in for resolution on the

merits. But, as one commentator has pointed out,

“[c]anvassing the entire statute and legislative background for

indicia of protective intent necessarily involve[s] a prelimi-

nary examination of the merits and a forecast of the strength

of the claims.” Albert, Standing to Challenge Administrative

Action: An Inadequate Surrogate for Claim for Relief, 83

Yale L.J. 425, 494-495 (1974). Here, plaintiffs’ allegation

was that FWS failed to prepare its biological opinion in

conformity with the ESA’s requirements. By denying

and incentive to bring a judicial challenge—and thereby

totally immunizing FWS’s conduct from judicial review, the

Court of Appeals effectively ruled that FWS did no wrong

(indeed, that it never can do wrong when it extends species

protection). Such a ruling was premature because, as this

Court explained in Investment Co., so long as Congress

“arguably” legislated against the challenged conduct, whether

Congress actually did so is “a question for the merits.” 401

U.S. at 620. Especially given the procedural posture of this

case—a motion to dismiss prior to any discovery—the Court

of Appeals should not have short-circuited plaintiffs’ opportu-

nity to support their allegations.

The problem is not simply one of timing, but of basic

fairness. The Court of Appeals’ version of the zone of

interests test would transform courts from neutral adjudica-

tors into partisans favoring only one side in environmental

adjudication. The absurd implications of reserving standing

only for proponents of a certain course of action—in this case

only for those asserting a “community of interest [with] the

suckers” (63 F.3d at 921)—may be demonstrated with an

illustration. Suppose Congress were to pass a statute prohibit-

14

ing alteration of any building determined to be “a historical

treasure.” Overzealous regulators ban alteration of homes

built before 1960, preventing a homeowner from pursuing a

badly needed renovation. Because the homeowner has

interests at odds with historic preservation, he or she would

not have standing to challenge the ban. A court thus would

uphold the overregulation without ever hearing substantive

arguments against it.

This Court never intended its zone of interests test—a

mere “gloss on the meaning of [APA] § 702” (Clarke, 479

U.S. at 400 n.16)—to be wielded as a sword in this manner,

vanquishing enemies of whatever point of view a court

adopts as politically proper. This Court should restore the

zone of interests test to its properly neutral and objective

role—helping to ensure that those whose interests Congress

required to be considered are granted standing to sue an

agency that has ignored that mandate.

F. The Impact Of The Decision Below Extends Well

Beyond The ESA Provisions At Issue Here

The Ninth Circuit’s niggardly approach to ESA standing

is not restricted to the species-protection sections of the ESA

at issue in this case. A federal district court in Idaho already

has relied on the ruling below to deny standing to farmers

and ranchers challenging species-listing decisions by FWS.

See Five Snails Case, 900 F. Supp. at 1360. The Court of

Appeals’ rule would quash ail efforts to constrain ESA

enforcement within the confines of the statute.

In the Five Snails Case, farmers and ranchers sued to

enjoin the FWS’s listing of five species of Snake River

mollusks as endangered or threatened. The Plaintiffs alleged

that the listings threatened both the continued viability of

their agricultural operations by denying them use of river

waters and their recreational enjoyment of the mollusk

habitat. They maintained that in reaching its decisions, FWS

ignored procedures and failed to apply standards required by

15

the ESA. The district court, relying heavily on the Bennett

opinion, denied the plaintiffs standing because their injuries

did not fall within the zone of interests of the ESA. 900 F.

Supp. at 1360.

Thus, the distorted and cramped vision of standing

advocated by the Court of Appeals already has been extended

by one court and is certain, if upheld, to annul the right of

injured parties to challenge governmental improprieties in

many additional areas of environmental regulation. A proper

understanding of the zone of interests test should be restored

before the damage done to individual landowners becomes

irreparable.

Il. THE COURT OF APPEALS’ DENIAL OF STAND-

ING VIOLATES SEPARATION OF POWERS

So long as it stays within the limits of Article III,

Congress, as the author of the ESA, has the authority to

determine ESA standing requirements. See ADAPSO, 397

U.S. at 154 (“Congress can, of course, resolve the question

one way or another, save as the requirements of Article III

dictate otherwise”). Thus, whether plaintiffs have standing to

bring this litigation “turns on congressional intent, and all

indicators helpful in discerning that intent must be weighed.”

Clarke, 479 U.S. at 400. See also Scalia, The Doctrine of

Standing as an Essential Element of the Separation of

Powers, 17 Suffolk U. L. Rev. 881, 885 (1983) (standing “is

largely within the control of Congress”).

In enacting the ESA, Congress left no doubt about its

intent. Perhaps foreseeing efforts to challenge the standing of

private landowners to bring ESA actions, Congress took care

to inscribe in the statute the broadest possible standing

provision:

“[A]ny person may commence a civil suit on his

own behalf * * * to enjoin any person, including

the United States and any other governmental

instrumentality or agency * * * who is alleged to

16

be in violation of any provision of this chapter

or regulation issued under the authority thereof.”

16 U.S.C. § 1540(g)(1)(A). That provision proceeds specifi-

cally to authorize “any person” to do exactly what plaintiffs

in this case did—sue “the Secretary where there is alleged a

failure of the Secretary to perform any act or duty under

section 1533 of this title which is not discretionary with the

Secretary.” Id. § 1540(g)(1)(C). As one commentator ex-

plained with regard to such “citizen suit” provisions, they are

designed to permit a broad array of parties to “question the

procedural regularity” of agency action. Jaffe, The Citizen as

Litigant in Public Actions: The Non-Hohfeldian or Ideological

Plaintiff, 116 U. Pa. L. Rev. 1033, 1044 (1968). That

precisely characterizes both Congress’ purpose in enacting

§ 1540 and plaintiffs’ allegations in this litigation.

Congress thus has spoken on the issue of plaintiffs’

standing. A broad citizen suit provision like that in the ESA

represents Congress’ charge to courts to be inclusive in the

diversity and breadth of interests accorded the right to

challenge governmental misconduct. See Gladstone, 441 U.S.

at 103-104 (a citizen suit provision of the Fair Housing Act

“contains no particular statutory restrictions on potential

plaintiffs”); Middlesex County Sewerage Auth. v. National

Sea Clammers Ass'n, 453 U.S. 1, 16-17 (1981) (the citizen

suit provision in the Federal Water Pollution Control Act

“was intended by Congress to allow suits by [a] broad

category of potential plaintiffs”); Swan View Coalition, Inc.

v. Turner, 824 F. Supp. 923, 928-929 (D. Mont. 1992)

(based on the citizen suit provision of the ESA, challengers

to the adequacy of a biological opinion prepared by FWS had

Standing to sue). What Congress has granted, the judiciary

may not, without violating separation of powers, take away.

The Court of Appeals further violated the principle of

separation of powers by slighting Congress’ mandate that

FWS balance the economic costs and benefits of its species-

protection decisions. As Professor Sunstein has commented,

a

— en ee ee

eee

ee

ee

17

“[a]gency rejection of congressional enactments” that

mandate “cost-benefit balancing” is “inconsistent with the

system of separation of powers.” Sunstein, What's Standing

After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91

Mich. L. Rev. 163, 217-218 (1992).

This separation-of-powers principle underlying the law of

standing “prevent[s] the anti-majoritarian federal judiciary

from usurping the policy-making functions of the popularly

elected branches.” Fletcher, The Structure of Standing, 98

Yale L.J. 221, 222 (1988). The Ninth Circuit panel in this

case clearly disagreed with Congress’ resolve to grant

standing broadly to persons injured by enforcement of the

ESA. But such policy determinations, under our system, are

the province of the legislature. The Court of Appeals

impermissibly overstepped its proper bounds by using a

narrowly conceived and hopelessly biased zone-of-interests

requirement to thwart Congress’ purpose to ensure that

affected citizens could serve as a check on excessive regula-

tion in the name of species protection. By reversing the

Court of Appeals’ unwarranted exercise of judicial power,

this Court will give effect to Congress’ intent and to the

separation of powers embodied in our Constitutional struc-

ture.

CONCLUSION

The judgment of the court of appeals should be reversed.

JOHN J. RADEMACHER

General Counsel

RICHARD L. KRAUSE

Assistant Counsel

American Farm Bureau

Federation

225 Touhy Avenue

Park Ridge, Illinois 60068 )

(708) 399-5700 (312) 782-0600

NANCY N. MCDONOUGH JOSEPH H. Hopson, Jr.

General Counsel General Counsel

California Farm Bureau Oregon Farm Bureau

1601 Exposition Boulevard 3415 Commercial Street

Sacramento, California 95815 Salem, Oregon 97302

(916) 924-4000 (503) 399-1701

RIDGELY H. PATE

Legal Director

STEPHANIE C. MCMULLEN

Texas Farm Bureau

7420 Fish Pond Road

Waco, Texas 76710

(817) 772-3030