Amicus Curiae Brief — Bennett v. Spear

supreme Cuurt, U.S, |

7>~ FILE D

Zon | we

No. 813 MAY tks 1996

if CLERA

IN THE

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 AMICI CURIAE

THE WASHINGTON LEGAL FOUNDATION;

U.S. SENATOR DIRK KEMPTHORNE:

U.S. REPRESENTATIVES BILL BAKER,

HELEN CHENOWETH, GERALD B. SOLOMON, AND

RICHARD W. POMBO; ALLIED EDUCATIONAL

FOUNDATION; AND FAIRNESS TO

LAND OWNERS COMMITTEE

IN SUPPORT OF PETITIONERS

James N. Christman Daniel J. Popeo

Craig S. Harrison Paul D. Kamenar

HUNTON & WILLIAMS (Counsel of Record)

951 E. Byrd Street WASHINGTON LEGAL

Richmond, VA 23219 FOUNDATION

(804) 788-8200 2009 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 588-0302

Date: May 24, 1996

CASILLAS PRESS INC. — 1717 K STREET NW WASHINGTON DC 20036 — 202-223-1220

PACD

TABLE OF CONTENTS

Interests of amici curiae ....... ...ccvccccces

Statement of the case ...... a i Ae ae

Summary of argument

ere

I.

IV.

Conclusion

i we be sae ee Oh pe ee Be el, eee Ok le Oe A

Congress intended ESA’s citizen suit provision to

authorize persons satisfying Article III standing

requirements to seek judicial review without regard

to the prudential “zone of interests” test of

re erty ie ee ee

The plaintiffs’ economic and other interests easily

satisfy the prudential zone of interests test .....

The Ninth Circuit’s categorical rule that only those

who allege an interest in species preservation have

prudential standing would foster irrational and

unreviewable decisionmaking under the ESA,

contrary to the intent of Congress ..........

Plaintiffs meet the "causation" and “redressability"

requirements of Article III standing .........

2. 82 @ 8 @8 2 64 6te ££ 2 ewe 2S 2 Se ee eee ee eee ee

il

TABLE OF AUTHORITIES

Page(s)

Cases:

Association of Data Processing Service Orgs. v. Camp,

ee 7, 8, 9, 10, 12

Babbitt v. Sweet Home Chapter of Communities for @

Greater Oregon, 115 S. Ct. 2407 (1995)... +++ 2, 18

Bennett v. Plenert, 63 F.3d 915 (9th Cir. 1996) .. .. . - passim

Catron County Bd. of Commissioners v. U.S.Fish and

Wildlife Service, 75 F.3d 1429,........8 5555) 1S

Clarke v. Securities Industry Ass'n,

RE og cee ee ee vee 9, 12

INS v. Cardoza-Fonseca,

Ee 10

Laguna Greenbelt, Inc. v. United States DOT,

42 F.3d 517 (9th Cir. 1994) 2.2... 2... 18

Lujan v. Defenders of Wildlife,

eee + 2, 22, 23

Lujan v. National Wildlife Fed’n,

497 U.S. 871 (1990) ..............05°°"" 2

National Wildlife Federation v. Hodel,

839 F.2d 694 (D.C. Cir. 1988) ....... 055559 21

Sierra Club v. Morton,

405 U.S. 727 (1972)

Sweet Home Chapter of Communities for a

Greater Oregon v. Babbitt,

115 S. Ct. 2407 (1995)

United Food and Commercial Workers Union

Local 751 v. Brown Group, Inc.,

64 U.S.L.W. 4330 (U.S. May 13, 1996)

Valley Forge Christian College v. Americans United

for Separation of Church and State, Inc.,

454 U.S. 464 (1982)

Warth v. Seldin,

TR ALC Sat ae eT NE Oe 7

Constitution and statutes:

U.S. Const., Ant. WE... ee, passim

Administrative Procedure Act,

es Oe Oe OR io 'b wie eo ob bee e 6 ak 4,9

Clean Air Act,

42 U.S.C. § 7604(a)

Clean Water Act,

33 U.S.C. § 1365

Emergency Planning and Community Right-to-Know

Act of 1986, 42 U.S.C. § 11046(a)

iV

Endangered Species Act:

16 U.S.C. § 1531(cX2) .. 2.2 ee ee 13

6 USC. GIGIRITD .. wc ccc ccc ccece 13 IN THE

rr SUPREME COURT OF THE UNITED STATES

OUR De. . ccc cccedaeecaene 13 Meng -—

GE ics sg nc ols ented ehkenas 12 October Term,

Wie ee. gc. nc ca ceccuecunul 16

6 WME, GE on cc 0 wi wre cca nssaueues 13

16 DAE, BH 6.0 onc ckdénbine di xeus 12 No. 95-813

16 U.S.C. § 1536(D)GNA) 2.02 ee eee ee 13

“TTY Ss | eee ee 14

16 U.S.C. § 1540(g)(1) 2. ee ee ee passim BRAD BENNETT, er al.

Marine Protection, Research and Sanctuaries Act, Petitioners,

33 U.S.C. § 1415(g) 2. ee ee 15 v.

National Environmental Policy Act, MARVIN PLENERT, et al.

2 U.B.C. 6 GURMIED . ccc ccc ccs 4, 15, 23

§ (C)(2) ‘

Outer Continental Shelf Lands Act,

Gee Bese: ath i ete 15

3 § On Writ of Certiorari to the

iat United States Court of Appeals

Safe Drinking Water Act,

OU OID so vnica cdc itcecsds dnk 15 for the Ninth Circuit

Surface Mining Control and Reclamation Act,

sa en : BRIEY OF THE WASHINGTON LEGA

FOUNDATION, ET AL., AS AMICI CURIAE IN

Deule Substeness Content Act. SUPPORT OF THE PETITIONERS

URE. BOO, . go ciccccckccccederéds 15

—— INTERESTS OF AMICI CURIAE

S. Conf. Rept. No. 92-1236 . aeeee:: |

reprinted in 1972 U.S.C.C.A.N. 3776 ......... g The Washington Legal Foundation ("WLF") is a national

non-profit, public interest law and policy center based in

Washington, D.C., which is dedicated to supporting the free

enterprise system and promoting the principles of a limited and

accountable government. WLF advances its objectives through

litigation and participation in administrative proceedings in both

state and federal forums, as well as by publishing educational

materials through its Legal Studies Division. WLF has appeared

in this Court as well as in other state and federal courts as amicus

curiae, particularly in environmental cases that raise issues

relevant to this case. See, e.g., Babbitt v. Sweet Home Chapter of

Communities, 115 S.Ct. 2407 (1995); Lujan v. Defenders of

Wildlife, 112 S.Ct. 2130 (1992); Lujan v. National Wildlife

Federation, 110 §.Ct. 3177 (1990).

U. S. Senator Dirk Kempthorne of Idaho is the Chairman of

the Subcommittee on Drinking Water, Fisheries, and Wildlife of

the Senate Committee on Environment and Public Works.

U.S. Representative Bill Baker is a duly elected Member of

Congress from the 10th District of California and is also a member

of the Subcommittee on Energy and Environment of the House

Science Committee.

U.S. Representative Helen Chenoweth is a duly elected

Member of Congress from the Ist District of Idaho and is also a

member of the Subcommittees on National Parks, Forests, and

Lands; Energy and Mineral Resources; and Water and Power

Resources, all of the House Committee on Resources.

U.S. Representative Gerald B. Solomon is a duly elected

Member of Congress from the 22d District of New York and is

Chairman of the House Committee on Rules.

U.S. Representative Richard W. Pombo is a duly elected

Member of Congress from the 11th District of California and is a

member of Subcommittees on National Parks, Forests, and Lands

and Water and Power Resources of the House Resources

Committee; is a member of several subcommittees of the House

Agriculture Committee; and is Chairman of the Resources

Committee Task Force on Endangered Species.

The Allied Educational Foundation (AEF) is a nonprofit

charitable and educational foundation based in Englewood, New

Jersey. Founded in 1964, AEF is dedicated to promoting

education in diverse areas of study, including law and public

policy, and has appeared before this Court as amicus curiae in

numerous cases along with WLF.

The Fairness to Land Owners Committee (FLOC) is a

national grassroots private property group headquartered in

Cambridge, Maryland. FLOC represents over 18,000 "mom and

pop" members who are private property owners faced with

confiscatory federal, state, and local land-use laws and regulations

involving wetlands, endangered species, growth management, and

other concerns.

FLOC is dedicated to protecting property rights, especially

the right to the prudent use of one’s land. FLOC is active in

promoting balanced, fair, and environmentally sensitive legislation

that protects property rights. FLOC’s public education campaign

emphasizes the difference between conservation and confiscation,

and its officers and members have testified on numerous occasions

before the Congress and state legislatures.

All amici believe that the Ninth Circuit's decision denying

Standing to petitioners to seek judicial review under the

Endangered Species Act was wrongly decided and contrary to the

intent of Congress.

STATEMENT OF THE CASE

In the interests of judicial economy, amici adopt by reference

the Statement of Facts in petitioners’ brief. This case involves two

reservoirs in the federal government’s Klamath Project in Oregon

administered by the Bureau of Reclamation. The U.S. Fish and

Wildlife Service (FWS) prepared a _ Biological Opinion

recommending maintaining a minimum lake level to protect two

species of fish, the effect of which was to designate critical habitat

for the fish. The Bureau accepted the FWS recommendation.

Plaintiffs, two Oregon ranch operators and two irrigation

districts that use water from the reservoirs, and who are directly

affected by the reduced supply of water, filed suit under the citizen

suit provision of the ESA, seeking to challenge the FWS Biological

Opinion. They alleged that the Biological Opinion was contrary

to “scientifically and commercially available evidence" when it

concluded that the fish populations in question are declining; in

fact, the populations "are reproducing successfully." Complaint

4 13, Pet. App. 37.

These plaintiffs sued under the Administrative Procedure Act

(APA), 5 U.S.C. §§ 701 et seq., the citizen suit provision of the

Endangered Species Act (ESA) § 11, 16 U.S.C. § 1540(g)(1), and

the National Environmental Policy Act of 1969, 42 U.S.C. §

4332(2)(C). The ESA citizen suit provision provides:

Except as provided in paragraph (2) of this subsection

any person may commence a civil suit on his own

behalf -

(A) to enjoin any person, including the United States

and any other governmental instrumentality or agency

(to the extent permitted by the eleventh amendment to

the Constitution), who is alleged to be in violation of

any provision of this chapter or regulation issued under

the authority thereof.

16 U.S.C. § 1540(g)(1)(emphasis added).

The Ninth Circuit concluded that while the plaintiffs may

have standing under Article III of the Constitution, the ESA

requires that they demonstrate that they have prudential standing

as well, namely, that their interests are within the zone of interests

protected or regulated by the ESA. Bennett v. Plenert, 63 F.3d

915, 919 (9th Cir. 1995). The Ninth Circuit concluded that under

the ESA, only those plaintiffs who allege an interest in the

preservation of endangered species fall within the "zone of

interests" protected by the ESA. Jd. Consequently, property

owners and others who claim a competing interest to endangered

species are without legal recourse under the ESA. /d. at 921.'

' The court of appeals also rejected the plaintiffs’ APA claim for the

same reason that it rejected the ESA claim, namely, plaintiffs lack

prudential standing. /d. at 922. Finally, the court of appeals rejected

plaintiffs’ NEPA claim under the doctrine of hypothetical jurisdiction,

i.e., even if plaintiffs did have standing under NEPA, under Ninth

Circuit precedent, no NEPA claim lies for a violation of ESA critical

habitat designation. /d. While these latter two rulings are not directly

before the Court, the resolution of the ESA issue will likely affect how

these other issues are to be resolved.

SUMMARY OF ARGUMENT

The court of appeals erroneously concluded that the ESA’s

citizen suit provision is available only to those persons who seek

to preserve species. The plain language of that provision makes

it clear, however, that “any person” who otherwise meets the

standing requirements under Article III of the Constitution can

seek judicial review of governmental action taken under the ESA.

Indeed, only those who have a competing interest in the

resources with the species in question, such as petitioners and

other property owners, ranchers, farmers, and even medical

researchers, can be expected to challenge governmental action

taken under the ESA to ensure that that economic and other

statutory factors are properly considered in the decisionmaking

process as Congress intended. Accordingly, the Ninth Circuit was

wrong to require that the plaintiffs meet the zone of interests

prudential test.

In any event, petitioners easily satisfy the zone of interests

test because they seek to protect their interests which are either

protected or regulated by the ESA. Finally, amici submit that

petitioners clearly satisfy the basic Article III test for standing. In

addition to alleging an injury-in-fact, which is undisputed, that

injury can be traced to the respondents’ conduct and is likely to be

redressed by a favorable judicial decision on the merits.

ARGUMENT

I. CONGRESS INTENDED ESA’S CITIZEN SUIT

PROVISION TO AUTHORIZE PERSONS

SATISFYING ARTICLE III STANDING

REQUIREMENTS TO SEEK JUDICIAL REVIEW

WITHOUT REGARD TO THE PRUDENTIAL

"ZONE OF INTERESTS" TEST OF STANDING.

There can be no doubt that Congress can, if it wishes,

authorize plaintiffs to bring suit in federal court to the fullest

extent allowed by the "case or controversy" component of Article

III without regard to the prudential limitations on standing. Warth

v. Seldin, 422 U.S. 490, 501 (1975); Association of Data

Processing Service Orgs. v. Camp, 397 U.S. 150, 154 (1970).

Indeed, as recently as two weeks ago, this Court reaffirmed this

well-settled proposition when it stated that “prudential limitations

[on Article III standing] are rules of ‘judicial self-governance’ that

‘Congress may remove . . . by statute.’"" United Food and

Commercial Workers Union Local 751 v. Brown Group, Inc., 64

U.S.L.W. 4330, 4334 (U.S. May 13, 1996) (citing Warth vy.

Seldin).’ Accordingly, the Ninth Circuit was clearly wrong when

it held that the prudential zone of interests test of standing was

applicable in this case where Congress expressly provided that suit

may be brought under the ESA by “any person" who otherwise

satisfies Article III standing. 16 U.S.C. § 1540(g)(1).

* The Court held in United Food that by enacting a law allowing unions

to sue under the Worker Adjustment and Retraining Notification Act,

Congress removed a prudential prong of associational standing that

otherwise would preclude a labor union from suing to obtain money

damages on behalf of its members. /d.

The zone of interests test is a judicially imposed prudential

limitation on standing that limits the right of judicial review of

governmental action to only those litigants whose interests are

arguably with the "zone of interests" sought to be protected or

regulated by the underlying statute in question. See Association of

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

150, 153 (1970). This prudential test was adopted by this Court

and is employed by other federal courts in those cases where the

underlying statute in question does not provide for judicial review.

In enacting the citizen suit provision of the ESA, however,

Congress used the broadest and clearest possible language,

authorizing “any person" to “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 be in violation of" the ESA or any regulation issued

under the ESA. 16 U.S.C. § 1540(g)(1). Congress did not

qualify this citizen suit provision with any other language limiting

the class of persons who may invoke the federal courts.

Indeed, even with regard to legislation such as the Clean

Water Act where Congress employed qualifying language that

appeared to limit judicial review provisions to citizens “having an

interest which is or may be adversely affected," 33 U.S.C. §§

1365(a), (g), Congress nevertheless expressed its intent that the

“adversely affected" language was coterminous with the Article III

injury-in-fact element of standing, rather than constituting an

additional prudential factor limiting standing.’ Accordingly, by

* See S. Conf. Rept. No. 92-1236 reprinted in 1972 U.S.C.C.A.N.

3776 (adopting this Court’s definition of "citizen" in Sierra Club v.

Morton, 405 U.S. 727 (1972), which refers only to the Article III injury-

enacting the unqualified citizen suit provision of the ESA,

Congress a fortiori intended to obviate the need of the judiciary to

impose any prudential limitation on Article III standing.

The Ninth Circuit, however, ignored the plain language of

ESA’s citizen suit provision and held that plaintiffs must satisfy

additional prudential considerations to seek judicial review of

agency action under the ESA under the zone of interests test. 63

F.3d 915, 917. The court of appeals was wrong to place this

additional hurdle in the plaintiffs’ path both as a matter of law and

the policy considerations underlying the standing requirement.

In holding that the zone of interests test was applicable in this

case, the court of appeals principally relied upon this Court’s

decision in Clarke v. Securities Industry Ass'n, 479 U.S. 388

(1987). 63 F.3d. at 917. Clarke, according to the court of

appeals, was an “exegesis” of this Court’s seminal decision

establishing the zone of interests test in Association of Data

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

153 (1970), and its progeny. 63 F.2d at 917. The court of

appeals’ reliance on these decisions was misplaced.

In both Data Processing and Clarke, the Court found that the

plaintiffs in those respective cases did have standing because they

satisfied the prudential zone of interests test. However, the

banking st<tutes under review in both of those cases did not have

citizen suit or judicial review provisions as does the ESA; rather,

standing was predicated upon the general judicial review provisions

of the Administrative Procedure Act, 5 U.S.C. § 702, which

applies to all final agency action

in-fact prong of standing).

10

The judicial review provision of the APA allows for review

of agency action by persons “adversely affected or aggrieved by

agency action within the meaning of a relevant statute." 5 U.S.C.

§ 702 (emphasis added). This Court placed its judicial gloss on

this APA provision -- "within the meaning of a relevant statute" --

to carry out the intent of Congress by requiring that .he interest

sought to be protected be “arguably within the zone of interests to

be protected or regulated by the statute or constitutional guarantee

in question." Data Processing, 397 U.S. at 153.

Because Congress made it crystal clear in the citizen suit

provision of the ESA that “any person" may bring an action, the

Ninth Circuit’s analysis of cases, whether APA or non-APA cases,

and its psychoanalysis of Congress’s intent, was simply an

unnecessary exercise. In divining the intent of Congress, this

Court has consistently held that the plain meaning of the language

employed by Congress controls. See, e.g., INS v. Cardoza-

Fonseca, 480 U.S. 421 (1987). Because there is no ambiguity in

the language Congress has chosen, this Court can safely conclude

that Congress intended that all litigants who satisfy Article III

standing are entitled to seek judicial review of agency action under

the ESA.

As a policy matter, denying standing to litigants with "mere"

economic interests makes no sense in light of what the standing

doctrine is designed to achieve. "Standing" means that a party has

a “sufficient stake" in a controversy to ensure that the issues are

litigated in a truly adversarial manner rather than by those with

only an academic interest. Sierra Club v. Morton, 405 U.S. 727,

730-31 (1972). It is hard to deny that landowners who are losing

their water or their right to farm their land have a large stake in

the controversy; accordingly, they can be expected to vigorously

challenge the lawfulness of governmental action taken under the

ESA.

Even the Ninth Circuit recognized that the petitioners assert

a “competing interest" in the “very water the government

[wrongly] believes is necessary for the preservation of the

species." 63 F.2d at 921 (bracketed language added).* Under

these circumstances, there can be no doubt that "the legal questions

presented . . . will be resolved, not in the rarefied atmosphere of

a debating society, but in a concrete factual context conducive to

a realistic appreciation of the consequences of judicial action."

Valley Forge Christian College v. Americans United for Separation

of Church and State, Inc., 454 U.S. 464, 472 (1982).

Thus, the very nature of the Article III injury-in-fact alleged

in this case itself obviates the necessity of imposing an additional

prudential zone of interests test. In any event, as amici will argue

infra, those economic interests more than satisfy whatever

prudential standing requirement that may be deemed applicable.

* The plaintiffs have alleged, as the Ninth Circuit noted, that the fish are

“reproducing successfully’ and will not be adversely affected by the

long-term operation of the Klamath project." 63 F.2d at 921; Complaint

441, 13, Pet. App. 32, 37. Because this case was decided on a motion

to dismiss, these allegations by the plaintiffs must be accepted as true.

12

Il. THE PLAINTIFFS’ ECONOMIC AND’ ae

INTERESTS EASILY SATISFY

PRUDENTIAL ZONE OF INTERESTS T ©5?:

Even if the prudential zone of interests test is app licable, the

Ninth Circuit was wrong to conclude that these plaintiff'S failed to

satisfy that test. A party satisfies the prudential "zone of ape

test if the plaintiff alleges an interest that is "arguably ¥"™2 ™

zone of interests to be protected or regulated by the Sate &

question. Association of Data Processing Service Orga.

Inc. v. Camp, 397 U.S. 150, 153 (1970); Clarke v. em The

Industry Ass'n, 479 U.S. 388, 396 (1987) (emphasis ad’ ;

petitioners here satisfy both prongs of this disjunctive fest.

Plaintiffs assert interests which arguably are withit” the zone

of interests to be protected by the ESA. The Ninth CCU" ae

wrong to conclude that species protection was the only i!“©rest ' ;

Congress was concerned with. As the petitioners sadn did

demonstrated in their brief, Congress responded to publi orn roan

of the ESA and amended it over the years by enacting , women ne

provisions to encompass and protect the interests of petit

those similarly situated:

vic impact,

(1) to require the agencies to "consider the econom atten Que

and any other relevant impacts" when designating”

critical habitat (16 U.S.C. § 1533);

(2) to require that Biological Opinions be based ons =e

scientific and commercial data available" (16 ~~~

1536(a)(2));

(3) to require that “reasonable and prudent alternal °° te

proposed project that causes jeopardy to a liste _

13

consider economic factors (16 U.S.C. § 1536(b)(3)(A) and

pertinent legislative history); and

(4) to require federal agencies “to cooperate with state and

local agencies to resolve water resource issues in concert

with conservation of endangered species" (16 U.S.C. §

1531(c)(2)).

While not directly applicable in this case, to this list of protected

interests can be added the requirement that the federal government

“cooperate” and “consult" with the States in carrying out the ESA.

16 U.S.C. § 1535(a).°

The Ninth Circuit wore blinders by ignoring this wealth of

evidence of Congress's concern for economic and other interests

to be considered in the administration of the ESA. Surely, the

interests of the petitioners are “arguably within the zone of

interests sought to be protected" by the ESA.

Even assuming, arguendo, that plaintiffs’ interests are not

within the zone of interests to be protected, plaintiffs nevertheless

satisfy the prudential zone of interests test because the interests

they seek to protect are clearly within the zone of interests

regulated by the ESA. In this and other ESA cases, the listing of

endangered species, designation of critical habitat, and other

actions taken to preserve species invariably have an economic

5

The two irrigation districts which are petitioners in this case are

political subdivisions of the State of Oregon, and thus, are not technically

covered by the cooperation requirement between the federal agencies and

States. Compare 16 U.S.C. § 1532(17) (definition of "State") with 16

U.S.C. § 1532(18) (definition of “State agency").

14

impact on property owners and those who use water and other

natural resources. Property owners and others are regulated by the

ESA and its attendant civil and criminal penalties prohibiting the

taking" of endangered species, including the alteration of habitat.

16 U.S.C. §§ 1538, 1540.

In the case at bar, the actions of the government have a direct

impact on the amount of water resources available to the plaintiffs

for irrigation and other uses. The Biological Opinion regulates the

water level in the reservoirs by requiring that they be maintained

at a certain level. As a direct consequence, the amount of water

available to the plaintiffs which they otherwise would be entitled

to receive pursuant to the irrigation district's contracts with the

United States for water supplies is thereby reduced. Plaintiffs are

not simply “arguably within the zone of interests sought to be

regulated," they are undeniably placed right in the middle of that

zone.

The Ninth Circuit simply ignored how the ESA in this case

regulates the plaintiffs, and instead adopted a narrow and crabbed

view of the zone of interests test that allows standing for only

those who seek to protect endangered species. The court of

appeals relied solely on several of its decisions in the

environmental area, such as the Clean Water Act and the National

Environmental Policy Act, without seriously applying this Court's

jurisprudence on the subject. 63 F.2d at 919-22.

If the Ninth Circuit's narrow approach to standing is adopted,

then a whole host of environmental statutes will be off limits to

property owners, businesses, and others directly regulated by these

ne er ee et

15

laws from seeking judicial review of agency decisions.® The Ninth

Circuit’s approach should be soundly rejected; instead, amici

submit that the approach taken by the Tenth Circuit in Catron

County v. U.S. Fish & Wildlife, 75 F.3d 1429 (10th Cir. 1996)

should be adopted.’

* See Emergency Planning and Community Right-to-Know Act of 1986

§ 326, 42 U.S.C. § 11046(a); Clean Air Act § 304(a), 42 U.S.C.

§ 7604(a); Noise Control Act of 1972 § 12, 42 U.S.C. § 4911 (a);

Deepwater Port Act of 1974 § 16, 33 U.S.C. § 1515(a), Clean Water

Act § 505, 33 U.S.C. § 1365 (any “citizen,” defined as “person or

persons having an interest" efc.); Resource Conservation and Recovery

Act § 7002, 42 U.S. § 6972; Safe Drinking Water Act § 1449, 42

U.S.C. § 300j-8; Toxic Substances Control Act § 20, 15 U.S.C. § 2619;

Marine Protection, Research, and Sanctuaries Act § 105(g), 33 U.S.C.

§ 1415(g). The Outer Continental Shelf Lands Act § 23, 43 U.S.C.

§ 1349 provides review by “any person having a valid legal interest

which is or may be adversely affected"; and the Surface Mining Control

and Reclamation Act of 1977 § 520, 30 U.S.C. § 1270, says much the

same.

’ In Catron, the Tenth Circuit found standing to review an ESA decision

under NEPA, and held that ESA does not displace NEPA’s requirements.

More importantly, a regulated entity was found to have standing under

NEPA which does not even have an express provision for judicial

review. Consequently, the adoption of the approach taken by the Tenth

Circuit would necessarily permit judicial review by petitioners under the

ESA, which contains a clear citizen suit provision, as well as permit

petitioners (and others similarly situated) to litigate their NEPA claim as

well.

16

Il. THE NINTH CIRCUIT’S CATEGORICAL RULE

THAT ONLY THOSE WHO ALLEGE AN

INTEREST IN SPECIES PRESERVATION HAVE

PRUDENTIAL STANDING WOULD FOSTER

IRRATIONAL AND UNREVIEWABLE

DECISIONMAKING UNDER THE ESA,

CONTRARY TO THE INTENT OF CONGRESS.

The Ninth Circuit held that “only plaintiffs who allege an

interest in the preservation of endangered species fall within the

zone of interests protected by the ESA." 63 F.2d at 919 (emphasis

in original). This limitation on the class of plaintiffs who may

seek judicial review under the ESA would frustrate the intent of

Congress to ensure that agencies engage in a rational

decisionmaking process under the ESA by considering economic

and other factors.

As the Ninth Circuit itself recognized:

[W]e are aware that the ESA specifically provides

that the government should consider a variety of factors

-- including economic ones -- in designating critical

habitat for species. See 16 U.S.C. § 1533(b)(3). * * *

We do not believe that in setting forth the factors to be

weighed in formulating a plan for protecting species,

Congress intended to do more than ensure a rational

decisionmaking process by providing guidance for

government officials. Certainly, it did not intend

impliedly to confer standing on every plaintiff who

could conceivably claim that the failure to consider one

of those factors adversely affected him. * * * To

interpret the statute in the manner suggested by

plaintiffs would be to transform provisions designed to

17

further species protection [rationally] into the means to

frustrate that very goal. * * * Accordingly, we hold that

the plaintiffs have no standing under the ESA.

63 F.3d at 921-22 (emphasis and brackets added).

Amici submit that allowing standing to petitioners in this case

and to those whose economic interests are similarly affected would

not “frustrate” the very goal of the ESA as the Ninth Circuit

feared; on the contrary, it would further that goal. That goal, as

even the Ninth Circuit characterized it, is to “ensure a rational

decisionmaking process." Jd. at 921. The only way to “ensure”

that the government agency and employees consider the economic

and other factors is to have available judicial remedies, including

injunctive relief. Certainly, those plaintiffs whose only interest is

the protection of the species at all costs would not be expected to

“ensure a rational decisionmaking process" by requiring the agency

to consider economic and other similar factors.

Congress made the unremarkable political decision in

enacting and amending the ESA that such species protection

proceed in a rational manner. If agencies are free to escape

judicial review of their decisions so long as they take action only

in favor of protecting a species, whatever the countervailing costs

and science, irrational decisionmaking based on junk science will

continue to flourish, and congressional intent frustrated.

The following hypotheticals -- all of which have a factual

basis -- amply illustrate how the Ninth Circuit’s decision would

foreclose judicial review of arbitrary and irrational agency action

taken under the ESA that otherwise would cause Article III injury

to individuals and property owners who do not allege an interest

in species protection. Indeed, this Court’s recent decision in

Babbitt v. Sweet Home Chapter of Communities, 115 S. Ct. 2407

(1995), was brought by a group of property owners and logging

companies who asserted economic interests rather than any

interests in preserving endangered species. If the Ninth Circuit is

correct, then this Court lacked jurisdiction to decide the Babbitt

case.

Incidental take permits. Suppose the Fish and Wildlife

Service (FWS) concludes that a company’s barge operations on a

branch of the Mississippi River affect an endangered freshwater

snail. FWS says it will issue an incidental take permit under ESA

§ 10(a), but only on condition that the permittee donate $100,000

to the FWS fisheries lab in Bay St. Louis, Mississippi. If the

company refuses to pay, it has no standing to challenge the denial

of the permit under the Ninth Circuit’s categorical rule because the

plaintiff's motive is not species protection.

Critical habitat. FWS lists as endangered a bird known as

the bluegray gnatcatcher, based on information that the public is

not allowed to see. As a result, billions of dollars’ worth of

coastal foothill land in California is suddenly undevelopable. Cf.

Laguna Greenbelt, Inc. v. United States DOT, 42 F.3d 517 (9th

Cir. 1994). Under the decision below, no county, affected city,

builder, landowner, or any scientist has standing to challenge the

listing, unless the motivation is to preserve the species (which,

according to some biologists, is not a "species" at all).

Critical habitat designation. FWS decides that an

endangered prairie mole cricket lives only on 10 parcels of land in

Oklahoma; nine are owned by state and federal agencies and one

owned by a farmer. FWS decides that only the farmer’s parcel

should be listed as critical habitat because FWS does not want to

interfere with the activities of the state and federal agencies on the

19

public lands. The farmer has no standing to challenge the

decision.

Medical research. A scientist applies for a permit to take an

endangered fish because the scientific community thinks a

compound in its blood may hold a clue to preventing Alzheimer’s

disease. The scientist does not need to kill the fish; he intends

only to draw a milliliter of blood, which is done routinely to other

species of sucker in the same genus without harming the fish.

FWS refuses to issue the permit. The scientist, whose interest is

human health rather than the welfare of the fish, has no standing.

Scientific permits. A scientist wants to place tiny bands on

the feet of Newell’s shearwaters, a threatened species of birds.

Scientists handle the young shearwaters each autumn on Kauai,

Hawaii, when they are found dazed on the roads on their first

journey from the mountains to the sea after being attracted by

street lamps. Because the scientists handle the birds when they are

collected to be released at sea, they are required to apply for a

take permit. FWS nevertheless says that the applicant for the

permit will not be allowed to do his study. Banding a known

number of birds and later observing the percentage of birds that is

banded is the only feasible way to estimate the size of the

population. The study may show that the species has fully

recovered and should no longer be listed as threatened. But under

Bennett, the scientific community has no standing to challenge the

FWS; the threatened species will thus continue in perpetuity to be

listed as such even though it is fully recovered and no longer

entitled to that status.

Delisting decisions. The scientific community has argued for

a decade that the California brown pelican has fully recovered and

should be removed from the endangered species list. Although the

20

Secretary of the Interior is required by ESA section 4(c)(2) to

remove such species from the list every five years, the Secretary

has elected to devote his resources to adding more species to the

list. Southern California fishermen who are affected by the

erroneous listing of the brown pelican have no standing.

Hardship Permits. A widow's net worth is invested in a

parcel of land in Michigan that contains a pond containing the

endangered Hungerford’s crawling water beetle. The widow

wishes to develop the parcel in a manner that might affect the

existence of the pond and requests a hardship permit from FWS

under ESA § 10(b). FWS refuses to issue the permit. The widow

has no standing and risks a $50,000 criminal fine and a year in

prison if she develops her land.

x~ * * * &

The government may argue that landowners or scientists have

standing if they are denied a permit or are regulated by a permit,

and especially if they are assessed a penalty. But why are these

hypotheticals distinguishable from the instant case? Not because

the zone of interest test should come out differently under the

Ninth’s Circuit categorical rule in Bennett, for the interests of the

hypothetical farmers, landowners, and scientists are no more the

preservation of wildlife than they are in Bennett.

If there is a distinction, then it must be either that the effect

of the statute on the Bennett plaintiffs was not direct enough

(which goes to the “imminent injury" element) or that allowing

judicial review would not be likely to remedy the harm (which

goes to “redressability"). We address these issues below. For

now, it is enough to say that the plaintiffs do not lack standing by

= he Se

21

virtue of the zone of interests test relied on by the court of

appeals.

IV. PLAINTIFFS MEET THE "CAUSATION" AND

"REDRESSABILITY" REQUIREMENTS OF

ARTICLE Il STANDING.

The government argued for the first time in this Court that

even though petitioners suffered an injury-in-fact, they failed to

satisfy the other two prongs of Article III standing, namely, that

their injury can be traced to the issuance of the flawed Biological

Opinion, and that their injury is likely to be redressed by a

favorable ruling voiding that decision. See U.S. Opp. Cert. at 9-

13.

This argument is spurious. It works only if one assumes,

contrary to the evidence of this very case, that the FWS’s opinion

has little influence on its sister agencies. And yet it can hardly be

denied that changing the Biological Opinion would likely change

the outcome of the case and the impact on plaintiffs’ water rights.

In any event, a court should rot indulge a presumption that

agencies will not at least seriously consider biological opinions that

federal law directs them to consider.

"[A] party seeking judicial relief need not show to a certainty

that a favorable decision will redress his injury. A mere likelihood

will do . . . . [A] plaintiff need not ‘negate every speculative and

hypothetical possibilit(y) . . . in order to demonstrate the likely

effectiveness of judicial relief.*" National Wildlife Federation vy.

Hodel, 839 F.2d 694, 705-06 (D.C. Cir. 1988).

In this case, the FWS recommended that minimum water

levels be maintained and a sister agency accepted it. Furthermore,

the plaintiffs have alleged in their Complaint that the Bureau of

22

Reclamation “will abide by the restrictions imposed by the

Biological Opinion." Pet. App. 32. Because this case was

decided on a motion to dismiss, all allegations of fact, including

this one, must be regarded as true. Accordingly, the plaintiffs

have satisfied both the “causation” and "redressablity" prongs of

Article III standing.

Even if it is determined that petitioners failed to allege facts

sufficient to demonstrate causation and redressability, nevertheless,

it would appear that they have established “procedural standing"

as described in Lujan v. Defenders of Wildlife, 112 S. Ct. at 2142.

In Lujan, this Court suggested that plaintiffs could seek to “enforce

a procedural requirement the disregard of which could impair a

separate concrete interest of theirs (e.g... . the procedural

requirement for an environmental impact statement before a federal

facility is constructed next door to them)." /d. In further

explaining this notion of procedural standing, this Court further

noted that:

There is this much truth to the assertion that

“procedural rights" are special: The person who has

been accorded a procedural right to protect his concrete

interests can assert that right without meeting all the

normal standards for redressability and immediacy.

Thus, under our case-law, one living adjacent to the site

for proposed construction of a federally licensed dam

has standing to challenge the licensing agency’s failure

to prepare an Environmental Impact Statement, even

though he cannot establish with any certainty that the

Statement will cause the license to be withheld or

altered, and even though the dam will not be completed

for many years.

23

112 S. Ct. at 2142-43, n.7 (emphasis supplied).

In the instant case, the plaintiffs also alleged a violation of

the procedural requirements of NEPA when the agency failed to

prepare an environmental assessment prior to determining critical

habitat for the fish in question. Whether or not the Biological

Opinion constitutes an "implicit" rather than formal designation of

critical habitat, the issue is whether or not the opinion constitutes

a “major federal action" under NEPA, if it does, then the NEPA

requirements are triggered. 42 U.S.C. § 4332(C)(2).

But even if the United States is correct in stating "[t}hat there

is no such thing as an ‘implicit’ designation of critical habitat

under the ESA" and that only formal designations are subject to

ESA’s procedures, U.S. Opp. Cert. at 12, n.6, plaintiffs’

allegations can be fairly construed to mean that critical habitat has

been designated de facto, and that the formal procedures required

by the ESA for establishing critical habitat (e.g., notice and

comment) have not been followed. If those statutory procedures

had been followed, then the economic and other factors would

have been required to be considered by the agency. In short, the

agency did indirectly what it could not do directly or formally,

namely, designate critical habitat without considering economic

and other relevant factors. In that regard, the plaintiffs have

procedural rights under the ESA, and satisfy procedural standing

under footnote 7 of Lujan.

DANIEL J. POPEO

PAUL D. KAMENAR

Counsel of Record

Washington Legal Foundation

2009 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 588-0302

JAMES N. CHRISTMAN

CRAIG S. HARRISON

Hunton & Williams

951 E. Byrd St.

Richmond, VA 23219

(804) 788-8200