Amicus Curiae Brief — Bennett v. Spear

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No. 95-813 1 Oh

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IN THE UNITED STATES SUPREME COURT

OCTOBER TERM, 1995

BRAD BENNETT, et al., Petitioners,

Vs.

MARVIN PLENERT, et al., Respondents.

On Writ of Certiorari to the

United States Court of Appeals, Ninth Circuit

BRIEF OF AMICUS CURIAE STATE OF TEXAS

IN SUPPORT OF PETITIONERS

DAN MORALES

Attorney General of Texas

JORGE VEGA

First Assistant Attorney General

JAVIER P. GUAJARDO*

Special Assistant Attorney General

*Counsel of Record

SAM GOODHOPE

Special Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 463-2191

COUNSEL FOR AMICUS CURIAE

TABLE OF CONTENTS

TABLE OF AUTHORITIES

DURUS OG We ec cccccccccehecvccctccccces 1

The Self-Governing Interests of the State of

Texas Are Adversely Affected by the Ninth

Circuit’s Decision .........

The Property Interests of the State of Texas

and Its Citizens are Threatened ............. 2

The Property Interests of the Plaintiff-Petitioners

are Left Unprotected .................005. 5

Fundamental Protections of Private Property Are

Abandoned by the Ninth Circuit

SUMMARY OF ARGUMENT

I. Consequences of the Ninth Circuit’s Opinion .. .

A. The Ninth Circuit’s Opinion Renders

Hollow the Promise of Article III

B. The Ninth Circuit’s Failure to Embrace

Article II] Disrupts the Proper Balance of

State and Federal Powers and Damages the

neo ee

- The USFWS Tramples the Private

Property Rights of Texas Citizens

- The States and Their Citizens Must

Be Able to Vindicate Their Self-Governing

and Private Property Rights

II. The Analytical Shortcomings of the Ninth

Circuit’s Amalysis .........0eceeeeeeeees 20

A. The Ninth Circuit Misreads 16 U.S.C.

pt a a aD 21

B. The Ninth Circuit Failed to Acknowledge

the Significance Given by the Court to

Economic Interests in Standimg Doctrine ... 25

CONCLUSION ...... ccc cccccccvasessesceces 28

APPENDICES

Private Groups Endorsing this Brief.............. la

Map of Counties Potentially Affected by USFWS’

Designation of Endangered or Threatened Species ... 5a

Letters to Central Texas Landowners

1. Mr. & Mrs. Igua (Feb. 20, 1991) ......... 6a

2. Marge Krueger .........5 cece eeeeees 8a

3. Phil Frazier (June 24, 1993) ........... 10a

4. Keith E. Young (Dec. 3, 1993) .......... 12a

5. Patrick Noack (Jan. 13, 1994) .......... l4a

6. Jerri Garner (Jan. 13, 1994) ........... l6a

7. Rex Bohls (Jan. 13, 1994) .........445. 18a

8. Lee Sherrod (Jan. 25, 1994) ........... 20a

9. Lee Sherrod (April 14, 1994). .......... 22a

10. Fran and Larry Collmann (Sept. 23, 1994) 25a

11. Glenn Williams/Terry Wynn (Jan. 13, 1994) 28a

12. Stan & Donna Buck (June 9, 1994) ...... 30a

13. Lee Sherrod (Sept. 22, 1994). .......... 32a

iii

TABLE OF AUTHORITIES

CASES

Alabama-Tombigbee Rivers Coalition v. Fish and Wildlife

Service, No. 93-AR-2322-S, 1993 WL 646409 (N.D. Ala.

Nov. 9, 1993), aff'd, 26 F.3d 1103 (11th Cir. 1994) .. 10

American Tobacco Co. v. Patterson, 456 U.S. 63 (1982) . 24

Association of Data Processing Service

Organizations, Inc. v. Camp, 397 U.S. 150 (1970)... 26

Babbitt v. Sweet Home Chapter of Communities fora

Greater Oregon, 115 S.Ct. 2407 (1995) .......... 28

Bennett v. Plenert, 63 F.3d 915 (9th Cir. 1995) .... passim

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) ........... 6

California Coastal Comm'n v. Granite Rock Co.,

oo ee 15

Catron County Bd. of Comm'rs, New Mexico v

United States Fish & Wildlife Service,

75 F.3d 1429 (10th Cir. 1996)................. 21

Central Arizona Water Conservation Dist. v. United

States Environmental Protection Agency, 990 F.2d 1531,

PN I oo bo Gb4 dub We ccc ode 21

Clarke v. Securities Industry Ass'n, 479 U.S. 388 (1987) . 20

Crowell v. Benson, 285 U.S. 22 (1932)

Delaware v. New York, 113 S. Ct. 1550 (1993)

Dolan v. City of Tigard, 114 S.Ct. 2309 (1994) ....... 15

Douglas County v. Babbitt, 48 F.3d 1495

le 2 errr rr re ree 21

Federal Energy Regulatory Comm'n v. Mississippi,

456 UB. P42 CIGEZ) on ccc ccc cccccccccceces 13

Fidelity Federal Savings & Loan Assoc. v. de la Cuesta,

458 U.S. 141 (19BZ) cc ccc ccc ccc cccceces 15

Gladstone Realtors v. Village of Bellwood,

O60 UD. GE CIDTID cc cccccccccccccscccccees 23

Gregory v. Ashcroft, 501 U.S. 452 (1991) ........---. 13

Immigration and Naturalization Service v.

Cardoza-Fonseca, 107 S.Ct. 1207 (1987) ...... 22, 24

Lake County v. Rollins, 130 U.S. 662 (1889) ......... 22

Lane County v. Oregon, 7 Wall. 71 (1869) .......... 14

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) . 21, 27

Mausolf v. Babbitt, 913 F. Supp. 1334

Ce BE SE db cobb ccdobevececcéesees 10, 11

Mul_ane v. Central Hanover Bank & Trust Co.,

SOD UG. FEB CIRRED ccccccccccccccsaccccees 19

Nevada v. Hall, 440 U.S. 410 (1979) ... 2.6... 66 665- 12

New York v. United States, 112 S.Ct. 2408 (1992) ..... 13

Pacific Northwest Generating Co-op v. Brown,

25 F.3d 1443, 1450 (9th Cir. 1994). ............ 21

Perrin v. United States, 444 U.S. 37 (1979) ......... 22

Rodriguez v. United States, 107 S.Ct. 1391 (1987) .. 23, 24

Seminole Tribe v. Florida, 116 S.Ct. 1114 (1996) ...... 12

State of Idaho, by and through Idaho Public Utilities

Comm'n v. Interstate Commerce Comm'n,

eK Ee 21

Tennessee Valley Authority v. Hill,

Se EEE 6 pb dveecdced¢eoeestu's 23, 25

Texas v. White, 7 Wall. 700 (1869) ............... 19

United States v. Geyser, 932 F.2d 1330 (9th Cir. 1991) .. 22

United States v. Locke, 471 U.S. 84 (1985) .......... 24

United States v. Lopez, 115 S.Ct. 1624 (1995) ........ 12

Valley Forge Christian College v. Americans United for

Separation of Church and State, Inc..,

SE Cacwdes cv gene 666% ee tee. 9

Warth v. Seldin, 422 U.S. 490 (1975) .............. 15

Watt v. Alaska, 451 U.S. 259 (1981) ............... 21

Watt v. Energy Action Educational Foundation,

os ee Ede sods cones 27

CONSTITUTIONAL PROVISIONS

Sf PP PPE TPE RETER LEE EET eT passim

ees I OGD ov ok ccccccccetevesceuseans 2

U.S. Comet. amend. Xo... ccc ccc eee eens passim

es GQ ED sh cwwedcnccnvcdsedeceeen 14

STATUTES, LEGISLATIVE MATERIALS AND RULE

Se geskaduadua 3

16 U.S.C. § 1531(c)(2), §2(cM 2)... eee ee 3

ME loo ela ica vodedes 3

1G UBC. 6 ISTMSMAD .... 2. cee eee eee eee 25

SE eo. oo cade aedeenaber 3

ee ee iu awes 3

I 8, ok oac cucu ctccekeedus 25

BO I III. Co os cisccccccccccescs 25

16 U.S.C. § 1533(b( IMA) . 0... ee eee 25

I ED oo cuskccccscdesenns 25

MM TE fil occ kv been Saasikcewces 18

oe cNeaecusvewcnets 16

i ot erit ee ceewrent 21

ee ee aedonceuweee 25

16 U.S.C. § 1540(g) .. 0.0.0.0... 21, 22, 23, 25

16 U.S.C. § 1540(gX IMA) 2.000. eee ee eee. 22

16 U.S.C. § 1540(gX 1B)... 0.0.0 ee eee. 22

16 U.S.C. § 1540(gMIKC) ooo. ee eee 22, 25

ee 24

SU I aio vc cca vdccccecccas 15

43 U.S.C. §§ 371, 485(f)-(h), 511-13 2.2... 5

43 U.S.C. §§ 1701, 1712(cX9) .........0- 000 ee 15

Publ. No. 95-632, 92 Stat. 3571 (1978) ............. 25

I I ae i ccc pine 0c cuccexas 25

ee oS) a 25

H.R. Conf. Rep. No. 95-1804, 95th Cong., 2d Sess. (1978) 25

GR, Gs Be 6 ccc ecckacceseceaccctesevucens l

vii

OTHER AUTHORITIES

Bryan Arroyo, Threatened and Endangered Species of Texas,

DEPARTMENT OF THE INTERIOR, U.S. FISH AND WILDLIFE

Service, Aug. 1992 ........................ 3

Cass R. Sunstein, What's Standing After Lujan? of

Citizen Suits, “Injuries, "and Article III,

91 Mich. L.R. 163 (1992)................. 27, 28

Deborah Jones Merritt, The Guarantee Clause and State

Autonomy: Federalism for a Third Century, 88 CoLUm. L.

REV. 1, 23 (1988) (“Guarantee Clause and State

Autonomy”), citing The Federalist No. 39 (James

EE WAC e ie ee 14

-- — | he ac aap “New” Endangered

S Act: | ing and Redefining the Untapped

Power of Ordeal Agencies’ Duty to Conserve Species,

75 ENVTL. L. 1107, 1109 (1995) ............... 18

La Pierre, The Political Safeguards of Federalism Redux:

Intergovernmental Immunity and the States as Agents of

the Nation, 60 Wash. U.L.Q. 779, 790-92 & nn. 31-33

te BR lens SI ari ee, la 14

R. DICKERSON, THE INTERPRETATION AND

APPLICATION OF STATUTES, 231 (1975) ........... 22

San Antonio Express News, July 27,1994 ............ 5

No. 95-813

IN THE UNITED STATES SUPREME COURT

OCTOBER TERM, 1995

BRAD BENNETT, et al., Petitioners,

vs.

MARVIN PLENERT, et al., Respondents.

On Writ of Certiorari to the

United States Court of Appeals, Ninth Circuit

BRIEF OF AMICUS CURIAE STATE OF TEXAS

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE

STATE OF TEXAS

The Attorney General of the amicus curiae State of Texas

submits this brief, pursuant to Supreme Court Rule 37.4, on

behalf of the State of Texas (“Texas”), and the private groups

that have endorsed this brief,' to bring to the attention of the

Court the adverse impact of the Ninth Circuit’s decision in

Bennett v. Plenert, 63 F.3d 915 (9th Cir. 1995) (“Plenert”) on

' The list of the twenty-one private groups that have endorsed this brief is

included in the Appendix at 1a. Citations to the Appendix to this brief will

be cited as: Texas App. at la.

the state’s self-governing rights and powers. Texas also submits

this brief in its capacity as parens patriae in order to ensure that

the doors of the federal judiciary remain open to Texas citizens,

when necessary, to protect their rights in property and interests

in contracts.’

The Self-Governing Interests of the State of Texas Are

Adversely Affected by the Ninth Circuit’s Decision

The property rights of Texas citizens are defined,

maintained, and protected by state laws, and rules, regulations,

and ordinances promulgated pursuant to state law. This body of

state law and the right to establish and set forth the preservation

of private property under state law is protected from federal

government intrusion by the Tenth Amendment,’ the Guarantee

Clause,‘ and the inherent structure of the United States

Constitution.

The Property Interests of the State of Texas and Its

Citizens are Threatened

The listing of a species as endangered and the concomitant

designation of the critical habitat by a federal agency have a

> Throughout this brief, the plaintiffs below will be referred to as “plaintiff-

petitioners” and the defendants below will be referred to as “defendant-

respondents.”

* U.S. CONST. amend. X (“Tenth Amendment”): “The powers not delegated

to the United States by the Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.”

* U.S. CONST. art. IV, § 4 (“Guarantee Clause”): “The United States shall

guarantee to every State in this Union a Republican Form of Government.”

direct impact on the interests of private land owners in Texas.’

Every time the United States Fish and Wildlife Service

(“USFWS”) lists and designates critical habitat under sections

3 and 4 of the Endangered Species Act (“ESA”), 16 U.S.C. §§

1532, 1533, it potentially affects a substantial portion of the

land in Texas. This is so because of the USFWS’ over-

expansive interpretation and use of the ESA and because over

ninety-eight percent of the land in Texas is private or state-

owned land. The federal government’s actual ownership interest

in Texas land is negligible. Texas’ experiences with the

USFWS illustrate the magnitude of the problem.

Sixty-five species found in Texas have been listed as

endangered or threatened under the ESA by the USFWS.° The

sixty-five species listed are found in approximately 212 of

Texas’ 254 counties. See Bryan Arroyo, Threatened and

Endangered Species of Texas, DEPARTMENT OF THE INTERIOR,

U.S. FISH AND WILDLIFE SERVICE, Aug. 1992.

* Indeed, Texas also has a direct interest in the outcome of this issue.

Because Texas is a “person” within the meaning of § 3(B) of the Endangered

Species Act, 16 U.S.C. § 1532(13), it is entitled to sue under the citizen suit

provision. See 16 U.S.C. § 1531(cX2), § 2(cX2) of the ESA, which states that

it is the “policy of Congress that Federal agencies shall cooperate with State

and local agencies to resolve water resource issues in concert with

conservation of endangered species.” The Ninth Circuit's decision not only

violates the Congressional policy stated in § 2(c)(2), it directly limits Texas’

ability to bring an action for violations of the ESA.

* Forty-six of these species are fish or wildlife. Included in the listing are the

following: the golden-cheeked warbler (Dendroica chrysoparia), the Texas

blind salamander (Typhlomolge rathbuni), Texas wild rice (Zizania texana),

the fountain darter (Etheostoma fonticola), the Houston toad (Bufo

houstonensis), the piping plover (Charadrius melodus).

Thus, every time the USFWS lists or designates critical

habitat, it potentially affects some portion of ninety-eight

percent of the land in 212 Texas counties, or approximately

255,506 square miles. See Texas App. 5a (showing the counties

potentially affected should the USFWS designate critical habitats

for all sixty-five listed endangered or threatened species in the

state).

The listing of a species and the designation of a critical

habitat by the USFWS resonates in every corner of Texas: it

reduces the value of land and diminishes the ability of land

owners to “capture” groundwater; it affects the use and

productivity of land whose legal title is held by the State of

Texas for the benefit of the school children supported by the

Permanent School Fund; it diminishes the value and use of state

parks, as when the Texas Parks and Wildlife Commission had

to delay plans to expand a golf course at a state park because

the expansion had to be evaluated and approved by the USFWS

because of the “possible” presence of the Houston toad, (a

species listed under the ESA as endangered); and, in a scenario

reminiscent of the one in Plenert, it will affect the ability of the

Canadian River Municipal Water Authority, a political

subdivision of the State of Texas similar to the water districts in

Oregon, to fulfill its duties and mission to facilitate the delivery

of water to Texas Panhandle residents because of the listing of

the Arkansas River shiner.

As if to add insult to injury, top federal administrators, some

of whom are far removed from Texas, fail to grasp the import

of their actions. For example, the Director of the USFWS has

said, while discussing a listed species, the golden-cheeked

warbler, that “[t]he critical-habitat designation doesn’t add

anything to the constraints on the average landowner” implying

that the mere listing of a species is sufficient to constrain the

landowner. See “Agency defends plan for songbird habitat,”

San Antonio Express News, July 27, 1994. See also in the same

article comment of Nancy Kaufman, Deputy Director of the

USFWS, “[i]f a farmer is currently going out and destroying

this [warbler] habitat, it is already a problem”.

The USFWS is enforcing a regulatory regime under the ESA

where it dictates to the State of Texas, the political subdivisions

of the state, and private landowner-citizens what they can and

cannot do with their property. Under Plenert this de facto

regulatory scheme graphically illustrates why the Court must

give property owners in every state the ability to sue to protect

their interests in the courts of the United States.

The Property Interests of the Plaintiff-Petitioners are

Left Unprotected

The plaintiff-petitioners, ranchers and water districts rely on

water provided under federal contract,’ by the Klamath Project,

a federal reclamation project, for “commercial purposes, as well

as for their primary sources of irrigation water.” See Appendix

” In 1905 Oregon and California ceded title in the Lower Klamath and Tule

lakes to the United States for project development under the Reclamation Act

of 1902 to drain lakebed lands in order to store and provide water for

irrigation and other purposes out of the sale of water rights to homesteaders

on the reclaimed project lands. See generally 43 U.S.C. §§ 371, 485(f)-(h),

& 511-13.

to Petition for Writ of Certiorari (“Cert. App.”) 33-34, 4 5

(emphasis added). The plaintiff-petitioners, who were denied

standing to challenge the federal government’s decision to stop

providing water for their needs -- individuals and state political

subdivisions with vested and concrete economic interests, secured

in part by contractual agreement with the federal government --

possess significant interests that provide the Court with a unique

opportunity to clarify the law of standing to ensure that

individuals, political subdivisions of the states, and states with

concrete economic interests that are threatened by agency action

will, at a minimum, have access to the courts of the United

States to protect their interests.

Fundamental Protections of Private Property Are

Abandoned by the Ninth Circuit

It is a bedrock principle of our jurisprudence that interests in

property are determined in the courts according to the rule of

law.

[T]he right of property, . . . as well as the

mode, or manner, of acquiring property, and

of alienating or transferring, inheriting or

transmitting it, is conferred by society, is

regulated by civil institutions, and is always

subject to the rules prescribed by positive law.

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) (Chase, J.)

(emphasis added). The Ninth Circuit, in Plenert, silenced

plaintiff-petitioners, ranchers and water districts, denying them

the ability to protect their interests in property. If the Court lets

the result in Plenert stand, the Constitution’s guarantee to

protect, according to the rule of law, vested property rights and

contract rights of its citizens in the courts of the United States

is also silenced.

Texas writes because it is important that the law of standing

include plaintiffs such as the plaintiff-petitioners, whose concrete

economic interests meet constitutional and prudential standards.

If these plaintiff-petitioners lack standing, as a practical matter the

courts of the United States will be closed to most plaintiffs

attempting to review agency action under the ESA or the

Administrative Procedure Act.

SUMMARY OF ARGUMENT

This appeal presents the Court with two straightforward

questions of standing under the ESA.* The Ninth Circuit’s

Plenert decision must be overruled because it unnecessarily

restricts the reach of Article III of the United States

Constitution,’ it violates fundamental principles of federalism,

it misreads the citizen suit provision of the ESA, it violates the

principles of stare decisis by ignoring case precedence, and it

misapplies the law of standing established by this Court. The

* The first question is whether the broad grant of standing in the citizen suit

provision of the ESA is subject to a zone of interests test. If the Court

answers no, the inquiry ends. If the Court answers yes, the second question

is whether plaintiff-petitioners -- public water suppliers and water users with

economic interests -- fall within the zone of interests protected or regulated

by the ESA.

* U.S. Const. art. Il

Ninth Circuit’s decision will leave landowners and political

subdivisions of the states barred from the courtroom while

federal agencies make policy decisions without supervision and

regard to the rule of law.

ARGUMENT

I. Consequences of the Ninth Circuit’s Opinion

A. The Ninth Circuit’s Opinion Renders Hollow the

Promise of Article III

The Ninth Circuit denied standing to plaintiffs who have

meritorious causes of action to protect valuable property rights.

These plaintiffs clearly have standing, undier both an Article III

analysis and an analysis under the prudential zone of interests

test. The decision challenged here tramples the constitution’s

guarantee to citizens of a judicial forum for protection of their

rights and interests in property and it permits unsupervised

policy making, exempting a federal agemcy from meaningful

judicial review.

Article III defines the limits of federal judicial power and

determines who may come to the federal courts to seek judicial

relief.

[I]t is a part of the basic charter promulgated

by the Framers of the Comstitution at

Philadelphia in 1787, a charter which created

a general government, provided for the

interaction between that government and the

governments of the several States, and was

later amended so as to either enhance or limit

its authority with respect to both States and

individuals.

Valley Forge Christian College v. Americans United for

Separation of Church and State, Inc., 454 U.S. 464, 476 (1982)

(“Valley Forge”). Valley Forge recognizes that Article III

guarantees to the states and its citizens access to the courts for

redress of injuries to them, so long as they meet the minimum

dictates of Article III. The Ninth Circuit’s opinion breaks the

promises embodied in Article III. See Valley Forge, 454 U.S.

at 471-76 (discussing constitutional and prudential principles,

all of which are embodied within the context of the guarantees

of the constitution).

The Ninth Circuit’s Plenert ruling allows federal

environmental agencies to immunize themselves from suit so

long as they characterize their actions as protecting endangered

or threatened species. The Ninth Circuit achieved this

immunization by making a value-laden decision, unauthorized

by Article Ill or the ESA, that some plaintiffs are more

deserving of federal judicial recourse than others. A district

court from the Northern District of Alabama wisely refused to

take the course taken by the Ninth Circuit, explaining:

To limit standing to public interest groups who

complain of the possible endangerment of a

species, asserting an aesthetic, or moral, or a

scientific, or a philosophical interest, is both

unfair and one-sided, and invites disingenuous

pleading by parties who have legitimate

interests of whatever kind. There is no reason

for only one side of an issue to have access to

a federal court. Public and judicial scrutiny

of the listing process of the Endangered

Species Act and its regulation is part of the

legislative design to guarantee fair and full

access by all persons and entities truly

interested in the outcome including those

whose interest is economic in whole or in part.

Alabama-Tombigbee Rivers Coalition v. Fish and Wildlife

Service, No. 93-AR-2322-S, 1993 WL 646409 (N.D. Ala. Nov.

9, 1993), aff'd, 26 F.3d 1103 (11th Cir. 1994) (emphasis added).

The ESA, of course, speaks to species protection, but it also

contains a broad citizen suit provision allowing a wide range of

plaintiffs to sue the federal government. The views of the Ninth

Circuit, advocated by defendant-respondents, restrict the ESA’s

citizen suit provision and reduce it to the propositions that only

those asserting a supposedly pro-species position have standing,

and that no one may sue to complain of an agency’s actions as

being too protective. These propositions, if accepted by the

Court, would render meaningless the ESA citizen suit provision.

See infra at 22, discussion of the Ninth Circuit's erroneous

reading of 16 U.S.C. § 1540(g). See, e.g., Mausolf v. Babbitt,

913 F. Supp. 1334, 1342 & n.13 (D. Minn. 1996) (“Mausolf”)

(questioned about who could challenge a federal government

action “overzealously” protecting an endangered species, the

“{federal] defendants took the remarkable position that such an

action would be immune from challenge, and entirely beyond

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

threatened species”). These interpretations cannot be the law,

at least under our constitutional system of governance.

The court in Mausolf held that “interests other than those

asserted on behalf of endangered species also fall within the

zone of interests protected by the ESA” and stated that it was:

unwilling to adopt the view that the FWS

[United States Fish and Wildlife Service] is

unrestrained if it cloaks any of its acts in the

laudable robe of endangered and threatened

species protection. This is a form of

totalitarian virtue -- a concept for which no

precedent has been advanced and which is

foreign to the rule of law. It is instead, the

Court’s view that the FWS must operate

within the parameters of the ESA.

913 F. Supp. at 1342.

The Constitution demands that litigants who meet standing

requirements (constitutional and prudential) be heard. Congress

in the ESA broadly encourages citizen participation in an

unequivocal voice. The Ninth Circuit’s decision, if allowed to

stand, would render meaningless the dictates of Article III] and

the citizen suit provision of the ESA, allowing federal

environmental regulatory agencies to escape judicial review.

Put another way, the Ninth Circuit's view of judicial process

would be akin to a baseball game in which only one team got

to bat, while the other team was perpetually playing defense on

the field -- assuming it were allowed to leave the dugout, or

even enter the stadium in the first place.

B,. The Ninth Circuit’s Failure to Embrace Article Ill

Disrupts the Proper Balance of State and Federal

Powers and Damages the Self-Governing Rights of

the States and Their Citizens

The Ninth Circuit’s improper reading of Article III and the

citizen suit provision of the ESA, denying the self-governing

rights of the states and their citizens to protect vested economic

interests, infringes upon additional constitutional safeguards.

1. The Constitution Protects the Self-Governing

Rights of the States, Which Thereby Protect

Private Property Rights

The proper balance between the federal government and the

states in “our federalism” is textually preserved by the Tenth

Amendment and the Guarantee Clause, and is embedded in the

inherent structure of the Constitution." See Nevada v. Hall,

440 U.S. 410, 433 (1979) (Rehnquist, J., joined by Burger, C.J.,

dissenting). Certain irreducible principles flowing from the

Constitution protect the interests of the states and their citizens.

By constituting a federal government of limited powers,

while reserving “the powers not delegated to the United States,

nor prohibited by it” to the states and the people, the

Constitution established a framework in which the states

‘© The appropriate balance between the states and the federal government is

further safeguarded by the Eleventh Amendment as well as by proper

limitations on the powers of Congress under the Commerce Clause. See

United States v. Lopez, \15 S.Ct. 1624 (1995). See also Seminole Tribe v.

Florida, 116 S.Ct. 1114 (1996) (The Court reiterated that: “each State is a

sovereign entity in our federal system”; the Eleventh Amendment limits

federal courts’ jurisdiction under Article III; and “(t)he [Eleventh] Amendment

is rooted in a recognition that the States, although a union, maintain certain

attributes of sovereignty, including sovereign immunity.”).

retained “substantial sovereign authority.” Federal Energy

Regulatory Comm'n v. Mississippi, 456 U.S. 742, 762 (1982)

(“FERC”). See Gregory v. Ashcroft, 501 U.S. 452, 457 (1991).

If the states or the people have not conferred a power upon

Congress, then a fortiori a federal agency cannot assume that

power in derogation of the Tenth Amendment. See New York

v. United States, 112 S.Ct. at 2417 (1992) (“New York’) (“{I}f

a power is an attribute of state sovereignty reserved by the

Tenth Amendment, it is necessarily a power the Constitution has

not conferred on Congress.”).

The Guarantee Clause is predicated on the proposition that

state governments are accountable to their citizens with respect

to fundamental decisions about how to allocate, control, and use

resources and define property rights. FERC at 761. A state’s

“republican form” of government is diminished when its ability

to make decisions is fettered, constrained, or overridden by a

federal agency voluntarily or otherwise acting ultra vires.''

These inherent protections prevent an abuse of power by the

federal government. See New York, 112 S.Ct. at 2431 (citations

omitted) (“The Constitution does not protect the sovereignty of

the States . . . as abstract political entities. Rather, federalism

secures to citizens the liberties that derive from the diffusion of

sovereign power.”).

'' Of course, pursuant to the Supremacy Clause and assuming a basis for

exercising a power (e.g, the Commerce Clause or the Spending Clause),

Congress can intrude into state sovereignty and override state law. The

requirement, however, is that Congress must plainly state that it intends to

override state law.

The Guarantee Clause, like the Tenth Amendment, protects

states from #> over-intrusive federal government ensuring that

the states and the citizens of the states retain control over the

essential elements of self-governance."

Thus, the federal system of government created by the

Constitution under the Guarantee Clause, the Tenth Amendment,

and the Eleventh Amendment, established a national government

Operating in a mutual sphere of influence with state governments

that act as independent political communities with the authority

to make decisions of self-governance that “include the power to

structure and organize the processes of government.” La Pierre,

The Political Safeguards of Federalism Redux:

Intergovernmental Immunity and the States as Agents of the

Nation, 60 Wash. U.L.Q. 779, 790-92 & nn. 31-33 (1982). See

Lane County v. Oregon, 7 Wall. 71, 76 (1869). The right of

states to control incidents of self-governance creates “a healthy

balance of power between the states and the federal government

[that] will reduce the risk of tyranny and abuse from either

front.” New York, 112 S.Ct. at 2431.

There is no incident of self-governance more fundamental to

the processes of government than the system of laws that define

? The control of elected officials by the electorate and their accountability to

the citizens who entrust them to office is the sine qua non of a republican

form of government. “Since at least the eighteenth century, political thinkers

have stressed that a republican government is one in which the people control

their rulers [citing J. Locke, Second Treatise of Government, 149}.” Deborah

Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a

Third Century, 88 COLUM. L. REV. 1, 23 (1988) (“Guarantee Clause and State

Autonomy”), citing The Federalist No. 39 (James Madison).

and protect the property of the citizens of the various states."

Indeed, under the police power reserved to the states, and protected

by the Constitution, state and local governments are responsible and

entitled to enact, maintain, and enforce zoning," land use planning,

and natural resource management laws to regulate and govern the

use of land and water.

2. The USFWS Tramples the Private Property

Rights of Texas Citizens

The USFWS has construed the listing and designation

provisions of the ESA in an alarming manner. See supra at 2.

Because of the over-expansive use of the listing and designation

provisions, as well as other overly intrusive interpretations of

the ESA, the State of Texas is concerned that USFWS has and

“Property interests, of course, are not created by the Constitution, but

rather ‘by existing rules or understandings that stem from an independent

source such as state law.’ Delaware v. New York, 113 S. Ct. 1550 (1993)

(citations omitted). Real property law, furthermore, has been recognized by

the Court as a matter of special concern to the states. Fidelity Federal Savings

& Loan Assoc.v. de la Cuesta, 458 U.S. 141, 153 (1982).

* “[Z}oning laws and their provisions . . . are peculiarly within the province

of state and local legislative authorities.” Warth v. Seldin, 422 U.S. 490, 509

n.18 (1975) See Dolan v. City of Tigard, 114 S.Ct. 2309, 2317 (1994)

(“[T]}he authority of state and local governments to engage in land use

planning has been sustained against constitutional challenge.”). The Court has

recognized that the states’ land use planning powers are formidable. See

California Coastal Comm'n v. Granite Rock Co., 107 S.Ct. 1419, 1431 (1987)

(“[E}ven within the sphere of the Property Clause, state law is preempted only

when it conflicts with the operation or objectives of federal law, or when

Congress ‘evidences an intent to occupy a given field.’ ”). See also Federal

Urban Land Utilization Act, 40 U.S.C. §§ 531, 533 and Federal Land Policy

and Management Act of 1976, 43 U.S.C. §§ 1701, 1712(c\9) where Congress

has also directed federal agencics to cooperate with local land use planning

and zoning measures that would not otherwise apply to federal property.

will contrive a de facto comprehensive resource management

scheme in Texas that prevents landowners and the State of

Texas from using their land, property, and resources in ordinary,

customary ways (such as building homes and pumping

groundwater) in accordance with state and local law. This

resource management scheme violates basic tenets of federalism

textually embodied in the United States Constitution, as well as

deeply embedded in the federalism structure of the Constitution.

The USFWS’ intrusion does not stop with the listing and

designation provisions and procedures. In a series of letters to

Central Texas landowners in thirty-three Texas counties, the

USFWS sought to apply the “take” prohibition of section 9 of

the ESA, 16 U.S.C. § 1538, to property recently under

consideration for designation as critical habitat for the golden-

cheeked warbler.'* In one letter to a landowner engaged in

clearing his property, the USFWS laid out its policy.

This letter is in reference to recent clearing

activity on your property. ... This property

supports vegetation that is possibly occupied by

the federally listed endangered warbler.

If the activities raking place on the subject site

disrupt the breeding and/or foraging activities of

'S The letters manifest USFWS’ contention and policy that “takes” in

violation of the ESA occur whenever a human activity modifying habitat

“disrupt{s}] the breeding and/or foraging activities” of a listed species.

USFWS has taken this position regarding clearing of property throughout

much of Central Texas, advising property owners that they may not clear or

cut down certain trees without violating or risking violation of the ESA’s

prohibition against “taking” endangered species. The USFWS has not

formally or officially rescinded any of its letters.

the . . . warbler, these activities would constitute

ake of listed species . . . prohibited under

section 9 of the Endangered Species Act (Act) and

must be avoided.

See Texas App. 6a for additional examples of these letters

(emphasis added).

The individual impact of these letters is devastating. For

example, Margaret Rodgers, who owns land in Travis County,

has received letters from the USFWS informing her that clearing

her land to build a fence may “take” an endangered species, the

golden-cheeked warbler. The letters, which are obviously

intended to operate in terrorem, stated that she could be subject to

a fine of up to $50,000 and imprisonment up to one year.

Understandably, she stopped trying to build the fence. The letters

did not accuse her of killing or injuring a golden-cheeked warbler

or allege that she proximately caused the death or injury of a

golden-cheeked warbler (as would be required by the Court in

Babbitt v. Sweet Home Chapter of Communities for a Greater

Oregon, 115 S.Ct. 2407 (1995) (“Sweet Home’). In fact, they did

not even say that any warblers live, or have ever been seen, on her

property -- the mere clearing of her land was sufficient reason to

prompt the USFWS to send its letters. Hundreds of other

landowners in the Texas Hill Country are in Mrs. Rodgers’

predicament.’°

'* Mrs. Rodgers at least knows that she risks civil and criminal penalties

being imposed as a result of using her land. But an unknown number of other

landowners and governmental entities in Texas are also subject to those

penalties for making ordinary use of their land, but do not know it. Indeed,

they are unable to know it, because USFWS does not make clear the extent

of its regulatory program under section 9 of the ESA.

The State of Texas is additionally concerned that if the USFWS

cannot directly use its continuing, over-expansive interpretation of

“harm” pursuant to section 9 of the ESA to reach activity on

private land (such as the pumping of groundwater or the clearing

of cedar trees in which a protected bird may nest), it will

illegitimately increase its efforts to control those activities indirectly

through forced consultation procedures pursuant to section 7 of the

ESA, 16 U.S.C. § 1536, with a federal agency having some federal

program delivery nexus with the landowner. See, e.g., J.B. Ruhl,

Section 7(A)(1) of the “New” Endangered Species Act:

Rediscovering and Redefining the Untapped Power of Federal

Agencies’ Duty to Conserve Species, 25 ENvTL. L. 1107, 1109

(1995) (section 7 is the “sleeping giant” of the ESA programs and

“section 7(a)(1)’s species conservation duty has the potential to

eclipse all other ESA programs”). For example, in central Texas,

the USFWS could pressure the Farmers Home Administration,

utilizing the ESA's section 7 consultation process, to refrain from

making or guaranteeing loans to farmers seeking financing for

farming activities which depend on the pumping of aquifer water

from the Edwards Aquifer.'’ In another setting, the Department of

Air Force could be forced to consult with USFWS prior to any

redevelopment of Kelly Air Force Base.

'’ In July 1994, the USFWS convened a meeting of approximately 40 federal

agencies to discuss the Edwards Aquifer issue and the duty of federal agencies

to abide with its over-expansive interpretation of the ESA. See Sierra Club

v. Glickman, MO-95-CV-091, (W.D. Tex. filed Apr. 28, 1995) (signaling that

ESA litigation may switch to the ESA section 7 front).

3. The States and Their Citizens Must Be Able to

Vindicate Their Self-Governing and Private

Property Rights

Chief Justice Chase in Texas v. White, 7 Wall. 700 (1869),

discussed the effects of the Ordinance of Secession on the existence

of Texas as a member of the Union. In concluding that Texas did

not cease to be a state, he recognized that the “preservation of the

States, and the maintenance of their governments, are as much

within the design and care of the Constitution as the preservation

of the Union and the maintenance of the National Government.”

7 Wall. at 725. The states must be able to access the federal court

system not only in order to protect their self-governing powers, but

also the self-governing and economic interests of their citizens.

If the Court does not allow the states and their citizens to protect

their economic interests from rogue actions of federal agencies, the

promise of the preservation of the states and their governments is

broken.

'* The denial of the right to bring a suit to protect a property interest, whether

that right was created by Congress as in the citizen suit provision of the ESA

or exists independently, as in the plaintiff-petitioners’ contract with the federal

government, may itself be viewed as an injury. By closing the federal

judiciary to the plaintiff-petitioners, the Ninth Circuit caused a deprivation of

property. See, e.g., Mullane v. Central Hanover Bank & Trust Co., 339 U.S.

306, 313 (1950) (the denial of the right to bring a lawsuit may constitute a

deprivation of property). It is the deprivation of a right to use property

coupled with the ability to bring a legal action to enforce that right, that is the

core and fundamental attribute of standing, in federal court. Cf Crowell v.

Benson, 285 U.S. 22, 86-87 (1932) (Brandeis, J., dissenting) (“Under certain

circumstances, the constitutional requirement of due process is a requirement

of judicial process.”).

II. The Analytical Shortcomings of the Ninth Circuit’s Analysis

The Ninth Circuit, in concluding that plaintiff-petitioners did

not have standing, employed a multi-step analysis. First, it held

that Congress in enacting the citizen suit provision of the ESA did

not expand standing to the full limits of Article III, thereby

engrafting a zone of interests analysis onto the standing inquiry."”

Second, the panel of the Ninth Circuit held that the plaintiff-

petitioners did not fall within the zone of interests protected by the

ESA.”° At each analytical juncture, the Ninth Circuit took the

wrong turn. It seriously misread the citizen suit provision of the

ESA, failing to give the language its plain meaning. Using

ordinary methods of statutory analysis suggests a very different

conclusion than that reached by the Ninth Circuit. Additionally, in

its analysis of the zone of interests test, the Plenert Court failed to

give economic interests the significance that they have been

'* Relying on Clarke v. Securities Industry Ass'n, 479 U.S. 388, 410 (1987),

the Ninth Circuit reasoned that “the fact that a statute contains a citizen-suit

provision does not necessarily establish that Congress intended that any

particular plaintiff have standing to assert a violation.” 63 F.3d at 919.

Applying what it called its “consistent use of the zone of interests test in

determining the standing of plaintiffs who have sued under citizen-suit

provisions,” it held that the ESA’s citizen suit provision does not

automatically confer standing “on every plaintiff who satisfies constitutional

requirements and claims a violation of the Act’s procedures.” 63 F.3d at 919.

°° Having determined that the zone of interests test should be applied, the

Ninth Circuit asked whether the “ESA protects plaintiffs who assert an interest

of the type asserted here.” 63 F.3d at 919. Without much substantive

adornment, the Plenert court simply answered “in the negative, holding that

only plaintiffs who allege an interest in the preservation of endangered species

fall within the zone of interests protected by the ESA.” /d. at 919 (emphasis

in original).

accorded by other panels within the Ninth Circuit,”' by other circuit

courts,” and, most importantly, by this Court. Texas first addresses

the misreading of the ESA’s citizen suit provision.

A. The Ninth Circuit Misreads 16 U.S.C. § 1540(g)

“The starting point in every case involving construction of a

statute is the language itself.” Wart v. Alaska, 451 U.S. 259, 265

(1981). If the words of a statute in their ordinary and common

usage “convey a definite meaning, which involves no absurdity, .

*! The Ninth Circuit applied the zone of interests test in a manner inconsistent

with its own prior opinions. See, e.g., Douglas County v. Babbitt, 48 F.3d

1495 (9th Cir. 1995) (a county’s proprietary interest in its lands adjacent to

a designated critical habitat represented the necessary concrete interest under

Lujan and fell within the zone of interests protected by the National

Environmental Policy Act); Pacific Northwest Generating Co-op v. Brown, 25

F.3d 1443, 1450 (9th Cir. 1994) (plaintiffs with an economic interest [large

direct purchasers of hydropower] have a footnote 7 procedural interest in

ensuring that the ESA is followed); and Central Arizona Water Conservation

Dist. v. United States Environmental Protection Agency, 990 F.2d 1531, 1538-

39 (9th Cir. 1993) (economic interests of water conservation district and four

irrigation districts met Article III requirements and zone of interests test to

challenge the final rule of the Environmental Protection Agency under the

visibility provisions of the Clean Air Act).

# The Ninth Circuit also failed to follow the decisions from other circuits.

See, e.g., Catron County Bd. of Comm'rs, New Mexico v United States Fish

& Wildlife Service, 75 F.3d 1429, 1233-34 (10th Cir. 1996) (county’s claimed

injuries to its proprietary and procedural interests fall within the zone of

interests protected by the ESA where the designation of a Critical habitat

would cause flood damage to county-owned property); and State of Idaho, by

and through Idaho Public Utilities Comm'n v. Interstate Commerce Comm'n,

35 F.3d 585, 590-92 (D.C. Cir. 1994) (the specific authority to sue under 16

U.S.C. § 1540(g) coupled with Idaho’s proprietary interest in state land

surrounding Wallace Branch was sufficient to meet the prudential standing

limitation under the ESA).

. . then that meaning . . . must be accepted” as the expression of

Congress’ legislative purpose. Lake County v. Rollins, 130 U.S.

662, 670 (1889). See Immigration and Naturalization Service v.

Cardoza-Fonseca, 107 S.Ct. 1207, 1213 (1987) (“Cardoza”)

(legislative purpose is expressed by the ordinary meaning of the

words used); Perrin v. United States, 444 U.S. 37, 42 (1979)

(“[{UJnless otherwise defined, words will be interpreted as taking

their ordinary, contemporary, common meaning.”).

In 16 U.S.C. § 1540(g), Congress created a unique three-part

citizen suit provision that confers standing to the full extent of

Article III.” Congress in § 1540(g)(1)(A) allowed “any person” to

sue any governmental unit who might be in violation of any

provision of the ESA or any regulation flowing from the ESA.

Further, in § 1540(g)(1)(C) Congress allowed “any person” to sue

the Secretary for failure “to perform any [nomndiscretionary} act or

duty under section 1533” of the ESA.

The plain meaning of “any” is “any and all”; “any” should be

given its natural broad meaning. See United States v. Geyler, 932

F.2d 1330, 1333-34 (9th Cir. 1991). Additiomally, reference to the

lexicon, in the historical and cultural context of the language, is

another way to establish plain meaning. See, e.g., R. DICKERSON,

THE INTERPRETATION AND APPLICATION OF STATUTES, 231 (1975).

The lexicon, through the repeated use of “any person,” “any

> Congress under 16 U.S.C. § 1540(g)(1)(B) granted “any person” the

authority to file a civil action to compel the Secretary to apply the ESA

prohibitions against taking of resident endangered (or threatened) species.

Although the taking language is not relevant at this time, this subpart shows

that Congress intended to open the courts to as large a group of plaintiffs as

possible.

provision of the ESA or any regulation,” and “any act or duty” in

Subsections (B) and (C), evinces Congress’ desire to open standing

under the ESA’s citizen suit provision to the limits of Article III.

The language of 16 U.S.C. § 1540(g) “admits of no exception” --

all persons who meet the requirements for standing under Article

III, whether on purely aesthetic, recreational, professional, or

economic grounds, must be heard. Tennessee Valley Authority v.

Hill, 437 U.S. 153, 173 (1978) (“TVA”) (The Court in an ESA case

stated: “[o}ne would be hard pressed to find a statutory provision

whose terms were any plainer than those in § 7 of the Endangered

Species Act.”).

Finally, any question about the plain meaning of statutery

language is conclusively settled where Congress knowingly

borrows language that carries an established interpretation. See

Rodriguez v. United States, 107 S.Ct. 1391, 1393 (1987)

(“Rodriguez”) (“{I)n passing the Comprehensive Crime Control Act

of 1984, Congress acted -- as it is presumed to act -- with full

awareness of the well established judicial interpretation.”) (citations

omitted). In Gladstone Realtors v. Village of Bellwood, 441 U.S.

91, 109 (1979) (“Gladstone”), the Court held that Congress had

granted standing “as broad as permitted by Article III” in the Fair

Housing Act of 1968 when it authorized “any person aggrieved” to

file « civil action. Congress’ use of “any,” with the understanding

that the word is equated with the broadest grant of standing under

Article III, see Gladstone, supra, directly supports the position that

the plain meaning of the language in 16 U.S.C. § 1540(g) grants

full Article III standing. Indeed, Congress knows exactly how to

enact a narrower citizen suit provision in environmental legislation.

See 33 U.S.C. § 1365 (limiting an action by a citizen against a

governmental entity “who is alleged to be in violation of (A) an

effluent standard or limitation under this chapter or (B) an order

issued by the Administrator or a State with respect to such a

standard or limitation’).

Once the plain meaning of the statutory language settles the

question of legislative :rtent, legislative history is reviewed “to

determine only whether there is ‘clearly’ expressed legislative

intention contrary to that language which would require [a court]

to question the strong presumption that Congress expresses its

intent through the language it chooses.” Cardoza, supra, 107 S.Ct.

at 1213 n.12. The plain-meaning presumption is so strong that

“going behind the plain language of a statute in search of a possibly

contrary congressional intent is ‘a step to be taken cautiously’ even

under the best circumstances.” American Tobacco Co. Vv.

Patterson, 456 U.S. 63, 75 (1982). Nothing in the legislative

history of the ESA overcomes the plain language presumption.

When the plain statutory language settles a question of statutory

construction, “any further steps take the courts out of the realm of

interpretation and place them in the domain of legislation.” United

States v. Locke, 471 U.S. 84, 96 (1985). The defendant-

respondents’ limited view of the citizen suit provision is

unpersuasive. See Rodriguez, 107 S.Ct. at 1393 (omissions and

brackets by the Court) (“Where, as here, ‘the language of a

provision . . . is sufficiently clear in its context and not at odds with

the legislative history, . . . [there is no occasion] to examine the

the lawmakers in the formulation of the statute.”).

As the Court noted in TVA:

[c}itizen involvement was encouraged by the

Act, with provisions allowing interested persons

to . . . bring civil suits in United States district

courts to force compliance with any provision of

the Act, §§ 1540(c) and (g).

437 U.S. at 181 (citations omitted). The Court did not qualify

“citizen.” The Ninth Circuit erred when it did. Congress in 16

U.S.C. § 1540(g) generally, and in 16 U.S.C. § 1540(g)1)(C) in

particular,” ensured that plaintiffs who meet Article III standing

requirements must have their day in court.

B. The Ninth Circuit Failed to Acknowledge the

Significance Given by the Court to Economic Interests

in Standing Doctrine

* The Court's use of “interested person” embraces Congress’ broad grant of

enforcement authority to any person who meets Article III requirements.

** The defendant-respondents improperly minimize the significance of 16

U.S.C. § 1S40(gX1K(C). See Brief for the Respondents in Opposition at | |-12

& n.6. Many of the agency actions that led to the filing of this lawsuit were

arguably based on section 1533. The ESA process begins with the listing of

a species as either threatened or endangered under 16 U.S.C. § 1533 (a).

Species listings are based solely upon the best available scientific and

commercial data pertaining to the species in question under 16 U.S.C. § 1533

(bX IMA). The Secretary must consider five factors in listing a species. See

16 U.S.C. § 1533 (al). The ESA was amended in 1978 to require the

Secretary to consider factors other than solely biological factors in designating

critical habitat. See Pub.L. No. 95-632, 92 Stat. 3571 (1978); H.R.Rep. No.

95-1625, S. Rep. No. 95-874, H.R. Conf. Rep. No. 95-1804, 95th Cong., 2d

Sess. (1978). For example: the Secretary must identify the areas that meet the

scientific definition of critical habitat in 16 U.S.C. § 1532 (SA); and he is

to consider the “economic impact and any other relevant impact of specifying

any particular area as critical habitat,” see 16 U.S.C. § 1533 (b\2).

In Association of Data Processing Service Organizations, Inc.

v. Camp, 397 U.S. 150 (1970) (“Data Processing”), the Court

announced a prudential standing requirement in addition to the

Article II] standing requirements, for determining whether a

plaintiff had standing under the Administrative Procedure Act.

The test is “whether the interest sought to be protected by the

complainant is arguably within the zone of interests to be protected

or regulated by the statute.” Jd. at 153.

In Data Processing, the Court, treading cautiously, emphasized

that an interest “may reflect ‘aesthetic, conservational, and

recreational’ as well as economic values.” 397 U.S. at 154. Data

Processing appeared to presume that plaintiffs asserting economic

concerns would meet the zone of interests test. See 397 U.S. at 154

(“We mention these noneconomic values to emphasize that standing

may stem from them as well as from the economic injury in which

petitioners rely here.”). The Court concluded that “[cJertainly he

who is ‘likely to be financially’ injured . . . may be a reliable

private attorney general to litigate the issues of the public interest

in the present case.” 397 U.S. at 154.

The Court in Data Processing recognized the significance of

economic values because the linchpin in many standing inquiries,

either under Article III or a prudential consideration, is whether the

plaintiff alleges a property-based legal interest for which a cause of

action lies. See, e.g., Cass R. Sunstein, What's Standing After

Lujan? of Citizen Suits, “Injuries,” and Article III, 9\ Mich. L.R.

163, 189, 192 & n.132 (1992) (“The loss of money is a real and

tangible harm; the offense produced by objectionable government

policy may be intense, but it is merely [an] offense.”) (“Sunstein”).

The significance of an economic injury is no less important,

with regard to the ultimate inquiries into standing, because of the

nature of the lawsuit. See Sunstein at 191 (“When Congress creates

a cause of action enabling people to complain against racial

discrimination, consumer fraud, or destruction of environmental

assets, it is really giving people a kind of property right in a certain

state of affairs. Invasion of that property right is the relevant

injury.”). The Court recognized the importance of an economic

interest when it held that California, as a participant and

beneficiary in federal OCS leasing off the California coast, had

standing to challenge the adequacy of the bidding process of the

Secretary of the Interior. Wart v. Energy Action Educational

Foundation, 454 U.S. 151, 161 (1981) (“Watt”) (California’s direct

financial stake in federal OCS leasing off the California coast

coupled with its interest in seeing that the Secretary of the Interior

used the most successful bidding system on all OCS lease tracts

gave it standing to challenge the Secretary’s refusal to experiment

with non-cash-bonus bidding systems. ).

The Court has acknowledged that an injury to a “procedural

right” to protect concrete interests may support standing under the

citizen suit provision of the ESA. Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) (“Lujan”) (“There is 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.”).” Cf. Sunstein at 226 in footnote

seven (a procedural right is created “because it structures incentives

and creates pressures that Congress has deemed important to

effective regulation”).

Recently, the Court spoke of the interests cognizable under the

ESA.

In the elaboration and enforcement of the ESA,

the Secretary and all persons who must comply

with the law will confront difficult questions of

proximity and degree; for, as all recognize, the

[ESA] encompasses a vast range of economic and

questions must be addressed in the usual course of

the law, through case-by-case “resolution

adjudication.”

Sweet Home, 115 S.Ct. at 2418 (emphasis added).

The concrete property and economic interests of the plaintiff-

petitioners, which have been infringed by the actions of the

defendant-respondents, are sufficient to support standing under the

citizen suit provision of the ESA, regardless of whether the analysis

is subjected to the bare Article III requirements or the zone of

interests test.

CONCLUSION

This case is about fair access to the courts of the United States.

The Ninth Circuit erred when it straight-jacketed the citizen suit

provision of the ESA by applying the zone of interests test. A

*® The Court’s phraseology, “a procedural right to protect [a] concrete

interest,” refers to a due process right to a judicial determination of an

economic interest so that a deprivation of property does not occur. See supra

at 9.

plaintiff, to have standing under the citizen suit provision, must

meet the case and controversy requirements of Article III, nothing

more. The plaintiff-petitioners have the most cognizable types of

interests, concrete property and contract rights, that litigants need

to have standing. They certainly meet the requirements of Article

III or even the prudential zone of interests test. Accordingly, for

the reasons set forth above, the decision of the Ninth Circuit should

be reversed.

Respectfully submitted,

DAN MORALES

Attorney General of Texas

JORGE VEGA

First Assistant Attorney General

JAVIER P. GUAJARDO*

Special Assistant Attorney General

*Counsel of Record

SAM GOODHOPE

Special Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548 °

(512) 463-2191

May 24, 1996 COUNSEL FOR AMICUS CURIAE

APPENDICES

PRIVATE GROUPS ENDORSING THIS BRIEF

Associated Milk Producers, Inc.

The Association is the nation’s largest dairy farmer cooperative.

Its members produce twelve percent of the nation’s milk supply.

Blackland Cotton & Grain Producers Association

The Association is composed of approximately five thousand

cotton and grain producers all interested in the protection of the

rights of landowners.

Exotic Wildlife Association

Organization of breeders, owners, ranchers and managers of

exotic hoofstock species and alternative livestock interested in

conservation, propagation and preservation of exotic species on

private land.

Independent Cattlemen’s Association of Texas, Inc.

The Association represents approximately 6,000

cattlemen/ranchers throughout the State. Their mission is to be the

premier representative of the cattle industry, provide an effective

legislative voice for all its members, and have the vision to accept

and promote changes which impact their well being.

Riverside and Landowners Protection Coalition

The Coalition is a non-profit corporation whose members own

and operate rural land throughout Texas. The group is committed

to educating the general public on private property issues and

working state and federal agencies io preserve the privacy attached

to ownership of private property.

Southern Rolling Plains Cotton Growers Association, Inc.

The Association represents 1,500 various cotton producers

dedicated to enhance the standard of living for cotton farmers

through promotion of cotton, participation in research and

technology to improve cotton yield and economy of production.

Southwest Association

A regional association which represents various hardware retail

stores and farm equipment retail dealers throughout Texas,

Oklahoma, Louisiana and New Mexico.

Southwest Meat Association

The Association is an organization representing the meat

industry throughout a five state area. Members are mostly small to

medium size packers and processors and associated supply

companies.

Take Back Texas

A non-profit organization comprised of landowners located

primarily in the Texas Hill Country area, seeking to educate the

landowning community regarding governmental actions that may

affect their property and their property rights.

Texas Ag Industries Association

The Association is a non-profit entity representing the plant food

and crop protection industries in Texas.

Texas Agri-Women

The association is a non-profit, non-partisan organization

primarily composed of farm and ranch women, agri-business women

and consumers working together to develop and promote

agriculture.

Texas Association of Agricultural Consultants

TAAC serves as the offical organization for private, independent

agricultural advisors in Texas. With 61 members, the Association

—— a —

serves around 1000 farmers and ranchers by recommending

production practices that will least adversely affect the environment.

Texas Association of Nurserymen

The organization is a trade association representing the wholesale

production, retail garden center, landscape professional and allied

supplier segments of the nursery industry in Texas.

Texas Cotton Ginners’ Association

A non-profit trade association, consisting of 85% of the gins in

the State, that represents cotton ginners on issues impacting the

cotton ginning industry of the State.

Texas Cotton Producers, Inc.

A non-profit trade association comprised of the nine regional

cotton producing organizations in the State. Acts as a forum for the

regional organizations to collectively address issues impacting the

Texas Cotton industry.

Texas Farm Bureau

The Bureau is a private non-profit membership corporation

committed to the advancement of agriculture and prosperity for rural

Texas, with 302,352 current members and affiliated county Farm

Bureaus in 211 Texas counties.

Texas Food Processors Association

The organization is a non-profit trade association representing

companies engaged in the processing of food products in Texas. It

is dedicated to support, promote, and encourage education in all

aspects of the food industry in Texas.

Texas Grain Sorghum Association

A voluntary membership organization working on iegislative and

regulatory issues that affect Texas grain sorghum producers.

Texas Justice Foundation

The organization is a non-profit litigation foundation which

supports the principles of free markets, limited government, private

property and parental rights as the fundamental structure of a free

society.

Texas Seed Trade Association

An organization formed as an effective voice of action in all

matters concerning the development, marketing and free movement

of seed, associated products and services throughout Texas, the

United States and around the world.

Texas Wildlife Association

The Association in a non-profit entity which serves as an

advocate for the rights of wildlife, wildlife managers, landowners,

and hunters. It is dedicated to the maintenance, management, and

enhancement of wildlife habitat on private land.

a Oe

Texas Counties Potentially Impacted

By Critical Habitat Designation

UNITED STATES

DEPARTMENT OF THE INTERIOR

FISH AND WILDLIFE SERVICE

Ecological Services

Stadium C Buildi

711 Stadium Drive East, Suite 252

Arlington, Texas 76011

February 20, 1991

Mr. & Mrs. Mike Igua

P.O. Box 4748

Lago Vista, TX 78645

Dear Mr. & Mrs. Igua:

It has come to our attention that clearing of a strip of woodland has

recently occurred on a tract of land located south of FM 1431 in the

vicinity of Lago Vista, Texas. We understand that you are one of the joint

owners of the property. Information available to us indicates that this

property supports prime habitat for the federally-listed endangered golden-

cheeked warbler. Destruction of habitat of an endangered species may

constitute a “take” of that species as defined by the Endangered Species

Act, which prohibits “take” of a federally-listed species unless the “take”

is incidental to otherwise lawful activity and a permit in compliance with

the Act has been obtained. In this case, a permit under Section 10(a) of

the Act would apply. Information on the Section 10(a) permit process is

enclosed.

Destruction of endangered species habitat, without a permit, that results in

“take” of a federally-listed endangered species could be held to be a

violation of the act and could expose a violator to the criminal penalties

provided for under Section | 1(b)\(1) of the Act or to the civil penalties

provided for under Section | 1(a){1) of the Act. Section 11(b\(1) provides

for a fine of not more that $50,000 or imprisonment up to one year, or

both. Section 11(a\1) permits assessment of up to $25,000 as a civil

penalty for each violation.

This matter is currently under investigation by Special Agent Alex

Hasychak of the Fish and Wildlife Service Law Enforcement Office in San

Antonio and by personnel of this office. If you are indeed an owner of the

property in question, we respectfully urge that you cease any further land

clearing activities and contact Alex Hasychak at (512) 229-5412 or Joe

Johnston of this office at (817) 885-7830 for additional information on

compliance of such activities with the Endangered Species Act.

Sincerely,

Robert M. Short

Field Supervisor

Enclosure

ce: Law Enforcement, FWS, San Antonic, TX

Regional Director, FWS, Albuquerque, NM (FWE/HC)

Regional Solicitor, USDI, Tulsa, OK

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 78701

Marge Krueger

6208 Shadow Mountain Drive

Austin, Texas 78731

Dear Ms. Krueger:

This responds to our telephone conversation of June 7, 1993, requesting

that this office reevaluate the following property for its suitability as habitat

for federally listed threatened or endangered species:

Lot in Jester Point, Phase |, or 7101 Foxtree Cove,

Austin, Travis County, Texas

We have reviewed the information you provided as well as other available

information concerning the potential of the above property to provide

suitable habitat for the federally listed endangered golden-cheeked warbler,

black-capped vireo and cave invertebrates.

We believe this property would be suitable habitat for the federally listed

endangered golden-cheeked warbler and/or the cave invertebrates. We

believe that clearing or development-related activities of this acreage would

constitute a “take” as defined by Endangered Species Act (Act). The Act

prohibits the “take” of a federally listed species unless the “take” is

incidental to an otherwise lawful activity and a section 10 (aX1)\(B) permit

under the Act has been obtained. Therefore, our biological evaluation of

development on the subject lot and compliance with the Act remains

unchanged.

We appreciate your concern for endangered species and your desire to

comply with the Endangered Species Act. This response is intended to

assist you in such compliance. You are ultimately responsible f

compliance with all laws, and this letter does not exempt you from

complying with current or future federal, state, regional, or local

development requirements. If you wish to discuss this further, please

contact Alma Barrera at 512-482-5436.

Sincerely,

Sam D. Hamilton

State Administrator

10a

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 78701

June 24, 1993

Phil Frazier

Horizon Enviornmental Services, Inc.

P.O. Box 162017

Austin, Texas 78746

Dear Mr. Frazier:

This responds to your letter, dated May 24, 1993, requesting this office

review the following property for its suitability as habitat for federally

listed threatened or endagered species:

0.321 acres located on Lakeview Drive in Comanche

Trail Subdivision, Travis County, Texas.

We have reviewed the information you provided as well as other available

information concerning the potential for the above property to provide

suitable habitat for the federally listed endangered golden-cheeked warbler,

black-capped vireo and cave invertebrates. We believe this property would

not provide suitable habitat for the black-capped vireo and the cave

invertebrates, but would provide suitable habitat for the golden-cheeked

warbler.

Our records indicate that golden-cheeked warblers have been observed on

the periphery of this property. Current biological information indicates the

warbler is sensitive to several factors associated with residential

development, including increases in noise levels, predators, human activity

in nesting areas, and other disturbance factors. We believe that clearing or

development-related activities of this area, would constitute a “take” as

defined by the Endangered Species Act (Act). The Act prohibits “take”

unless it is incidental to an otherwise lawful activity and been authorized

' under section 7 or section 10(a)(1)(B) of the Act. Therefore, construction

in this area would require authorization under the Act.

We appreciate your concern for endangered species and your desire to

comply with the endangered Species Act. This response is intended to

assist you in such compliance. You are ultimately responsible for

compliance with all laws, and this letter does not exempt you from

complying with current or future federal, state, regional, or local

development requirements. If you wish to discuss this further, please

contact Alma Barrera at (512) 482-5436.

Sincerely,

Sam D. Hamilton

State Administrator

12a

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 78701

December 3, 1993

Keith E. Young

KEY Group Engineering

3701 Bee Caves Road, Suite 102

Austin, Texas 78746

Dear Mr. Young:

This responds to your letter, dated August 31, 1993, requesting this

office review the following property for its suitability as habitat for

federally listed threatened or endangered species:

Part of 25.4 area tract located 4.1 miles from 1431

off Lime Creek Road, Travis County, Texas

We have reviewed the information you provided as well as other available

information concerning the potential for the above property to provide

suitable habitat for the federally listed endangered golden-cheeked warbler,

black-capped vireo and cave invertebrates. We believe this property would

provide suitable habitat for the golden-cheeked warbler, the black-capped

vireo and/or the cave invertebrates.

The subject tract is part of a large tract occupied by golden-cheeked

warbler, black-capped vireo and/or the cave invertebrates. Additionally,

areas that are biologically necessary for the continued existence of a

l3a

species may not be continuously occupied by that species. Current

biologicial information indicates the warbler and vireo are sensitive to

several factors associated with residential development, including increases

in noise levels, predators, human activity in nesting areas, and other

disturbance factors. We believe that clearing or development-related

activities of this area, would constitute a “take” as defined by the

Endangered Species Act (Act). The Act prohibits “take” unless it is

incidental to an otherwise lawful activity and been authorized under

section 7 or section 10(a)(1)(B) of the Act. Therefore, construction in this

area would require authorization under the Act.

We appreciate your concern for endangered species and your desire to

comply with the Endangered Species Act. This repsonse is intended to

assist you in such compliance. You are ultimately repsonsible for

compliance with all laws, and this letter does not exempt you from

complying with current or future federal, state, regional, or local

development requirements. If you wish to discuss this further, please

contact Alma Barrera at (512) 482-5436.

Sincerely,

/s/ Jana Grote

Sam D. Hamilton

State Administrator

Enclosure

l4a

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 78701

January 13, 1994

Patrick Noack

2000 Yaupon Valley Road

Austin, Texas 78746

Dear Mr. Noack:

It has come to our attention that clearing and construction activities

associated with residential development are occurring on a 23-acre tract

located off Yaupon Valley Road in Westlake Hills, Travis County, Texas.

Information received from the Travis County Tax Appraisal District

indictates that you are the owner of this property.

The Fish and Wildlife Service (Service) has reviewed this property for

endangered species concerns in a letter, dated June 10, 1992, (see enclosed

copy). In this letter, based on biological surveys provided by Horizon

Environmental Services and other information available at that time, our

agency advised that development of this tract would require a permit for

“incidental taking” under section 10(a\(1)(B) of the Endangered Species

Act (Act). Further development of this property would be prohibited under

section 9 of the Act. We are providing information on this section

10(aX1)(B) permitting process for your information.

lSa

Provisions of the Act prohibit unauthorized take of endangered species

listed under the Act. “Take” is defined as activities that harass, harm,

pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to

engage in such a conduct. “Harm” in this definition includes the

disturbance or destruction of habitat occupied by the species or necessary

for its recovery. Activities that could affect the warbler include clearing,

construction, or change in flora or fauna of areas in or adjacent to habitat.

iediennto Gap Gaancntidin tesnateniy onl result boven of the

Act and possible criminal or civil actions that could result in fines and/or

imprisonment.

Should you have any questions regarding the determination on this

property, or would like to have a meeting concerning this property and the

section 10(a1)B) permitting proccess, please contact Bob Simpson at

512/482-5436.

Sincerely,

/s/ Joseph E. Johnston

Sam D. Hamilton

State Administrator

16a

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 7870]

January 13, 1994

Jerri Garner

25613 River Fern Court

Leander, Texas 78641

Dear Ms. Garner:

This letter is in reference to recent clearing activities on the property across

River Fern Court from your horse stable operations near Leander, in

Williamson County, Texas. This property supports vegetation that is

possibly occupied by the federally listed endangered golden-cheeked

warbler. According to our files, golden-cheeked warblers have been

sighted on adjacent properties in similar habitat, and are very likely present

on your property close to the area that has been cleared.

If the activities taking place on the subject site are in any way disrupting

the breeding and/or foraging activities of the federally protected golden-

cheeked warbler, these activities would constitute a “take” of listed species.

Take of listed species is prohibited under section 9 of the Endangered

Species Act (Act) and must be avoided or authorized under section 7 or

section 10 of the Act.

The term “take” means to harass, pursue, hunt, shoot, wound, kill, trap,

capture, or collect, or attempt to engage in such conduct. “Harm” in this

17a

definition of “take” in the Act means an act which actually kills or injures

wildlife. Such act may include significant habitat modification or

degradation where it actually kills or injures wildlife by significantly

impairing essential behavioral patterns, including breeding, feeding, or

sheltering. “Incidental taking,” authorized under section 7 or 10 of the

Act, means any taking otherwise prohibited, if such taking is incidental to,

and not the purpose of, the carrying out of an otherwise lawful activity.

Based on aerial photographs, and other information available to this office,

we recommend that clearing activities on the property be discontinued and

a biological survey be performed by qualified biologists to determine if this

habitat is currently being utilized bv golden-cheeked warblers. This would

help you, and our office, determine if further development of this site

would require authorization under the Act. Please see the appropriate

enclosures for minimal survey requirements for the golden-cheeked

warbler.

If you have further questions regarding the ecology of the golden-cheeked

warbler, of the Act, please contact Bob Simpson of my staff at (512) 482-

5436.

Sincerely,

/s/ Jana Grote

/s/ Joseph E. Johnston

Sam D. Hamilton

State Administrator

ce: Jean Nance

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 78701

January 13, 1994

Austin Americana Enterprises

Rex Bohls

1301 S IH-35

Austin, Texas 78741

Dear Mr. Bohls:

It has come to our attention that clearing and construction activities

associated with residential development are occurring on a 473 acre tract

of land known as the Friendship Ranch in Hays County, Texas.

Information received from the Hays County Tax Appraisal District

indicates that you are the owner of this property.

The Fish and Wildlife Service reviewed this property in a letter to the

Doug Hodge Company on October 16, 1991, for endangered species

concerns (see enclosure). In that letter we stated that, based on aerial

photographs and other data available to this office, the property could

provide suitable habitat for the federally listed and protected golden-

cheeked warbler (Denroica chrysoparia). We also included information

regarding minimal survey (warblers) using the property.

Provisions of the Act prohibit unauthorized take of endangered species

listed under the Act. “Take” is defined as activities that harass, harm,

pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to

engage in such a conduct. “Harm” in this definition includes the

disturbance or destruction of habitat occupied by the species or necessary

19a

for its recovery. Activities that could affect the warbler include clearing,

construction, or change in flora or fauna of areas in or adjacent to habitat.

We have not received any information, since that correspondence, to

change our determination that the subject property could provide suitable

habitat for the warbler. If there are warblers present on this property,

development could require a permit for “incidental taking” under section

10(aX 1B) of the Endangered Species Act (Act). We are providing

information on the section 10(aX1\B) permitting process for your

consideration and urge you to contact this office for further assistance on

how to comply with the Act.

Should you have any questions regarding this property, or would like to

schedule a meeting concerning this property and the section |0(a\ 1B)

permitting process, please contact Bob Simpson at 512/482-5436.

Sincerely,

/s/ Joseph E. Johnston

Sam D. Hamilton

State Administrator

Enclosure

cc: Alex Hasychak, FWS, Special Agent, Law Enforcement

20a

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bidg., Suite 407

Austin, Texas 78701

January 25, 1994

Lee Sherrod

Horizon Environmental Services, Inc.

P.O. Box 162017

Austin, Texas 78716

Dear Mr. Sherrod:

This responds to your fax, dated September |7, 1993, requesting that this

office evaluate the following property for its suitability as habitat for

federally listed threatened or endangered species:

Two tracts on River Hills Road off FM 2244 (Bee Caves Road),

Austin, Travis County, Texas

We have reviewed the information on the 1991 and 1993 surveys you

provided as well as other available information concerning the potential for

the above property to provide suitable habitat for the federally listed

endangered golden-cheeked warbler, black-capped vireo and cave

invertebrates. We believe that this property would not provide suitable

habitat for the black-capped vireo or the cave invertebrates, but could

provide suitable habitat for the golden-cheeked warbler.

Because of sightings on or adjacent to these tracts, we believe that clearing

or development related activities on this acreage would constitute a “take”

as defined by Endangered Species Act (Act). The Act prohibits the “take”

2la

of a federally listed species unless the “take” is incidental to an otherwise

lawful activity and section 7 or section 10(a) 1B) permit under the Act

has been obtained. Therefore, development of this acreage would require

authorization under the Act.

This response is intended to assist you in such compliance. You are

ultimately responsible for compliance with all laws, and this letter does not

exempt you from complying with current or future federal, state, regional

or local development requirements. If you wish to discuss this further,

please contact Alma Barrera at (512) 482-5436.

Sincerely,

/s/ Jana Grote

Sam D. Hamilton

State Administrator

Enclosure

ce: City of Austin, Conservation & Environmental Department

City of Austin, Electric Department

Jim Nuckles, Travis County Tax Appraisal District

22a

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 78701

April 14, 1994

Lee Sherrod

Horizon Environmental Services, Inc.

P.O. Box 162017

Austin, Texas 78716

Dear Mr. Sherrod:

This responds to your letter dated March 4, 1994, requesting this office

review the following property for its suitability as habitat for federally

listed threatened or endangered species:

Painted Bunting Subdivision, Austin, Travis County, Texas

We have reviewed the information you provided as well as other available

information concerning the potential of the above property to provide

suitable habitat for the federally listed endangered golden-cheeked warbler,

black-capped vireo and czve invertebrates. Based on current biological

information, we do not believe that this property would provide suitable

habitat for the black-capped vireo or the cave invertebrates, but would

provide habitat for the golden-cheeked warbler.

Your bird survey indicates that two golden-cheeked warblers were

observed in the canyon. Current information indicates the warbler is

23a

sensitive to several factors associated with residential development,

including increases in noise levels, predators, human activity in nesting

areas, and other disturbance factors. Therefore, we believe that clearing or

development-related activities on Lots 6-13, would constitute a “take” as

defined by the Endangered Species Act. The Act prohibits the “take”

unless it is incidental to an otherwise lawful activity and section

10(aX1)(B) permit under the Act has been obtained. Therefore,

construction of residences on these lots would require authorization under

the Act.

However, construction on Lots 1-4 and 14-15 (drawing enclosed) would

not require authorization under the Act if the following conservation

measures are incorporated in the construction.

l. Remove only those trees and shrubs necessary for construction of

driveway, septic tank and house.

2. Confine the development activities on the front 200 feet of the lot.

3. Use only native plant species for landscaping.

a Confine exterior construction activities so that it occurs outside the

breeding season for the golden-cheeked warbler (breeding period

is from March | through August 1), so as to avoid disruption of

breeding behavior.

We believe that destruction of the habitat located beyond the front 200 feet

of the lot could result in a “take” of the endangered golden-cheeked

warbler and thus, require authorization under the Act.

We appreciate your concern for endangered species and your desire to

comply with the Act. This response is intended to assist you in such

compliance. However, you are ultimately responsible for compliance with

all laws, and this letter cannot assure you complete protection from any

future liability or exempt you from any current or future federal, state,

24a

regional or local development requirements. If you wish to discuss this

matter further, please contact Alma Barrera at (512) 482-5436.

Sincerely,

Field Supervisor

Enclosure

ce: City of Austin, Conservation & Environmental Department

City of Austin, Electric Department

Jim Nuckles, Travis County Tax Appraisal District

25a

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bidg., Suite 407

Austin, Texas 78701

September 23, 1994

Fran & Larry Collmann

9911 Anderson Mill Road

Austin, Texas 78750

Dear Mr. & Mrs. Collmann:

This responds to your letter, dated September 19, 1994, requesting this

office re-evaluate the 13.942 acres located near Spicewood Springs Road

and Loop 360 off White Cliff Dr., Austin, Travis County, Texas property.

We have re-evaluated the new information you provided.

As stated in our letter June 1, 1994, our records indicate that golden-

cheeked warblers hove been sighted on the western, southern and eastern

boundaries of this property. Mr. Lee Sherrod’s letter to you of June 13,

1994, indicated the possibility of black-capped vireos in the area. Current

information indicates the warbler and vireo are sensitive to several factors

associated with residential development, including increases in noise levels,

predators, human activity in nesting areas, and other disturbance factors.

Therefore, we believe that clearing or development-related activities on the

majority of this tract, could constitute a “take” as defined by the

Endangered Species Act. The Act prohibits “take” unless it is incidental

to an otherwise lawful activity and has been authorized under section

10(aX(1(B) of the Act. We recommend that authorization under the Act

be secured prior to any development.

26a

However, we also said, there may be a possibility of building a single

house on the 13.942 acres without constituting “take” if the following

conditions are observed. We wish to reiterate that this property is very

close to habitat that is occupied by the golden-cheeked warbler and/or

black-capped vireo. To avoid harassment (a possible “take” violation) of

the species that may occur in the area, we wish to recommend the

following conservation measures:

I. Construction of only one single family home on the northeast

portion of the property, the area which is already cleared.

2. The driveway be constructed in the already cleared roadway.

3. Exterior construction activities on this property not occur between

March | and August !.

4. Remove only the trees that are needed for construction of the

house and septic field.

5. Use only native plants and grasses for landscaping.

6. Ensure that all clearing and construction operations are consistent

with current practices of the Texas Forest Service to prevent the

spread of oak wilt.

7. Prohibit the use of pesticides, herbicides and fertilizers.

If these conservation recommendations are not followed, then we believe

a take could occur and recommend obtaining authorization under section

10(a)(1 XB) or section 7 of the Endangered Species Act. Section

10(a)(1(B) permit procedures are enclosed.

Thank you for providing pertinent information to help re-evaluate this

property. If you wish to discuss this matter further, please contact Alma

Barrera at (512) 482-5436.

27a

Sincerely,

/s/ Jana Grote

Field Supervisor

Enclosure

ce: City of Austin, Conservation & Environmental

Department

City of Austin, Electric Department

Jim Nuckles, Travis County Tax Appraisal District

28a

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 78701

January 13, 1994

Glenn Williams and Terry Wynn, Partners

P.O. Box 64138

Lubbock, Texas 79464

Gentlemen:

This letter is in reference to recent vegetation clearing activities on

611.208 acres of your property located near Spanish Pass Road and Tower

Road in Kendall County, Texas. This property supports vegetation that is

likely to be occupied by the federally listed endangered golden-cheeked

and/or black-capped vireo.

If the development activities on the subject site are in any way disrupting

the breeding and/or foraging activities of the federally protected golden-

cheeked warbler and/or black-capped vireo, these activities could constitute

a “take” of listed species.

The Endangered Species Act (Act) prohibits the “take” of federally-listed

species unless the “take” is incidental to otherwise lawful activity and a

section 10(a1)(B) permit under the Act has been obtained. “Take” is

defined as harass, harm, pursue, hunt, shot, wound, kill, trap, capture, or

collect, or to attempt to engage in any such conduct.

29a

We recommend that clearing activities on the property be discontinued and

you contact Alma Barrera for additional information on compliance of such

activities with the Act at (512) 482-5436.

Sincerely,

/s/ Joseph E. Johnston

Field Supervisor

cc: Regional Director, Region 2

Solicitor, Department of the Interior, Tulsa, OK

Fish and Wildlife Service, Law Enforcement, San Antonio, TX

30a

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 78701

June 9, 1994

Stan & Donna Buck

305 Golden Oaks Drive

Georgetown, Texas 78628

Dear Mr. & Mrs. Buck:

This responds to your letter, dated March 23, 1994, requesting this office

to review the following property for its suitability as habitat for federally

listed threatened or endangered species:

Lot 8, Lake Georgetown Estates II, located on County

Road 262, Georgetown, Williamson County, Texas

We have reviewed the information you provided as well as other available

information concerning the potential of the above property to provide

suitable habitat for the federally listed endangered golden-cheeked warbler,

black-capped vireo and cave invertebrates. We believe that this property

would not provide suitable habitat for the black-capped vireo or the cave

invertebrates, but would provide habitat for the golden-cheeked warbler.

The subject lot is part of a block of habitat occupied by the golden-cheeked

warbler. Areas that are biologically necessary for the continued existence

of a species may not be continuously occupied by that species. Current

3la

biological information indicate the warbler is sensitive to several factors

associated with residential development, including increases in noise levels,

predators, human activity in nesting areas, and other disturbance factors.

We believe that clearing or development-related activities in this area,

would constitute a “take” as defined by the Endangered Species Act (Act).

The Act prohibits the “take” unless it is incidental to an otherwise lawfu!

activity and has been authorized under section 10(a)(1)(B) of the Act. We

recommend that authorization under the Act be secured prior to any

development. Procedures for the section 10(a)(1)(B) permit process are

enclosed.

We appreciate your concern for endangered species and your desire to

comply with the Endangered Species Act. This response is intended to

assist you in such compliance. You are ultimately responsible for

compliance with all laws, and this letter does not exempt you from

complying with current or future federal, state, regional or local

development requirements. If you wish to discuss this matter further,

please contact Alma Barrera at (512) 482-5436.

Sincerely,

Field Supervisor

32a

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 78701

September 22, 1994

Lee Sherrod

Horizon Environmental Services, Inc.

P.O. Box 162017

Austin, Texas 78716

Dear Mr. Sherrod:

This responds to your letter, dated June 28, 1994, regarding the re-

evaluation of the HE Brodie tract, located Barton Creek Loop 360, Lamar

and Ben White Blvd., Austin, Travis County, Texas.

Our records indicate that golden-cheeked warblers have been observed

along the Barton Creek greenbelt adjacent to this property and some

observations along the property line. The subject tract is part of a large

tract occupied by golden-cheeked warblers. a on

biologically necessary for the continued existence o @ species may

continuously occupied by that species. Current biological information

indicates the warbler is sensitive to several factors associated with

development, including increases in noise levels, predaitors, human activity

in nesting areas, and other disturbance factors.

We believe that clearing or development-related actiwities on part of this

property (the water quality buffer and transition zones), could constitute a

“take” as defined by the Endangered Species Act (Act). The Act prohibits

“take” unless it is incidental to an otherwise lawful activity and has been

authorized under section 10(a)(1)(B) of the Act.

33a

As discussed during our meeting of July 12, we believe some development

can occur outsice the City of Austin water quality buffer and transition

zones, 800 feet from the middle of Barton Creek, without constituting

“take” if the following conditions are observed.

I. Exterior construction activities within 1000 feet from the middle

of the creek not occur between March | and August |.

2. Remove only trees that are needed for construction.

3. Use only native plants and grasses for landscaping

4 Ensure that all clearing and construction operations are consistent

with current practices of the Texas Forest Service to prevent the

spread of oak wilt.

If these conservation recommendations are not followed, then we believe

a take could likely occur and we recommend obtaining authorization under

section 10(aX 1B) or section 7 of the Endangered Species Act.

We appreciate your concern for endangered species and your desire to

comply with the Act. If you wish to discuss this matter further, please

contact Alma Barrera at (512) 482-5436.

Sincerely,

/s/ Jana Grote

Field Supervisor

Enclosure

fl City of Austin, Environmental & Conservation Services

City of Austin, Power & Light

Jim Nuckles, Travis County Tax Appraisal District

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.