Amicus Curiae Brief — Bennett v. Spear

7. FILED

No. 95-813 MAY 24 1996

a

In The eta

Supreme Court of the United States

October Term, 1995

+

BRAD BENNETT, et al.,

Petitioners,

MARVIN PLENERT, et al.,

Respondents.

SJ

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

oe

BRIEF AMICUS CURIAE OF THE ASSOCIATION

OF CALIFORNIA WATER AGENCIES, THE

STATE WATER CONTRACTORS, AND THE

CENTRAL VALLEY PROJECT WATER ASSOCIATION

IN SUPPORT OF PETITIONERS

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Kronick, Moskovitz, TIEDEMANN

& GIRARD

A Professional Corporation

THomas W. BirMINGHAM

Counsel of Record

Currorp W. ScHULZ

JANET K. GOLDSMITH

Wittiam T. CHisum

Of Counsel

400 Capitol Mall, 27th Floor

Sacramento, California 95814

(916) 321-4500

Attorneys for Amici Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

The “Citizens Suit” provision of the Endangered Spe-

cies Act of 1973 (16 U.S.C. § 1540(g)(1)) provides “any

person” may commence a civil suit on his own behalf to

enjoin the United States, or any other governmental

instrumentality or agency, from violating the provisions

of the Act or regulations issued thereunder. The questions

presented are:

1. Whether standing under the Citizens Suit

provision of the Endangered Species Act is

subject to a zone of interests test as a further,

judicially imposed, prudential limitation on

standing;

2. If standing to sue under the Endangered

Species Act is subject to prudential limita-

tions, whether those limitations restrict

standing to litigants who assert an interest

in the preservation of endangered species to

challenge government conduct alleged to

violate the terms of the Act.

TABLE OF CONTENTS

Page(s)

es i

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CLC ice ices succssccisecssaceces 1

cee Neh ccesesaevecsssnccmecens 1

jy ie Bay Ged” Sa 5

SUMMARY OF ARGUMENT.................0..0:. 8

eee Seen sence tveeteceeccrenecce: 10

I. THE COURT OF APPEALS’ APPLICATION

OF THE ZONE OF INTERESTS TEST

UNNECESSARILY INFRINGES ON THE

FUNDAMENTAL RIGHT TO PETITION

EER ci che s0 es che pecesss wecces 10

Il. APPLICATION OF THE ZONE OF INITER-

ESTS TEST FRUSTRATES CONGIRRES-

SIONAL POLICY CONCERNING

DEFERENCE TO STATE REGULATION OF

ge eee 13

Ill. PRUDENTIAL STANDING IS INAPPLICA-

BLE TO PETITIONERS WHO STAND IN

PLACE OF THE AGENCY DIRECTLY JREG-

EE ee 17

IV. THE ZONE OF INTERESTS TEST SHOULD

CONSIDER AN ACT OF CONGRESS AS A

WHOLE RATHER THAN RELY ON J'UDI-

CIAL INTERPRETATION OF AN ACT’S, PRI-

es sb ces avi oversees eoves 19

TABLE OF CONTENTS - Continued

Page(s)

V. THE COURT OF APPEALS’ APPLICATION

OF THE ZONE OF INTERESTS TEST CON-

FLICTS WITH CONGRESSIONAL POLICY

AFFORDING BROAD ACCESS TO THE

DET séaguticuseutedesecesetstesncas 23

PUES ccc resccccccccccce:

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Association of Data Processing Service Org., Inc. v.

Camp, 397 U.S. 150 (1970)... ..-.----0ee sees: 9, 23, 24

Babbitt v. Sweet Home Chapter of Commun. for a

Great Or., __ US. __, 115 S. Ct. 2407 (1995) ..... 19

Bennett v. Aenert, 63 F.3d 916 (9th Cir. 1995) .... passim

Bennett v. Plenert, __ US. __, 116 S. Ct. 1316

CODDED . onc ccccccccceccccscccsecesescsesosceseosesss 8

California Motor Transport Co. v. Trucking Unlimited,

404 U.S. SOB (1972)... ...-- ence cece eee c eee eeeneees 11

California v. United States, 438 U.S. 645 (1978) ........ 3

Chambers v. Baltimrre & Ohio, R.R., 207 U.S. 142

GEDTPD ow vccccsccccccssscscccscsesscssccccescosens 12

Clarke v. Securities Industry Association, 479 U.S.

SEB (IGE) «ww ccc cvcccccccsccccccccsesseccsscces 9, 25

Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91

CRIDER . vnc cvcccccccvccssscccssecssoseccusesss 8, 9, 23

Ickes v. Fox, 300 U.S. 82 (1937) ..... 0.6.0 0c ee ee eeeeee 18

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .... 19

Massachusetts Board of Retirement v. Murgia, 427

UB. SOP CRGPED ... occ ccccccccccccccccccevcccceseses 12

Middlesex County Sewage Auth. v. National Sea

Clammers Association, 453 U.S. 1 (1981) ........... 24

Nevada v. United States, 463 U.S. 110 (1983).......... 18

Pacific Northwest Generating Cooperative v. Brown,

38 F.3d 1058 (9th Cir. 1994)... 2.2.6... cece eee ees 11

—

v

TABLE OF AUTHORITIES - Continued

Page(s)

ne ti s. Cr. 1960 (1994) ee

Rodriguez v. U.S., 480 U.S. 522 (1987)............. 19, 22

Romer v. Evans, __ US. __, 1996 WL 262293

Da suskeunscdsatddulb canta becebesshedevesnhce es 13

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535

Diies6esnvnsbuswiaheveusdswaddueyecnaesuédacts 13

Sweatt v. Paitner, 339 U.S. 629 (1950) ................ 12

Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205

tiene Cheuninseteesseeedscceeneubeeieesoosens 23

United States v. Alpine Land and Reservoir Co., 503 F.

Sg 8 Pere 18

United States v. Batchelder, 442 U.S. 114 (1979)....... 13

United States v. Menasche, 348 U.S. 528 (1955)........ 22

Wayte v. United States, 470 U.S. 598 (1984)........... 12

STATUTES

Re eee sooo

ee te IS Cheon oseadsucescensensexens 14, 22

es Fe I ec ncrcesccssncéetescess: Tr

ee ee ne nescccesdsesescesgcceypuuness 6

Oe i ie Iw waccceeceseisccssccuceces®ae

I I oes icccuarescecteccenccesees 6, 13

CD DERE, © Fe iv were vccsccccccvccscceccsccnndss 23

. | lf rrrrrerrrrrrrrr TTT rere 23

vi

TABLE OF AUTHORITIES - Continued

Page(s)

GB UBL. © BIB... oo. ccccccccccccccescesccccvesccscs 23

GD UGC. @ BIB... nc ccccccccccccscccevcsssecccess 17, 18

GD UBC. © BBB... ccc cccccccccccccccccsccccsessceces 14

Endangered Species Act, 1982 Amendments, Pub.

L. No. 97-304, § 9(a)(2), 96 Stat. 1426............. 14

Cal. Water Code § 1243..........0.ccccccccccccccceee. 3

Cal. Water Code § 1243.5 ... 2.2... 22 cc ccccccccceceees 3

Cal. Water Code § 1257S ...... 2.2 cccccccccccccccesss 3

MIscCELLANEOUS

BD CER. © OFBL... ccccscccccccesesccccccsccvesecccccs 3

128 Cong. Rec. 13,183 (1982)... ..... 6... e eee eeees 15

H.R. Rep. No. 412, 93rd Cong., Ist Sess. (1973)...... 24

H.R. Rep. No. 1625, 95th Cong., 2d Sess. (1978),

reprinted in 1978 U.S.C.C.A.N. 9453 ............-. 21

S. Rep. No. 418, 97th Cong., 2d Sess. (1982)......... 15

Recording Indicates Rancher, Not Agents, Aggressive,

THe IpaHo Statesman, Sept. 14, 1995............... 10

This Land is Whose Land? Tme, Oct. 23, 1995 ........ 10

Unrest in the West, Time, Oct. 23, 1995............... 10

CHarces Wricut, ArtHuR Miiier & Eowarp Cooper,

Feperat Practice AND Procepure (2d ed. 1984)..... 23

A. Dan Tarlock, The Endangered Species Act and

Western Water Rights, 20 LAND anp Water Law

REY GEE cence dsevsccesccssccscecessecesc 10, 16

vii

TABLE OF AUTHORITIES - Continued

Page(s)

Rules of the Supreme Court of the United States,

UR GEUES ch Gtinaadudidendend dbdnesvuseeh dédcsx 1

Western States Water Issue No. 535 (Aug. 17, 1984) .... 16

DECISION BELOW

The decision of the United States Court of Appeals

for the Ninth Circuit, Bennett v. Plenert, is reported at 63

F.3d 915 (9th Cir. 1995).

INTEREST OF AMICI

Pursuant to Rule 37.3 of the Rules of the Supreme

Court of the United States, the Association of California

Water Agencies, the State Water Contractors, and the

Central Valley Project Water Association respectfully sub-

mit this brief amicus curiae in support of Petitioners. Con-

sent to the filing of this brief has been granted by counse!

for all parties. Copies of the letters of consent have been

lodged with the Clerk of this Court.

The people of the State of California are highly

dependent upon an intricate network of highly developed

water projects to convey water to their cities and farms.

This dependence arises from a geographical imbalance of

supply and demand. Roughly 75 percent of California’s

water resources are found north of the Sacramento/San

Joaquin River Delta, while approximately 75 percent of

the urban and agricultural water demand within Califor-

nia occurs south of the Delta. To deal with this geographi-

cal imbalance, both the state and federal governments

have constructed water projects which transfer water

from where it is found to where it is consumptively used.

Together, the State Water Project, an element of the State

Water Development System (“State Water System”), and

the federal Central Valley Project provide water to more

than two-thirds of California's urban population and the

vast majority of its farmland. The Sacramento/San Joa-

quin River Delta is a critical link in the conveyance of

California’s water from the north to the south.

Amicus, Association of California Water Agencies

(“ACWA”), is a non-profit, incorporated association com-

prised of 420 local public agencies which supply and

manage California’s water resources. These agencies sup-

ply water, at the wholesale or retail level, or both, to

nearly all urban households in California and to more

than 8 million acres of farmland. ACWA members also

provide flood control for millions of Californians and

manage many of the State’s groundwater basins. Many of

the members of ACWA receive their water supply

directly or indirectly from the State Water System, from

the federal Central Valley Project, or from the federal

Colorado River Basin Project.

Amicus, State Water Contractors (“Contractors”), is a

non-profit, incorporated association comprised of 27 pub-

lic agencies formed under the laws of the State of Califor-

nia. Each of the member agencies holds a contract with

the State of California to receive water from the State

Water System. By means of these contracts, the State

Water System supplies water to some 21 million urban

residents and nearly a million acres of farmland.

Amicus, Central Valley Project Water Association

(“CVPWA"), is a non-profit, incorporated association

comprised of 80 public agencies formed under the laws of

the State of California. Each of the member agencies

holds a contract with the United States Department of

Interior, Bureau of Reclamation, to receive water from the

federal Central Valley Project. By means of these con-

tracts, the Central Valley Project provides 4 million

households and 3 million acres of farmland with all, or a

portion, of their water supply.

Historically, the balance between distribution for

consumptive use by water users, on the one hand, and

the allocation of water for environmental maintenance or

enhancement, on the other, was determined by provisions

of water right permits or licenses issued by the State of

California. See California v. United States, 438 U.S. 645

(1978); see also California Water Code §§ 1243, 1243.5 and

1257.5. More recently, however, the operations of the

water projects, particularly the State Water System, the

Central Valley Project, and the Colorado River Basin Pro-

ject, and thus, the balance between consumptive and

environmental water use, have been significantly affected

by directives of the United States Fish and Wildlife Ser-

vice and National Marine Fisheries Service under author-

ity of the federal Endangered Species Act (“Act”), 16

U.S.C. § 1531 et seq.

This fundamental shift in regulatory authority results

from the fact that the Sacramento/San Joaquin River

Delta and the Colorado River provide habitat for

numerous aquatic species listed under the Act. In particu-

lar, the winter-run chinook salmon, an anacromous spe-

cies listed as endangered, 50 C.F.R. § 17.11, uses the Delta

as part of its migration corridor to and from the Pacific

Ocean. The delta smelt, listed as a threatened species, id.,

is largely resident within the Delta year round. Four

native fish species that inhabit the Colorado River are

also listed as endangered under the Act: the Colorado

squawfish, the humpback chub, the bonytail chub, and

the razorback sucker. /d.

Based upon the conclusions of the United States Fish

and Wildlife Service and the National Marine Fisheries

Service regarding requirements for the preservation of

these species, the operational standards and criteria for

the water projects have been radically altered. As a result

of these changes, the water supply available to Califor-

nia’s cities and farms has been significantly reduced, and

the ability of Amici to meet the water supply needs of

their constituents has been directly impaired.

California also provides habitat for many terrestrial

species listed as threatened or endangered under the Act.

Actions taken to protect these species also affect the

operations of agencies which comprise Amici. For exam-

ple, in the San Joaquin Valley of California, routine activ-

ities to maintain water conveyance facilities are disrupted

or precluded because those activities may harm the habi-

tat of the San Joaquin kit fox or Tipton kangaroo rat

which are listed as endangered. Id. Similar activities are

affected in the Sacramento Valley of California in order to

prevent harm to the giant garter snake which is listed as

threatened. Id.

In addition to receiving water from the State Water

System, the Central Valley Project, or the Colorado River

Basin Project, many member agencies of ACWA, CVPWA,

or the Contractors, have constructed, or are constructing,

their own water projects. Regulation under the Act has

significantly affected these efforts. For example, the Met-

ropolitan Water District of Southern California, a member

of ACWA and the State Water Contractors, was required

to purchase and set aside substantial acreage in connec-

tion with its construction of the Domenigoni Valley Res-

ervoir in order to provide habitat for the least Bells vireo

and other listed species. Similarly, Contra Costa County

Water District, a member of ACWA and the CVPWA, was

required to create an endangered species reserve in con-

nection with its construction of the Los Vaqueros Reser-

voir Project in the Sacramento/San Joaquin Delta.

These are only a few examples of the Act’s impact on

Amici, its member agencies and all those served by these

agencies. As of June 1993, California provided habitat to

109 species listed as endangered or threatened pursuant

to the Act and 48 species proposed for listing. Conse-

quently, regardless of the region of California in which a

member agency of either ACWA, the Contractors, or

CVPWA finds itself, its water supply or operations are

likely to be affected by efforts undertaken to protect

species listed as endangered or threatened under the Act.

S

STATEMENT OF THE CASE

Petitioners are ranchers and irrigation districts which

receive water from the Klamath Project, operated by the

United States Bureau of Reclamation (“Bureau”). See

Complaint, {1 5, 9. As a result of a consultation between

the Bureau and the United States Fish and Wildlife ser-

vice pursuant to Section 7 of the Act, water in two

Klamath Project reservoirs that the Bureau would have

otherwise allocated to Petitioners was maintained in the

reservoirs. The purpose of maintaining this excess water

was purportedly to avoid jeopardy to the Lost River

sucker and the shortnose sucker, which were listed as

endangered in 1988. Complaint, {4 10, 14-19, 21.

Petitioners filed suit against Respondents, the Secre-

tary of Interior, and Fish and Wildlife officials, pursuant

to the Citizens Suit provision of the Act.' In their Com-

plaint, Petitioners alleged that Respondents violated the

Act by: (1) determining under Section 7(a)(2) of the Act?

that the proposed operation of the project would result in

jeopardy to the fish, and that restrictions should be

imposed on withdrawals for irrigation, without data to

support those conclusions and in the face of information

' Section 11(g)(1), 16 U.S.C. § 1540(g)(1) provides, in

pertinent part:

Except as provided in paragraph (2) of this subsection

any person may commence a civil suit on his own

behalf -

(A) to enjoin any person, including the United

States ..., who is alleged to be in violation of any

provision of this chapter or regulation issued

under the authority thereof. . . .

2 Section 7(a)(2), 16 U.S.C. § 1536(a)(2), provides, in

pertinent part:

Each Federal agency shall, in consultation with and

with the assistance of the Secretary, insure that any

action authorized, funded, or carried out by such

agency . . . is not likely to jeopardize the continued

existence of any endangered species or threatened

species or result in the destruction or adverse

modification of habitat of such species which is

determined .. . to be critical, unless such agency has

been granted an exemption for such action. . . . In

fulfilling the requirements of this paragraph each

agency shall use the best scientific and commercial

data available.

suggesting that fish populations were stable;? and (2) by

issuing a biological opinion which, by setting forth

hydrologic requirements in reservoirs where the suckers

live, implicitly determined “critical habitat” for the fish

under Section 4 of the Act without considering the eco-

nomic impacts of that critical habitat designation, as

required under Section 4(b)(2) of the Act. Complaint,

V1 22, 31.4

The United States District Court for the District of

Oregon granted Respondents’ Motion to Dismiss based

upon Petitioners’ lack of prudential standing, and the

United States Court of Appeals for the Ninth Circuit

affirmed the dismissal.

In its opinion, the Court of Appeals rejected Peti-

tioners’ contention that the prudential “zone of interests”

test was rendered inapplicable by the Act’s Citizens Suit

provision. 63 F.3d at 918. The Court held that Petitioners

failed the “zone of interests” test because “only plaintiffs

who allege an interest in the preservation of endangered

species fall within the zone of interests protected by the

ESA.” Id. at 919 (emphasis in original). The Court con-

cluded that only species preservation interests satisfy the

“zone of interests” test because “[t]he overall purposes of

+ Complaint {J 9-21, 24-29.

* Section 4(b)(2), 16 U.S.C. § 1533(b)(2) provides, in

pertinent part:

The Secretary shall designate critical habitat . . . on

the basis of the best scientific data available and after

taking into consideration the economic impact, and

any other relevant impact, of specifying any

particular area as critical habitat.

the ESA are singularly devoted to the goal >f ensuring

species preservation; they do not embrace the economic

and recreational interests that underlie the [Petitioners’ |

challenge.” Id. at 920. Because Petitioners use project

water for irrigation and recreation, not specits preserva-

tion, the Court concluded that Petitioners wee asserting

a “competing interest” in the water which wa; “inconsis-

tent with the Act’s purposes.” Id. at 921. Finally, the

Court concluded that, notwithstanding the nandate of

Section 4(b)(2) requiring the Secretary to consider the

economic impacts of designating critical habitat, Con-

gress “did not intend impliedly to confer sanding on

every plaintiff who could conceivably claim tyat the fail-

ure to consider one of those factors adverstly affected

him.” Id.

This Court granted Petitioners’ Petition for Writ of

Certiorari on March 25, 1996. Bennett v. Plenet, —-—U SS.

_, 116 S. Ct. 1316 (1996).

SUMMARY OF ARGUMENT

Pursuant to the “standing” requirements cf Article II]

of the United States Constitution, “the plaintiff must

show that he personally has suffered some actual or

threatened injury as a result of the putatively illegal

conduct of the defendant.” Gladstone, Realtors v. Village of

Bellwood, 441 U.S. 91, 99 (1979). In addition to the require-

ments of Article III, the judiciary has established “pru-

dential” limits on standing. Id. Included among these

prudential limitations is the “zone of interests’ test which

9

was first enunciated as a standing requitement in Associa-

tion of Data Processing Service Org., Inc. v. Camp, 397 U.S.

150 (1970). In that case, the Court held that a plaintiff

seeking judicial review under the Administrative Pro-

cedure Act must demonstrate that “the interest sought to

be protected by [the litigant] is arguably within the zone

of interests to be protected or regulated by the statute or

constitutional guarantee in question.” Id. at 153. How-

ever, the Court has subsequently commented that the

zone of interests test “is not meant to be especially

demanding.” Clarke 1. Securities Industry Ass'n, 479 US.

388, 399 (1987). Furthermore, “Congress may, by legisla-

tion, expand standing to the full extent permitted by Art.

Ill, thus permitting litigation by one who otherwise

‘would be barred by prudential standing rules.’ ” Glad-

stone, Realtors, 441 U.S. at 100 (quoting Warth v. Seldin, 422

U.S. 490, 501 (1975)).

As discussed herein, the Court of Appeals’ applica-

tion of the zone of interest test to the Citizens Suit provi-

sion of the Act unnecessarily raises serious constitutional

concerns by burdening Petitioners’ First Amendment

right to petition government. Rather than adhering to a

narrow interpretation, a broader interpretation of stand-

ing under the Act avoids this infringement of constitu-

tional rights, and is therefore to be preferred. In addition,

in affirming the district court’s dismissal, the Court of

Appeals erred in finding that Petitioners were not within

the Act’s zone of interests since Congress expressly rec-

ognized the interests of water agencies in its 1982 amend-

ment of the Act. These water agencies are, in reality, the

entities actually regulated. Furthermore, the Court of

10

Appeals’ reliance on the Act's “general” purpose improp-

erly ignores the specific means and limitations as enacted

by Congress. The Court of Appeals’ narrow interpreta-

tion of standing under the Act, despite the broad statu-

tory language, casts doubt on Congress’ ability to allow

judicial review to the full extent permitted by Article III.

+

ARGUMENT

I. THE COURT OF APPEALS’ APPLICATION OF THE

ZONE OF INTERESTS TEST UNNECESSARILY

INFRINGES ON THE FUNDAMENTAL RIGHT TO

PETITION GOVERNMENT.

There exists in the western United States today a

growing disrespect for the federal government’s manage-

ment of natural resources. Linrest in the West, Tme, Oct.

23, 1995, at 52-66. In considerable part, this frustration

has resulted from what is perceived to be the onerous and

unjustified application of the Endangered Species Act.

This Land is Whose Land? Tme, Oct. 23, 1995, at 68-71. As

one commentator noted: “[wJater development activities

are now evaluated, in part, by backdoor federal water-

related land use planning processes under the environ-

mental programs that Congress has superimposed on

resource development programs.” A. Dan Tarlock, The

Endangered Species Act and Western Water Rights, 20 Lanp

AND Water Law Review 2 (1985). In some circumstances,

this disrespect has resulted in intentional disobedience of

the law without apparent concern by local law enforce-

ment agencies. Recording Indicates Rancher, Not Agents,

Aggressive, THe IpaHo Statesman, Sept. 14, 1995.

11

The frustration of individuals in the position of Peti-

tioners is easily understood. In this case, ranchers and

irrigation districts who are directly affected by imple-

mentation of the Act are being told that, notwithstanding

the broad language in the Citizens Suit provision of the

Act, they are barred from raising their grievances in court

because their interests compete with those of the Lost

River sucker and shortnose sucker. 63 F.3d at 921.5 In

other words, even if the action of the Fish and Wildlife

Service may be arbitrary or taken in violation of the

provisions of the Act, Petitioners are barred from seeking

redress for their grievances through the courts. As a

consequence, the judicial system is open only to those

who allege an interest in the preservation of endangered

species.

Barring one side of a controversy from access to the

courts should not be permitted as a matter of public

policy. Nor is it permitted as a matter of constitutional

law. The right of access to courts is but one aspect of the

First Amendment right to petition government for

redress of grievances. California Motor Transport Co. v.

Trucking Unlimited, 404 U.S. 508, 510 (1972). As the Court

has proclaimed: “The right to sue and defend in the

courts is the alternative of force. In an organized society

° In deciding an action brought by hydropower operators

challenging restrictions under the Act, the Ninth Circuit

observed that: “[t}he plaintiffs are entitled to standing because

preservation of the salmon will, in the long run, reduce their

cost.” Pacific Northwest Generating Cooperative v. Brown, 38 F.3d

1058, 1067 (9th Cir. 1994). Similarly, Petitioners arguably have

an interest in restoration of the species which could therefore

result in rendering the Act's restrictions unnecessary.

12

it is the right conservative of all other rights, and lies at

the foundation of orderly government. It is one of the

highest and most essential privileges of citizenship. . . . ”

Chambers v. Baltimore & Ohio, R.R., 207 U.S. 142, 148

(1907). Although this right is limited by principles of

Article III standing, the creation of artificial barriers

should be thoroughly scrutinized. See Wayte v. United

States, 470 U.S. 598, 610 n. 11 (1984) (although the right to

petition and right to free speech are separate guarantees,

they are related and generally subject to the same consti-

tutional analysis); see also Massachusetts Board of Retire-

ment v. Murgia, 427 U.S. 307, 312 (1976) (a legislative

classification which burdens a fundamental right is sub-

ject to heightened scrutiny).

In another context, this Court very recently observed:

The resulting disqualification of a class of per-

sons from the right to seek specific protection

from the law is unprecedented in our jurispru-

dence... .

It is not within our constitutional tradition to enact

laws of this sort. Central both to the idea of the

rule of law and to our own Constitution’s guaran-

tee of equal protection is the principle that govern-

ment and each of its parts remain open on impartial

terms to all who seek its assistance. “ ‘Equal protection

of the laws is not achieved through indiscriminate

imposition of inequities.’” Sweatt v. Paitner, 339

U.S. 629, 635 (1950) (quoting Shelley v. Kraemer, 334

U.S. 1, 22 (1948)). Respect for this principle

explains why laws singling out a certain class of

citizens for disfavored legal status or general hard-

ships are rare. A law declaring that in general it shall

be more difficult for one group of citizens than for all

others to seek aid from the government is itself a denial

13

of equal protection of the laws in the most literal sense.

“The guaranty of ‘equal protection of the laws is a

pledge of the protection of equal laws.’ ” Skinner v.

Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942)

(quoting Yick Wo v. Hopkins, 118 U.S. 356, 369

(1886)).

Romer v. Evans, ___ U.S. ___, slip op. at 8, 1996 WL 262293

at "18-19 (1996) (emphasis added).

Despite the broad language contained in the Citizen

Suit provision of the Act, 16 U.S.C. § 1540(g)(1), the Court

of Appeals opted to interpret the provision in a narrow

fashion which infringes Petitioners’ fundamental right to

petition government for the redress of grievances. This

interpretation gives rise to serious issues under the con-

stitutional jurisprudence of this Court, and it is contrary

to “the maxim that statutes should be construed to avoid

constitutional questions. .. . ” United States v. Batchelder,

442 U.S. 114, 122 (1979). Moreover, given the broad lan-

guage of the Citizens Suit provision, it is difficult to see

the necessity of raising this constitutional issue to imple-

ment the intent of Congress. Thus, the Court should reject

the Court of Appeals’ narrow interpretation and thereby

avoid the need to address the serious constitutional

issues raised by its holding.

Il. APPLICATION OF THE ZONE OF INTERESTS

TEST FRUSTRATES CONGRESSIONAL POLICY

CONCERNING DEFERENCE TO STATE REGULA-

TION OF WATER RESOURCES.

Embodied in numerous federal statutory schemes is a

deference to regulation of water resources by the states.

This deference is stated expressly in Section 8 of the

14

Reclamation Act of 1902, which provides, in pertinent

part:

Nothing in this Act shall be construed as affect-

ing or intended to affect or to in any way inter-

iere with the laws of any State or Territory

relating to the control, appropriation, use, or

distribution of water used in irrigation, or any

vested right acquired thereunder, and the Secre-

tary of Interior, in carrying out the provisians of

this Act, shall proceed in conformity with such

laws, and nothing herein-shall in any way affect

any right of any State or of the Federal Gevern-

ment or of any landowner, appropriator, or user

of water in, to, or from any interstate stream or

the waters thereof.

43 U.S.C. § 383. See also PUD No. 1 v. Washington Dept. of

Ecology, _. U.S. __, 114 S. Ct. 1900, 1913-1914 (1994)

(Clean Water Act, 33 U.S.C. § 1251 et seq., to be adminis-

tered so as to avoid interference with state’s water alloca-

tions).

Similar deference was expressed by Congress when it

amended the Endangered Species Act in 1982. Pub. L. No.

97-304, § Y{a)(2), 96 Stat. 1426 (1982). Pursuant to these

amendments, Section 2(c)(2) of the Act provides:

It is further declared to be the policy of Con-

gress that Federal agencies shall cooperate with

State and local agencies to resolve water

resource issues in concert with conservation of

endangered species.

16 U.S.C. § 1531(c)(2). Although this statement of con-

gressional policy was not meant to change federal or local

law, through it Congress:

15

[Rjecogniz[ed] the individual State’s interest

and, very often, the regional interest with

respect to water allocation. The policy statement

contained in this amendment recognizes that

most of the potential conflicts between species

conservation and water resource development

can be avoided through close cooperation

between local, State and Federal authorities.

S. Rev. No. 418, 97th Cong., 2d Sess. 25 (1982). Consistent

with this statement of policy, Senator Symms commented

that the amendment

recognizles] the complex system of western

water laws that govern the agriculture produc-

tivity and power-generating capacity of Western

States such as my own, and was vital to the

bill’s acceptability. We in the West are always

wary of legislation that poses feasible threats to

the supremacy of the States in the appropriating

of the water that is the lifeblood of our exis-

tence.

128 Conc. Rec. 13,183 (1982). The Act’s impact on water

allocation was demonstrated during hearings before the

Subcommittee on Environmental Pollution of the Senate

Committee on Environment and Public Works prior to

passage of the 1982 amendments. At these hearings,

Roland C. Fisher, of the Colorado River Water Conserva-

tion District, testified that:

One result of the Act's inflexibility which is of

real concern to us, and should be of concern to

all, is the de facto interstate apportionment and

intrastate appropriation of waters which the

FWS [Fish and Wildlife Service] is effectively

accomplishing by imposing substantial mini-

mum flow releases on water storage projects.

16

For example, in order to obtain a non-jeopardy

opinion on the Colorado River squawfish from

FWS on its White River Dam, the State of Utah

recently had to agree to release a minimum of

250 second-feet (cfs) of water at the dam during

most of the year, with higher releases in the

spawning period, and to augment the minimum

flow by up to 5000 acre-feet from inactive stor-

age when natural river flows fall below the 250

cfs minimum and as the matter stands now, our

own sub-district’s Taylor Draw reservoir, also to

be constructed on the White River above Utah's

project, will be forced to release up to 200 cfs,

depending upon river flows. All of this has the

potential to interfere with appropriative rights

under State water laws as well as interstate

apportionments under the Upper Colorado

River Basin Compact.

Tarlock, supra, at 1-2 (quoting Endangered Species Act

Amendments, 1982: Hearing on S. 2309 Before the Subcomm.

on Environmental Pollution of the Senate Comm. on Environ-

ment and Public Works, 97th Cong., 2d Sess. 235-36 (1982));

see also WesteRN States Water Issue No. 535 (August 17,

1984) (Former Congressman Cheney stated that: “| T]he

Endangered Species Act has gone beyond its original

purpose and will stop water projects in the West. It even

runs the risk of redoing all of the interstate compacts

governing which state gets what share of available water

supplies.”)

The 1982 amendment to the Act granted to local

water agencies, such as Petitioners Horsefly Irrigation

District and Lingell Valley Irrigation District, special sta-

tus in obtaining federal cooperation in resolving water

resource management issues with minimal conflict with

—————

17

the Act. Thus, these agencies have a unique interest that

is recognized by the terms of the Act. Notwithstanding

this unique interest, the Court of Appeals interpreted the

Act's Citizens Suit provision narrowly by applying to

Petitioners the zone of interests test. This interpretation

frustrates the Congressional policy of promoting coopera-

tion between federal agencies and local agencies in

resolving issues involving water resources. Indeed, the

Court of Appeals’ decision renders local agencies with

jurisdiction over water resources powerless to protect

their interests.

Ill. PRUDENTIAL STANDING IS INAPPLICABLE TO

PETITIONERS WHO STAND IN PLACE OF THE

AGENCY DIRECTLY REGULATED.

In its opinion, the Court of Appeals acknowledged

that the prudential standing doctrine embodied in the

zone of interests test does not apply in circumstances

where the litigants stand in the same position as the

entity regulated directly. 63 F.3d 920 n. 6 (citing Clarke,

479 U.S. at 400). In the circumstances of this case, the

Petitioners stand in the position of the entity directly

regulated. Indeed, only Petitioners, or others similarly

situated, have an interest in seeking to enforce the pur-

poses for which Congress amended the Act.

Pursuant to the Reclamation Act of 1902, the right to

the use of water acquired by the Bureau under provisions

of the Federal reclamation law is appurtenant to the land

irrigated. 43 U.S.C. § 372. One district court has analo-

gized the relationship between a water user and the

18

Bureau to the relationship between an owner of property

and a lienholder:

The water rights on the Newlands Project cov-

ered by approved water right applications and

contracts are appurtenant to the land irrigated

and are owned by the individual landowners in

the Project... . The United States may have title

to the irrigation works, but as to the appurte-

nant water rights it maintains only a lien-

holder’s interest to secure repayment of the pro-

ject construction costs.

United States v. Alpine Land and Reservoir Co., 503 F. Supp.

877, 879 (D. Nev. 1980), modified, 697 F.2d 851 (9th Cir.),

cert. denied, 464 U.S. 863 (1983); see also Nevada v. United

States, 463 U.S. 110, 124 (1983); Ickes v. Fox, 300 U.S. 82,

94-95 (1937).

In this case, Clear Lake and Gerber Reservoirs were

constructed and historically operated to provide irriga-

tion water to farmers and ranchers in southern Oregon,

including Petitioners. Complaint, {4 9-12. The water left

in these reservoirs as a result of the consultation between

the Bureau and the Fish and Wildlife Service was water

which Petitioners were entitled to use, 43 U.S.C. § 372,

and in reality, it is Petitioners who are the subject of the

contested regulatory action. For this additional reason,

the application of the prudential standing rule to Peti-

tioners is inappropriate.

In the circumstances of this case, the directly regu-

lated agency is a sister agency of the regulator within the

Department of Interior and therefore, it is almost incon-

ceivable that the Bureau would bring and diligently pros-

ecute an action to enforce the Act. Petitioners, on the

19

other hand, are in reality the “object of the action . . . at

issue.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

(1992). Petitioners have the greater interest in enforcing

the Act, and the zone of interests test should not bar their

action.

IV. THE ZONE OF INTERESTS TEST SHOULD CON-

SIDER AN ACT OF CONGRESS AS A WHOLE

RATHER THAN RELY ON JUDICIAL INTER-

PRETATION OF AN ACT’S PRIMARY PURPOSE.

This Court has warned lower courts of the dangers of

focusing solely on the broad purpose of a statute and

ignoring its individual sections. In Rodriguez v. U.S., 480

U.S. 522 (1987) (per curiam), the Court explained:

[N]o legislation pursues its purposes at all costs.

Deciding what competing values will or will not

be sacrificed to the achievement of a particular

objective is the very essence of legislative choice

~ and it frustrates rather than effectuates legisla-

tive intent simplistically to assume that whatever

furthers the statute’s primary objective must be

the law.

Id. at 525-526 (emphasis in original).®

® More recently, in dissent in Babbitt v. Sweet Home Ch. of

Commun. for Great Or., __ U.S. __, 115 S.Ct. 2407, 2426 (1995),

Justice Scalia noted:

Deduction from the “broad purpose” of a statute begs

the question if it is used to decide by what means (and

hence to what length) Congress pursued that purpose;

to get the right answer to that question there is no

substitute for the hard job (or in this case, the quite

simple one) of reading the whole text. “The act must

20

In this case, the Court of Appeals held “that only

plaintiffs who allege an interest in the preservation of

endangered species fall within the zone of interests pro-

tected by the ESA.” 63 F.3d at 919 (emphasis in original).

In reaching this conclusion, the Court observed:

The overall purposes of the ESA are singularly

‘ devoted to the goal of ensuring species preser-

vation; they do not embrace the economic and

recreational interests that underlie the plaintiffs’

challenge.

Id. at 920. From this statement, it is apparent that the

Court of Appeals focused on a single purpose of the Act

in conducting its analysis, and it did not consider rele-

vant to its inquiry the limitations on or means of achiev-

ing that purpose specified by Congress.

Had the Ninth Circuit considered these limitations

and means, it would have discovered that Congress did

attempt to require federal agencies to consider the

impacts on persons affected by regulation under the Act

in their decision making. In Section 4(b)(2), for example,

one of the sections which Petitioners sought to enforce,

Congress directed the Secretary to “tak[e] into consider-

atior. the economic impact . . . of specifying any particu-

lar area as critical habitat” when designating critical

habitat. 16 U.S.C. § 1533(b)(2). This section, among

others, was added to the Act in 1978:

[T]o retain the basic integrity of the Endangered

Species Act, while introducing some flexibility

do everything necessary to achieve its broad

purpose” is the slogan of the enthusiast, not the

analytical tool of the arbiter. (Emphasis added.)

21

which will permit exemptions from the Act's

stringent requirements. At the same time, the

legislation aims to improve the listing process

and the public notice process of proposed listing

and designations. These improvements will

insure that all listing and designations are made

by the Department of Interior only after a thor-

ough survey of all of the available data, and

only after notice to the local communities that

will be most affected by any listing or designa-

Gem. ...;

H.R. Rer. No. 1625, 95th Cong., 2d Sess. 14 (1978),

reprinted in 1978 U.S.C.C.A.N. 9453, 9464.

In analyzing the 1978 amendment to the Act, the

House Report further stated:

Up until this time, the determination of critical

habitat has been purely a biological question.

With the addition of this new paragraph, the

determination of critical habitat for invertebrate

takes on significant added dimensions. Eco-

nomics and any other relevant impact shall be

considered by the Secretary in setting the limits

of critical habitat for such a species... .

[T]he result of the committee’s proposed

amendment would be increased flexibility on

the part of the Secretary in determining critical

habitat for invertebrates. Factors of recognized

or potential importance to human activities in

an area will be considered by the Secretary in

deciding whether or not all or part of that area

should be included in the critical habitat of an

invertebrate species. .. .

Id. at 17, 1978 U.S.C.C.A.N. at 9467.

22

These statements exhibit a Congressional intent to

expand the Secretary’s analysis when designating critical

habitat to include an analysis of a designation’s impact on

a community’s economy. The Petitioners’ economic injury

falls within the “zone of interests” protected by Section

4(b)(2) of the Act. Other examples include sections

2(c)(2), 16 U.S.C. § 1531(c)(2) and 7(b)(3(A), 16 U.S.C.

§ 1536(b)(3)(A), which also reflect an effort by Congress

to reconcile species protection with other legitimate

objectives.

Only by focusing exclusively on the primary overall

purpose of the Act, and ignoring these sections, could the

Court of Appeals conclude that Petitioners’ interests fall

outside of the zone of interests protected by the Act.

Consistent with principles of construction, the Court

should reject the attempt to define the “zone of interests

test” simply by reference to the overall purpose of a

statute. See Rodriguez, 480 U.S. at 525-526 (improper to

assume that whatever furthers a statute’s primary pur-

pose must be the law). Moreover, the Court should reaf-

firm the long-standing principle of construction that all

parts of a statute are to be given effect. United States v.

Menasche, 348 U.S. 528, 538-539 (1955) (“It is our duty to

give effect, if possible, to every clause and word of a

statute.”). Congress’ overall general purpose should not

govern at the expense of the specific means and limita-

tions adopted by Congress.

23

Vv. THE COURT OF APPEALS’ APPLICATION OF

THE ZONE OF INTERESTS TEST CONFLICTS

WITH CONGRESSIONAL POLICY AFFORDING

BROAD ACCESS TO THE JUDICIARY.

In analyzing the applicability of prudential limits on

standing, the Court has held that: “Congress may, by

legislation, expand standing to the full extent permitted

by Art. Ill... . “ Gladstone, Realtors, 441 U.S. at 100.

Furthermore, “|w]jhere statutes are concerned, the trend

is toward enlargement of the class of people who may

protest administrative action.” Association of Data Process-

ing Service Org., 397 U.S. at 154. For example, in analyzing

actions under sections 810 and 812 of Title VIII, 42 U.S.C.

§§ 3610 & 3612, the Court has instructed that: “[s]tanding

under § 812, like that under § 810, is as broad as is

permitted by Article III of the Constitution.” Gladstone,

Realtors, 441 U.S. at 109 (internal quotations and citations

omitted). Similarly, the Court has approved a holding

that the “a person claiming to be aggrieved” language of

42 U.S.C. § 2000e-5 evidences a congressional intent “to

define standing as broadly as permitted by Article III.”

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

(1972) (citing Hackett v. McGuire Bros., Inc., 445 F.2d 442

(3rd Cir. 1971)).

As noted by one commentator, Congress has

expanded standing in various areas including civil rights,

consumer interests and as relevant to the present case,

environmental interests. 13A CHartes WaricHt, ArTHuR

Mirter & Eowarp Coorer, Fepverar Practice AND Procepure

§ 3531.13, at 71 n. 10 (2d ed. 1984) (citing various environ-

mental statutes). The Court has previously observed the

“broad category” vf potential plaintiffs encompassed

24

within the Federal Water Pollution Control Act. Middlesex

County Sewage Auth. v. Nat'l Sea Clammers Ass'n, 453 US.

1, 16-17 (1981). The Court made this observation in

analyzing the “citizen suit” provisions of the Marine Pro-

tection Research and Sanctuaries Act whereby it also

noted that the provisions of the Marine Protection Act are

almost identical to the Water Pollution Control Act. Id. In

commenting on the House version of the 1973 Amend-

ments to the Act, the House Report notes that the Act's

proposed citizen suit provisions are “|pjarallel to that

contained in the recent Marine Protection, Research and

Sanctuaries Act of 1972, and is to be interpreted in the

same fashion.” H.R. Rer. No. 412, 93rd Cong., Ist Sess. 19

(1973). At the very least, an inference exists that Congress

intended to allow suits by a “broad category” of potential

plaintiffs under the Endangered Species Act.

Moreover, as enacted by Congress in 1973, the Citi-

zens Suit provision of the Act provides that “any person”

may commence a civil suit on his own behalf to enjoin the

United States from violating the provisions of the Act or

regulations issued thereunder. In commenting on the

House version of the amendments, the House Report

reiterates that this provision allows “[a]ny person . . . to

seek redress involving injunctive relief for violations or

potential violations of the Act.” Id. Nothing in the history

of this broad language suggests that “any person” is

somehow limited to only “certain persons.” Such a limit-

ing construction conflicts with the principle that “|t}here

is NO presumption against judicial review and in favor of

administrative absolutism ... , unless that purpose is

fairly discernible in the statutory scheme.” Association of

Data Processing Service Org., 397 U.S. at 157. Moreover,

eee

25

placing a narrow construction on the broad congressional

directive of the Act casts doubt on Congress’ ability to

expand standing to the extent allowed by Article III, and

violates this Court's directive that “at the bottom” the

question of standing turns on congressional intent. Clarke,

479 US. at 400.

CONCLUSION

For the foregoing reasons, Amici submit that the

Court should reverse the decision of the United States

Court of Appeals for the Ninth Circuit affirming the

dismissal of this case, and remand this case for further

proceedings.

DATED: May 24, 1996

Respectfully submitted,

THomas W. BiemincHam

Counsel of Record

Currorp W. ScHutz

Janet K. Gowosmrry

Wiiwtam T. Cexisum

Of Counsel

Kronick, Moskovrrz, TmpemMaNn

& Girarp

A Professional Corporation

400 Capitol Mall, 27th Floor

Sacramento, California 95814

(916) 321-4500

Attorneys for Amici Curtae