# Amicus Curiae Brief — Bennett v. Spear

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0666%3A21

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 154

## Text

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
+

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
EE so occ csccssecccssmocees iv
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0666%3A21. Public record. Not legal advice.