Amicus Curiae Brief — Bennett v. Spear

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No. 95-813 Cc bs vm oom |

In the =

Supreme Court of the United States

October Term, 1995

+

BRAD BENNETT, et al.,

Petitioners,

Vv.

MARVIN L. PLENERT, et al.,

Respondents.

—?*

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

+

BRIEF AMICUS CURIAE

OF PACIFIC LEGAL FOUNDATION, CALIFORNIA

CATTLEMEN’S ASSOCIATION, NATIONAL

CATTLEMEN’S BEEF ASSOCIATION, THE CATL

FUND, AND POSSEE IN SUPPORT OF

PETITIONERS

>

OF COUNSEL ROBIN L. RIVETT

MARK T. GALLAGHER *M. REED HOPPER

Pacific Legal Foundation *Counsel of Record

2151 River Plaza Drive, Pacific Legal Foundation

Suite 305 2151 River Plaza Drive,

Sacramento, California 95833 Suite 305

Telephone: (916) 641-8888 Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amici Curiae

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i

QUESTIONS PRESENTED FOR REVIEW

Under the citizen suit provision of the Endangered

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

may commence a civil suit on his own behalf to the

United States from violating the of the Act or

provisions

regulations issued thereunder. The questions presented are:

1. Whether the broad standing mandated by

in the citizen suit provision of the Endangered Species Act is

subject to a zone of interest test as a further, judicially

imposed prudential limitation on standing.

2. If standing to sue under the Endangered Species Act

is subject to prudential limitations, whether those limitations

permit only environmental plaintiffs to challenge government

conduct alleged to violate the terms of the Act or whether the

claims of economic injury raised by public water suppliers

and water users are also within the zone of interests protected

or regulated by the Act.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ...........

TABLE OF AUTHORITIES CITED ............... ii

INTEREST OF AMICUS CURIAE .............55: 1

STATEMENT OF THE CASE .......-----. 0.00005 5

SUMMARY OF ARGUMENT ..............00005 7

et es necee 9

I. IN UNMISTAKABLE LANGUAGE, CONGRESS

CLEARLY WAIVED PRUDENTIAL STANDING

REQUIREMENTS UNDER THE ESA .......... 9

Il. A BROAD INTERPRETATION OF THE

CITIZEN-SUIT PROVISION WILL ADVANCE,

NOT FRUSTRATE, THE PURPOSES OF

:) 9 | rr ee 13

Ill. ECONOMIC INTERESTS ARE AMONG THOSE

INTERESTS PROTECTED BY THE ESA ...... 16

IV. PETITIONERS HAVE STANDING TO SUE UNDER

THE PARTICULAR STATUTORY PROVISIONS

WHICH UNDERLIE THEIR COMPLAINT ..... 22

V. PETITIONERS HAVE PROCEDURAL STANDING

rr rrrrr rrr eee eee 24

CONCLUSION ....-.cccceeees Lepeceseneces 27

lil

TABLE OF AUTHORITIES CITED

Page

CASES

Babbitt v. Sweet Home Chapter of Communities for a

Great Oregon, U.S. _, 115. S. Ct. 2407 (1995) .. . 3-4

Bennett v. Plenert, 63 F.3d 615

Ne 4-7,9, 11-14, 16,21-22,26-27

Clarke v. Securities Industry Association,

i 22

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

Dt cis cebdeegetidecesnce sos 3,26-27

Federal Communications Commission v. Sanders

Brothers Radio Station, 309 U.S. 470 (1940)... .... 15-16

Gladstone Realtors v. Village of Bellwood,

Pe ccc eeiebeceevecceoeée 7,11,13

Gonzales v. Gorsuch, 688 F.2d 1263

i oohu wed we ode obs bk cence neeate 3

Idaho Farm Bureau Federation, 900 F. Supp. 1349

tintin ce eaeke bee ce vies st 27

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) . 8,23-26

Mausolf v. Babbitt, 913 F. Supp. 1334 (D. Minn. 1996) .. 28

Pacific Legal Foundation v. Andrus,

Ce 3

Sierra Club v. Morton, 405 U.S. 727 (1972) .......... 1S

Tennessee Valley Authority v. Hill,

ee snk hese bs bt be ok 3-4,13,16-17

iv

Page

Warth v. Seldin, 422 U.S. 490 (1975) ... 2. ee ee ees 7

STATUTES

06 WBC. BIGBE . ccc cccccreccescccccccceces 3

RSS 4-5,14

BMBROOED onc ccccccccccccecsecsteces 8,24-25

BIGED oc cccccccccceceseeccccssesesseese 17

BRGTBOD onc cccc ccc ccccccscccesecscesess 14

| \RRRerrr ee 13

‘ys Sere 6,13,23

Dic ccccecdstdacccosecousseueeneen 19,23

‘l= Ree 6

§ IS36Q@)GMA) . .. .- ee eee eee eee 18

§ 1S39(aM IMB) . 2. ee ee eee ee eee 19

‘RRP 20

‘RRP 20

fo) eee i,4,6-7,9-10

42 U.S.C. § 4332(2)C) . ee eee ee eee 24

47 U.S.C. § 402Q@NQ) «eee eee ewww ees 15

RULES

Vv

Page

UNITED STATES CONSTITUTION

ED we ctnsacdsdeesebsubacececicece 7-8,10

MISCELLANEOUS

124 Cong. Reg. 38,134 (1978). .................. 18

Developer's Guide to Endangered Species Regulation (1996) . 4

Endangered Species Act of Nov. 10, 1978, Pub. L.

No. 95-632, 1978 U.S.C.C.A.N. (92 Stat.) 366

H.R. Rep. No. 567, 97th Cong., 2nd Sess. (1982) .... 19-21

gt ey Evaluating the

Endangered

Species Act, Its Effects on Man and Prospects for Reform

24 Cum L. Rev. 1 (1993)

No. 95-813

+

In the

Supreme Court of the United States

October Term, 1995

—+

BRAD BENNETT, et al.,

Petitioners

Vv.

MARVIN L. PLENERT, et al.,

Respondents

+

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

—-

BRIEF AMICUS CURIAE

OF PACIFIC LEGAL FOUNDATION, CALIFORNIA

CATTLEMEN’S ASSOCIATION, NATIONAL

CATTLEMEN’S BEEF ASSOCIATION, THE CATL

FUND, AND POSSEE IN SUPPORT OF

PETITIONERS

+—

INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation (PLF) respectfully submits this brief amicus

curiae on behalf of itself, the California Cattlemen’s

2

Association, the National Cattlemen’s Beef Association, the

CATL Fund, and POSSEE. Written permission from all

parties to file this brief has been lodged with the Clerk of the

Court.

The California Cattlemen’s Association (CCA) is a

nonprofit corporation. CCA was founded in 1917 and

represents the state’s beef cattle industry in legislative and

regulatory affairs. Beef cattle producers operate on over

40 million of California’s 100 million acres of land and

contribute more than $1.5 billion to the state’s economy.

The beef industry provides more than 26,000 jobs in the

State of California.

The National Cattlemen’s Beef Association (NCBA)

was created by the consolidation of the National Cattlemen’s

Association and the National Livestock and Meat Board/Beef

Industry Council. NCBA is the national spokesperson and

issues manager for all segments of the United States beef

cattle industry. The NCBA represents more than 230,000

professional cattle breeders, producers, and feeders, as well

as 75 affiliated state and national associations. It is the only

national grassroots organization that articulates policies on

behalf of the single largest holder of private property in

America--the beef cattle industry. Sixteen percent of the

land mass of the United States is privately owned by

ranchers--approximately 371 million acres (larger than the

collective size of 22 states). Through the NCBA, cattlemen

work to create positive business conditions and to maintain

the land from which they make their living while providing

consumers with the finest beef in the world.

The CATL Fund was created to assist landowners and

others similarly situated, including cattlemen, in establishing

broad-based legal precedent to protect property rights,

promote free enterprise, and minimize regulatory abuses.

Because ranchers own or use such vast tracts of land, they

are disproportionately singled out to bear the burden of

3

habitat preservation. Collectively, ranchers may Own more

endangered species habitat than any other class of

Americans. Accordingly, the greatest part of the burden

associated with species protection necessarily falls upon

ranchers and other private landowners.

; POSSEE (Protecting Our State’s Stewards,

Environment, and Economy) is a public interest legal fund

organized to help ranchers, farmers, and other landowners

who depend on California’s renewabie resources for their

livelihood. Protecting the delicate balance between a healthy

environment and a healthy economy for these stewards is the

primary goal of the legal fund.

Pacific Legal Foundation is a nonprofit, tax-exempt

organization incorporated under the laws of California for the

purpose of participating nationally ir litigation matters

affecting the public interest. PLF has over 20,000

nationwide. PLF policy is set by a Board of Trustees

composed of concerned citizens, many of whom are

attomeys. The Board of Trustees evaluates the merits of any

contemplated legal action and authorizes such action only

where PLF’s position has broad support within the general

community. PLF’s Board of Trustees has authorized the

filing of a brief amicus curiae in this matter. PLF has a

long-standing interest in environmental issues and has

participated in numerous cases involving statutory

interpretation of environmental laws, including the

Endangered Species Act, 16 U.S.C. § 1531, ef Seq.

For example, PLF was a of record in Pacific

Legal Foundation v. Andrus, 657 F.2d 829 (6th Cir. 1980),

and amicus curiae in Babbitt v. Sweet Home Chapter of

Communities for a Great Oregon, __ U.S. __, 115. Ct.

2407 (1995); Douglas County, Oregon v. Babbitt, Case

No. 95-371; and Tennessee Valley Authority v. Hill,

437 U.S. 153 (1978) (TVA). PLF also litigated the case of

Gonzales v. Gorsuch, 688 F.2d 1263 (9th Cir. 1982), which

4

involved standing under the Clean Water Act’s citizen-suit

provision.

Similar to the Clears Water Act, the citizen-suit

provision of the Endangered Species Act (ESA or Act)

provides “any person may commence a civil suit on his own

behalf” to enjoin the government from violating the Act.

16 U.S.C. § 1540(g)(1). Despite the sweeping "any person

language used by Congress in this provision, the court below

held only those plaintiffs have standing to sue who assert an

interest in the preservation of species and, therefore, lie

within the “zone of interests" protected by the ESA.

Bennett v. Plenert, 63 F.3d 615, 619 (9th Cir. 1995). The

questions presented by this case are twofold: (1) whether the

Ninth Circuit was correct in applying the zone of interests

test to an ESA citizen suit and (2) whether economic interests

are within the zone of interests protected by the ESA.

These questions are vital to millions of Americans. As

of 1995, over 900 species had been listed as threatened or

endangered under the federal Endangered Species Act with

over 3,000 species under consideration for listing.

Developer’s Guide to Endangered Species Regulation at 7

(1996). These species range from insects to mammals and

are found throughout the United States. Also, many states

have adopted their own endangered species acts, patterned

after the federal ESA, to provide further protections to

species within their borders. This has resulted in hundreds

of actual and potential additional state listings.

As this Court stated in TVA v. Hill, 437 U.S. at 179,

the Act is “the most comprehensive legislation for the

preservation of endangered species ever enacted by any

nation." The heart of this comprehensive legislation is

habitat protection. In Babbitt v. Sweet Home, this Court

noted among the Act’s central purposes is “to provide a

means whereby the ecosystems upon which endangered

5

species and threatened species depend may be conserved

jan " 16 U.S.C. § 1531(b). The resultant limitations on

land and water use potentially affect millions of Americans.

However, the lower court decision in this case effectively

bars the courthouse doors to those who must bear the burden

of species preservation and, therefore, have the greatest

incentive to ensure government compliance with the Act.

PLF believes its public policy perspective and litigation

experience in support of rational environmental protection

and economic rights will provide a necessary additional

viewpoint on the issues presented in this case.

+

STATEMENT OF THE CASE

The petitioners in this case are two ranchers and two

irrigation districts in the State of Oregon that use the water

from the Klamath Project for commercial and recreational

purposes. The project is operated by the United States

Bureau of Reclamation (Bureau). In 1992, the Bureau

became concerned that the operation of the Klamath Project

may harm two species of fish listed as endangered under the

ESA; the Lost River sucker and the shortnose sucker. The

Bureau contacted the United States Fish and Wildlife Service

(FWS) to determine whether the two species of fish would be

put at risk by ongoing operation of the project. FWS

prepared a biological opinion which concluded “long term

operation of the Klamath Project was likely to jeopardize the

continued existence of the Lost River and shortnose suckers.”

Bennett, 63 F.3d at 916. Among the mitigation measures

recommended to the Bureau by FWS in its opinion was that

the Bureau maintain minimum water levels in the Clear Lake

and Gerber Reservoirs. This would restrict water diversions

by petitioners for irrigation purposes. The Bureau informed

FWS it intended to comply with this recommendation.

6

Petitioners filed suit in the United States District Court

for the District of Oregon under the ESA’s citizen-suit

provision, 16 U.S.C. § 1540(g)(1). Petitioners’ complaint

alleged there was no evidence to support FWS’ determination

that the sucker fish were Ne cee —

Klamath Project. To the contrary, g to "

the two species of fish were reproducing successfully and,

thus, were not in need of federal intervention. More

specifically, the complaint charged FWS had not complied

with the consultation provisions of Section 1536(a) and had

failed to consider economic and other impacts of its opinion

in violation of Section 1533(b)(2) and the National

Environmental Policy Act (NEPA). In an unpublished

opinion, the District Court concluded petitioners lacked

standing to challenge the FWS determination and dismissed

their suit.

On appeal, the Ninth Circuit concurred with the

District Court and ruled only those plaintiffs "who allege an

interest in the preservation of endangered species fall within

the zone of interests protected by the ESA" and have

standing to sue. Bennett, 63 F.3d at 919 (emphasis in

original).' In so ruling, the lower court rejected the Eighth

Circuit’s interpretation of the Act that the ESA’s broad

citizen-suit provision “necessarily abrogated any zone of

interests test." Jd. at 918 n.3. According to the Ninth

! The Ninth Circuit only addressed the issue of whether

petitioners were within the zone of interests protected by

the ESA and did not determine whether they had satisfied

the constitutionally based standing requirements.

Bennett v. Plenert, 63 F.3d at 917.

7

Circuit, because the ESA is “singularly devoted to the goal

of ensuring species preservation," plaintiffs allegiig solely

an economic or recreational interest do not have standing to

challenge government violations of the Act. Id. at 920.

For the reasons stated below, amici Pacific Legal

Foundation, NCBA, CCA, CATL FUND, and POSSEE,

support petitioners request that this Court overturn the

decision of the Ninth Circuit Court of Appeals, wherein that

court applied the zone of interests test in an ESA citizen suit

and found only species preservation was a protected interest.

o*—

SUMMARY OF ARGUMENT

This Court established that "“[c]ongress may, by

legislation, expand standing to the full extent permitted by

Art. Ill, thus permitting litigation by one ‘who otherwise

would be barred by prudential standing rules.’" Gladstone

Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979)

(quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)). To the

ESA, Congiess engrafted a citizen-suit provision that allows

“any person" to commence a civil suit against the federal

government for alleged violation of the Act. 16 U.S.C.

§ 1540(g)(1). Applying the cannon of statutory construction

that the best evidence of congressional intent is the language

used in the statute, it becomes clear that Congress intended

to waive the prudential zone of interests requirement in suits

filed pursuant to the ESA.

8

In its application of the zone of interests test, the Ninth

Circuit was wrong to exclude petitioners’ economic interests.

Certain provisions of the Act, including those which form the

basis of the complaint, evidence an express intent of

Congress to protect such interests, including a mandate that

the government consider economic and other relevant impacts

of any critical habitat designation and that proposed project

alternatives be “reasonable and prudent." Moreover,

allowing petitioners to sue to vindicate their nonenviron-

mental interests would not frustrate the purposes of the ESA.

To the contrary, Congress had some purpose in enacting an

expansive citizen-suit provision. It may have been of the

opinion that one likely to be economically injured by species

protection programs would be the only person having a

sufficient interest to bring to the attention of the courts errors

of law committed by the government in implementing the

Act. It is within the power of Congress to confer such

standing within the limits of Article ITI.

Even if petitioners’ claims do not fall within the zone

of interests protected by the ESA, petitioners still have

standing to sue. In Lujan v. Defenders of Wildlife, 504 U.S.

555 (1992) (Defenders), this Court recognized the existence

of a procedural right of action. Among other procedural

rights, the ESA declares that “[flederal agencies shall

cooperate with State and local agencies to resolve water

resource issues in concert with conservation of endangered

species.” 160U.S.C. § 1531(c)(2). With respect to

petitioner irrigation districts, this was not done. For all of

these reasons, petitioners have standing to sue.

—

ARGUMENT

I \

IN UNMISTAKABLE LANGUAGE, CONGRESS

CLEARLY WAIVED PRUDENTIAL STANDING

REQUIREMENTS UNDER THE ESA

The court below held:

In sum, the fact that a statute contains a citizen-

suit provision does not necessarily establish that

Congress intended that any particular plaintiff

have standing to assert a violation.

Bennett, 63 F.3d at 919.

This statement misses the point. It is not the

existence of a citizen-suit provision which decides the issue

but rather the nature of that provision. The citizen-suit

provision in the ESA is clear and unambiguous. It states, in

pertinent part:

(g) Citizen suits

(1) Except as provided in paragraph (2) of

this subsection any person may commence a

civil suit on his own behalf--

(A) to enjoin any person, including the

United States and any other governmental

instrumentality or agency (to the extent

permitted by the eleventh amendment to the

Constitution), who is alleged to be in violation

10

of any provision of this chapter or regulation

issued under the authority thereof .....

16 U.S.C. § 1540(g)(1).

The operative language is not “citizen suits” but “any

person.” Unless otherwise defined in the statute, and within

constitutional limits, the congressional use of “any person"

language in a citizen-suit provision should be deemed a

waiver of all prudential standing requirements as a matter of

law. It cannot be assumed that Congress did not intend what

it plainly said when it adopted such language.

It should be evident that the scope of citizen-suit

provisions in our environmental statutes has been the subject

of vigorous litigation for decades, including the Clean Water

Act, Clean Air Act, Resource Conservation and Recovery

Act, Comprehensive Environmental Response, Compensation

and Liability Act and, hopefully, ending with the Endangered

Species Act in this case. As this case demonstrates, judicial

interpretation of standing under citizen-suit provisions often

results in conflicting decisions and substantial uncertainty for

the regulated community. For the most part, it is unneces-

sary.

Justice demands that the legislative, executive, and

judicial branches of government be put on notice that unless

the term is specifically defined to exclude certain persons,

and subject only to Article III minima, "any person” in a

citizen suit provision means any person. Short of

enumerating all possible plaintiffs under a citizen-suit

provision, which may also be subject to interpretation,

Congress could not state its intent with any greater clarity or

with less equivocation than it has in the ESA. The term “any

person” brooks no dispute. The lower court questioned and

then rejected the plain meaning of so simple a statement

1]

because of what it, not Congress, deemed the higher

purposes of the Act.

In Gladstone Realtors v. Village of Bellwood,

441 U.S. 91, this Court held:

Congress may, by legislation, expand

standing to the full extent permitted by

Art. Ill, thus permitting litigation by one

“who otherwise would be barred by prudential

standing rules." In no event, however, may

Congress abrogate the Art. III minima: A

plaintiff must always have suffered a “distinct

and palpable injury to himself," that is likely

to be redressed if the requested relief is

granted.

Id. at 100 (citations omitted).

The Ninth Circuit acknowledged this Court’s holding

in Gladstone, but the court clearly did not believe it.

(Notwithstanding the broad language of the

citizen-suit provision, we directly reject the

plaintiffs’ contention that it renders the zone

of interests test inapplicable to claims brought

under the ESA. Our conclusion follows from

the fact that our court, and others, have

regularly employed the zone of interests test

in determining standing despite Congress’

enactment of expansive citizen-suit provisions.

Bennett, 63 F.3d at 918.

If this Court’s holding in Gladstone is to have any

meaning, Congress must, at some point, be deemed to have

12

expressed its intent to “expand standing to the full extent

permitted by Article III." If “any person” is not such an

expression, what is?

The attempt by the Ninth Circuit to go behind the

plain language of the ESA citizen-suit provision and

somehow divine, through the statutory scheme, whether

Congress intended to preclude any particular class of persons

from seeking judicial review is a subterfuge to escape the

clearly stated will of Congress. If the scope of judicial

review is determined not from the clear and unambiguous

language of a statute, but rather from judicial perception of

the implicit intent of Congress, it is the courts and not

Congress that may contract or expand standing. The Ninth

Circuit had no difficulty understanding the express language

of the ESA, the court simply disagreed with it. The Ninth

Circuit itself decided to limit judicial review and so ignored

the citizen-suit provision altogether. This is apparent from

the fact that the lower court interpreted the standing

requirement under the ESA in exactly the way it interpreted

the standing requirement under NEPA.

Similarly, we held that plaintiffs do not

have standing under NEPA to protect “purely”

economic interests, because the environmental

purposes of the Act would not be furthered by

permitting suits premised on such interests.

See Nevada Land Action Ass'n v. U.S. Forest

Service, 8 F.3d 713, 716 (9th Cir. 1993).

Bennett, 63 F.3d at 919-20.

However, contrary to the ESA, NEPA has no citizen-

suit provision. Clearly, Congress intended the ESA citizen-

suit provision to mean something. In the Ninth Circuit, it

means nothing. The lower court’s ruling in this case would

13

have been the same without the citizen-suit provision.

Likewise, this Court intended Gladstone to mean something.

In the Ninth Circuit, it means nothing. If the “any person”

language will not preclude the zone of interests test under

Gladstone, virtually no language will do so.

A BROAD INTERPRETATION OF

THE CITIZEN-SUIT PROVISION

WILL ADVANCE, NOT FRUSTRATE,

THE PURPOSES OF THE ESA

The lower court’s rejection of petitioners’ suit by the

strict application of the zone of interests test turned on the

court’s grave concern that

[t]o interpret the statute in the manner

suggested by plaintiffs would be to transform

provisions designed to further species

protection into the means to frustrate that very

goal.

Bennett, 63 F.3d at 922.

This concern is misplaced. Surely, Congress knew it

was creating the most comprehensive and, arguably, the most

intrusive environmental legislation in the world. See TVA v.

Hill, 437 U.S. at 176. Species preservation would neces-

sarily require severe and long-lasting land and water use

restrictions. For that reason, the Act requires both species

status and critical habitat determinations to be made on the

best scientific data available. 16 U.S.C. § 1533(b)(1) and

(2). It therefore furthers, rather than frustrates, the intent of

the ESA to allow citizen suits to enforce strict adherence to

sound biological principles.

14

In the present case, petitioners assert FWS did not

rely on the best scientific data available and so rendered a

faulty biological opinion. Nothing could frustrate the

purposes of the ESA, and undermine public confidence in the

Act, more than faulty biological decisions. Such decisions

are not easily reversed. Moreover, if, as the lower court

believes, the ESA requires species protection “whatever the

cost,” it follows that our finite resources should only be

brought to bear when it is biologically necessary to provide

such protection. Unnecessary diversion of natural resources,

in this case water flows for two thriving fish species, is both

wasteful and counterproductive. Surely, this does not

advance the goals of the Act.

The determination of who may bring a suit under the

ESA should be left to Congress, not the judiciary.

Unrestrained species preservation is not the purpose of the

ESA as the Ninth Circuit supposes. ("The overall purposes

of the ESA are singularly devoted to the goal of ensuring

species preservation ...." Bennett, 63 F.3d at 920). Rather,

well-founded, scientifically based species preservation is the

purpose of the ESA. ("The Secretary shall make [listing]

determinations ... and designate critical habitat ... on the

basis of the best scientific data available ...." 16 U.S.C.

§ 1533().) Most certainly, Congress intended to assure

adherence to this high standard when it granted, in the most

unambiguous language imaginable, the right of any person to

—s a suit against the government for failing to comply with

statute.

Those parties who fall within the zone of interests of

the ESA, as defined by the Ninth Circuit (i.e., those who

allege an interest in the preservation of species), have a far

greater incentive to see that species are favored than to

ensure proper legal or even scientific protocols are followed.

In contrast, those parties the Ninth Circuit has determined

15

fall outside the zone of interests of the ESA (i.e., those who

allege economic concerns) bear the actual burden of species

preservation and have a vested interest to see that both the

spirit and letter of the law are followed.

This Court acknowledged the value of enforcement by

those with interests ostensibly averse to the general purpose

of a statute in Sierra Club v. Morton, 405 U.S. 727 (1972).

In Sierra Club, this Court cited with favor Federal

Communications Commission v. Sanders Brothers Radio

Station, 309 U.S. 470 (1940), for the following:

Congress had some purpose in enacting

section 402(b)(2). It may have been of

opinion that one likely to be financially

injured by the issue of a license would be the

only person having a sufficient interest to

bring to the attention of the appellate court

errors of law in the action of the Commission

in granting the license. It is within the power

of Congress to confer such standing to

prosecute an appeal.

Id. at 477.

Title 47, United States Code 402(b)(2), referred to a

broad citizen-suit provision of the Communications Act of

1934 that provided for an appeal to the Court of Appeals of

the District of Columbia (1) by an applicant for a license or

permit, or (2) by any other person aggrieved or whose

interests are adversely affected by any decision of the

Commission granting or refusing any such application. Id.

at 476-77. In Sanders, petitioner argued, much like the

Ninth Circuit in the present case, that since economic injury

to the respondent was not a proper issue before the

Commission, “it is impossible that section 402(6) was

16

intended to give the respondent standing to appeal." /d.

at 477. However, to ensure a check on the actions of the

licensing commission, this Court found that a competitor had

Standing to protect economic interests and held the

government’s view “would deprive subsection (2) of any

substantial effect." Id. at 477. So it is in this case; those

with economic interests are virtually the only persons having

a sufficient interest to bring to the attention of the courts

errors of law in the Secretary’s implementation of the ESA.

The ESA citizen-suit provision should be interpreted

not grudgingly but as serving a broadly remedial purpose.

There is a greater public interest in ensuring compliance with

the Act than in limiting access to the courts. An

unwarranted listing of a species or unnecessary mitigation

does not advance the interests of the Act or the American

people.

Ii

ECONOMIC INTERESTS ARE AMONG

THOSE INTERESTS PROTECTED BY THE ESA

The court below held the overall purposes of the ESA

are singularly devoted to the goal of ensuring species

preservation and that the Act does not embrace or protect

economic interests. Bennett, 63 F.3d at 920. This holding

is incorrect. The Ninth Circuit based this holding on this

Court’s decision in TVA v. Hill wherein this Court

concluded:

The plain intent of Congress in enacting this

Statute was to halt and reverse the trend

toward species extinction, whatever the cost.

That is reflected not only in the stated policies

One. SEE oe

17

of the Act, but in literally every section of the

statute.

TVA v. Hill, 437 U.S. at 184.

If that was true of the ESA then, it certainly is not

true today. This Court decided TVA v. Hill in June of 1978.

In November of the same year, the Act was amended by

Congress for the express purpose of requiring a consideration

of costs and other impacts in species protection. Congress

amended Section 4 (16 U.S.C. § 1533) of the Act to direct

that

[iJn determining the critical habitat of any

endangered oor threatened species, the

Secretary shall consider the economic impact,

and any other relevant impacts, of specifying

any particular area as critical habitat, and he

may exclude any such area from the critical

habitat if he determines that the benefits of

such exclusion outweigh the benefits of

specifying the area as part of the critical

habitat, unless he determines, based on the

best scientific and commercial data available,

that the failure to designate such area as

critical habitat will result in the extinction

of the species.

Endangered Species Act of Nov. 10, 1978, Pub. L.

No. 95-632, 1978 U.S.C.C.A.N. (92 Stat.) 366.

This amendment speaks for itself; the Secretary is to

consider, and therefore protect, economic and other interests

in habitat designations. The legislative history also supports

this plain reading of the text. In House debates, the

amendment’s author, Representative Leggett, stated:

18

The Endangered Species Act has been

criticized because it allows for no

consideration of the economic impact of

listing a species or designating critica’ habitat.

Although H.R. 14104 retains the Act’s

stringent mandate, it does introduce a

consideration of economic impact in several

respects .... [T]he bill includes a provision

which requires the Secretary to evaluate the

economic impact of designating critical habitat

124 Cong. Rec. 38,134 (1978) (statement of Rep. Leggett).

In 1978, Congress also amended Section 7 of the ESA

to require the Secretary to suggest “reasonable and prudent

alternatives” for a federal project the Secretary determined,

after consultation, may cause jeopardy to a listed species.

16 U.S.C. § 1536(b)(3)(A). Use of the term “reasonable and

prudent" suggests a congressional intent that the Secretary

weigh competing economic and other interests in rendering

a biological opinion just as the Secretary is required to do in

designating critical habitat.

Congress did not stop there, however. In 1982,

Congress again amended the ESA in an attempt to provide

more economic protection under the Act. The most

significant amendments added in 1982 created an exemption

process to the ESA’s taking prohibition which one

commentator noted, "is the principle way in which economic

considerations are intended to factor into application of the

ESA." Ike Sugg, Caught in the Act: Evaluating the

Endangered Species Act, Its Effects on Man and Prospects for

Reform, 24 CumB. L. REV. 1, 37 (1993). The exemption

process created the Endangered Species Committee, which is

allowed to circumvent the strict takings prohibitions of the

— a

19

ESA if such action is found to be in the public interest.

16 U.S.C. § 1536.

The 1982 amendments also offered relief to private

property owners and other persons that might otherwise be

adversely affected by strict compliance with the ESA’s

provisions. The amendments allowed for the “incidental”

taking of a listed species. 16 U.S.C. § 1539(a)(1)(B). An

incidental taking is the taking of a species that occurs as the

Ly-product "of carrying out an otherwise lawful activity."

Id. With the Secretary’s permission, such incidental takings

are not considered a violation of the ESA. The legislative

history behind this provision provides clear evidence of what

Congress intended:

The legislation establishes a procedure

whereby those persons whose actions may

affect endangered or threatened species may

receive permits for the incidental taking of

such species, provided the action would not

jeopardize the continued existence of the

species. The provision addresses the concerns

of private landowners who are faced with

having otherwise lawful actions not requiring

Federal permits prevented by Section 9

prohibitions against taking.

H.R. Rep. No. 567, 97th Cong., 2nd Sess. (1982) (emphasis

added).

Obviously, Congress recognized that the interests of

landowners may conflict with the goal of conservation.

Rather than adopt a hard and fast rule against the “taking” of

a species, Congress instead chose to steer a middle course

between these two competing interests and adopted this

20

balancing approach to the problem. Thus, economics and

reasonable property uses were made protectable interests

under the ESA.

This balancing approach is also found in the ESA

amendments allowing for hardship exemptions. 16 U.S.C.

§ 1539(b). If the listing of a species will cause undue

economic hardship to an individual who has entered into a

commercial contract regarding that species, the Secretary

may exempt that individual from the application of the ESA.

Id. In addition, this subsection makes special allowances for

natives of Alaska, provided the taking is “primarily for

subsistence purposes." 16 U.S.C. § 1539(e)(B). Congress

understood that many legitimate and important economic

human activities could be severely affected by an unbridled

attempt tO preserve species, so it sought to provide

countervailing protections by amending the Act. The

reasoning employed by the Ninth Circuit in this case fails to

recognize Congress’ attempt to protect and preserve

economic interests.

Any doubt as to the intent behind the 1982

amendments vanishes upon reading the legislative history

supporting those amendments. The House Report accom-

panying the 1982 amendments details the goals sought to be

achieved by the Act:

The Endangered Species Preservation Act

of 1966 and the Endangered Species

Conservation Act of 1969 preceded the 1973

Act to address the same problem, but it

was the last statute which constructed a

21

comprehensive means to balance economic

growth and development with adequate

conservation measures.

H.R. Rep. No. 567, 97th Cong. , 2nd Sess. (1982) (emphasis

added).

The legislative history also traces the evolution of the

ESA from 1973 through 1982:

Subsequent to its passage, the Act was

amended in 1976, 1978 and 1979 to increase

the flexibility in balancing species protection

and conservation with development projects.

Id. (emphasis added).

Economic protection under the ESA reached its zenith

with the 1982 amendments. The provisions added in that

year, as well as the legislative history explaining those

provisions, demonstrate beyond all doubt that economic

interests are within the zone of interests protected and

regulated by the ESA.

The Ninth Circuit’s cavalier rejection of petitioners’

economic interests as protectable interests under the ESA is

untenable. In amending the Act to include economic and

other considerations, Congress was obviously responding to

public and judicial perception that the ESA required species

protection “whatever the cost." These amendments were

designed to change that perception by changing the Act.

These, and other, provisions simply do not permit the

interpretation given the Act by the Ninth Circuit that the

overall purposes of the ESA “do not embrace the economic

and recreational interests that underlie the plaintiffs’

22

challenge." Bennett, 63 F.3d at 920. The Act was modified

expressly to embrace such interests.

IV

PETITIONERS HAVE STANDING TO SUE UNDER

THE PARTICULAR STATUTORY PROVISIONS

WHICH UNDERLIE THEIR COMPLAINT

Even if the language of the ESA, as amended, is not

enough to bring petitioners within the “zone of interests" of

the Act as a whole, petitioners would still have standing to

sue under the habitat designation and biological consultation

provisions on which their claims rest. In its decision below,

the Ninth Circuit cited this Court’s holding in Clarke v.

Securities Industry Association, 479 U.S. 388 (1987), for the

following:

Clarke explains that the zone of interests test

simply provides a method of determining

whether Congress intended to permit a

particular plaintiff to bring an action. As the

Clarke Court made clear, “at bottom the

reviewability question turns on congressional

intent, and all indicators helpful in discerning

that intent must be weighed." Thus Clarke

concludes that the statutory purposes should

be devined by considering the particular

Statutory provision that underlies the

complaint within “the overall context" of the

act itself.

Bennett, 63 F.3d at 918 (citation omitted).

23

In Lujan v. National Wildlife Federation, 497 U.S.

871, this Court expressed the Clarke standard of review this

way:

[W]e have said ... the plaintiff must establish

that the injury he complains of ... falls within

the “zone of interests” sought to be protected

by the statutory provision whose violation

forms the legal basis fer his complaint.

Id. at 883.

The Ninth Circuit departed from this standard in that

it focused on the “overall context" of the Act to the exclusion

of the particular statutory provisions that underlie the

complaint. As basis for this suit, plaintiffs claim FWS

violated Subsection 1533(b)(2), which incorporates the

amended congressional mandate that the Secretary designate

critical habitat "after taking into consideration the economic

impact, and any other relevant impact, of specifying any

particular area as critical habitat.” Petitioners also claim

FWS violated 16 U.S.C. § 1536 in rendering a faulty bio-

logical opinion and suggesting unjustified alternatives to the

federal project.

As discussed in the previous argument, the express

language of these sections, the intent of the author, and the

circumstances surrounding the inclusion of these provisions

in the Act allow only one possible interpretation; Congress

intended to protect economic and other relevant interests.

Ultimately, the only way to ensure protection of these

interests is by enforcement. It follows, therefore, that

Congress intended to permit plaintiffs with economic and

other relevant interests to bring an action against the federal

government under the ESA, at least with respect to these

particular statutory provisions if not for all purposes.

24

Vv

PETITIONERS HAVE PROCEDURAL

STANDING TO SUE

In Lujan v. Defenders of Wildlife, 504 U.S. 555, this

Court recognized the existence of a procedural right of

action.

We do not hold that an individual cannot

enforce procedural rights; he assuredly can,

so long as the procedures in question are

designed to protect some threatened concrete

interest of his that is the ultimate basis of his

standing.

Lujan v. Defenders of Wildlife, 504 U.S. at 573 n.8

(emphasis in original).

It is apparent from the foregoing that to establish

procedural standing under Defenders, petitioners must

establish (1) that they are persons who have been accorded

a procedural right to protect their concrete interests, and

(2) that petitioners have some threatened concrete interests

that are the ultimate basis of their standing. Put another

way, petitioners must seek "to enforce a procedural

requirement the disregard of which could impair a separate

concrete interest of theirs." Defenders, 504 U.S. at 572.

Under NEPA, petitioners are accorded a procedural

right to an Environmental Impact Statement for major federal

actions significantly affecting the quality of the human

environment. 42 U.S.C. § 4332(2)(c). Also, the ESA

policy 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.

25

§ 1531(c)(2), accords petitioners a procedural right to

consultation before federal agency action.

Respondents have failed to follow these mandated

procedures. In consequence of these procedural failures,

petitioners have suffered discrete injuries: (1) the restrictions

on lake levels imposed in the Biological Opinion adversely

affect petitioners by substantially reducing the quantity of

available irrigation water; and (2) by imposing restrictions on

water levels in Clear Lake and Gerber Reservoirs, the

Biological Opinion implicitly determines critical habitat for

the endangered suckers. The designation of critical habitat

is a major federal action to which NEPA procedural require-

ments apply. See Complaint for Declaratory and Injunctive

Relief (Complaint), Paragraphs 21-23.

It is evident that, contrary to the generalized

grievance of the environmental groups in Defenders,

petitioners in this case seek to protect separate, concrete

interests. In fact, this case is very much like the situation

this Court described in Defenders for which this Court

would, presumably, find procedural standing.

There is this much truth to the assertion that

“procedural rights” are special: The person

who has been accorded a procedural right to

protect his concrete interests can assert that

right without meeting all the normal standards

for redressability and immediacy. Thus,

under our case-law, one living adjacent to the

site for proposed construction of a federally

licensed dam has standing to challenge the

licensing agency’s failure to prepare an

Environmental Impact Statement, even though

he cannot establish with any certainty that the

Statement will cause the license to be withheld

26

or altered, and even though the dam will not

be completed for many years.

Defenders, 504 U.S. at 572 n.7.

In this case, the Ninth Circuit chose not to address the

issue of petitioners’ procedural standing.

We note the zone of interests test applies even

to plaintiffs who have established

constitutional standing premised on a

procedural injury. See Douglas County v.

Babbitt, 48 F.3¢ 1495, 1500-01 (9th Cir.

1995) (applying the prudential zone of

interests test after concluding that the

plaintiffs had procedural standing to assert a

claim) (citations omitted); Yesler Terrace

Community Council v. Cisneros, 37 F.3d 442,

447 (9th Cir. 1994) (same). Accordingly, we

need not address whether the plaintiffs have

procedural, or as it is sometimes known,

“footnote seven” standing. See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 570-73

n.7, 112 S. Ct. 2130, 2142-2143 n.7. See

also Hazardous Waste Treatment Council v.

Thomas, 855 F.2d 918 n.2 (D.C. Cir. 1989)

(explaining that standing may be decided on

prudential grounds without first undertaking

the constitutional inquiry).

Bennett, 63 F.3d at 917, n.1.

Beyond the identification of a concrete procedural

right and an actual threat to that right, the Ninth Circuit has

added a third element to procedural standing--the zone of

interests. As authority for this proposition, it cites itself.

27

The lower court does not, because it cannot, rely on any

precedent of this Court for its interpretation of procedural

standing requirements. The Ninth Circuit merely imposes

fresh limitations on the constitutional authority of Congress

to allow citizen-suits in the federal courts under environ-

mental statutes for injuries deemed “procedural” in nature.

In Idaho Farm Bureau Federation, the Idaho District

Court examined the Ninth Circuit precedent on procedural

standing, including Bennett and Douglas County, and frankly

concluded the Ninth Circuit never specified the origin of this

“zone of interest” requirement. /daho Farm Bureau

Federation, 900 F. Supp. 1349, 1361 (D. Idaho 1995). It

certainly cannot be inferred from Defenders. This Court did

not address the issue. However, the issue is easily resolved.

The zone of interests test does not apply to procedural

standing. A procedural right of action is distinct from a

right of action arising from protectable substantive rights

found in the zone of interests. The ultimate test is, simply,

as this Court stated in Defenders, whether petitioners seek

“to enforce a procedural requirement the disregard of which

could impair a separate concrete interest of theirs.”

Defenders, 504 U.S. at 572. That this test is satisfied in the

present case there can be no doubt.

—+

CONCLUSION

The lower court decision is much more than a

proverbial “blank check.” It is an invitation to government

abuse. Under Bennett, the federal government can act (even

illegally) with virtually no accountability so long as it acts in

the name of species protection. Whatever this Court infers

from the language of the Act, it cannot suppose that

Congress intended no possibility of redress for illegal

government actions by those few individuals who must

28

shoulder the public burden of species protection. A federal

District Court recently recognized the absurdity of this result.

The court is unwilling to adopt the view that

FWS is unrestrained if it cloaks any of its acts

in the laudable robe of endangered and

threatened species protection. This is a form

of totalitarian virtue--a concept for which no

precedent has been advanced and which is

foreign to the rule of law.

Mausolf v. Babbitt, 913 F. Supp. 1334, 1342 (D. Minn.

1996).

For the foregoing reasons, this Court should overturn

the Ninth Circuit decision and allow meaningful application

of the ESA citizen-suit provision.

DATED: May, 1996.

Respectfully submitted,

OF COUNSEL ROBIN L. RIVETT

MARK T. GALLAGHER *M. REED HOPPER

Pacific Legal Foundation *Counsel of Record

2151 River Plaza Drive, Pacific Legal Foundation

Suite 305 2151 River Plaza Drive,

Sacramento, California 95833 Suite 305

Telephone: (916) 641-8888 Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amici Curiae