# Amicus Curiae Brief — Bennett v. Spear

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0666%3A22

## Record

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

## Text

| LED
yy) MAY 21 1998
e+e cue
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

\ Pp
a
a >»
.
- ' %e
e wee
: - iat,
iw
ny
>. a4
- A r
ee ‘4 a? F
\* *
Str
Zari
- + | x K
pe ion OY
, ia vf
~ Mts fo ees
x eo 2 Sm +
Pied | 7 5. - 4
nal *4 Pe et
“ ae
he Bo ea
by Oe Pole Te Bs
mAs nd “¢
‘> - hioge
= Pr oy a
ke Yate poke
Sisk ¥ wm!
5 - rs » .% Ss @
‘a a
eee a Lh :
ral mac :.* Pe
J PRY OS Saw 4
, mB; Z © S67 -
; Te. aay is fs Ba
Fre 0). Sa ee Sie
be NEI ee
4 - 7 . a 7
x nee Whe ig eer
sake Pi Mees: Oe . 3
‘pigt. aca, ee
t ay =
¥ ad
RAs
2
7 bis
+ Ta AY
é 4 i “ A
’ a ¥ -
ted
»" % : =
, rrr . w
* $ wk
beer *& @ Myer
+ y 4 Fe 7 <a
] eh Sae5
. a fl
7 :
: Y
6

Ae

orn
\

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0666%3A22. Public record. Not legal advice.