Amicus Curiae Brief — National Ass'n v. Defenders of Wildlife

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Nos. 06-340 and 06-549

IN THE

Supreme Court of the United States

NATIONAL ASSOCIATION OF HOME BUILDERS, ef al.

Petitioners,

Vv.

DEFENDERS OF WILDLIFE, ef al.

Respondents.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

Vv.

DEFENDERS OF WILDLIFE, ef al.

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE

AMERICAN FARM BUREAU FEDERATION

IN SUPPORT OF PETITIONERS

ELLEN STEEN

Counsel of Record

THOMAS R. LUNDQUIST

KIRSTEN L. NATHANSON

CROWELL & MORING LLP

1001 Pennsylvania Ave., NW

Washington, DC 20004-2595

(202) 624-2500

Attorneys for American Farm

Bureau Federation

RS ee TE ECE SE RTT

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............cce0e0-0+. VOPR

INTEREST OF AMICUS CURIAE ..0...cccccessseseeeeeeeeeee

SUMMARY OF ARGUMENT ..........s:sceseseseseseeeeeeeee

REASONS FOR GRANTING THE

nT DLE

TABLE OF AUTHORITIES

Cases

Am. Forest & Paper Ass'n v. United States-Envil.

Prot. Agency, 137 F.3d 291 (Sth Cir. 1998)............

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40

Auer v. Robbins, 519 U.S. 452 (1997) ..ccccccsscessssseeeeee

Babbitt v. Sweet Home Chapter of Communities

for a Great Oregon, 515 U.S. 687 (1995)..........00+.

Conservation Law Found. v. Andrus, 623 F.2d 712

I MPT ccccleicrshicciisainasisaiiititninineinidenisainnibinteie

Defenders of Wildlife v. United States Envtl. Prot.

Agency, 882 F.2d 1294 (8th Cir. 1989)...

Dep't of Transp. v. Public Citizen, 541 U.S. 752

FT inincitnineicinseuesiniinsiiasnediiuchecsibensiniiandnesiansiatinininiiees

Envtl. Prot. Info. Ctr. v. Simpson Timber Co., 255

F.3d 1073 (Sth Cir. 2001)..-..cceccsscecssseeseseeessseessevesee

(i)

Florida Key Deer v. Brown, 386 F. Supp. 2d 1281

(S. D. Fla. 2005), appeal pending, No. 05-

Fe 0 ee GD inircccttecnstnsrenscinsinienesmsemmanmmmemaneiaes 6

Forsham vy. Harris, 445 U.S. 169 (1980) ........ccccceeeeeeeeeees 11

Gifford Pinchot Task Force v. United States Fish

& Wildlife Service, 378 F.3d 1059 (9th Cir.

ETE iiivkieipnencainciiidiicenaiciainiaiaieiiinadainnisiannenmetenienninmttan 14

Ground Zero for Non-Violent Action v. United

States Dep't of Navy, 383 F.3d 1082 (9th Cir.

TTI scsjsiennaiiushiiiitencciesitnidaiinintahteieltshiainiebandenmngsemiaitennanmniins 7

In re Operation of the Missouri River Sys. Litig.,

RR ee 8

Klamath Water Users Protective Ass'n v.

Patterson, 204 F.3d 1206 (9th Cir. 2000)... eee 6

Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries

Serv., 422 F.3d 782 (9th Cir. 2005) .........ceeceeeeeeseeeeeeee 17

Natural Res. Def. Council v. Houston, 146 F.3d

SEITEN: SII iiincistesesnstneiniiniidiisieissihiniiadnemmennnanavenvinin 17

Natural Res. Def. Council v. United States Envitl.

Prot. Agency, 859 F.2d 156 (D.C. Cir. 1988)............0.. 12

O'Neill v. United States, 50 F.3d 677 (9th Cir.

STOTT niiiesiieishncuilesialineieieindidisiiemenabialeiseaeiangiitcnasiasinianipti 6

Platte River Whooping Crane Habitat

Maintenance Trust v. Fed. Energy Regulatory

Comm'n, 962 F.2d 27 (D.C. Cir. 1992) ....... eee 5,8, 18

Public Citizen v. Dep't of Transp., 316 F.3d 1002

SS TaaTans: NUT ciiicstelaiehiniiieislcvinepbtadaisinciganamiasiiiteaniiaiineiaie 10, 12

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ....cccccecesee. 18

Rapanos v. United States, 126 S. Ct. 2208 (2006)............ 15

(11)

Rio Grande Silvery Minnow v. Keys, 333 F.3d

1109 (10th Cir. 2003), vacated as moot, 355

ane See TEN EG TI sierinsnseninccctesiiendasnintententennmnisnes 8

Riverside Irrigation Dist. v. Andrews, 758 F.2d

ER Ce icinncnieniasensetccincamnnnniintajicsninaiis 6, 8

Save the Bay, Inc. v. United States Army Corps of

Eng rs, 610 F.2d 322 (Sth Cir. 1980)..........cccsceseeeeeees 12

Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir.

SI scteeniieiinstiiinitasiadiniiiiiiat sinidiabininibiniaionihidentansinentineanenenin 5

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Eng’rs, 531 U.S.

a nscteneesinninitensientenbibinmseatanenetinauenndinhahenbeantenismensie 15

Strahan v. Linnon, 967 F. Supp. 581 (D. Mass.

1997), aff'd, 187 F.3d 623, 1998 WL 1085817 ~

ae ST seccduthicsienitecinnccininiiciadiniiisenmsnnennhaniinninete 6, 8

Tennessee Valley Authority v. Hill, 437 U.S. 153

PT cesencshineeinencinegninsemnensaucindinientatanvasinieninuieined 17, 18, 19

United States Dep't of Interior, 2006 WL 2469119

(W.D. Wash. Aug. 24, 2006) ...........ccccecceeceeeeeeeeee 14, 16

United States v. Mead, 533 U.S. 218 (2001).............:cceeee0es 9

United States v. Orleans, 425 U.S. 807 (1976)........:+.+::0+ 1]

Washington Toxics Coal. v. United States Envtl.

Prot. Agency, 413 F.3d 1024 (9th Cir. 2005)...... 7, 15, 16

Wetlands Action Network v. United States Army

Corps of Eng’rs, 222 F.3d 1105 (9th Cir. 2000)........... 12

(iii)

Statutes and Regulations

Endangered Species Act of 1973, 16 U.S.C.

§ 1531 et seq.:

Ty een passim

i teainietie

Federal Insecticide, Fungicide, and Rodenticide

Act ,7 U.S.C. 136 et seq.:

F Celis OF BID cccssencecessncsssnscccnensensncenencevasénnsnensncesees 15

Fee © BIND ccceconscsssersncinnctsounineeseessiomesemmeusensnaens 15

Federal Water Pollution Control Act ("Clean

Water Act"), 33 U.S.C. § 1251 et seq.:

BP Rls) BRIE ccccccctenvinssnsccnsccsecceensvesnnsesnnococess 12, 18

BP Wels BIO concscccesavssnsnsssoccsensssesintanenensneoconasonees l

Ge ie OF BD cccccenceccnscesscascoscsnsnesescanquascasncnanmsanoosesssins l

Be Gal dle OF 0 Fae veccncccsccpnesasccensonsslibbenscsenscssutetenesoneasnenqnisan 4

Fe lke Ob BO ae cnsenccincssistsesntinmnasscntintantnenenmnenmmmeneteaietn 14

el tite Ge ID cevccnsescstacsenantscmsessctennsonsoumenniansenstens 3,5,9

Fe cd aie Be is BD ccsecesnnceneinennnsentnannannsenetanstseneseinennnnesasanes 16

69 Fed. Reg. 47,732 (Aug. 5, 2004).........scesseceeeeeeeneeeenes 16

(iv)

Other Authorities

J.B. Ruhl, State and Local Government Vicarious

Liability Under the ESA, 16 NAT. RESOURCES &

ENV'T 70 (ABA Fall 2001 )..........cccsccosssscsossrsesoscsessssess 1]

James Rasband, Priority, Probability, and

Proximate Cause: Lessons from Tort Law

About Imposing ESA Responsibility fr Wildlife

Harm on Water Users and Other Joint Habitat

Modifiers, 33 ENVTL. L. 595, 623-28 (2003)...........00008. 1]

Jan Hasselman, Holes in the Endangered Species

Act Safety Net: The Role of Agency

“Discretion” in Section 7 Consultation, 25

STAN. ENVTL. L. J. 125 (2006) ..........ccccseceereeesseeees passim

Jonathan Adler, Judicial Federalism and the

Future of Federal Environmental Regulation,

FO IOWA L.. RBV. 377 (2005) ....cccccccsesoscccescesescesososesessess 10

Shannon Petersen, Endangered Species in the

Urban Jungle: How the ESA Will Reshape

American Cities, 19 STAN. ENVTL. L. J. 423,

re i iccccitinsccssincsissiiiiiadanipasmmaammiiisaaimiimeeiiadas ll

Sherry Bosse, Defenders of Wildlife v. EPA:

Testing the Boundaries of Federal Agency

Power under the ESA, 35 ENVTL. L. 1025

SPUD scccnscnciminnsitsemseniecsinniaensinbsdiinantamaisianieeiaiiies 4,5,9

Valerie Brader, Shell Games: Vicarious Liability

of State and Local Governments for

Insufficiently Protective Regulations Under the

ESA, 45 NAT. RESOURCES J. 103 (2005).........0.:ccccceeeees 11

INTEREST OF AMICUS CURIAE'

Amicus curiae American Farm Bureau Federation

(“AFBF’’) is a voluntary general farm organization formed in

1919 to protect, promote, and represent the usiness,

economic, social, and educational interests of /.merican

farmers and ranchers. AFBF represents more than five

million member families through member organizations in

all 50 States and Puerto Rico.

AFBF members are directly affected by the issues

presented in the Petitions filed by Federal Defendants/

Petitioners in No. 06-549 (“Fed. Pet.”), and by Intervenor-

Defendants/Petitioners in No. 06-340 (“NAHB Pet.”). Some

of AFBF’s members operate poultry or livestock farms

subject to Clean Water Act (“CWA”) Section 402 National

Pollutant Discharge Elimination System (“NPDES”)

regulation as “concentrated animal feeding operations.” See

33 U.S.C. § 1362(14); 40 C.F.R. § 122.23 (CWA statutory

and regulatory provisions addressing concentrated animal

feeding operations). These members therefore share the

interest of other NPDES-regulated entities in maintaining the

current system — threatened by the ruling below — in which

State-issued NPDES permits do not trigger Endangered

Species Act (“ESA”) Section 7 compliance obligations. See

This brief was not authored in whole or in part by counsel

for a party, and no person or entity other than AFBF, its members,

and its counsel made a monetary contribution to the preparation and

submission of this brief. All parties have consented to the filing of

this brief. All petitioners other than the United States Environmental

Protection Agency (“EPA”) submitted letters to the Court consenting

to the filing of all amicus curiae briefs in this matter. Petitioner EPA,

which filed a separate petition for writ of certiorari, has provided

written consent to AFBF to file this brief. That wntten consent has

been filed with the clerk.

Brief of Amicus Curiae Federal Water Quality Coalition in

Support of Petitions for Writ of Certioran at 1-3.

More broadly, many AFBF members rely in some way

on a wide array of federal government programs or services

that are also threatened by the reasoning of the decision

below. By ruling that ESA Section 7(a)(2) constitutes an

overriding legal constraint applicable to every federal agency

action — regardless of contrary provisions in the agency’s

organic laws — the Ninth Circuit’s decision undermines the

ability of federal agencies to act (let alone act promptly)

under a myriad of programs in which they have been

directed by Congress to issue any manner of permit, license,

approval, certification, loan, grant, imsurance, or

compensation, or to provide any other government service

(e.g. assistance with the design and implementation of farm

conservation and other management practices). Given the

breadth of the panel’s interpretation of ESA Section 7 and

the sweeping applicability of its reasoning to any and every

federal agency action, the ruling is quite literally of concern

to all individuals~and businesses — including America’s

farmers and ranchers -- that interact with any federal agency

or program. AFBF submits this brief to urge the Court to

review the ruling below and resolve these important legal

issues.

SUMMARY OF ARGUMENT

The divided opinion below’ clearly warrants review

under the considerations traditionally applied by this Court

and as stated in Rule 10. The questions presented concern

recurring issues of broad significance on which there are

mature circuit conflicts. This Court’s guidance is urgently

needed because the Ninth Circuit’s view, as expressed in the

ruling below, has grave consequences for a wide variety of

beneficial federal programs and productive private land uses.

REASONS FOR GRANTING THE PETITION

1. The principal question presented is whether ESA

Section 7(a)(2): (1) is a supplemental provision that operates

within the confines of a federal agency’s authority under its

organic laws as enacted by Congress (which is the view of

the United States, the view expressed in 50 C.F.R. § 402.03,

and the view of most lower courts); or (2) is an overriding

constraint, and font of new authority, applicable to every

federal agency action (the majority view of the split Ninth

Circuit panel below). See Fed. Pet. at I, 9-21; NAHB Pet. at

i, 11-22. Federal petitioners (at 21) briefly describe that

resolution of this question has great significance to a wide

range of federal programs. Amicus expands on that

significance below.

The significance of the ruling below extends far beyond

the CWA. Many federal statutes direct federal agencies to

issue permits, licenses, approvals, loans, grants, insurance, or

compensation if a prescribed set of standards is satisfied.

* Defenders of Wildlife v. United States Envtl. Prot. Agency,

420 F.3d 946, 961 (9th Cir. 2005), rehearing denied, 450 F.3d 394

(9th Cir. 2006) (“Defenders”) (Fed. Pet App. l1a-67a, 68a-92a).

Under the panel majority’s ruling, however, no such action

can be taken: (1) procedurally, until the federal agency

completes a process of “consultation” with the U.S. Fish and

Wildlife Service or National Marine Fisheries Service (the

“Services”) pursuant to ESA Section 7(a)(2); and

(2) substantively, if taking the action as directed by Congress

under another statute is likely to jeopardize the continued

existence of a listed species or adversely modify its critical

habitat. Defenders, 420 F.3d at 961-69 (Fed. App. 26a-44a).

The court below ruled that ESA Section 7(a)(2) operates

as an overriding legal constraint on every action taken,

authorized, or enabled by a federal agency, notwithstanding

the contrary mandates of other applicable statutes. This view

has sweeping implications, potentially impairing the ability

of federal agencies to provide — and to provide in a timely

manner — a wide variety of government services, benefits,

and permits mandated under other laws. The ruling thus

“has far-reaching effects on the scope of the Endangered

Species Act” — if “the ESA were as powerful as the majority

contends, it would modify not only EPA’s obligation under

the CWA, but every categorical mandate applicable to every

agency.” Defenders, 450 F.3d at 398-99 and n.4, 401 (9th

Cir. 2006) (Kozinski, J., dissenting {along with five other

judges) from the denial of rehearing en banc) (Fed. App. 69a,

74a-79a, 82a).’ See Sherry Bosse, Defenders of Wildlife v.

EPA: Testing the Boundaries of Federal Agency Power

under the ESA, 35 ENvtTL. L. 1025, 1052 (2006) (“In

. Judge Kozinski also accurately describes that, because the

Ninth Circuit has not “fixed the problems [of inconsistent case law

and circuit conflicts] ourselves,” this places the Ninth Circuit “in a

highly precarious position vis a vis . . . the Supreme Court.” 450 F.3d

at 401 (Fed. App. 82a). -

Defenders, the Ninth Circuit articulated a sweeping grant of

additional authority to agencies to protect species under the

ESA.”).

One need look no further than the existing, muddled

body of decisions for illustrations of the variety of federal

programs affected. ESA Section 7(a)(2) compliance issues

often arise, for example, with respect to agency action being

taken pursuant to a prior contract or permit that limits the

agency’s authority. Some appellate courts (including some

Ninth Circuit panels) have found that ESA Section 7 does

not override the limitations imposed by contract or permit

and therefore does not apply.” In other decisions significant

On the merits, the Bosse article nghtly concludes that the

“analytic approach the court used to arrive at this conclusion does not

withstand scrutiny.” J/d.; see id. at 1039-58 (describing “several

serious analytic missteps” in the Ninth Circuit’s “critically flawed”

interpretation of ESA Section 7(a)(2) and the implementing rule at 50

C.F.R. 402.03. More important at this stage, however, even those

advocating a broad view of the role of Section 7 agree that

“[q]uestions ag to the proper meaning and interpretation of § 402.03

arise regularly in the courts.” Jan Hasselman, Holes in the

Endangered Species Act Safety Net: The Role of Agency

“Discretion” in Section 7 Consultation, 25 STAN. ENVTL. L. J. 125,

179 (2006); see id. at 151-94 (discussing over 20 decisions and the

“discordant case law”).

* E.g., Envtl. Prot. Info. Ctr. v. Simpson Timber Co., 255

F.3d 1073 (9th Cir. 2001) (ESA Section 10 incidental take statement

and related contract were read not to include a duty to reinitiate ESA

consultation upon the listing of a mew species); Sierra Club v.

Babbitt, 65 F.3d 1502 (9th Cir. 1995) (pre-ESA right-of-way

agreement with Bureau of Land Management did not include the

ability to alter nghts-of-way to reduce impacts on listed species, so no

ESA Section 7 consultation is required), Platte River Whooping

Crane Habitat Maintenance Trust v. Fed. Energy Regulatory

Comm'n, 962 F.2d 27, 33-34 (D.C. Cir. 1992) (no ESA Section 7

duty to impose wildlife conditions on annual licenses for hydropower

project).

for irrigated agriculture, however, Ninth Circuit panels have

inconsistently found that ESA Section 7 essentially amends

the terms of pre-ESA water contracts. See Klamath Water

Users Protective Ass'n v. Patterson, 204 F.3d 1206, 1213

(9th Cir. 2000); O'Neill v. United States, 50 F.3d 677, 686

(9th Cir. 1995).

Federal agencies often provide insurance, grants, or

other forms of economic assistance or incentives pursuant to

statutory directives. In such settings, some courts following

the same reasoning as the Ninth Circuit below have found

that ESA Section 7(a)(2) applies and imposes crosscutting

constraints on the ability to provide that assistance. Florida

Key Deer v. Brown, 386 F. Supp. 2d 1281, 1289-93 (S. D.

Fla. 2005), appeal pending, No. 05-16374-II (11th Cir.)

(ESA Section 7(a)(2) limits Federal Emergency Management

Agency’s flood insurance program). Key Deer and the

decision below thus threaten to impair federal assistance

under a broad array of programs — from social security to

farm support to natural disaster response — because each act

is subject to the procedural prerequisite of consultation and

to the substantive limitations stated in ESA Section 7(a)(2).

Federal agencies also frequently have some permitting

or certification role with regard to private or State actions.

Several courts have found that ESA Section 7(a)(2) does not

apply in a way that expands that role. Strahan v. Linnon,

967 F. Supp. 581, 607-08, 620-21 (D. Mass. 1997), aff'd,

187 F.3d 623 (table), 1998 WL 1085817 at *3 (Ist Cir. 1998)

(ESA Section 7 does not apply to Coast Guard certificates of

documentation and inspection for ships, even though the

ships can endanger whales and other listed marine species);

see Riverside Irrigation Dist. v. Andrews, 758 F.2d 508, 512

(10th Cir. 1985). The decisions of the Ninth Circuit below

and in Washington Toxics Coal. v. United States Envtl. Prot.

Agency, 413 F.3d 1024 (9th Cir. 2005), are to the contrary.

See pages 15-16 infra.

The issues raised here even have national security

implications, largely because the Ninth Circuit’s ruling reads

ESA Section 7(a)(2) to overcome all other laws. The

opinion below provides prospective plaintiffs with a potent

precedent to delay military training exercises and the like

until an often-lengthy consultation process is completed —

and to preclude them altogether if the exercises would

adversely modify critical habitat or jeopardize the continued

existence of any ESA-listed species. Compare Ground Zero

for Non-Violent Action v. United States Dep't of Navy, 383

F.3d 1082, 1092 (9th Cir. 2004) (rejecting such a claim

through an analysis that seems inconsistent with the

reasoning of the panel below); Hasselman, supra note 4, at

161 (Earthjustice attorney questions Ground Zero).

In sum, the question of how ESA Section 7(a)(2)

interrelates with a federal agency’s organic laws already

occurs with considerable frequency, and that frequency will

certainly not abate in light of the ruling below. The Court

should accept review to provide much-needed guidance on a

recurring issue of great significance, especially as the lower

courts have reached inconsistent results.

2. Both Petitions clearly establish that there are mature

conflicts in the circuits (as we.) as conflicts within the Ninth

Circuit) on the relationship between ESA Section 7(a)(2)

° As Judge Kozinski wrote in dissenting from the rehearing

denial, the panel’s ruling “ignores six prior opinions of our own

court” and is “precisely the kind of case we should take en banc to set

our own house in order.” Defenders, 450 F.3d at 394 (Fed. App.

69a); see id. at 400 (the “majority opinion squarely .. . conflicts with

the Fifth and D.C. Circuits”) (Fed. App. 79a). And as Judge

(continued....)

and an agency’s organic laws. See Fed. Pet. at 19-20;

NAHB Pet. at 11-18. As the Petitions develop, the panel

opinion below conflicts with decisions of the Fifth and D.C.

Circuits. Am. Forest & Paper Ass’n v. United States Envil.

Prot. Agency, 137 F.3d 291, 297-99 (Sth Cir. 1998); Platte

River, 962 F.2d at 34.

We would add that the panel’s ruling is also at least in

tension with decisions from three other circuits. They are:

the First Circuit (Strahan v. Linnon, 187 F.3d 623 (table),

1998 WL 1085817 (Ist Cir. 1998)), the Eighth Circuit (/n re

Operation of the Missouri River Sys. Litig., 421 F.3d 618,

630-31 (8th Cir. 2005)), and the Tenth Circuit (Rio Grande

Silvery Minnow v. Keys, 333 F.3d 1109, 1127 (10th Cir.

2003), vacated as moot, 355 F.3d 1215 (10th Cir. 2004);

Riverside Irrigation Dist. v. Andrews, 758 F.2d 508, 512

(10th Cir. 1985)).’ Moreover, the over 20 district court and

circuit court opinions on the relationship between ESA

Section 7(a)(2) and an agency’s organic laws reflect that

(continued). . .

Thompson described in his dissent from the panel opinion, the ruling

is inconsistent with several Ninth Circuit decisions and statements.

Defenders, 420 F.3d at 979-80 (Fed. App. 64a-65a).

’ The panel asserted that its view of ESA Section 7(a)(2) is

supported by decisions of the First and Eighth Circuits. 420 F.3d at

970 (Fed. App. 44a-46a), citing Defenders of Wildlife v. United States

Envil. Prot. Agency, 882 F.2d 1294, 1299 (8th Cir. 1989), and

Conservation Law Found. v. Andrus, 623 F.2d 712, 715 (1st Cir.

1979). Amicus agrees with the Solicitor General’s position that the

Ninth Circuit’s reliance on these decisions is unwarranted. Fed. Pet.

at 20 n.7. Moreover, the cited Eighth Circuit opinion addressed only

an ESA Section 9 “take” violation, 16 U.S.C. § 1538, not the scope of

Section 7. 882 F.2d at 1300. More recently, the Eighth Circuit

indicated its acceptance of the narrower view of ESA Section 7 in its

Missouri River System opinion. 421 F.3d at 630-31.

“courts have been inconsistent” and there is “discordant case

law.” Hasselman, supra note 4, at 180, 193.

Accordingly, the Petitions clearly satisfy this Court’s

Rule 10(a) standard for accepting review. There is a conflict

in the circuits on an important, recurring question of federal

law.

3. The court below essentially read out of existence

the longstanding formal regulation at 50 C.F.R. 402.03 —

which provides that Section 7 applies only to the extent there

is “discretionary Federal involvement or control.” The panel

majority twists 50 C.F.R. § 402.03 in a fashion contrary to

the Services’ own reading, contrary to the language of the

rule, and contrary to the reading of other courts. See Fed.

Pet. at 18; NAHB Pet. at 20-22; Bosse, supra page 4, at

1042-47. Thus, review is warranted because the decision

below is contrary to this Court’s precedents on the respective

roles of federal agencies and the judiciary in construing

regulations and on the de of deference owned to agency

statutory interpretations. See Auer v. Robbins, 519 U.S. 452,

461-62 (1997) (agency interpretation of its own regulations

is “controlling unless ‘plainly erroneous or inconsistent with

the regulation’”); United States v. Mead, 533 U.S. 218

(2001); Defenders, 450 F.3d at 397-98 (9th Cir. 2006)

(Kozinski, J., dissenting with five other judges) (Fed. App.

73a-74a); Fed. Pet. at 18.

4. Both Petitions encompass the question of whether

the ruling below contravenes this Court’s ruling in Dep't of

Transp. v. Public Citizen, 541 U.S. 752 (2004), by

concluding that EPA’s approval of Arizona’s CWA Section

402 permitting program is the legally relevant cause of

impacts to endangered species directly caused by future

privately initiated, state-permitted land use activities. See

Fed. Pet. at 12-13; NAHB Pet. at i-ii, 24-29. This aspect of

the decision below does contravene a precedent of this Court

and warrants review.®

The opinion below also is in tension with other

precedents of this Court regarding causation. The Court

construed ESA Section 9 liability to be limited by concepts

of “proximate cause” in Babbitt v. Sweet Home Chapter of

Communities for a Great Oregon, 515 U.S. 687, 697 n.9,

700 n.13, 709-14 (1995). Similar limits should be read into

ESA Section 7 to avoid federalizing a wide variety of State

and private actions.’

* See id.; Defenders, 450 F.3d at 394, 398-99 (Judge

Kozinski’s analysis of the inconsistency with Public Citizen) (Fed.

App. at 69a, 76a-78a); Hasselman, supra note 4, at 193 and n.309

(Public Citizen “suggests the opposite outcome from the one reached

by the Defenders majority. If the agency lacked authority under the

CWA to deny a transfer application, then its decision would not be

the ‘cause’ of any harm that resulted. The [Defenders] court did not

explain this apparent contradiction.”).

This Court’s unanimous Public Citizen opinion reversed Public

Citizen v. Dep't of Transp., 316 F.3d 1002 (9th Cir. 2003). The Ninth

Circuit does not seem to have acceded to the notion that but-for

causation (e.g., but for a mandatory federal permit, a privately

initiated action could not occur) is not sufficient in many statutory

settings.

See Fed. Pet. at 11 (“Section 7(a)(2) thus does not impose

upon federal agencies any affirmative duty to protect listed species

from harms caused by other actors, such as a state permittee.”). The

ESA Section 7 causation issue has strong parallels to a significant

causation issue under another ESA section. Sweet Home established

a “proximate cause” limit on ESA Section 9 “take” liability. Despite

this, a few lower courts have interpreted “take” broadly in a fashion

making State and local governments liable for any “takes” committed

by a private party whose actions are reviewed by a governmental

agency for some non-ESA purpose. Law review commentary

Suggests such liability should not exist under a causation analysis.

Jonathan Adler, Judicial Federalism and the Future of Federal

Environmental Regulation, 90 IOWA L. REV. 377, 429-30 (2005);

(continued....)

This Court’s precedents support that a governmental

exercise of regulatory authority constrains, but does not

“authorize,” private land uses. Instead, the private property

owner has the initial right to develop the property under Fifth

Amendment jurisprudence. £.g., Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393, 414-17; Rasband, supra note 9, at

626. Additionally, this Court has found that partial federal

funding and oversight of a State program do not federalize

those State actions. Forsham v. Harris, 445 U.S. 169, 178-

80 (1980); United States v. Orleans, 425 U.S. 807, 816-18

(1976). Similarly, the “mere fact that a business is subject to

state regulation does not by itself convert its [private] action

into that of the State for purposes of” State action under the

Fourteenth Amendment. Am. Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40, 50 (1999). Those decisions embody the

(continued) . . .

James Rasband, Priority, Probability, and Proximate Cause: Lessons

from Tort Law About Imposing ESA Responsibility for Wildlife Harm

on Water Users and Other Joint Habitat Modifiers, 33 ENVTL. L.

595, 623-28 (2003). Other law review articles explain why making a

regulatory agency responsible for any “ takes” committed in a

privately initiated action cannot be reconciled with the structure of the

ESA or with federalism principles in the Constitution. Valerie

Brader, Shell Games: Vicarious Liability of State and Local

Governments for Insufficiently Protective Regulations Under the ESA,

45 NAT. RESOURCES J. 103 (2005); J.B. Ruhl, State and Local

Government Vicarious Liability Under the ESA, 16 NAT. RESOURCES

& ENV’T 70 (ABA Fall 2001); Shannon Petersen, Endangered

Species in the Urban Jungle: How the ESA Will Reshape American

Cities, 19 STAN. ENVTL. L. J. 423, 438-54 (2000).

The Ninth Circuit’s notion that a federal agency with certain

limited permitting authority is a legally culpable cause of impacts

directly caused by privately initiated projects has a substantial overlap

with the “vicarious ESA liability” notion discussed in those articles.

The Court’s guidance could well resolve both pressing issues.

common sense principle that the person proposing and

conducting the action is the legally relevant cause of that

action’s impacts, but more distant regulators (whose scope of

authority is often limited) are not legally relevant causes.

The rationale of the court below on causation is in

tension with those precedents. The Ninth Circuit’s ruling

makes EPA’s transfer of CWA permitting authority the

“cause” of all effects that may flow from future privately

initiated actions that involve discharges requiring State

NPDES permit authorization.'° Yet, because ESA

Section 7(a)(2) addresses only the impacts of federal actions

(not State-approved private actions) and because CWA

Section 402(b), 33 U.S.C. § 1342(b), limits EPA’s legal

authority, the answer should be that EPA is not the legal

cause of the private impacts “the agency has no [CWA]

authority to prevent.” Public Citizen, 541 U.S. at 767; see

Am. Forest & Paper Ass'n, 137 F.3d at 298-99; Fed. Pet. at

11-13; NAHB Pet. at 27-29.

In sum, the causation issue warrants review. The Ninth

Circuit’s ruling is at least in tension with Supreme Court

authority, and the court’s rationale conflicts with the Fifth

Circuit’s analysis in Am. Forest & Paper Ass'n, 137 F.3d at

298-99. Issues regarding who or what is the legally relevant

cause of impacts for ESA Section 7 purposes, and on the

'° Because the CWA only provides jurisdiction over water .

quality issues within waters of the United States, the CWA provides

no authority for EPA to control private land uses on uplands

(including farms) that may affect listed species. See Fed. Pet. at 4

note 1; Wetlands Action Network v. United States Army Corps of

Eng'rs, 222 F.3d 1105, 1116-17 (9th Cir. 2000); Natural Res. Def.

Council v. United States Envil. Prot. Agency, 859 F.2d 156, 169-71

(D.C. Cir. 1988); Save the Bay, Inc. v. United States Army Corps of

Eng'rs, 610 F.2d 322, 326 (Sth Cir. 1980).

scope of impacts considered in assessing ESA Section 7

compliance, are recurring issues of considerable

significance.

_ 5. We urge the Court to grant the Petitions to relieve

the adverse impacts that conflicting lower court precedents

have on the broad spectrum of private individuals and

businesses who rely on timely federal grants, permits, and

services. The conflicting case law creates adverse impacts in

the following areas.

First, the legal uncertainty spawned by the divergent

lower court authorities creates economic inefficiencies. The

absence of a clear rule invites greater litigation and produces

arbitrarily disparate results.''

Delays are a second major area of adverse impacts.

There are delays in delivering federal services if the ESA

Section 7(a)(2) consultation process is needlessly engaged in

the face of legal uncertainty, or if there is litigation

challenging the alleged lack of ESA Section 7(a)(2)

compliance. A timely federal check or permit can be the

difference between survival and bankruptcy or closure for a

farm or any other business.

A third set of adverse impacts is the inability to provide

needed federal services or permits at all if a court -

following one of several available lines of precedent —

concludes that ESA Section 7(a)(2) is an overriding authority

and that a particular federal action (although mandated under

other laws) does not substantively comply with

'' This, in turn, impairs public faith in the judicial system,

which necessarily suffers where the perception is that any given judge

or panel may simply select one or another line of precedents that suits

its world view.

Section 7(a)(2). This may happen with greater frequency in

the juture under the ruling below and similar rulings. The

ESA Section 7(a)(2) constraint against adversely modifying

critical habitat has the potential to prevent many more

federally assisted actions now that: (1) millions of acres have

been designated as critical habitat for numerous species (see

50 C.F.R. §§ 17.95 and 17.96); and (2) some courts have

held that adverse modification of critical habitat is subject to

a more stringent “recovery”-based standard than is provided

for in current rules.'? To prevent unwarranted shutdowns of

important federal programs under the Ninth Circuit’s view of

ESA Section 7(a)(2), the Court should accept review and

provide guidance on when ESA Section 7(a)(2) does and

does not apply.

6. A particularly pernicious effect of the Ninth

Circuit’s view of ESA Section 7 is that it thwarts the will of

Congress as expressed in other statutes. In numerous

Statutes, Congress has directed a federal agency to do X

(e.g., issue a permit, grant money, provide insurance or

compensation) if particular conditions are satisfied. The

Ninth Circuit’s view that ESA Section 7(a)(2) adds

procedural prerequisites, and even may prohibit otherwise

mandatory federal action, frustrates the legislative objectives

of the other statutes.

- £ g., Gifford Pinchot Task Force v. United States Fish &

Wildlife Service, 378 F.3d 1059, 1069-77 (9th Cir. 2004). Further,

some lower courts have found that federal agencies have a difficult

burden in meeting the ESA Section 7(a)(2) duty to “insure” that a

federal action is “not likely to jeopardize the continued existence of

a” listed species. Washington Toxics Coal.v. United States Dep't of

Interior, 2006 WL 2469119 at *17-28 (W.D. Wash. decided Aug. 24,

2006).

For example, the CWA has a federalism objective that

States take the lead in regulating the water quality impacts of

private land uses. 33 U.S.C. 1251(b); Rapanos v. United

States, 126 S. Ct. 2208, 2215, 2223-24 (2006); Solid Waste

Agency of Northern Cook County v. United States Army

Corps of Eng’rs, 531 U.S. 159, 166, 172-74 (2001). In the

CWA, Congress did not condition the transfer of Section 402

permitting authority to States on any (continuing) federal

role under ESA Section 7(a)(2). See NAHB Pet. at 3-4, 9-

14. The Ninth Circuit’s view, however, frustrates the

CWA’s federalism objective, as well as the similar ESA

Section 6 objective (16 U.S.C. 1535) of voluntary State

cooperation on ESA matters. See Fed. Pet. at 10-12.

7. America’s producers of food and fiber have

suffered particular harm resulting from the Ninth Circuit’s

view of ESA Section 7 as superseding all other laws. Earlier

in 2005, another Ninth Circuit panel used similar rationales

in Washington Toxics Coal v. United States Envtl. Prot.

Agency,, 413 F.3d 1024 (9th Cir. 2005). There, the Federal

Insecticide, Fungicide, and Rodenticide Act (“FIFRA”)

specified the standards and procedures for temporarily

suspending a pesticide use due to ESA concerns. 7 U.S.C.

136(1) and 136d(c). Nonetheless, the Ninth Circuit held that

ESA Section 7(a)(2) overrode any such limitations on EPA’s

or the court’s authority. 413 F.3d at 1031-35.

The result was that certain uses of pesticides to help

produce food and fiber for the American public were banned

by a court injunction. The injunction is inconsistent with the

careful balancing of environmental and food production

goals in FIFRA. This is but one example in which the same

rationale expressed by the court below has had and will

continue to have adverse effects on farming.

Phase two of the Washington Toxics saga has involved

continuing litigation over the federal agency efforts to

develop rational means of implementing these expansive

Section 7 obligations in the context of pesticide approvals.

After the first Washington Toxics case created the specter of

many suits to limit uses of particular pesticides until lengthy

ESA Section 7 consultation was completed, the responsible

federal agencies sought to streamline the ESA Section 7

compliance process for pesticide registration. The agencies

did so by adopting so-called ESA Section 7 counterpart

rules. See 69 Fed. Reg. 47,732 (Aug. 5, 2004). One

innovation under those rules was to eliminate the delay of

obtaining U.S. Fish and Wildlife Service concurrence, in

informal_consultation under 50 C.F.R. § 402.13, when EPA

alone concludes that a pesticide action is not likely to

adversely affect (let alone jeopardize the existence of) a

listed species.

This key innovation was recently struck down in

Washington Toxics Coal v. United States Dep't of Interior,

2006 WL 2469119 (W.D. Wash. decided Aug. 24, 2006),

appeals pending. Prominent in the district court’s analysis

was the Ninth Circuit’s ruling below that ESA Section 7

requires consultation with the relevant Service as a

prerequisite to any and all federal actions. The counterpart

rules were found unlawful for eliminating this mandatory

consultation for some subset of agency actions. See 2006

WL 2469119 at *13-14, quoting from Defenders, 420 F.3d at

961 (Fed. App. 26a).

Thus, the decision below is being interpreted in ways

that impair the ability of American farmers to provide food

and fiber to serve domestic and international needs. This

further illustrates why, in light of the significant

consequences of the Ninth Circuit’s ruling to both the public

: 17

sector and the private sector, the ruling warrants review by

this Court.

8. Accepting review would provide the Court with an

opportunity to clarify that certain dicta in Tennessee Valley

Authority v. Hill, 437 U.S. 153 (1978) (“TVA v. Hill”), do

not control the scope of ESA Section 7({a)(2) vis a vis other

Statutory duties. That famous case involved the snail darter

and the Tellico Dam. The tea leaves from the TVA v. Hill

opinion have greatly influenced the treatment that ESA

claims have received in the years since in lower courts. For

example, many lower courts cite TVA as demanding

substantive injunctions even for violations of ESA Section 7

procedures and as requiring that listed species receive the

benefit of any doubt created by man’s incomplete scientific

knowledge. E.g., Nat'l Wildlife Fed’n v. Nat'l Marine

Fisheries Serv., 422 F.3d 782, 792-800 (9th Cir. 2005);

Natural Res. Def. Council vy. Houston, 146 F.3d 1118, 1126-

30 (9th Cir. 1998).

The panel below relied heavily on 7VA v. Hill as

supporting the conclusion that ESA Section 7(a)(2) overrides

the limitations on an agency’s authority as articulated in any

other statute. 420 F.3d at 964-66 (Fed. App. 32a-38a). Yet,

TVA v. Hill concerned the remedy for an admitted

substantive violation of ESA Section7, and Federal

Petitioners did not contend that TVA lacked statutory

authority to not close the dam gates. See 437 U.S. at 171-73,

193-95; Hasselman, supra note 4, at 137 (“The Supreme

Court never specifically addressed the question of whether

TVA had the ‘discretion’ to not finish the dam. Nor did such

an argument play a prominent role in the briefing before the

court.”’).

Further, 7VA v. Hill addressed the special rule that the

legislative intent of an appropriations act cannot override a

substantive statute like ESA Section 7. 437 U.S. at 189-93.

TVA v. Hill did not address the issue here of what happens

when two substantive statutes (CWA Section 402(b) and

ESA Section 7(a)(2)) are in apparent conflict. See NAHB

Pet. at 23. “7JVA, which did not even consider whether

section 7 allows agencies to go beyond their statutory

authority to carry out purposes of the ESA, is hardly

authority to the contrary.” Platte River, 962 F.2d at 34 (D.C.

Cir. 1992). It is “contrary to all traditions of our

jurisprudence to consider the law on [a] point conclusively

resolved by broad language in cases where the issue was not

presented.” R.A.V. v. City of St. Paul, 505 U.S. 377, 387 n.5

(1992).

TVA v. Hill does contain some conflicting dicta. This

includes quotations supporting a legislative intent that ESA

Section 7 operates only within the limits of an agency’s other

legal authorities:

“The subsection requires...agencies to use their

authorities...[to] take the necessary action that will

not jeopardize the continued existence of listed

species.”... H.R. Rep. No. 93-412, p. 14 (1973)...

{T]he House manager of the bill, Representative

Dingell, provided an_ interpretation of the

Conference bill... “[{Section 7] substantially

amplifie[s] the obligation of [federal agencies] to

take steps within their power to carry out the

purposes of this act....”. 119 Cong. Rec. 42913

(1973).

437 U.S. at 182-84 (emphasis added). More generally,

Amicus agrees with the Solicitor General’s and NAHB’s

analyses that, when the history of ESA Section 7(a)(2) is

examined thoroughly, it supports the view in 50 C.F.R.

402.03 that ESA Section 7(a)(2) is supplemental and

operates within the confines of an agency’s authority under

its organic laws. See Fed. Pet. at 13-18; NAJIB Pet. at 16-

18.

Thus, review should not be declined on the unpersuasive

basis that 7VA vy. Hill settles the scope of ESA

Section 7(a)(2), but rather should be granted to clarify the

dicta of that decision.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,