Amicus Curiae Brief — Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 45 (2018) (No. 17-71)

Recund

AND { AUG 14 2017

BRIEFS No. 17-71 =

Bn the Supreme Court of the United States

WEYERHAEUSER COMPANY,

Petitioner,

Vv.

UNITED STATES FISH AND WILDLIFE SERVICE, et ai.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF THE AMERICAN FARM BUREAU FEDERATION,

THE NATIONAL ALLIANCE OF FOREST OWNERS,

AND THE NATIONAL MINING ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF PETITIONER

WILLIAM R. MuRRAY Tyson C. Kape

NATIONAL ALLIANCE Counsel of Record

OF FoREST OWNERS JOSEPH B. NELSON

122 C Street, N.W. Van Ness Fe_pman, LLP

Suite 630 1050 Thomas Jefferson St., N.W.

Washington, D.C. 20001 Washington, D.C. 20007

(202) 747-0742 (202) 298-1800

tck@vnf.com

Counsel for Amici Curiae

(additional counsel listed on inside cover)

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001!

Additional Counsel}:

ELLEN STEEN

DANIELLE QUIST

AMERICAN FARM

BUREAU FEDERATION

600 Maryland Ave., S.W.

Suite 1000W

Washington, D.C. 20024

(202) 406-3600

KaTIE SWEENEY

ApAM ECKMAN

NATIONAL MINING

ASSOCIATION

101 Constitution Ave., N.W.

Washington, D.C. 20001

(202) 463-2600

TABLE OF AUTHORITISS ............----+:. Th

INTERESTS OF THE AMICI CURIAE .

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY OF

L.

I.

ET 5. occ os wae ee Whew ens’ 90h eee

I ess eS ere inte a. wial atne Stee om §

By Bestowing “Virtually Limitless” Power to

Designate Critical Habitat, the Fifth Circuit's

Decision Raises an Issue of Extraordinary Public

ee ere ee eee

A. Critical Habitat Designations Impose

Significant Economic and Regulatory

Impacts on Landowners Nationwide .......

B. Review Is Needed to Provide Uniform

Interpretation of the ESA’s Critical Habitat

Requirements ............-----+++++::

The Fifth Circuit Contravened Explicit

Statutory Restrictions on the Designation of

Unoccupied Critical Habitat ...............

A. The ESA’s Plain Language Limits Critical

Habitat to Specific Areas Within Existing

eS. <. De Une aban ee eae was bares

B. The Legislative History Demonstrates That

Congress Intended to Limit Critical Habitat

to a Subset of the Species’ Habitat .......

13

13

16

C. To Be Essential for the Conservation of the

Species, an Unoccupied Area Cannot Be

Based on the Presence of a Single, Non-

Determinative Feature................. 20

ED as Cae ae a see Bla eee ss

ill

TABLE OF AUTHORITIES

CASES

All. for Wild Rockies v. Lyder,

728 F. Supp. 2d 1126 (D. Mont. 2010) ....... 22

Ariz. Cattle Growers’ Ass’n v. Salazar,

606 F.3d 1160 (9th Cir. 2010) ........... 12, 22

Babbitt v. Sweet Home Chapter of Communities for

a Great Oregon,

es ns os poe we-0.bi8 08 08 Bok 9,11

Buffalo River Watershed All. v. Dep't of Agric.,

No. 4:13-cv-450-DPM, 2014 WL 6837005

(9° 3.3 & | | ere reer ee 7

Cape Hatteras Pres. All. v. U.S. Dep't of Intertor,

344 F. Supp. 2d 108 (D.D.C. 2004) ....... 12, 22

Ctr. for Biological Diversity v. Kelly,

93 F. Supp. 3d 1193 (D. Idaho 2015)......... 22

Fla. Key Deer v. Paulison,

522 F.3d 1133 (11th Cir. 2008) .............. 7

Home Builders Ass’n of N. Cal. v. U.S. Fish &

Wildlife Serv.,

616 F.3d 983 (9th Cir. 2010) ............ 12, 22

Lamie v. U.S. Trustee,

sg Erna a fare ar es 14

Markle Interests, L.L.C. v. U.S. Fish & Wildlife

Seruv.,

827 F.3d 452 (5th Cir. 2016) ........... passim

iV

Markle Interests, L.L.C. v. U.S. Fish & Wildlife

Serv.,

848 F.3d 635 (5th Cir. 2017) ........... passim

Tenn. Valley Auth. v. Hill,

EE DY oy ov bwil bre nds hk A OO 17

TRW Inc. v. Andrews,

os wl hdr erica ee eee es 14, 15

United States v. Gonzales,

I 5s 5 bik Sin + vb bie cole oe OO 21

STATUTES AND REGULATIONS

os gb a akan ty oy So 14

Pa MEE sv bcc ee cece ere ees 4, 20

is fem pra ee 4, 20, 23

EE es sos bk be pte belek eaiee e's 3

ag errr rari ae 7

16 U.S.C. § 1I63B%laN3MAMi)............. 3,5,6, 14

oe rh eo kg brele iw 3

CEE, b's sy Sp -p b.o.0 0b so pee a )

ECT TET, Trees 5, 7,14

a .ole ss ove eeween wae. 7

te ey a er oe 7

Ce Se ee rere ree Tee eee 24

Endangered Species Act of 1973, Pub. L. No. 93-205,

ae ere ou ae Oe eee 16

Vv

Endangered & Threatened Wildlife and Plants:

Final Rulemaking to Designate Critical Habitat

for the Threatened Southern Distinct Population

Segment of North American Green Sturgeon,

74 Fed. Reg. 52,300 (Oct. 9, 2009). .......... 10

Endangered and Threatened Species; Critical

Habitat for the Endangered Carolina and South

Atlantic Distinct Population Segments of

Atlantic Sturgeon; Proposed Rule,

81 Fed. Reg. 36,078 (June 3, 2016) .......... 12

Endangered and Threatened Species; Designation

of Critical Habitat for the Gulf of Maine, New

York Bight, and Chesapeake Bay Distinct

Population Segments of Atlantic Sturgeon,

81 Fed. Reg. 35,701 (June 3, 2016) .......... 12

Endangered and Threatened Wildlife and Plants,

Designation of Critical Habitat for Dusky

Gopher Frog (Previously Mississippi Gopher

Frog); Final Rule and Proposed Rule,

77 Fed. Reg. 35,118 (June 12, 2012) ...... 4,8,9

Endangered and Threatened Wildlife and Plants;

Designation of Critical Habitat for the Western

Distinct Population Segment of the Yellow-

Billed Cuckoo; Proposed Rule,

79 Fed. Reg. 48,548 (Aug. 15, 2014) ......... 13

Endangered and Threatened Wildlife and Plants,

Designation of Revised Critical Habitat for the

Northern Spotted Owl; Final Rule,

77 Fed. Reg. 71,876 (Dec. 4, 2012) ........-. 10

vl

Endangered and Threatened Wildlife and Plants;

Revised Designation of Critical Habitat for the

Contiguous United States Distinct Population

Segment of the Canada Lynx and Revised

Distinct Population Segment Boundary; Final Rule,

79 Fed. Reg. 54,782 (Sept. 12, 2014) ......... 12

Endangered and Threatened Wildlife and Plants;

Revised Designation of Critical Habitat for Bull

Trout in the Coterminous United States; Final Rule,

75 Fed. Reg. 63,898 (Oct. 18, 2010). ......... 10

Interagency Cooperation-Endangered Species Act

of 1973,

43 Fed. Reg. 870 (Jan. 4, 1978) ..........--. 17

Listing Endangered and Threatened Species and

Designating Critical Habitat; Implementing

Changes to the Regulations for Designating

Critical Habitat; Final Rule,

81 Fed. Reg. 7,414 (Feb. 11, 2016) ....... 11, 24

LEGISLATIVE MATERIALS

124 Cong. Rec. 21,355 (1978) ........-...-545: 19

124 Cong. Rec. 21,575 (1978) ........--...555- 19

124 Cong. Rec. 38,131 (1978) ...........65-: 4,18

124 Cong. Rec. 38,154 (1978) ........-----. 17, 23

124 Cong. Rec. 38,665 (1978) ..........-.--- 6,19

H.R. Rep. No. 93-740 (1973)

(Endangered Species Act Amendments of 1973:

Report to Accompany S. 1983) .........----. 16

Vil

H.R. Rep. No. 95-1625 (1978)

(Endangered Species Act Amendments of 1978:

Report to Accompany H.R. 14104) ....... 18,

S. Rep. No. 95-874 (1978)

(Endangered Species Act Amendments of 1978:

Report to Accompany S. 2899)... 2.0.0.0... 19,

OTHER SOURCES

Merriam-Webster’s Collegiate Dictionary

SN I SOS ow ars Danttonels Peck oie ova ea

John M. Frywell, et al., Wildlife Ecology,

Conservation, & Management 427

SE a Ore ee es a oe eh oa Oe

FWS, Listed Species Summary, https://ecos.fws.gov/

ecp0/reports/box-score-report ..............

FWS, Threatened & Endangered Species Active

Critical Habitat Report, https://ecos.fws.gov/ecp/

report/table/critical-habitat.html ...........

Linnea S. Hall, et al., The Habitat Concept and a

Plea for Standard Terminology, 25(1) Wildlife

OG y Mmeee BGO GROOT) «ecw ee cesses.

Andrew J. Turner & Kerry L. McGrath, A Wider

View of the Impacts of Critical Habitat

Designation, 43 Envtl. L. Rep. News & Analysis

EDs «3c :ass chase leek +e) oe? ee

22

22

23

15

10

LO

15

1

INTERESTS OF THE AMICI CURIAE

The American Farm Bureau Federation (Farm

Bureau), the National Alliance of Forest Owners

(NAFO), and the National Mining Association (NMA)

respectfully submit this brief as amici curiae in support

of the Petitioner.’

The amici curiae have a substantial interest in this

case because the designation of private property as

critical habitat under the Endangered Species Act

(ESA) is a remarkably intrusive action that imposes

significant burdens on landowners and restricts their

ability to fully utilize their property. The U.S. Court of

Appeals for the Fifth Circuit endorsed an expansive

interpretation of critical habitat by upholding the

protection of an area that is not only unoccupied but

also unsuitable and uninhabitable by the species.

“(T]he ramifications of this decision for national land

use regulation .. . cannot be underestimated.” Markle

Interests, L.L.C. v. U.S. Fish & Wildlife Serv. , 848 F.3d

635, 637 (5th Cir. 2017) (Jones, J., dissenting).

The Farm Bureau is an _ independent, non-

governmental, voluntary general farm organization

with nearly 6 million member families in all 50 states

and Puerto Rico. Established in 1919, the Farm

Bureau’s primary function is to advance and promote

‘ No counsel for a party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief. No person other than

amici curiae, its members, or its counsel made a monetary

contribution to its preparation or submission. Counsel of record

for all parties received notice at least ten days prior to the due date

of the amici curiae’s intent to file, and have provided either

blanket or individual consent to the filing of this brief.

9

the interests and betterment of farming and ranching;

the farming, ranching, and rural community; and the

individual families engaged in farming and ranching.

This effort involves protecting, promoting and

representing the business, economic, social and

educational interests of American farmers and

ranchers.

NAFO isa trade association that represents owners

and managers of over 80 million acres of private forests

‘n 47 states. NAFO was incorporated in March 2008,

and has been working aggressively since then to

sustain the ecological, economic, and social values of

forests, and to assure an abundance of healthy and

productive forest resources for present and future

generations.

NMA is the national trade association of the mining

industry. NMA has more than 300 members, including

those who produce most of the nation’s coal, metals,

industrial and agricultural minerals. The mining

industry has a broad impact on the national economy,

generating nearly 1.9 million jobs and contributing

$225 billion to the U.S. GDP and $45 billion in federal,

state, and local taxes each year. A core mission of

NMA is to promote practices that foster the

environmentally sound development and use of mineral

resources.

The amici curiae have members that are engaged in

timber, agricultural, and mining operations on

privately owned property. They will suffer economic

injury and deprivation of the full use and enjoyment of

their property due to the consequential restrictions on

land use activities arising from a designation of their

land as critical habitat. These restrictions and

3

negative effects are even more alarming when, as here,

the land is unoccupied by the relevant species and

lacks the features making it viable habitat.’

INTRODUCTION AND

SUMMARY OF ARGUMENT

Congress amended the ESA in 1978 to add a narrow

definition of critical habitat to restrain the prevailing

practice of designating expansive areas of land with no

regard to what was actually necessary for species

conservation. In doing so, Congress struck a balance

between the need to protect habitat for threatened and

endangered species and the need to ensure that the

exercise of regulatory powers affecting the economic

and productive use of land is wielded with focused

circumspection.

The application of the ESA is triggered when the

Secretary determines that a_ species is either

threatened or endangered. 16 U.S.C. § 1533(a)(1).

Concurrent with a listing decision, to the maximum

extent prudent and determinable, the Secretary shall

“designate any habitat of such species which is then

considered to be critical habitat.” Jd. § 1533(a)(3) AG)

(emphasis added). The Secretary must base any

designation upon “the best scientific data

available . . . after taking into consideration the

economic impact, ... and any other relevant impact, of

specifying any particular area as critical habitat.” Id.

§ 1533(b)(2).

‘The amici curiae also support the Petition for a Writ of Certiorari

in Markle Interests, L.L.C. v. U.S. Fish & Wildlife Service, No. 17-

4

Yongress did not envision the designation of critical

habitat “as far as the eyes can see and the mind can

conceive.” 124 Cong. Rec. 38,131 (1978). Rather,

through the statutory definition of “critical habitat,”

Congress established clear standards and statutory

boundaries. For occupied habitat, the Secretary may

designate “specific areas within the geographical area

occupied by the species, at the time it is listed . . . on

which are found those physical or biological features (1)

essential to the conservation of the species and (II)

which may require special management considerations

or protection.” 16 U.S.C. § 1532(5)A)Q). — For

unoccupied habitat, Congress imposed a heightened

standard—limiting designations to “specific areas

outside the geographical area occupied by the species

at the time it is listed . . . upon a determination by the

Secretary that such areas are essential for the

conservation of the species.” Jd. § 1532(5)A)(n).

In the decision below, the closely divided Fifth

Circuit panel upheld the designation of more than

1,500 acres of private forest land (Unit 1) in Louisiana

as unoccupied critical habitat for the dusky gopher

frog. Markle Interests, L.L.C. v. U.S. Fish & Wildlife

Serv., 827 F.3d 452, 459 (5th Cir. 2016). The U.S. Fish

and Wildlife Service (FWS) conceded that Unit 1 only

contains one of the three physical or biological features

that comprise habitat for the species (ephemeral ponds)

and that, in its present state, Unit 1 is “unsuitable as

habitat for dusky gopher frogs.” 77 Fed. Reg. 35,118,

35,129 (June 12, 2012). Furthermore, Unit 1 is located

across state lines, about 50 miles from existing

populations in Mississippi, and natural dispersal of the

frogs to the area is not possible. See id. at 35,130.

5

Even if the frogs were introduced into Unit 1, they

would not survive.

The Fifth Circuit wrongly held that “|t|here ts no

habitability requirement in the text of the ESA or the

implementing regulations.” Markle, 827 F.3d at 468.

The plain language of ESA Section 4 explicitly limits

critical habitat to a subset of “any habitat of such

species.” 16 U.S.C. § 1533(a)(3A\i) (emphasis added).

The Fifth Circuit’s decision condones the designation of

admittedly unsuitable and uninhabitable land based on

the mere presence of one physical feature that, alone,

cannot support the dusky gopher frog. ‘This decision

sets a remarkably low bar for the designation of critical

habitat—no requirement for existing habitat, no

requirement for suitability, and no _ reasonable

expectation that the area will be used for the

conservation of the species. The Fifth Circuit destroys

the statutory distinction between occupied and

unoccupied critical habitat and contravenes

Congressional intent by granting the Secretary

“virtually limitless” power to designate critical habitat.

Markle, 848 F.3d at 651 (Jones, J., dissenting).

If left unrestrained by this Court, the Fifth Circuit's

decision has nationwide implications. A _ private

property owner is barred from obtaining any

discretionary federal permits, authorizations, funding,

or other agency actions without first being subject to a

review to ensure that there will be no destruction or

adverse modification of critical habitat. This

“consultation” requirement imposes a_ federal

management overlay upon private lands with

significant regulatory and economic ramifications

under the ESA. See 16 U.S.C. § 1536(a)(2). Congress

6

recognized these implications in 1978 and crafted an

“extremely narrow definition of critical habitat” that

imposed statutory safeguards to restrain the overbroad

assertion of federal regulatory power. 124 Cong. Rec.

38,665 (1978). Review by this Court is necessary to

restore the designation of critical habitat to the bounds

that Congress intended and explicitly delineated.

ARGUMENT

l. By Bestowing “Virtually Limitless” Power to

Designate Critical Habitat, the Fifth Circuit’s

Decision Raises an Issue of Extraordinary

Public Importance

This case presents the central legal issue in

unmistakably clear statutory terms—does the use of

“any habitat . .. which is then considered to be critical

habitat” impose a_ statutory limitation on the

designation of critical habitat? 16 U.S.C.

§ 1533(aX3) Ai) (emphasis added). The Fifth Circuit

answered this question in the negative, holding that

“|t]here is no habitability requirement in the text of the

ESA.” Markle, 827 F.3d at 468. Under this

interpretation, the FWS would have unfettered

discretion to designate wide swaths of unoccupied

lands or waters as “critical habitat” on the mere hope

that somehow, some day, the area will transform into

actual habitat for the species. There are more than

1,650 species currently listed as threatened or

endangered within the United States, with many

having actual or historic ranges that encompass

multiple states (and federal circuit court boundaries).

The nationwide ramifications of such an expansive

interpretation warrant this Court’s acceptance of the

petitions for writ of certiorari to resolve whether the

7

Fifth Circuit’s decision can be _ reconciled with

Congress’s clear statutory directive.

A. Critical Habitat Designations Impose

Significant Economic and Regulatory

Impacts on Landowners Nationwide

The listing of a species as threatened or endangered

triggers a panoply of additional protections under the

ESA. First is the obligation of the Secretary to

designate critical habitat. 16 U.S.C. § 1533(a\(3)(A). In

turn, Section 7 of the ESA requires each federal agency

to consult with the FWS or National Marine Fisheries

Service (NMFS) (collectively, the Services) on any

action authorized, funded, or carried out that may

affect critical habitat.” 16 U.S.C. § 1536(a)(2). The

scope of federal agency actions that trigger consultation

continues to expand rapidly and includes, for example,

the provision of flood insurance and federal loan

guarantees. See Fla. Key Deer v. Paulison, 522 F.3d

1133, 1144 (11th Cir. 2008); Buffalo River Watershed

All. v. Dep't of Agric., No. 4:13-cv-450-DPM, 2014 WL

6837005, at *5 (E.D. Ark. Dec. 2, 2014). During

consultation, if FWS or NMFS concludes that the

action will destroy or adversely modify critical habitat,

then a reasonable and prudent alternative (RPA) to the

proposed action is developed to avoid the destruction or

adverse modification. 16 U.S.C. § 1536(b)(4)(A). A

private party applicant or partner to the federal agency

action must typically implement the RPA or be subject

to denial of its application or project.

* The relevant regulations define “action” broadly to include the

“granting of licenses, contracts, leases, easements, right-of-way,

permits, or grants-in-aid” or “actions directly or indirectly causing

modifications to the land, water, or air.” 50 C.F_R. § 402.02 (2016).

These Section 7 consultations impose

“(clonsiderable regulatory burdens and corresponding

economic costs [that] are borne by landowners,

companies, state and local governments, and other

entities as a result of critical habitat designation.”

Andrew J. Turner & Kerry L. McGrath, A Wider View

of the Impacts of Critical Habitat Designation, 43

Envtl. L. Rep. News & Analysis 10,678, 10,680 (2013).

There are significant costs associated with conducting

biological surveys and assessments—including multiple

site visits, hiring of technical experts, and subsequent

analyses—that can reach hundreds of thousands of

dollars. Compliance costs for measures to avoid or

minimize the effects of the proposed action on

designated critical habitat areas can be crippling. The

consultation process itself also has economic impacts

because it “often takes months or years, significantly

delaying projects and _ resulting in substantial

additional project costs, if not destroying the projects’

economic viability.” Jd. at 10,681. Where the federal

action authorizes some activity on private land, these

costs are borne by the private landowner, not by the

federal agency.

The impacts of a critical habitat designation cannot

be overstated. Pursuant to its authority under ESA

Section 7, during consultation on a requested federal

permit, FWS could recommend that no development

occur on Unit 1 which would result in $34 million of

lost economic opportunity. 77 Fed. Reg. at 35,141. But

Unit 1 is concededly “unsuitable as habitat,” and is

uninhabitable by the dusky gopher frog. /d. at 35,129

& 35,132-33. The only way that Unit 1 could benefit

the species is if the landowners engaged in large-scale

habitat transformation and the frog was forcibly

9

relocated there—something that the ESA cannot

require.* 77 Fed. Reg. at 35,123 (“property owners [not

required| to undertake affirmative actions to promote

the recovery of the listed species”).

The specter created by this broad interpretation of

what qualifies as critical habitat is unremittingly

chilling in its implications for ongoing commercial

activities on private property. A critical habitat

designation based on a single physical or biological

feature in an area that is unoccupied by the species

could freeze the operations of that property in

perpetuity. The fact that such restrictions are only

triggered by a discretionary federal agency action

subject to Section 7 consultation adds no comfort. The

nexus between federal agency actions and private

commercial operations is exceedingly broad, and

includes Clean Water Act permitting, land

management plans by the Forest Service and Bureau

of Land Management, financial assistance and other

programs from the National Resources Conservation

Service, Small Business Administration loan

guarantees, Federal Emergency Management Agency

flood insurance, and other Army Corps of Engineers

permits.

* Congress included other authorities in the ESA to allow the

Secretary to address this circumstance. 16 U.S.C. § 1534(a)(2)

(authorizing the Secretary “to acquire by purchase, donation, or

otherwise, lands, waters, or interest therein” to conserve fish,

wildlife, and plants); Babbitt v. Sweet Home Chapter of

Communities for a Great Oregon, 515 U.S. 687, 703 (1995) (“The

Secretary may also find the § 5 authority useful for preventing

modification of land that is not yet but may in the future become

habitat for an endangered or threatened species.”) (emphasis

added).

10

These impacts are not unique to Unit 1, but are

occurring nationwide. For example, the government

estimated that the designation of all potential critical

habitat for the green sturgeon along the West Coast

would have an annual economic impact of up to $578

million and affect a variety of activities, including

timber sales, irrigation diversions and water

conveyance, and other land management actions. 74

Fed. Reg. 52,300, 52,300 & 52,341 (Oct. 9, 2009). The

designation of critical habitat for the bull trout is

expected to have incremental impacts of $56.3 to $80.9

million over 20 years, and would impact water

diversions, timber harvests, livestock grazing, and

other floodplain activities. 75 Fed. Reg. 63,898, 63,920

& 63,943-44 (Oct. 18, 2010). The designation of critical

habitat for the northern spotted owl could have up to a

$6.4 million annual impact due to a decline in timber

harvest volumes on federal lands. 77 Fed. Reg. 71,876,

71,946 (Dec. 4, 2012).

The designation of critical habitat, and its attendant

regulatory and economic impacts, will become more

significant in the future. There are currently more

than 1,650 species listed in the United States— with

listings in all 50 States and the District of

Columbia—but only 742 species have critical habitat.”

FWS has pending listing decisions on more than a

hundred species that require resolution and, if listed,

the designation of critical habitat. For those species

without critical habitat, the Services have stated that

°FWS, Listed Species Summary, https://ecos.fws.gov/ecp0/reports/

box-score-report (last visited Aug. 14, 2017); FWS, Threatened &

Endangered Species Active Critical Habitat Report,

https://ecos.fws.gov/ecp/report/table/critical-habitat. htm! (last

visited Aug. 14, 2017).

1]

future designations “will likely increasingly use the

authority to designate specific areas outside the

geographical area occupied by the species at the time of

listing.” 81 Fed. Reg. 7,414, 7,435 (Feb. 11, 2016).

As recognized by this Court, an over-expansive

interpretation of the ESA “imposes unfairness to the

point of financial ruin—not just upon the rich, but upon

the simplest farmer who finds his land conscripted to

national zoological use.” Sweet Home, 515 U.S. at 714

(Scalia, J., dissenting). The issue of whether critical

habitat is limited to habitat of the species must be

resolved because it directly affects how landowners will

manage their private lands, dictates what regulatory

requirements will apply, imposes substantial economic

costs and, sometimes, results in the outright rejection

or cessation of ongoing activities.

B. Review Is Needed to Provide Uniform

Interpretation of the ESA’s Critical Habitat

Requirements

This case emphasizes the compelling need for a

definitive interpretation of what constitutes critical

habitat to ensure consistent implementation

nationwide. In recent years, there has been an

increasing trend of geographically expansive critical

habitat designations. These designated areas span

multiple States and will be subject to inconsistent

standards depending upon which lower court has

jurisdiction.

12

For example, FWS recently designated 38,954

square miles of critical habitat for the Canada lynx. 79

Fed. Reg. 54,782, 54,782 (Sept. 12, 2014). The

designation includes areas of six states in various

geographic regions of the United States (Idaho, Maine,

Minnesota, Montana, Washington, and Wyoming).°

Similarly, NMFS has proposed to designate 4,254 miles

of critical habitat for the Atlantic sturgeon. See 81 Fed.

Reg. 35,701, 35,701 (June 3, 2016); 81 Fed. Reg. 36,078,

36,078 (June 3, 2016). The designation would include

portions of 28 rivers from Maine to Florida, along with

unoccupied habitat upstream of currently impassable

dams on several of these river systems.’

Until the Fifth Circuit’s decision, courts have

unanimously found that the designation of unoccupied

habitat is a “more onerous procedure” and a “more

demanding standard” than the designation of occupied

habitat. E.g., Ariz. Cattle Growers’ Ass’n v. Salazar,

606 F.3d 1160, 1163 (9th Cir. 2010); Home Builders

Ass’n of N. Cal. v. U.S. Fish & Wildlife Serv., 616 F.3d

983, 990 (9th Cir. 2010); Cape Hatteras Pres. All. v.

U.S. Dep't of Interior, 344 F. Supp. 2d 108, 125 (D.D.C.

2004) (“Designation of unoccupied land is a more

extraordinary event [than] designation of occupied

lands.”). The Fifth Circuit drastically diverged from

these decisions by making it less difficult to designate

unoccupied areas as critical habitat, Markle, 848 F.3d

° The designation includes areas that fall within the jurisdiction of

the U.S. Courts of Appeals for the First, Eighth, Ninth, and Tenth

Circuits.

‘The designation includes areas that fall within the jurisdiction of

the U.S. Courts of Appeals for the First, Second, Third, Fourth,

and Eleventh Circuits.

13

at 646 (Jones, J., dissenting), and created considerable

uncertainty regarding the procedures and findings the

Secretary must make regarding a designation of critical

habitat.”

Given the Services’ increasing reliance upon

unoccupied areas to provide for the conservation of

listed species, there is an urgent need for this Court to

provide a uniform interpretation of the applicable

statutory requirements governing the designation of

critical habitat.

Il. The Fifth Circuit Contravened Explicit

Statutory Restrictions on the Designation of

Unoccupied Critical Habitat

A. The ESA’s Plain Language Limits Critical

Habitat to Specific Areas Within Existing

Habitat

The decision below gives the Secretary authority to

designate almost any land or waterbody within the

United States as critical habitat for an ESA-listed

species, even in places where the species could not

currently survive. As the Fifth Circuit erroneously

held, “[tlhere is no habitability requirement in the text

of the ESA or the implementing regulations,” and the

imposition of a habitability requirement would impose

an “extra-textual limit on the designation of unoccupied

land.” Markle, 827 F.3d at 468 (emphasis added). This

* In 2014, FWS proposed to designate critical habitat for the

yellow-billed cuckoo. 79 Fed. Reg. 48,548 (Aug. 15, 2014). The

proposed designation includes areas in Arizona, California,

Colorado, Idaho, Nevada, New Mexico, Texas, Utah, and Wyoming

thereby directly implicating the split of authority between the

Fifth and Ninth Circuits.

14

conclusion contravenes the ESA’s explicit statutory

requirements.

The plain language of Section 4 clearly delineates

“critical habitat” as a subset of “habitat.” The

Secretary can only “designate any habitat of such

species which is then considered to be critical habitat.”

16 U.S.C. § 1533(a)(3)(A)G) (emphasis added). Thus,

“lwlhatever is ‘critical habitat,’ according to this

operative provision, must first be ‘any habitat of such

species." Markle, 848 F.3d at 640 (Jones, J.,

dissenting). This “clear habitability requirement”

dictates the scope of the narrower designation of

occupied and unoccupied areas as critical habitat for a

species.

This Court has emphasized that “[t]he starting

point in discerning congressional intent is the existing

statutory text.” Lamie v. U.S. Trustee, 540 U.S. 526,

534 (2004). And, “when the statute’s language is plain,

the sole function of the courts—at least where the

disposition required by the text is not absurd—is to

enforce it according to its terms.” Jd. As the operative

text in the ESA, the use of “habitat” in Section 4 must

be construed to have meaning. FE.g., TRW Inc. v.

° Other provisions indicate that Congress explicitly focused on

conservation of species’ habitat. F.g., 16 U.S.C. § 1531(b) (“The

purposes of this chapter are to provide a means whereby the

ecosystems upon which endangered and threatened species depend

may be conserved, . . . .”) (emphasis added); 16 U.S.C. § 1536(a\(2)

(“Each Federal agency shall, in consultation with and with the

assistance of the Secretary, insure that any action authorized,

funded, or carried out by such agency ... is not likely to . . . result

in the destruction or adverse modification of habitat of such

species which is determined by the Secretary . . . to be

critical .. . .”) (emphasis added).

15

Andrews, 534 U.S. 19, 31 (2001) (“It is a cardinal

principle of statutory construction that a statute ought,

upon the whole, to be so construed that, if it can be

prevented, no clause, sentence, or word shall be

superfluous, void, or insignificant.”) (internal quotation

marks and citation omitted).

Properly interpreted, critical habitat can only be

designated in areas that are currently habitat for the

species. While not defined in the ESA, “habitat” is

commonly understood to be:

the resources and conditions present in an area

that produce occupancy—including survival and

reproduction—by a given organism. Habitat is

organism-specific; it relates the presence of a

species, population, or individual (animal or

plant) to an area’s physical and _ biological

characteristics. Habitat implies more than

vegetation or vegetation structure; it is the sum

of the specific resources that are needed by

organisms. Wherever an organism is provided

with resources that allow it to survive, that is

habitat.

Linnea 8. Hall, et al., The Habitat Concept and a Plea

for Standard Terminology, 25(1) Wildlife Soc’y Bulletin

173, 175 (1997); John M. Frywell, et al., Wildlife

Ecology, Conservation, & Mgmt. 427 (3d ed. 2014) (“The

place where an animal or plant normally lives, often

characterized by a dominant plant form or physical

characteristic (e.g. soil habitat, forest habitat).”). For

areas that are not currently occupied, this habitability

requirement ensures that the application of the ESA

does not create illogical results. As in the present case,

it is axiomatic that an area where the dusky gopher

16

frog cannot survive (even if relocated there) cannot

provide a conservation benefit to the species. By

divorcing “habitat” from “critical,” the Fifth Circuit’s

reasoning allows almost any area to be designated as

critical habitat with no restrictions on scope or the

attendant regulatory impositions on _ affected

landowners. This is contrary to the explicit statutory

safeguards that Congress provided.

B. The Legislative History Demonstrates That

Congress Intended to Limit Critical

Habitat to a Subset of the Species’ Habitat

As enacted in 1973, the ESA did not contain a

definition of critical habitat or specify how it was to be

designated.” In 1978, the Services promulgated

regulations that defined “critical habitat” as:

any air, land, or water area... and constituent

elements thereof, the loss of which would

appreciably decrease the likelihood of the

survival and recovery of a listed species or a

distinct segment of its population. . . . Critical

habitat may represent any portion of the present

The only reference to critical habitat in the 1973 ESA was the

prohibition on federal agencies taking action that “jeopardize the

continued existence of such endangered species and threatened

species or result in the destruction or modification of habitat of

such species which is determined by the Secretary . . . to be

critical.” Endangered Species Act of 1973, Pub. L. No. 93-205 § 7,

87 Stat. 884,892. Congress intended that critical habitat would be

acquired and protected pursuant to ESA Section 5. /d. § 5, 87 Stat.

889; H.R. Rep. No. 93-740, at 25 (1973) (“Any effective program for

the conservation of endangered species demands that there be

adequate authority vested in the program managers to acquire

habitat which is critical to the survival of those species.”)

(emphasis added).

17

habitat of a listed species and may_ include

additional areas for reasonable population

expansion.

43 Fed. Reg. 870, 874-75 (Jan. 4, 1978) (emphasis

added). Shortly thereafter, this Court enjoined the

construction of the Tellico Dam to protect the snail

darter and prevent the destruction of its critical

habitat. Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184

(1978) (“t]he plain intent of Congress in enacting this

statute was to halt and reverse the trend toward

species extinction, whatever the cost.”). In response to

these events, and the significant economic implications,

Congress amended the ESA to explicitly define critical

habitat and limit the scope of such designations.

Congress's efforts demonstrate a clear intention

that critical habitat designations are limited to areas

that are habitable by the species and that unoccupied

habitat should only be designated sparingly based upon

heightened criteria. For example, House Bill 14104

defined unoccupied critical habitat as:

specific areas periodically inhabited by the

species which are outside the geographic area

occupied by the species at the time it is listed in

accordance with the provisions of section 4 of

this Act (other than any marginal habitat the

species may be inhabiting because of pioneering

efforts or population stress), upon a

determination by the Secretary at the time it is

listed that such areas are essential for the

conservation of the specics.

124 Cong. Rec. 38,154 (1978) (emphasis added). The

House Committee on Merchant Marine and Fisheries

18

noted that efforts to define critical habitat were driven

by the concern that “the existing regulatory definition

could conceivably lead to the designation of virtually all

of the habitat of a listed species as its critical

habitat.”"’ H.R. Rep. No. 95-1625, at 25 (1978)

(emphasis added). Instead, the Committee directed the

Secretary to “be exceedingly circumspect in the

designation of critical habitat outside the presently

occupied area of the species.” Jd. at 18 (emphasis

added).

The corresponding Senate Bill 2899 also included a

definition of unoccupied critical habitat, which limited

it to:

specific areas outside the geographical area

occupied by the species at the time it is listed in

accordance with the provisions of section 4 of

this act, into which the species can be expected

to expand naturally upon a determination by the

Secretary at the time it is listed, that such areas

ure essential for the conservation of the specics.

'' During floor debate on the House Bill, Representative Bowen

stated that “I believe the majority of the House is in agreement on

that, that the Office of Endangered Species has gone too far in just

designating territory as far as the eyes can see and the mind can

conceive. What we want that office to do is make a very careful

analysis of what is actually needed for survival of this species.”

124 Cong. Rec. 38,131 (1978) (emphasis added).

19

124 Cong. Rec. 21,355 (1978) (emphasis added).’” For

unoccupied areas, the Senate Committee on

Environment and Public Works stated that “|t|here

seems to be little or no reason to give exactly the same

status to lands needed for population expansion as is

given to those lands which are critical to a species|’|

continued survival.””’ S. Rep. No. 95-874, at 10 (1978)

(emphasis added).

The final bill passed by Congress included “la|n

extremely narrow definition of critical habitat,

virtually identical to the definition passed by the

House.” 124 Cong. Rec. 38,665. That definition

remains in effect today. The legislative history clearly

demonstrates that Congress was focused on habitat of

species which could then be designated as either

occupied or unoccupied critical habitat if the area

satisfied the relevant definitional criteria. Markle, 848

F.3d at 642 n.4 (Jones, J., dissenting) (“uniform

awareness in Congress that a species’ critical habitat

was a subset of the species’ habitat”). Contrary to the

' Regarding his amendment, Senator McClure explained that “this

is in response to the difficulty of how large an area should there be

established and if that species then expands beyond that arca

must humans then be displaced in that area.” /d.

‘* In explaining the role of critical habitat, Senator Garn stated

that “[w]hen a Federal land manager begins consideration of a

project, or an application for a permit, it is essential that he know,

not only of the existence of an endangered species, but also of the

extent and nature of the habitat that is critical to the continued

existence of that species. Unless he knows the location of the

specific sites on which the endangered species depends, he may

irrevocably commit Federal resources, or permit the commitment

of private resources to the detriment of the species in question.”

124 Cong. Rec. 21,575 (1978) (emphasis added).

20

Fifth Circuit’s conclusion, this habitability requirement

was understood by Congress at the outset and

incorporated into the operative provisions of the ESA.

C. To Be Essential for the Conservation of the

Species, an Unoccupied Area Cannot Be

Based on the Presence of a Single, Non-

Determinative Feature

The Fifth Circuit found that “only occupied habitat

must contain all of the relevant [physical or biological

features},” and upheld the designation of the

unoccupied Unit 1 despite it only containing one of the

three features that are essential to the conservation of

the species. Markle, 827 F.3d at 468 & 472 n.20. The

decision illogically establishes that the same

conditions—a lack of all relevant physica! or biological

features—can justify the designation of an unoccupied

area, but not an occupied area, as critical habitat. This

is contrary to Congressional intent and erroneously

lowers the bar for designating unoccupied critical

habitat.

The ESA, its legislative history, and co::rt precedent

all unquestionably demonstrate that “an unoccupied

critical habitat designation was intended to be different

from and more demanding than an occupied critical

habitat designation.” Markle, 848 F.3d at 648 (Jones,

J., dissenting). In defining critical habitat, Congress

explicitly distinguished between occupied and

unoccupied habitat. Occupied habitat requires the

presence of “features [that are] essential to the

conservation of the species.” 16 U.S.C. § 1532(5A)(i)

(emphasis added). Conversely, unoccupied habitat

requires “specific areas . . . [that] are essential to the

conservation of the species.” /d. § 1532(5)(A)(ii)

21

(emphasis added). From a biological perspective, the

use of “features” for occupied habitat and “areas” for

unoccupied habitat is inherently logical. An already

occupied area is, by definition, habitat for the species,

so a focus on physical or biological features ensures

that the critical components of that habitat are

identified. Because unoccupied areas may or may not

have habitat, the analysis must expand beyond mere

features to consider the habitability of the area as a

whole, otherwise the designation would provide no

conservation benefit to the species.

The use of these disparate statutory

terms—‘“features” versus “areas”—clearly connotes that

different standards apply to the designation of occupied

and unoccupied habitat. United States v. Gonzales, 520

U.S. 1, 5 (1997) (“Where Congress includes particular

language in one section of a statute but omits it in

another section of the same Act, it is generally

presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion”)

(citation omitted). To give these terms independent

meaning, the designation of unoccupied habitat must

require more than the presence of a single feature.

Disregarding this statutory construct, the Fifth

Circuit contradicted all relevant precedent by making

“it easier to designate as critical habitat the land on

which the species cannot survive than that which is

occupied by the species.” Markle, 848 F.3d at 646

(Jones, J., dissenting). In contrast, the Ninth Circuit

stated:

The statute thus differentiates between

“occupied” and “unoccupied” areas, imposing a

more onerous procedure on the designation of

22

unoccupied areas by requiring the Secretary to

make a showing that unoccupied areas are

essential for the conservation of the species.

Ariz. Cattle Growers’, 606 F.3d at 1163; see also Home

Builders, 616 F.3d at 990 (designation of unoccupied

habitat “is a more demanding standard than that of

occupied critical habitat”). The district courts have also

concluded that the designation of unoccupied habitat

requires more than the standard for designating

occupied areas. E.g., Cape Hatteras, 344 F. Supp. 2d at

119 (“with unoccupied areas, it is not enough that the

area’s features be essential to conservation, the area

itself must be essential”); All. for Wild Rockies v. Lyder,

728 F. Supp. 2d 1126, 1138 (D. Mont. 2010) (“ESA

imposes a more onerous procedure on the designation

of unoccupied areas”); Ctr. for Biological Diversity v.

Kelly, 93 F. Supp. 3d 1193, 1202 (D. Idaho 2015) (“more

demanding [standard] than that of unoccupied

habitat”). The Fifth Circuit’s anomalous decision is

contrary to established case law, and _ subverts

Congressional intent and the ESA statutory criteria

which impose a_ heightened standard for the

designation of unoccupied critical habitat.""

'* In adopting the definition of “critical habitat” Congress sought

to constrain the ability of the Secretary to designate unoccupied

habitat. The Senate found that there is “little or no reason to give

exactly the same status to lands needed for population expansion

as is given to those lands which are critical to a species[‘] continued

survival.” S. Rep. No. 95-874 at 10 (emphasis added). Likewise,

the House directed the Secretary to be “exceedingly circumspect in

the designation of critical habitat outside the presently occupied

area of the species.” H.R. Rep. No. 95-1625 at 18 (emphasis

added).

23

Furthermore, the Fifth Circuit’s decision

extinguishes the statutory criterion that “such areas

are essential for the conservation of the species.” 16

U.S.C. § 1532(5)(A)(ii). As informed by the definition

of “essential,” the designated habitat must be “of the

utmost importance” or “indispensable” for the

conservation of a species. Merriam-Webster’s Collegiate

Dictionary 427 (lith ed. 2005). Congress clearly

understood that its use of “essential” would impose a

stringent limitation on the areas that could be

designated as critical habitat." An area that only

contains a single feature, which by itself would not

sustain the species, cannot be “essential.” The

operative effect of this term is particularly apparent

where, as here, the unoccupied area is not connected to

occupied areas, would require extensive modifications

and annual maintenance to become suitable habitat,

and is not subject to current or anticipated restoration

efforts or conservation measures. Markle, 827 F.3d at

481 (Owens, J., dissenting). By upholding the

designation of Unit 1, the Fifth Circuit removed any

principled limitation on the Secretary’s ability to

designate critical habitat and rendered this authority

“virtually limitless.”"© Markle, 848 F.3d at 649-51

'* As Representative Duncan explained, “I think that in order to be

consistent with the purposes of this bill to preserve critical habitat

that there ought to be a showing that it is essential to the

conservation of the species and not simply one that would

appreciably or signiticantly decrease the likelihood of conserving

it.” 124 Cong. Rec. 38,154 (emphasis added).

“In part, the Fifth Circuit justified its decision based upon a then-

existing regulatory requirement that the Secretary could only

designate an unoccupied area as critical habitat “when a

designation limited to its present range would be inadequate to

24

(Jones, J., dissenting). This is contrary to what

Congress intended and what the ESA explicitly

commands.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

WILLIAM R. MURRAY TYSON C. KADE

NATIONAL ALLIANCE Counsel of Record

OF FOREST OWNERS JOSEPH B. NELSON

122 C Street, N.W. VAN NESS FELDMAN, LLP

Suite 630 1050 Thomas Jefferson St., N.W.

Washington, D.C. 20001 Washington, D.C. 20007

(202) 747-0742 (202) 298-1800

tck@vnf.com

ELLEN STEEN KATIE SWEENEY

DANIELLE QUIST ADAM ECKMAN

AMERICAN FARM NATIONAL MINING

BUREAU FEDERATION ASSOCIATION

600 Maryland Ave.,S.W. 101 Constitution Ave., N.W.

Suite 1000W Washington, D.C. 20001

Washington, D.C. 20024 (202) 463-2600

(202) 406-3600

Counsel for Amici Curiae

August 14, 2017

ensure the conservation of the species.” Markle, 827 F.3d at 470

(citing 50 C.F.R. § 424.12(e)). The Services have subsequently

deleted this requirement from their regulations. See 81 Fed. Reg.

at 7,434.