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

WEYERHAEUSER COMPANY,

Petitioner,

v.

UNITED STATES FISH AND WILDLIFE SERVICE, ET AL.,

Respondents.

MARKLE INTERESTS, L.L.C., ET AL.,

Petitioners,

v.

UNITED STATES FISH AND WILDLIFE SERVICE, ET AL.,

Respondents.

On Petitions for Writs of Certiorari To The United

States Court Of Appeals For the Fifth Circuit

BRIEF OF AMICI CURIAE

THE NATIONAL ASSOCIATION OF HOME

BUILDERS and AMERICAN FOREST

RESOURCE COUNCIL SUPPORTING

PETITIONERS

LAWSON E. FITE THOMAS J. WARD*

SARA GHAFOURI JEFFREY B. AUGELLO

AMERICAN FOREST NATIONAL ASSOCIATION

RESOURCE COUNCIL OF HOME BUILDERS

5100 S.W. Macadam 1201 15th Street, N.W.

Ave., Ste 350 Washington, D.C. 20005

Portland, OR 97239 (202) 266-8200

(503) 222-9505 * Counsel of Record

Library ef Congeum

Law Lavery

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Amicus

National Association of Home Builders (“NAHB”)

states that it is a non-profit 501(c)(6) corporation

incorporated in the State of Nevada, with its

principal place of business in Washington, D.C.

NAHB has no corporate parents, subsidiaries or

affiliates, and no publicly traded stock. No publicly

traded company has a ten percent or greater

ownership interest in NAHB.

Amicus American Forest Resource Council (“AFRC”)

is an Oregon non-profit corporation with its

principal place of business in Portland, Oregon.

AFRC has no corporate parents, subsidiaries or

affiliates and does not issue stock. No publicly-held

company has a ten percent or greater ownership of

AFRC.

TABLE OF CONTENTS

Page(s)

INTEREST OF AMICI CURIAE.............. a eaaesaiaie 1

SUMMARY OF ARGUMENT ........000000000000000....... 3

a cntsidnniingveustoene 4

I. THE COURT OF APPEALS’ APPROACH

IMPROPERLY APPLIES SCIENTIFIC

DEFERENCE TO A LEGAL QUESTION ... 4

Il. THE SERVICE’S DESIGNATION

OF UNINHABITABLE AREAS

AS CRITICAL HABITAT WILL INFLICT

SEVERE COSTS ON LANDOWNERS

AND THE AVERAGE CITIZEN WITH

NO CORRESPONDING BENEFITS TO

an tad ds cnstnidaacgnensesensaneenceccees 8

Ill. THESE PETITIONS RAISE

IMPORTANT QUESTIONS UNDER

THE NONDELEGATION DOCTRINE ..... 16

| cuiaatcswenvannenieusuctese 21

il

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott Labs. v. Gardner,

387 U.S. 136 (1967), abrogated on other grounds

by Califano v. Sanders, 430 U.S. 99 (1977)........ 16

Air Wisconsin Airlines Corp. v. Hoeper,

ERIE AC RRTREE Taeee 5

Alliance for the Wild Rockies v. Lyder,

728 F.Supp.2d 1126 (D. Mont. 2010).................. 11

Bennett v. Spear, 520 U.S. 154 (1997).....0...0...... 3, 20

Cape Hatteras Access Pres. All. v.

U.S. Dep't of the Interior, 344 F. Supp. 2d 108

i eee eeentiaiaiapeies 4

Carpenters Indus. Council v. Zinke, 854 F.3d 1

I I la ca 14

Decker v. Northwest Envtl. Def. Ctr.,

ARE PES LS A 7

Gustafson v. Alloyd Co., 513 U.S. 561 (1995).......... 5

Heckler v. Chaney, 470 U.S. 821 (1985) .............. ae

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

Wildlife Serv., 616 F.3d 983 (9th Cir. 2010) ........ 7

Indus. Union Dep't, AFL-CIO v.

Am. Petroleum Inst., 448 U.S. 607 (1980).....18, 19

TABLE OF AUTHORITIES (cont.)

Page(s)

J.W. Hampton, -Jr., & Co. v. United States,

I a ceicasptiacedanaiia 18

Lincoln v. Vigil, 508 U.S. 182 (19983)................0.... 17

Loving v. United States, 517 U.S. 748 (1996) ....... 18

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

& Wildlife Serv., 848 F.3d 635

REE a ee 8, 10, 15-16

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

& Wildlife Serv., 827 F.3d 452

2 ES 6, 7, 9, 13, 15-16, 17

Marshall Field & Co. v. Clark,

a enaummomuibenein 18

Medina County Envtl. Action Ass’n v. Surface

Transp. Bd., 602 F.3d 687 (5th Cir. 2010) ........... 6

Taniguchi v. Kan Pacific Saipan, Ltd.,

566 U.S. 560, 132 S. Ct. 1997 (2012)..............0..... 5

Whitman v. Am. Trucking Ass’ns,

gL ce ST es a 18

Yakus v. United States, 321 U.S. 414 (1944) ... 18-19

lV

TABLE OF AUTHORITIES (cont.)

Page(s)

CONSTITUTIONAL,

STATUTORY, AND

REGULATORY PROVISIONS

Ee SIRE nae nN 3, 16, 18

5 U.S.C. § 701(a)(2) ......-.----------.- eae 16, 18, 19, 20

ee iis scctesinilelinpsiaiinlbenasiatie 4

ee a i i erscreniniseshomencateenaniavemens 4-5

5 ks ESE OEE TENTS rer 5

| RS. EERE ene eran eat 4

Cg Ee ETE

cs shnadichindebcial 17, 20

Oe I piiictiecenerinnspescstennnnvencsinn’ 11-12

nn a aera inmepenieesoanogions 20

I ii icc seetnedpastahsedemanninaccninil 12

H.R. REP. 95-1625 (1978), reprinted in

1978 U.S.C.C.A.N. 9453, 1978 WL 8486.............. 8

i ee 12

50 C.F.R. § 424.12(b)(5) (2012) 00... ecececececsceceseeceeee 4

Vv

TABLE OF AUTHORITIES (cont.)

Page(s)

Endangered and Threatened Wildlife and Plants;

Final Rule to Designate Critical Habitat for the

Santa Ana Sucker (Catostomus santaanae),

70 Fed. Reg. 426 (Jan. 4, 2005) ......00.00.000-ee. 7

Endangered and Threatened Wildlife and

Plants; Designation of Critical Habitat for

Dusky Gopher Frog, 77 Fed. Reg. 35,118

I edoemaail 6, 8, 9, 10, 13

Endangered and Threatened Wildlife and Plants;

Designation of Revised Critical Habitat for the

Northern Spotted Owl, 77 Fed. Reg. 71,876

AAS NAS OES EE Tere HP 13-15

MISCELLANEOUS

Amee B. Bergin, Does Application of the APA's

“Committed to Agency Discretion” Exception

Violate the Nondelegation Doct: »e?

28 B.C. ENVTL. AFF. L. REV. 363 (2001).............. 19

Paul Emrath, Government Regulation in the Price

of a New Home, Special Studies (May 2, 2016).. 11

Norman James and Thomas J. Ward, Critical

Habitat’s Limited Role Under the Endangered

Species Act and its Improper Transformation

into “Recovery” Habitat, 34 UCLA J. ENVTL. L.

GL A SCs pare 12-13

vl

TABLE OF AUTHORITIES (cont.)

Page(s)

Viktoria Lovei, Revealing the True Definition

of APA S 701(a)(2) by Reconciling “No Law

to Apply” with the Nondelegation Doctrine,

73 U. CHI. L. REV. 1047 (2006).......................00... 19

David Sunding, The Brattle Group, Economic

Incentive Effects of EPA’s After-the-Fact Veto

of a Section 404 Discharge Permit Issued to

Arch Coal (May 30, 2011) ..........................ccccc00.000. 12

Melinda Taylor, et. al., Protecting Species or

Endangering Development? How Consultation

Under the Endangered Species Act Affects

Energy Products on Public Lands, Kay

Bailey Hutchison Center for Energy, Law

& Business, Research Paper No. 2016-03

SIRES SERRE ET CRG NS ala SE Re 9

Andrew J. Turner and Kerry L. McGrath,

A Wider View of the Impacts of Critical

Habitat Designation, 43 ENVTL. L. REP.

NEws & ANALYSIS 10678 (August 2013) ............. 10

Institute for Water Resources, The Mitigation

Rule Retrospective: A Review of the 2008

Regulations Governing Compensatory

Mitigation for Losses of Aquatic Resources,

2015-R-03 (October 2015) ...........0......00cc cece. 12

Industrial Economics, Inc., Economic

Analysis of Critical Habitat

Designation for the Dusky Gopher Frog,

RE RS Seal Oat RS lA )

INTEREST OF AMICI CURIAE!

The National Association of Home _ Builders

(“NAHB”) is a Washington, D.C.-based trade

association whose mission is to enhance the climate

for housing and the building industry. Chief among

NAHB’s” goals is' providing and expanding

opportunities for all people to have safe, decent, and

affordable housing. Founded in 1942, NAHB is a

federation of more than 700 state and local

associations. About one-third of NAHB’s

approximately 140,000 members are home builders

or remodelers, and account for 80% of all homes

constructed in the United States.

Many of NAHB’s members, such as Petitioners, are

private landowners with reasonable expectations

regarding the lawful use of their property. Since a

predominant number of the species protected under

the Endangered Species Act (“ESA”) have the major

share of their habitat on private land, critical

habitat decisions significantly impact NAHB’s

members.

The American Forest Resource Council (““AFRC”) is

a regional trade association whose purpose is to

advocate for sustained-yield timber harvests on

' Counsel of record for all parties received notice at least

10 days prior to the due date of the amici curiae’s intention to

file this brief. Letters of consent are on file with the Clerk. 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.

2

public timberlands throughout the West to enhance

forest health and resistance to fire, insects, and

disease. AFRC promotes active management to

attain productive public forests, protect the value

and integrity of adjoining private forests, and assure

community stability. It works to improve federal and

state laws, regulations, policies and decisions

regarding access to and management of public forest

lands and protection of all forest lands. AFRC

represents over 50 forest product businesses and

forest landowners throughout California, Idaho,

Montana, Oregon, and Washington. Many of AFRC’s

members have their operations in communities

adjacent to federal and state forestlands, and the

management of these lands ultimately dictates not

only the viability of their businesses, but also the

economic health of the communities themselves.

AFRC’s members, and the communities in which

they work, have been affected by reductions in

timber harvest resulting from critical habitat

designations, on federal, state, and private land, for

species such as northern spotted owl, marbled

murrelet, and Canada lynx. AFRC members’ timber

contracts have been suspended, slowed or cancelled

as a result of overbroad critical habitat designations.

Overbroad designations also threaten AFRC

member interests in forest health, federal timber

supply, and private forest land because those

designations impede forest management projects

that promote forest health and provide timber

supply.

3

SUMMARY OF ARGUMENT

The Fifth Circuit upheld the Fish and Wildlife

Service's (“the Service”) designation of Unit 1 as

unoccupied critical habitat, even though the Service

recognized that the area was not suitable habitat for

the gopher frog. By deferring to the Service's

designation, the court below failed to heed the strict

statutory standards on the designation of critical

habitat.

Consequently, by allowing the Service to employ

such broad authority, the Fifth Circuit’s decision

will have enormous economic impacts on industries

like home building and forestry that rely on the use

of private and public lands.

Finally, the Fifth Circuit found that it could not

review the Service’s decision not to exclude the

Petitioner's property from its critical habitat

determination because, in its view, Congress failed

to provide a standard by which to review the

Service’s decision. The Fifth Circuit’s holding

conflicts with this Court’s decision in Bennett v.

Spear, 520 U.S. 154 (1997), and raises serious

constitutional questions under Article I.

For these reasons, amici respectfully request that

the Court grant certiorart.

4

ARGUMENT

1. THE COURT OF APPEALS’ APPROACH

IMPROPERLY APPLIES SCIENTIFIC

DEFERENCE TO A LEGAL QUESTION.

The Fifth Circuit’s decision is at odds with the

structure of the Endangered Species Act (“ESA”). As

such, it represents a troubling expansion of the

Service's narrow delegated authority, essentially

authorizing the Service, though the vehicle of

Chevron deference, to rewrite the statute. Certiorari

is warranted to establish a uniform standard for

critical habitat designation that is a permissible

construction of the statute.

The ESA allows the Service to designate critical

habitat that is either “occupied” or “unoccupied” by

the listed species. 16 U.S.C. § 1532(5)(A). Occupied

habitat must include “those physical or biological

features (I) essential to the conservation of the

species and (Il) which may require special

management considerations or protection[.|” 16

U.S.C. § 1532(5)(A)(G)?. The features in clause (1) are

called primary constituent elements or PCEs by the

Service. See Cape Hatteras Access Pres. All. v. U.S.

Dep't of the Interior, 344 F. Supp. 2d 108, 120-21

(D.D.C. 2004); 50 C.F.R. § 424.12(b)(5) (2012). On

the other hand, unoccupied critical habitat may be

designated only “upon a determination by the

Secretary that such areas are essential for the

2 Cf. 16 USC. § 1532(5)(C)(“Except in those

circumstances determined by the Secretary, critical habitat

shall not include the entire geographical area which can be

occupied by the threatened or endangered species.”).

5

conservation of the _ species.” 16 U.S.C. §

1532(5)(A)(i1).

Occupied critical habitat is a subset of the range of

the species at the time of listing; it includes “specific

areas within the geographical area occupied by the

species....”. 16 U.S.C. § 1532(5)(A)(i). Similarly,

unoccupied critical habitat is a subset of the area

outside the species’ range; it includes “specific areas

outside the geographical area occupied by the

species....” 16 U.S.C. § 1532(5)(A)(ii). Despite this

parallel structure, subsection (ii) does not recite the

specific requirements that are listed for occupied

critical habitat. Instead, the reference to “essential”

is legislative shorthand. And the use of “specific

areas’ in both sections carries with it the “cluster of

ideas” embodied in the definition of occupied habitat.

Cf., e.g., Air Wisconsin Airlines Corp. v. Hoeper, 134

S. Ct. 852, 861-62 (2014). That is, both types of

critical habitat must contain PCEs, those biological

or physical features essential to the conservation of

the species.

Moreover, “it is a normal rule of statutory

construction that identical words used in different

parts of the same act are intended to have the same

meaning.” Taniguchi v. Kan Pacific Saipan, Ltd.,

566 U.S. 560, 1382 S. Ct. 1997, 2004—05 (2012)

(citations and quotation marks omitted). Acts of

Congress “should not be read as a series of unrelated

and isolated provisions.” Gustafson v. Alloyd Co.,

Inc., 513 U.S. 561, 570 (1995). As such, the use of

“essential” in paragraph (A)(ii) carries the standards

listed in paragraph (A)(i) to guide the Secretary's

determination. If Congress wanted the Secretary to

6

have a freer hand, it would have said something—

anything—other than “essential.” But it did not.

The Service concedes that Unit 1 does not contain all

the PCEs of critical habitat, and no one contends

otherwise. Instead, it determined this unit was

“essential to the conservation of the species”

because this species is at high risk of

extirpation from stochastic events, such as

disease or drought, and from demographic

factors such as inbreeding depression. The

establishment of additional populations

beyond the single site known to be occupied at

listing is critical to protect the species from

extinction and provide for the _ species’

eventual recovery.

77 Fed. Reg. 35,118, 35,121 (Jume 12, 2012); see id.

at 35,132.

The Fifth Circuit gave the Service’s definition

controlling weight, combining Chevron deference

with the deference owed to an agency making

scientific determinations. Markle Interests, L.L.C. v.

U.S. Fish & Wildlife Serv., 827 F.3d 452, 464-65 (5th

Cir. 2016) (discussing Chevron, U.S.A., Inc. v. Nat.

Res. Def. Council, Inc., 467 U.S. 837 (1984)). It cited,

with hearty approval, to Medina County Envitl.

Action Ass'n v. Surface Transp. Bd., 602 F.3d 687,

699 (5th Cir. 2010) for the proposition that “[w]here

an agencys particular technical expertise is

involved, we are at our most deferential in reviewing

the agency’s findings.” Markle, 827 F.3d at 465

(emphasis added). In any further litigation

regarding impacts on gopher frog critical habitat,

7

the Service will get a third layer of deference as it

interprets its own critical habitat regulation. See,

e.g., Decker v. Northwest Envtl. Def. Ctr., 568 U.S.

597, 613-14 (2013); Home Builders Ass'n of N. Cal.

v. U.S. Fish & Wildlife Serv., 616 F.3d 983, 991 (9th

Cir. 2010).

This “super-deference” led the court astray. Instead

of evaluating whether the Service's interpretation of

the statute was reasonable, as a legal matter, it in

effect deferred to the Service’s _ scientific

determination in assessing whether the designation

survived Chevron step two. Markle, 827 F.3d at 464-

465. Applying scientific deference to statutory

interpretation takes Chevron too far. The Service's

disregard of the statutory standards for critical

habitat designation and the Fifth Circuit’s use of

Chevron to authorize amendment by regulation,

have national effects of significant importance.

As a policy matter, the Service’s use of a relaxed

threshold for unoccupied critical habitat, not

requiring presence of all the PCEs when outside the

species’ range may have some logic to it. Because of

the “jeopardy” protection for listed species,

designation of occupied critical habitat is arguably

redundant and therefore less important. Indeed, the

Service has stated in the past that “the designation

of statutory critical habitat provides little additional

protection to most listed species, while consuming

significant amounts of available conservation

resources.” Endangered and Threatened Wildlife

and Plants; Final Rule to Designate Critical Habitat

for the Santa Ana Sucker (Catostomus santaanae),

70 Fed. Reg. 426 (Jan. 4, 2005). But that is not the

8

way Congress wrote the statute. In keeping with its

intent that the agency be “exceedingly circumspect

in the designation of critical habitat outside of the

presently occupied area of the species,”* Congress

imposed specific requirements that the Service must

mect. The Fifth Circuit erred in allowing the Service

to disregard those requirements.

Il. THE SERVICE’S DESIGNATION

OF UNINHABITABLE AREAS AS

CRITICAL HABITAT WILL INFLICT

SEVERE COSTS ON LANDOWNERS

AND THE AVERAGE CITIZEN WITH

NO CORRESPONDING BENEFITS

TO SPECIES.

“Critical-habitat designation is consequential.”

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

Serv., 848 F.3d 635, 638 (5th Cir. 2017) (dissenting

from denial of reh’g en banc) (“Markle Interests”).

The Fifth Circuit’s deference to the Service’s

interpretation of “essential” is problematic because

it allows designation of lands that “do not currently

contain the essential physical or biological features

of critical habitat.” See 77 Fed. Reg. 35,118, 35,135

(June 12, 2012); see also id. at 35,129 (noting that

Unit 1 is a “closed-canopy forest unsuitable as

habitat for dusky gopher frogs” that do not contain

the PCEs of critical habitat). As Judge Owen’s

dissenting opinion correctly observed, under this

definition of “essential,” then “vast” areas “could be

designated as ‘critical habitat’ because it is

s H.R. REP. 95-1625, at 18 (1978), reprinted in

1978 U.S.C.C.A.N. 9453, at 9468, 1978 WL 8486.

9

theoretically possible, even if not probable, that land

could be modified to sustain the introduction or

reintroduction of an endangered species.” Markle,

827 F.3d at 481 (Owen, J., dissenting).

For the Louisiana landowners, whose 1,544 acres

(“Unit 1”) have been designated unoccupied critical

habitat for the dusky gopher frog, the Service has

calculated a $33.9 million loss in residential and

commercial development opportunities. 77 Fed. Reg.

at 35,118, 35,141. This conservative figure does not

account for the lost option on foreseeable oil and gas

development, mineral development, timber harvest,

recreational use or hunting leases.‘ It also

understates the true costs of Section 7 consultation

and wholly fails to consider the expensive and time-

consuming pre-consultation process.5 A complete

‘ Landowners have offered the Service verifiable proof of

on-site untapped oil and gas reserves of $17.1 million, mineral!

deposits of up to $247,350, timber resources of $6.93 million

and annual hunting lease revenues of $9,844. Industrial

Economics, Inc., Economic Analysis of Critical Habitat

Designation for the Dusky Gopher Frog, 4-1, 4-5, 4-8, 4-9 (April

6, 2012) available at _ https://www.regulations.gov/

document?D=FWS-R4-ES-2010-0024-0157 (last visited Aug. 8,

2017).

Computation of only the time and level of effort spent

following the “official” start of consultation underrepresent the

true cost of the consultation process. A recent study out of the

University of Texas found that pre-consultation lasts 8 months

or more, depending on the scope of the project. Melinda Taylor,

et. al., Protecting Species or Endangering Development? How

Consultation Under the Endangered Species Act Affects Energy

Products on Public Lands, Kay Bailey Hutchison Center for

Energy, Law & Business, Research Paper No. 2016-03, p.8

(Aug. 2016) available at http://sites.utexas.edu/

10

picture would further have considered the costs of

actions likely to be undertaken by the landowners

outside of the consultation process, such as a

reduction in the development’s buildable envelope to

avoid the difficulties and expense of formal

consultation. See Andrew J. Turner and Kerry L.

McGrath, A Wider View of the Impacts of Critical

Habitat Designation, 43 ENvTL. L. REP. NEws &

ANALYSIS 10678 (August 2013) (discussing efforts

undertaken by landowners before and after

consultation to avoid the even greater costs and

burdens of formal consultation). Despite the

Service’s failure to quantify any direct monetary or

“biological” benefits to the frog flowing from the

designation, it found its “economic impact analysis

did not identify any disproportionate costs.” 77 Fed.

Reg. at 35,141. In contrast, the six judges who

dissented from denial of en banc review described

the findings of the impact analysis as “shocking,”

particularly so in light of the fact that “there is

virtually nothing on the [benefit] side of the

economic ledger.” Markle Interests, 848 F.3d at 653.

The Service’s flawed economic analysis clearly

merits further review.

As detailed above, the project-level toll of a critical

habitat designation can be immediate and

significant, “resulting in substantial additional

project costs, if not destroying the projects’ economic

viability.” Turner & McGrath at 10681. However,

the bigger story here is the regulatory trickle-down

to the consumer. A recent study by NAHB reveals

kbhenergycenter/files/2016/08/ESA-Report.pdf (last visiied

Aug. 7, 2017).

1]

that, on average, compliance with regulation during

lot development accounts for 14.6 percent of the final

price of a new single-family home. Equally

disturbing is the fact that the cost of regulation

during development, which is ultimately added onto

the lot price when a home is sold, is rising more than

twice as fast as the average American’s ability to pay

for it. Paul Emrath, Government Regulation in the

Price of a New Home, p. 5, 8, Special Studies (May 2,

2016), available at https://www-.nahbclassic.org/

generic.aspx?section! D=734&genericContentID=25

0611&channelI[D=311. The designation of backup

critical habitat that is presently uninhabitable but

that may “someday become useful to the [listed

species]” will only fuel this alarming trend. Alliance

for the Wild Rockies v. Lyder, 728 F.Supp.2d 1126,

1142-1143 (D. Mont. 2010). Absent an unoccupied

critical habitat designation, the ESA and the

avalanche of regulatory costs that follow would not

apply to private land.

Consider that the most common type of federal

permit requiring Section 7 consultation with wildlife

agencies is a permit authorizing the discharge of

dredge or fill material into waters of the United

States.© These permits are issued by the Army

6 Under Section 7(a)(2) of the ESA (16 US.C. §

1536(a)(2)), each federal agency must consult with the Service

to “insure that any action authorized, funded, or carried out by

such agency is not likely to jeopardize the continued existence

of any endangered species or [ . . . | result in the destruction or

adverse modification of [critical] habitat of such species.” 16

U.S.C. § 1536(a)(2). Agency regulations define federal agency

“action” to include the issuance of permits for projects carried

12

Corps of Engineers (“Corps”) and are authorized

under Section 404 of the Clean Water Act (“CWA”).

33 U.S.C. § 1344. They rank amongst the most

common, if not the most common, permit that

developers must obtain to provide housing for the

nation’s citizens. Annually, the Corps issues

approximately 72,000 Section 404 permits (13-year

average), and “over $220 billion of investment

annually is conditic xed on the issuance of these

discharge permits.” David Sunding, The Brattle

Group, Economic Incentive Effects of EPA’s After-

the-Fact Veto of a Section 404 Discharge Permit

Issued to Arch Coal, p. 1 (May 30, 2011);’? Institute

for Water Resources, The Mitigation Rule

Retrospective: A Review of the 2008 Regulations

Governing Compensatory Mitigation for Losses of

Aquatic Resources. 2015-R-03, p. 25-26 (October

2015).8

As highlighted by the designation of Unit 1, the

Service has become “increasingly aggressive in

exploiting the Section 7 consultation process to

control how land and water resources are used.”

Norman James and Thomas J. Ward, Critical

Habitat’s Limited Role Under the Endangered

Species Act and its Improper Transformation into

out by private development interests. 50 C.F.R. § 402.02

(2016).

7 Available at http://www.chamberlitigation.com/sites/

default/files/cases/files/20 1 1/Mingo%20Logan%20Coal%20Co

%20Inc%20v.%20EPA% 20% 28S unding% 20Economic%20Stud

y%29.pdf (last visited Aug. 8, 2017).

8 Available at http://www.iwr.usace.army.mil/Portals/

70/docs/iwrreports/20 15-R-03.pdf (last visited Aug. 7, 2017).

13

“Recovery” Habitat, 34 UCLA J. ENVTL. L. & POL’Y 1,

6-7 (2016). The Endangered Species Act does not

permit the Government to designate an area as

‘critical habitat,’ and therefore use that designation

as leverage against the landowners, based on one

feature of an area when that one feature cannot

support the existence of the species and significant

alterations to the area as a whole would be required.

Markle, 827 F.3d at 481 (Owen, J., dissenting).

However, the Service has done just that with Unit 1.

Through a CWA 404 permit nexus it has triggered

the ESA and federalized the entire property for

purposes of Section 7. With this, it has

“recommend{ed] that no development occur within

the unit” or, perhaps, may allow 40 percent of the

unit to be developed under the “hope to work with

the landowners to develop a strategy that will allow

them to achieve their objectives for the property and

protect the isolated, ephemeral ponds that exist

there.” 77 Fed. Reg. at 35,141; id. at 35,123.

Similarly, this “unprecedented and sweeping”

interpretation of unoccupied habitat is economically

disastrous for industries dependent on public

lands—like forest product manufacturers. A

quintessential example is the designation of critical

habitat for the northern spotted owl, one of the most

controversial wildlife species listed under the ESA.

In 2012, the Service designated 9,577,969 acres

(roughly twice the size of the State of New Jersey) of

forest land in California, Oregon, and Washington to

be set aside for the owl. Endangered and

Threatened Wildlife and Plants: Designation of

Revised Critical Habitat for the Northern Spotted

14

Owl, 77 Fed. Reg. 71,876 (Dec. 4, 2012); Carpenters

Indus. Council v. Zinke, 854 F.3d 1, 2 (D.C. Cir.

2017) (“[I]magine driving all the way up and then all

the way back down the New Jersey Turnpike, and

you will get a rough sense of the scope of the [2012

northern spotted owl] critical habitat designation

here. The critical habitat designation means that a

huge swath of forest lands in the Pacific Northwest

will be substantially off-limits for timber

harvesting.”).2 Of the lands designated as critical

habitat, more than 2.6 million acres are “matrix

lands,” which were set aside under the Northwest

Forest Plan to provide a steady supply of federal

timber to the local forest products-based economy.

77 Fed. Reg. at 71,876; id. at 71,880 (noting that

“matrix areas [are] where timber harvest would be

the goal.”) The Service’ estimated that

approximately 6.5 percent (roughly 622,000 acres) of

northern spotted owl critical habitat is likely to be

unoccupied. 77 Fed. Reg. at 72,028. The true

number is likely far higher.

In identifying unoccupied areas, the Service

concluded that the critical habitat should contain

“essential physical and biological features or is

otherwise essential because it has the highest

likelihood of meeting recovery objectives in the most

efficient manner... .” 77 Fed. Reg. at 71,916

(emphasis added). The Service acknowledged that

even though some unoccupied areas “lack| ] some

9 Carpenters Industrial Council, AFRC, Siskiyou

County, and several individual timber companies challenged

the Service’s final critical habitat rule for the northern spotted

owl, in part, because the designation was based on a flawed

modeling framework. Zinke, 854 F.3d at 1.

15

element of the physical or biological features, such

as large trees or dense canopies that are associated

with nesting habitat,” those lands “contain

proportionally greater areas of younger forests that

are essential for the conservation of the species,

because they can develop additional habitat

necessary to support viable northern spotted owl

populations in the future.” 77 Fed. Reg. 71,917

(emphasis added). Thus, like with the gopher frog,

the Service designated habitat that does not

currently contain the essential physical or biological

features of critical habitat essential for the owl.

The economic impacts resulting from overbroad

critical habitat designations — like the northern

spotted owl — are significant. The Service concluded

that “economic impacts to [Forest Service] timber

harvest are relatively more likely in unoccupied

matrix lands or approximately 1,158,314 acres of

2,629,031 total acres of all [Forest Service] matrix

lands.” 77 Fed. Reg. at 72,028. The resulting

decrease in timber supply is substantial. Id.

Without a more demanding and _ narrow

interpretation of unoccupied areas compared to

occupied areas, the Service is free to designate any

land that contains a trifling physical or biological

feature essential to a species conservation, or no

such feature — a boundless authority that is in

conflict with the plain language of the ESA. As

illustrated by the examples above, the potential

economic consequences of “virtually limitless”

authority to reach, and further encumber, “vast

portions of the United States” through

uninhabitable critical habitat designations will be

16

severe. Markle Interests, 848 F.3d at 651; Markle,

827 F.3d at 481.

Certiorart is warranted to avoid unnecessary and

significant economic burdens on private landowners

and industries that depend on public lands.

Ill. THESE PETITIONS RAISE

IMPORTANT QUESTIONS UNDER

THE NONDELEGATION DOCTRINE.

The Fifth Circuit determined that the Service's

decision not to exclude Unit 1 from its critical

habitat determination was unreviewable pursuant

to the Administrative Procedure Act (“APA”)

because Congress provided no manageable standard

to determine whether that decision was proper.

When Congress delegates its authority without

providing standards to which an agency must

conform, it raises serious constitutional concerns

under Article I. U.S. CONST. art. I. There is an

unresolved tension between Article | and APA

section 701(a)(2) when Congress fails to provide

standards to which an agency must conform its

action. This petition provides an excellent vehicle to

rectify this tension.

The APA “embodies the basic presumption of judicial

review.” Abbott Labs. v. Gardner, 387 U.S. 136, 140,

(1967), abrogated on other grounds by Califano uv.

Sanders, 430 U.S. 99 (1977). However, section

701(a)(2) of the APA provides that it does not apply

to “agency action [that] is committed to agency

discretion by law.” 5 U.S.C. § 701(a)(2). The Court

has interpreted section 701(a)(2) to mean that

17

judicial “review is not to be had’ in those rare

circumstances where the relevant statute ‘is drawn

so that a court would have no meaningful standard

against which to judge the agency's exercise of

discretion.” Lincoln v. Vigil, 508 U.S. 182, 191

(1993) (quoting Heckler v. Chaney, 470 U.S. 821, 830

(1985)).

The ESA provides that the Service must take “into

consideration the economic impact. . . of specifying

any particular area as critical habitat.” 16 U.S.C. §

1533(b)(2). Furthermore, Congress provided that

the Service “may exclude any area from critical

habitat if [it] determines that the benefits of such

exclusion outweigh the bencfits of specifying such

area as part of the critical habitat .. 2” Td.

Petitioners argued that the government acted

arbitrarily in deciding not to exclude Unit 1 from the

Service's critical habitat determination. The Fifth

Circuit never reached this argument, instead

holding that the APA precluded judicial review.

Markle, 827 F.3d at 474.

The Fifth Circuit explained that there “are no

manageable standards for reviewing the Service's

decision not” to exclude Unit 1 from the critical

habitat designation. Jd. at 473. It further stated

that 16 U.S.C. § 1533(b)(2) “establishes a

discretionary process by which the Service may

exclude areas from designation, but it does not

articulate any standard governing when the Service

must exclude an area from designation.” /d. at 474.

In other words, because the ESA provides no

standard to determine if the Service correctly

determined not to exclude Unit 1 from critical

18

habitat, that decision (according to the Fifth Circuit)

is unreviewable under section 701(a)(2)'s “no

meaningful standard” test.

Comparably, Article I of the Constitution vests all

legislative powers in the Congress of the United

States. “That congress cannot delegate legislative

power to the president is a principle universally

recognized as vital to the integrity and maintenance

of the system of government ordained by the

constitution.” Marshall Field & Co. v. Clark, 143

U.S. 649, 692 (1892); Indus. Union Dep't, AFL-CIO

v. Am. Petroleum Inst., 448 U.S. 607, 673 (1980)

(Powell, J., concurring). This is known as the

nondelegation doctrine. See Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 472 (2001)

(explaining that Article | permits no delegation of

Congress’s legislative powers). However, “[ilf

Congress shall lay down by legislative act an

intelligible principle to which the person or body

authorized to [act] is directed to conform, such

legislative action is not a forbidden delegation of

legislative power.” E.g., J.W. Hampton, Jr., & Co. v.

United States, 276 U.S. 394, 409 (1928) (emphasis

added). “The intelligible-principle rule seeks to

enforce the understanding that Congress may not

delegate the power to make laws and so may

delegate no more than the authority to make policies

and rules that implement its statutes.” Loving v.

United States, 517 U.S. 748, 771 (1996).

Furthermore, the Court has explained that Congress

has failed to state an intelligible principle if “there

is an absence of standards for the guidance of [an

agency's] action, so that it would be impossible in a

proper proceeding to ascertain whether the will of

19

Congress has been oheyed ...” Yakus v. United

States, 321 U.S. 414, 426 (1944) (emphasis added);

Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst.,

448 U.S. 607, 686 (1980) (Rehnquist, C.dJ.,

concurring) (explaining that the intelligible

principle rule requires “ascertainable standards” by

which a court can test the exercise of delegated

legislative discretion).

Therefore, APA section 701(a)(2) provides that

judicial review is precluded if Congress fails to

provide a “meaningful standard” by which a court

can judge whether an agency properly exercised its

discretion. However, the nondeclegation doctrine

provides that if Congress fails to provide a standard

then it has failed to provide an “intelligible

principle” and such a delegation is unconstitutional.

As commentators have explained, “[i]f a statute is so

broad that it lacks a guiding policy, the statute may

lack an intelligible principle, in violation of the

nondelegation doctrine.” Viktoria Lovei, Revealing

the True Definition of APA § 701(a)(2) by Reconciling

"No Law to Apply" with the Nondelegation Doctrine?

73 U. CHI. L. REV. 1047, 1060 (2006); see Amee B.

Bergin, Does Application of the APA's "Committed to

Agency Discretion” Exception Violate _ the

Nondelegation Doctrine? 28 B.C. ENVTL. AFF. L. REV.

363, 396 (2001) (arguing that “[i]f a court finds that

a delegation lacks ‘law to apply, it follows

analytically that not only can the court find that the

delegation lacks an intelligible principle, but that it

must do so”). Thus, there is a clear tension between

the nondelegation doctrine and APA section

701(a)(2).

20

The Fifth Circuit found that 16 U.S.C. § 1533(b)

provides no meaningful standard to review the

Service’s decision not to exclude Unit 1 and therefore

precluded review under 5 U.S.C § 701(a)(2).

Accordingly, under the nondelegation doctrine

Congress also failed to provide an _ intelligible

principle, leading to the conclusion that such a

delegation is unconstitutional. The Fifth Circuit,

however, did not explore the consequences of its

reasoning on the constitutionality of Congress's

delegation to the Service.

Had the Fifth Circuit explored those consequences,

it would have found a ready answer in Bennett. In

Bennett, this Court addressed whether a challenge

to a critical habitat designation was properly

reviewed under the ESA citizen suit provision, 16

U.S.C. § 1540(g)(1)(C), which allows a plaintiff to

enforce a non-discretionary duty under section 1533

of the ESA. Id. at 171-72. The Court found the

designation was reviewable under section 1540 to

the extent it violated the “categorical requirement

that, in arriving at his decision, [the Secretary]

‘tak[e] into consideration the economic impact, and

any other relevant impact,’ and use ‘the best

scientific data available.” Jd. at 172 (quoting 16

U.S.C. § 1533(b)(2)). The Court qualified this by

stating “the Secretary's ultimate decision,” i.e. the

ultimate decision whether to exclude, “is reviewable

only for abuse of discretion,” that is, under the APA.

Id. at 172. This last statement immediately follows

a quotation of the Secretary's authority to exclude.

Id. Thus, this Court’s precedent and the avoidance

canon point in the same direction, which is to permit

21

review of the Service’s decisions on whether to

exclude habitat due to the impact of a designation.

These Petitions provide the Court with a valuable

opportunity to realign administration of the ESA

with the nondelegation doctrine and certiorari

should therefore be granted.

CONCLUSION

For the reasons above, amici respectfully request

that the Court grant the Petitions for certiorart.

August 14, 2017

Respectfully submitted,

LAWSON E. FITE THOMAS J. WARD*

SARA GHAFOURI JEFFREY B. AUGELLO

AMERICAN FOREST NATIONAL ASSOCIATION

RESOURCE COUNCIL OF HOME BUILDERS

5100 S.W. Macadam 1201 15th Street, N.W.

Ave., Ste 350 Washington, D.C. 20005

Portland, OR 97239 (202) 266-8200

(503) 222-9505 * Counsel of Record