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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2018

## Text

FILED

—— | AUG 14 2017

Nos. 17-71, 17-74 SUPREME COURT Oe

IN THE

Supreme Court of the Anited States

WEYERHAEUSER CoO.,

Petitioner,
Vv.

U.S. FISH AND WILDLIFE SERVICE, et ai.,
Respondents.

MARKLE INTERESTS, L.L.C., et al.,

Petitioners,
v.

U.S. FISH AND WILDLIFE SERVICE, et al.
Respondents.

On Petitions for Writs of Certiorari to the
U.S. Court of Appeals for the Fifth Circuit

BRIEF OF WASHINGTON LEGAL FOUNDATION
AND ALLIED EDUCATIONAL FOUNDATION
AS AMICI CURIAE IN SUPPORT OF PETITIONERS

Richard A. Samp

(Counsel of Record)
Mark S. Chenoweth
Washington Legal Foundation
2009 Massachusetts Ave., NW
Washington, DC 20036

202-588-0302
Date: August 14, 2017 rsam If.o
WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20002

Linrary of Camgesee
Low Litwary

QUESTIONS PRESENTED

1. Whether the Endanger Species Act prohibits
designation of private land as unoccupied critical
habitat that is neither habitat nor essential to species
conservation.

2. Whether federal law precludes courts from
reviewing an agency decision not to exclude a tract
from critical habitat pursuant to 16 U.S.C. § 1533(b)(2),
where the agency bases its decision on a determination
that the cost of designation (measured in terms of lost
development value for the tract) is not disproportionate
to “biological” benefits of designation.

ii

TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES ................... V
INTERESTS OF AMICICURIAE .............. 1
STATEMENT OF THE CASE ................. 3
SUMMARY OF ARGUMENT .................. 7

REASONS FOR GRANTING THE PETITION ... 12

I, REVIEW IS WARRANTED TO RESOLVE THE
CONFLICT BETWEEN THE DECISION BELOW
AND THE CouRT’S APA CASE LAW ......... 12

A. The Decision Below Misapplies the
“Committed to Agency Discretion”
Exception to Judicial Review of
Administrative Action ............ 13

P The Decision Below Was Premised
on a Basic Misunderstanding of the
Endangered Species Act .......... 16

C. The Decision Below Directly
Conflicts with this Court’s Holding
he. se cee eceneuseeeness 20

Il. REVIEW IS WARRANTED BECAUSE THE
DECISION BELOW PRECLUDES REVIEW OF
ECONOMICALLY IRRATIONAL DECISION-
ee ees ok te choeeeccetes 21

iv
Page

Ill. THE DECISION BELOW SERIOUSLY ERODES
THE AUTHORITY OF FEDERAL COURTS TO
REVIEW FEDERAL ADMINISTRATIVE
SET is buss 6 ee beac ee ond Bieta meee 23

TABLE OF AUTHORITIES
Page(s)
Cases:

Babbitt v. Sweet Home Chapter of Communities

for a Great Oregon, 515 U.S. 687 (1995) ........ l
Bear Valley Mut. Water Co. v. Jewell,

790 F.3d 977 (9th Cir. 2015) ................ 15
Bennett v. Spear,

520 U.S. 164 (1997) .............. 1, 6, 8, 20, 21
Bowen v. Michigan Academy of Family Physicians,

SP EE gc ccccvsccwsevececves 2, 12
Cuozzo Speed Technologies, LLC v. Lee,

Ns Se ecw eben 13
Dickson v. Secretary of Defense,

68 F.3d 1396 (D.C. Cir. 1995) ............... 16
Heckler v. Cheney,

470 U.S. 821 (1985) ............. 8, 9, 13, 14, 15
Mach Mining, LLC v. EEOC,

a nD... occ beebcteene 7, 12, 13
Michigan v. EPA,

136 GS. Ce. SEBS GADAG) .. ccc ccccccces 10, 22, 23
Murray Energy Corp. v. EPA,

No. 15-3751 (dec. pending, 6th Cir.) ........... 1
Nat'l Assoc. of Home Builders v. Defs. of Wildlife,

Se SR OED oc cc cccccccncesccoess 1, 2
TVA v. Hill,

ED oes cee ese eetses 11, 19

Utility Air Reg. Group v. EPA,
a ee ED non oc tee vccccccvevase l

Page(s)
Statutes and Regulations:
Administrative Procedure Act (APA) ..... 4, 11, 12,
19, 20
5 U.S.C. § 70l(a)..... EE eye ye 11
5 U.S.C. § 701(a)(2)..... 5, 8, 9, 13, 14, 15, 20
Pent ccksweueeees seuces 11, 12
i ee as Oe eee 4
a i a eat 1, 25
I eerie Oe ee ee ae 1
Endangered Species Act (ESA),
Be CE ENO, nc wcc ccc ccccsecs passim
16 U.S.C. § 1532(5)(A)@ii) . .. ee ee 3
16 U.S.C. § 1533(aXSMA) ...........0---- 3
16 U.S.C. § 1533(b)(2)...............- passim
Endangered Species Act Amendments of 1978,
Pub. L. No. 95-632, 92 Stat. 3751 (1978)....... 19
Oy Oe REED no's bos cercevesddsosee 24

SP: LD dG 40 cen seuws sae eees ves 12, 17

Page(s)
Miscellaneous:
IEC, Economic Analysis of Critical Habitat
Designation for the Dusky Gopher Frog
Pa <<¢bob 6 dedouees wéb-bi bee 600 6K 22

Damien Schiff, Judicial Review Endangered:
Decisions Not to Exclude Areas from Critical
Habitat Should Be Reviewable Under the APA,

47 Envtl. L. Rep. 10352 (2017) .............. 19

Solicitor, Dep't of Interior, The Secretary's

Authority to Exclude Areas from a Critical

Habitat Designation under Section 4(b)(2)

ST ED v0.6 6 00 oo 666 ce de cecees 24
77 Fed. Reg. 35,118 (June 12, 2012)............. 4

7 ce rr, psecee nes oe dues eueoed 22

INTERESTS OF AMICI CURIAE

Washington Legal Foundation (WLF) is a
nonprofit public-interest law firm and policy center
with supporters in all 50 states.' WLF devotes a
substantial portion of its resources to defending free
enterprise, individual rights, a limited and accountable
government, and the rule of law.

To that end, WLF has appeared before this
Court as well as other federal courts to urge adoption
of environmental policies that strike an appropriate
balance between environmental safety and economic
well-being. See, e.g. Murray Energy Corp. v. EPA, No.
15-3751 (dec. pending, 6th Cir.) (defining “Waters of
the United States” under Clean Water Act); Utility Air
Reg. Group v. EPA, 1348. Ct. 2427 (2014) (challenge to
EPA’s Clean Air Act “tailoring rule”). In particular,
WLF has participated in virtually every major case
that has come before this Court regarding the scope of
the Endangered Species Act (ESA), 16 U.S.C. § 1531 et
seq. See, e.g., Nat'l Assoc. of Home Builders v.
Defenders of Wildlife, 551 U.S. 644 (2007); Bennett v.
Spear, 520 U.S. 154 (1997); Babbitt v. Sweet Home
Chapter of Communities for a Great Oregon, 515 U.S.
687 (1995).

The Allied Educational Foundation (AEF) is a
nonprofit charitable and educational foundation based

' Pursuant to Supreme Court Rule 37.6, amici curiae state
that no counsel for a party authored this brief in whole or in part;
and that no person or entity, other than amici and their counsel,
made a monetary contribution intended to fund the preparation or
submission of this brief. More than 10 days prior to the due date,
counsel for amici provided counsel for Respondents with notice of
their intent to file. All parties have consented to the filing.

2

in Tenafly, New Jersey. Founded in 1964, AEF is
dedicated to promoting education in diverse areas of
study, such as law and public policy, and has appeared
as amicus curiae in this Court on a number of
occasions, including in Nat'l Assoc. of Home Builders.

Amici agree with Petitioners that review is
warranted on each of the Questions Presented in Nos.
17-71 and 17-74. Amici write separately to focus on the
second question raised by Petitioner Weyerhaeuser:
whether Congress intended to preclude all judicial
review of decisions of the U.S. Fish and Wildlife Service
(FWS) not to exclude areas from an ESA “critical
habitat” designation.

As Judge Edith Jones concluded in her dissent
from denial of rehearing en banc (joined by five other
Fifth Circuit judges), the panel’s holding that FWS no-
exclusion decisions are not subject to judicial review
“play[s] havoc with administrative law.” Pet. App.
156a.” Amici are concerned that if that holding is
allowed to stand, it will provide federal agencies with
unilateral power to make a broad array of regulatory
decisions, unchecked by any possibility of judicial
review. Amici do not believe that the decision below is
consistent with this Court’s repeated and longstanding
application of a “strong presumption” favoring judicial
review of administrative action. Bowen v. Michigan
Academy of Family Physicians, 476 U.S. 667, 670
(1986).

* When citing decisions below, amici reference the Petition
Appendix in No. 17-71.

3
STATEMENT OF THE CASE

Once a plant or animal species has been listed as
“endangered,” the Endangered Species Act generally
requires FWS (or, in appropriate cases, the National
Oceanic and Atmospheric Administration) to designate
“critical habitat” for the species. 16 U.S.C.
§ 1533(a)(3)(A). With respect to areas not “occupied” by
the species at the time of its listing, such areas may
not be designated as critical habitat except “upon a
determination by the Secretary that such areas are
essential for the conservation of the _ species.”
§ 1532(5)(A)(ii) (emphasis added).

The ESA states that such designations “shall” be
made “on the basis of the best scientific data available
and after taking into consideration the economic
impact, the impact on national security, and any other
relevant impact, of specifying any particular area as
critical habitat.” § 1533(b)(2). In determining the scope
of the designated area:

The Secretary may exclude any area from
critical habitat if he determines that the
benefits of such exclusion outweigh the
benefits of specifying such areas as part of
the critical habitat, unless he determines,
based on the best scientific and
commercial data available, that the
failure to designate such areas as critical
habitat will result in the extinction of the
species concerned.

Tbid.

4

In 2001, FWS listed the Mississippi gopher frog
(a species of frog currently found only in Mississippi) as
an endangered species.* In 2011, FWS published a
proposed rule that would have designated certain areas
in Mississippi (but not elsewhere) as critical habitat for
the species. Pet. App. 86a. In response to peer-review
comments that the designated areas were insufficient
for conservation of the species, FWS amended the
proposed rule to include an area in Louisiana (referred
to as “Unit 1”) within the designation. Id. at 87a.

In its 2012 final rule, FWS continued to include
Unit 1 (consisting of 1,544 acres of forested land not
currently occupied by the dusky gopher frog) in the
area designated as critical habitat. 77 Fed. Reg. 35,118
(June 12, 2012). Petitioners (collectively,
“Weyerhaeuser’) own the land included in Unit 1.
They filed suit in district court in 2013, challenging the
“critical habitat” designation. Among their claims:
FWS’s designation was arbitrary, capricious, and an
abuse of discretion—in violation of the Administrative
Procedure Act (APA), 5 U.S.C. § 706(2)(A)—because
FWS failed to exclude Unit 1 from the designation,
even though the costs of inclusion vastly exceeded the
benefits (if any) of inclusion.

The district court granted FWS’s motion for
summary judgment and dismissed the complaint. Pet.
App. 78a-122a. The court conceded that Petitioners’
challenge to FWS’s economic analysis was their “most

* FWS renamed the species the “dusky gopher frog” in
2012, at about the same time that it began contemplating
designating areas outside of Mississippi as “critical habitat” for the
species.

5

compelling issue,” and it labeled “most troubling”
FWS’s “conclusion that the economic impacts on Unit
1 are not disproportionate.” Jd. at 113a-1l4a._ It
ultimately concluded, however, that the ESA required
it to defer to FWS’s decision to include Unit 1 within
the critical habitat designation. Jd. at 118a.

A divided Fifth Circuit panel affirmed. Pet. App.
la-77a. The panel majority devoted most of its opinion
to explaining its conclusion that FWS acted reasonably
in determining that: (1) designating occupied habitat
alone would be inadequate to ensure the conservation
of the dusky gopher frog; and (2) Unit 1 is essential for
the conservation of the frog. /d. at 15a-32a. It then
declined to review Weyerhaeuser’s claim that Unit 1
should have been excluded from the critical-habitat
designation on the basis of the designation’s economic
costs. Id. at 32a-36a. It concluded that FWS decisions
not to exclude areas from such designation are
“decisions ‘committed to agency discretion by law” and
thus “are not reviewable in federal court.” Jd. at 33a
(quoting 5 U.S.C. § 701(a)(2)). To support its
conclusion that Congress intended to preclude judicial
review of FWS decisions not to exclude areas on the
basis of economic considerations, the panel cited the
word “may” in the second sentence of 16 U.S.C.
§ 1533(b)(2). Ibid.*

Judge Owen dissented. Pet. App. 48a-77a. She
concluded that the ESA precluded inclusion of Unit 1

* The cited sentence states, in part, that FWS “may
exclude any area from critical habitat if [it] determines that the
benefits of such exclusion outweigh the benefits of specifying such
area as part of the critical habitat.” § 1533(b)(2) (emphasis added).

6

in the critical-habitat designation because: (1) the
area’s “biological and physical characteristics will not
support a dusky gopher frog population”; and (2) there
is no evidence that it will become “essential” to the
conservation of the species because “there is no
evidence that the substantial alterations and
maintenance necessary to transform the area into
habitat suitable for the endangered species will, or are
likely to, occur.” Id. at 48a. In light of her conclusion,
Judge Owen did not address the majority’s holding that
FWS’s no-exclusion determination was not subject to
judicial review.

In February 2017, the Fifth Circuit voted 8-6 to
deny Weyerhaeuser’s petition for rehearing en banc.
Pet. App. 124a. Judge Jones issued an opinion (joined
by five other judges) dissenting from the denial. Jd. at
124a-162a.

Among the reasons cited by Judge Jones for
granting rehearing was her conclusion that “[t]he panel
majority play havoc with administrative law by
declaring the Service’s decision not to exclude Unit 1
non-judicially reviewable.” Jd. at 156a. She faulted the
panel for “never recognizing or applying” the “strong
presumption favoring judicial review of administrative
action,” a presumption that “is not easily overcome.”
Id. at 160a. She argued that the panel decision directly
conflicts with this Court’s decision in Bennett v. Spear,
that FWS must take economic considerations into
account in making critical habitat decisions, and that
“its ultimate decision regarding designation of critical
habitat is reviewable for abuse of discretion.” Id. at
161a (citing Bennett, 520 U.S. at 172). She concluded,
“The panel majority's refusal to conduct judicial review

7

is insupportable and an abdication of our responsibility
to oversee, according to the APA, agency action.” Id. at
162a.

SUMMARY OF ARGUMENT

The Petitions raise issues of exceptional
importance. In particular, the Fifth Circuit's
determination that Congress intended to preclude all
review of FWS no-exclusion decisions conflicts sharply
with this Court’s case law, which creates a strong
presumption of judicial review of administrative action.

The Fifth Circuit held that Congress barred
courts from reviewing an FWS determination to
proceed with a “critical habitat” designation in the face
of landowner objections that designation would impose
unwarranted economic costs. Pet. App. 32a-36a. Any
such congressional edict would represent an
extraordinary departure from the manner in which
Congress is normally presumed to legislate. That is so
because “[a]bsent [judicial] review, [an agency’s]
compliance with the law would rest in the [agency’s]
hands alone.” Mach Mining, LLC v. EEOC, 1355S Ct.
1645, 1652 (2015). The Court explained:

We need only know—and know that
Congress knows—that legal lapses and
violations occur, and especially so when
they have no consequence. That is why
this Court has so long applied a strong
presumption favoring judicial review of
administrative action.

Id. at 1652-53.

8

The Fifth Circuit based its determination to bar
judicial review of FWS cost-benefit determinations on
Congress use of the word “may” rather than “shall” in
the second sentence of § 1533(b)(2). That single word
cannot possibly bear the weight imposed on it by FWS
and the Fifth Circuit—particularly because the
previous sentence in § 1533(b)(2) states that FWS,
when making critical-habitat determinations, “shall”
take into consideration “the economic impact ... of
specifying any particular area as critical habitat.”
There could have been only one purpose in requiring
consideration of economic impact: to prevent an area
from being designated as critical habitat when the
costs of doing so outweigh the benefits.

FWS may be entitled to considerable leeway in
how it goes about weighing costs and benefits. But
nothing in the ESA suggests that courts are precluded
from reviewing FWS’s ultimate determination under an
abuse-of-discretion standard. Indeed, the Court in
Bennett explicitly held that ESA critical-habitat
designations were subject to judicial review based on
claims that FWS failed to properly consider the
“economic impact” of the designations. Bennett, 520
U.S. at 172. Review is warranted to resolve the conflict
between Bennett and the Fifth Circuit’s contrary
holding.

In concluding that FWS no-exclusion
determinations are “committed to agency discretion by
law,” 5 U.S.C. § 701(a)(2), the Fifth Circuit relied on
this Court’s decision in Heckler v. Cheney, 470 U.S. 821
(1985). Pet. App. 33a. That reliance was misplaced.
Heckler held that, in general, the decision by a federal
enforcement agency not to bring an enforcement action

9

is not subject to judicial review, primarily because “an
agency decision not to enforce often involves a
complicated balancing of a number of factors which are
peculiarly within its expertise.” 470 U.S. at 831. The
Fifth Circuit sought to analogize FWS’s decision not to
exclude a particular area from critical habitat to an
agency's decision not to bring an enforcement action.
That analogy makes little sense. Any FWS decision not
to exclude a particular area from critical habitat is, by
definition, a decision to include the area in the
designation—thereby subjecting the area _ to
burdensome government regulation.

Nor can FWS realistically argue that a reviewing
court would have no meaningful standard against
which to judge FWS’s exercise of discretion. Indeed,
the Service readily concedes that point when the shoe
is on the other foot. When an environmental group
objects to an FWS decision to exclude particular areas
from a critical-habitat designation on the basis of the
second sentence of § 1533(b)(2), the agency decision is
subject to review under an _ abuse-of-discretion
standard. If a reviewing court has meaningful
standards against which to judge an FWS decision to
exclude a particular area based on a cost-benefit
analysis, then it likewise has meaningful standards
against which to judge an FWS no-exclusion decision.

The Fifth Circuit’s decision to bar judicial review
is particularly troubling because the evidence
overwhelmingly supports Petitioners’ contention that
FWS was unable to identify any benefits of Unit 1
critical-habitat designation that would offset the
admittedly severe economic burdens imposed on

10

landowners by that designation.° FWS’s April 6, 2012
“Economic Analysis” did not identify any benefits, other
than that land-use restrictions imposed as a result of
the designation might preserve open space and thereby
“increase adjacent or nearby property values.” That
“benefit” does not, of course, do anything to assist the
dusky gopher frog or any other endangered species for
whose benefit Congress adopted the ESA.

Given § 1533(b)(2)’s mandate that FWS consider
economic impact when designating critical habitat, at
some point the imbalance between costs and benefits
becomes so great that the only rational decision is to
exclude the area in question. As the Court recently
explained, “One would not say that it is even rational,
never mind ‘appropriate,’ to impose billions of dollars
in economic costs in return for a few dollars in health
or environmental benefits.” Michigan v. EPA, 135 S.
Ct. 2699, 2707 (2015). Yet, under the Fifth Circuit's
ruling, courts are not permitted to review FWS’s cost-
benefit determination, no matter how irrational.

The circumstances surrounding adoption of
§ 1533(b)(2) also strongly support Weyerhaeuser’s view
that Congress intended to permit judicial review of
FWS cost-benefit determinations. Congress added
§ 1533(b)(2), including its “economic impact” and

° It is difficult to imagine how the designation could be of
any benefit to the dusky gopher frog, given that the frog cannot be
introduced into Unit 1 without the permission of landowners
(permission they have said they will not grant) and given that (as
FWS concedes) Unit | is not currently habitable for the dusky
gopher frog and could not become habitable unless landowners
agreed to substantial alterations of the property.

11

power-to-exclude language, in 1978, in response to the
Court’s decision in TVA v. Hill, 437 U.S. 153 (1978).
TVA upheld an ESA injunction against completion of
the almost-finished Tellico Dam because (some feared)
it might eradicate an endangered fish, the snail
darter—even though abandonment of the dam would
have huge economic consequences. The principal
purpose of the 1978 amendments was to ensure that
the ESA would not be applied in an economically
irrational manner. There is little reason to believe that
a Congress intent on injecting economic rationality into
ESA decision-making simultaneously barred courts
from hearing claims that FWS acted irrationally in
making a critical-habitat designation.

Finally, review is also warranted because the
decision below represents a serious erosion of the
authority of federal courts to review federal
administrative action. The APA authorizes judicial
review of any “final agency action for which there is no
other adequate remedy in a court,” 5 U.S.C. § 704,
except to the extent that “statutes preclude judicial
review or “agency action is committed to agency
discretion by law.” 5 U.S.C. § 701(a). By invoking the
“committed to agency discretion by law” exception as
the basis for precluding review of all FWS no-exclusion
decisions—based on nothing more than inclusion of the
word “may” in a statute—the Fifth Circuit has upended
the traditional strong presumption favoring judicial
review. Unless the appeals court decision is
overturned, the federal government can be expected to
continue to press its constricted views regarding the
scope of judicial review of agency action. Indeed, FWS
(and other agencies that administer the ESA) have
memorialized their misinterpretation of § 1533(b)(2) in

12

formal regulations and guidance documents. See, e.g.,
50 C.F.R. § 424.19.

REASONS FOR GRANTING THE PETITION

a REVIEW IS WARRANTED TO RESOLVE THE
CONFLICT BETWEEN THE DECISION BELOW AND
THE COuURT’S APA CASE LAW

Subject to very limited exceptions, the APA
authorizes judicial review of “final agency action for
which there is no other adequate remedy in a court.”
5 U.S.C. § 704. The Court has long recognized a
“strong presumption” that the actions of federal
agencies are subject to judicial review. Bowen, 476
U.S. at 670. As the Court recently explained:

Congress rarely intends to prevent courts
from enforcing its directives to federal
agencies. For that reason, this Court
applies a “strong presumption” favoring
judicial review of administrative action.

Mach Mining, 135 S. Ct. at 1651 (citations omitted).

The Fifth Circuit's determination that Congress
intended to preclude review of FWS’s decision not to
exclude Unit 1 from the critical-habitat designation
(i.e., its decision to include Unit 1) conflicts sharply
with this Court’s strong-presumption case law. Review
is warranted to resolve that conflict.

13

A. The Decision Below Misapplies the
“Committed to Agency Discretion”
Exception to Judicial Review of
Administrative Action

The Fifth Circuit did not contend that any
federal law explicitly precludes judicial review of an
agency's decision to designate ESA critical habitat.
Rather, the appeals court based its no-judicial-review
determination on 5 U.S.C. § 701(a)(2), which bars
review when “agency action is committed to agency
discretion by law.” Pet. App. 33a. It concluded that
Congress precluded review in this instance because
there are “no meaningful standards against which to
judge the agency’s exercise of discretion.” [bid (quoting
Heckler, 470 U.S. at 830).

The appeals court premised its invocation of
§ 701(a)(2) on a misunderstanding of that statute that
squarely conflicts with this Court’s case law. Amici
note initially that the panel neither recognized nor
applied the strong presumption favoring judicial
review. Proper application of the presumption requires
a court to interpret arguably ambiguous statutes as not
providing agencies with unreviewable discretion.
Cuozzo Speed Technologies, LLC v. Lee, 136 S. Ct.
2131, 2140 (2016) (“We recognize the ‘strong
presumption’ in favor of judicial review that we apply
when we interpret statutes, including statutes that
may limit or preclude review.”) An agency claiming
that its actions are unreviewable “bears a heavy
burden in attempting to show that Congress prohibited
all judicial review.” Mach Mining, 135 S. Ct. at 1651.
Yet, the decision below includes no indication that the
panel imposed any evidentiary burden on FWS or even

14

considered interpreting statutory ambiguities in favor
of permitting judicial review.

More importantly, the Fifth Circuit's reliance on
Heckler was wholly misplaced. Properly understood,
Heckler directly conflicts with the decision below.
Heckler was premised on the understanding that
Congress rarely provides guidelines for reviewing the
propriety of an agency’s decision not to initiate an
enforcement action. For that reason, Heckler stated,
“the presumption is that judicial review is not
available” for a decision not to initiate enforcement
action. 470 U.S. at 831 (emphasis added). The Court
explained:

This Court has recognized on several
occasions Over many years that an
agencys decision not to prosecute or
enforce, whether through civil or criminal
process, is a decision generally committed
to an agency's absolute disc. etion. ... The
reasons for this general unsuitability [for
judicial review of agency decisions to
refuse enforcement] are many. First, an
agency decision not to enforce often
involves a complicated balancing of a
number of factors which are peculiarly
within its expertise.

Ibid.®

® Heckler held that § 701(a)(2) precluded judicial review of
prison inmates’ suit to compel the Food and Drug Administration
to take enforcement action against several States’ use of lethal-
injection drugs that had not been approved by FDA as “safe and

15

The Fifth Circuit sought to analogize FWS’s
decision not to exclude a particular area from critical
habitat to Heckler’s analysis of an agency's decision not
to bring an enforcement action. Pet. App. 33a. That
analogy makes little sense. Any FWS decision not to
exclude a particular area from critical habitat is, by
definition, a decision to include the area in the
designation—thereby subjecting the area to
burdensome government regulation. Section 1533(b)(2)
sets forth a list a factors (including “economic impact”)
that FWS must take into account when designating
critical habitat. Accordingly, the Fifth Circuit's
conclusion that § 1533(b)(2) provides “no meaningful
standard against which to judge [FWS’s] exercise of
discretion” in designating critical habitat, ibid, is
implausible and conflicts sharply with Heckler and
other decisions of this Court regarding the meaning of
§ 701(a)(2).

Moreover, the Fifth Circuit’s position on this
issue is inconsistent. The Court agreed with a Ninth
Circuit decision that the FWS’s invocation of
§ 1533(b)(2)’s second sentence to exclude a particular
area from critical-habitat designation based on a cost-
benefit analysis would be subject to judicial review.
Pet. App. 35a (citing with approval Bear Valley Mut.
Water Co. v. Jewell, 790 F.3d 977, 989 (9th Cir. 2015)).
Ifthe ESA provides sufficient “meaningful standard[s]
against which to judge [FWS’s] exercise of discretion”
in excluding an area from a critical-habitat designation
for cost-benefit reasons, then logically there also must
be sufficient standards by which a court could judge

effective” for human use. Id. at 837-38.

16

FWS’s decision to include the same area.

That § 1533(b)(2) states that FWS “may” exclude
an area from a critical-habitat designation for cost-
benefit reasons does not suggest that FWS possesses
absolute discretion not to exclude the area, even when
inclusion would be economically irrational. Neither
FWS nor the Fifth Circuit has cited any other statute
that has been interpreted, based solely on inclusion of
the word “may,” as precluding judicial review of an
agency decision not to desist from undertaking
administrative action. Indeed, the Fifth Circuit's
interpretation of the word “may” directly conflicts with
decisions from the D.C. Circuit, which has held that a
statute is not made unreviewable by the use of
permissive language alone. See, e.g., Dickson v.
Secretary of Defense, 68 F.3d 1396, 1401-02 & n.7 (D.C.
Cir. 1995) (use of “may” suggests that “Congress
intends to confer some discretion on the agency,” not
that “the matter is committed exclusively to agency
discretion”; statute stating that Army “may” excuse an
untimely filing does not confer unreviewable discretion
not to do so).

B. The Decision Below Was Premised on
a Basic Misunderstanding of the
Endangered Species Act

The Fifth Circuit's no-judicial-review
determination was colored by its (and FWS’s) basic
misunderstanding of the ESA and of § 1533(b)(2) in
particular. Properly understood, the ESA requires
FWS to take cost-benefit considerations into account
with respect to every critical-habitat designation.
While the statute affords FWS considerable discretion

17

in determining how much weight to afford cost-benefit
considerations in its designation decision, nothing in
the ESA suggests that courts are precluded from
reviewing FWS’s ultimate determination under an
abuse-of-discretion standard. FWS and the Fifth
Circuit interpret the statute differently; as they read it:
(1) the initial decision to designate critical habitat
should be based solely on the survival needs of the
endangered species; (2) FWS must then analyze all the
factors (including “economic impact”) listed in the first
sentence of § 1533(b)(2); and (3) FWS may, in its
unreviewable discretion, decide to exclude areas if it
concludes that the benefits of exclusion outweigh the
benefits of inclusion, as set forth in the second sentence
of § 1533(b)(2). See, e.g., Pet. App. 15a-32a, 32a-36a;
50 C.F.R. § 424.19 (FWS regulation stating that
Secretary shall “consider the probable economic and
other impacts of the designation” only after initially
proposing that an area be designated). That
interpretation is wholly implausible. Because that
erroneous interpretation is being applied to many
millions of acres of land throughout the United States,
review of the decision below is particularly warranted.

Congress mandated that determinations
regarding the designation of land as critical habitat are
to be made solely on the basis of factors set forth in
§ 1533(b)(2). Determinations “shall” be made:

[O]n the basis of the best scientific
evidence available and after taking into
consideration the economic impact, the
impact on national security, and any
other relevant impact, of specifying any
particular area as critical habitat.

18

Nothing in § 1533(b)(2) suggests, as FWS urges and the
Fifth Circuit held, that the initial designation may be
based solely on the needs of the endangered
species—such as a determination regarding whether
designation of uninhabited lands is “essential” for the
conservation of the species.

Nor does FWS satisfy its statutory obligations to
designate critical habitat “after taking into
consideration ... economic impact” (among other
factors) by undertaking a study of economic impact.
There is only one plausible explanation for why
Congress would require consideration of the economic
impact of designating particular areas as critical
habitat: it was directing FWS to exclude areas
whenever the study of economic impact led FWS to
conclude that exclusion was warranted because the
costs of designation exceeded its benefits.

Indeed, that is precisely what the second
sentence of § 1533(b)(2) says. The second sentence
imposes only one limitation on FWS’s authority to
exclude an area on the basis of cost-benefit
considerations: it may not exclude the area if “failure to
designate such area as a critical habitat will result in
extinction of the species concerned.” FWS and the
Fifth Circuit improperly read the two sentences of
§ 1533(b)(2) as though they address wholly separate
topics: (1) requiring the agency to conduct a study of
economic impact; and (2) granting FWS the option, on
the basis of the study and at its unreviewable
discretion, to exclude areas. But properly read, the
second sentence simply provides further guidance to
FWS regarding how to carry out the designation
obligations imposed on it by the first sentence.

19

Accordingly, nothing in the language of
§ 1533(b)(2) rebuts the “strong presumption” that
Congress intended to permit judicial review of critical-
habitat designations, including review of FWS
determinations that cost-benefit considerations do not
warrant exclusion of particular areas from that
designation.

The circumstances surrounding adoption of
§ 1533(b)(2) also strongly support Weyerhaeuser’s view
that Congress intended to permit judicial review of
FWS cost-benefit determinations. Congress added
§ 1533(b)(2), including its “economic impact” and
power-to-exclude language, in 1978, in response to the
Court’s decision in TVA v. Hill. ESA Amendments of
1978, Pub. L. No. 95-632, 92 Stat. 3751 (1978). TVA
upheld an ESA injunction against completion of the
almost-finished Tellico Dam because (some feared) it
might eradicate an endengered fish, the snail
darter—even though abandonment of the dam would
have huge economic consequences. The principal
purpose of the 1978 amendments was to ensure that
the ESA was not applied in an economically irrational
manner. See Damien Schiff, Judicial Review
Endangered: Decisions Not to Exclude Areas from
Critical Habitat Should Be Reviewable under the APA,
47 Envtl. L. Rep. 10352, 10354-55 (2017). There is
little reason to believe that a Congress intent on
injecting economic rationality into ESA decision-
making simultaneously barred courts from hearing
claims that FWS acted irrationally in making a critical-
habitat designation.

20

C. The Decision Below Directly
Conflicts with this Court’s Holding in
Bennett

In concluding that 5 U.S.C. § 701(a)(2) bars
judicial review of FWS’s no-exclusion decision, the Fifth
Circuit made no mention of this Court’s decision in
Bennett v. Spears. Pet. App. 32a-36a. Yet, Bennett
addressed this precise issue and concluded that FWS
economic-impact decisions were judicially reviewable
under the APA. Review by this Court is warranted to
resolve the conflict between Bennett and the decision
below.

At issue in Bennett was an FWS Biological
Opinion that concluded: (1) long-term operation of the
Klamath Irrigation Project was likely to jeopardize two
endangered species of fish; and (2) a reasonable and
prudent measure to avoid that jeopardy was to require
the maintenance of minimum water levels on certain
reservoirs (thereby reducing the amount of water
available for irrigation). The plaintiffs sought judicial
review of the Biological Opinion, asserting that: (1) it
implicitly designated critical habitat for the
endangered fish; and (2) that designation violated
§ 1533(b)(2) because it was undertaken without
“tak[ing] into consideration the economic impact, and
any other relevant impact, of specifying any particular
area as critical habitat.” Bennett, 520 U.S. at 172.

The government sought dismissal of the claim by
asserting that, under § 1533(b)(2), FWS possessed
unreviewable discretion in deciding whether to exclude
particular areas from a critical-habitat designation
based on economic-impact considerations. The Court

21

rejected that assertion, stating, “the terms of
§ 1533(b)(2) are plainly those of obligation rather than
discretion.” Ibid. The Court stated that use of the
word “may” in the second sentence of § 1533(b)(2) did
not alter its conclusion that courts were authorized to
review—under an abuse of discretion standard—FWS’s
ultimate decision regarding whether to exclude
particular areas from a critical-habitat designation
based on cost-benefit considerations. Ibid.

Judge Jones’s dissent from denial of rehearing en
banc highlighted the clear conflict between Bennett and
the panel decision. Pet. App. 160a-16la. Neither the
panel nor the judges voting to deny rehearing
challenged her conclusion that Bennett's holding
authorizes judicial review under the circumstances of
this case. Review is warranted to resolve the conflict.

IT. REVIEW IS WARRANTED BECAUSE THE
DECISION BELOW PRECLUDES REVIEW OF
ECONOMICALLY IRRATIONAL DECISION-MAKING

The Fifth Circuit’s decision to bar judicial review
is particularly troubling because the evidence
overwhelmingly supports Petitioners’ contention that
FWS was unable to identify any benefits of Unit 1
critical-habitat designation that would offset the
admittedly severe economic burdens imposed on
landowners by that designation.’

’ As explained supra at 10 n.5, the designation of Unit 1
as “critical habitat” cannot possibly provide any benefit to the
dusky gopher frog, at least for the foreseeable future..

22

An economic analysis commissioned by EPA
concluded that the designation of Unit 1 could decrease
the value of that property by as much as $34 million.
The same analysis identified no benefits that the
designation would provide to the dusky gopher frog.
IEC, Economic Analysis of Critical Habitat Designation
for the Dusky Gopher Frog (Apr. 6, 2012) at 5-1 to 5-3.

In its final rule, FWS nonetheless concluded,
“Our economic analysis did not identify any
disproportionate costs that are likely to result from the
designation. Consequently, the Secretary is not
exercising his discretion to exclude any areas from this
designation of critical habitat for the dusky gopher frog
based on economic impacts.” 77 Fed. Reg. at 35,141.
FWS did not explain what it meant by the word
“disproportionate” or how it arrived at its no-
disproportionate-costs conclusion. But one can
reasonably question the rationality of that decision,
given that the ratio of costs to benefits in this instance
is infinite.

Given § 1533(b)(2)’s mandate that FWS consider
economic impact when designating critical habitat, at
some point the imbalance between costs and benefits
becomes so great that the only rational decision is to
exclude the area in question. As the Court recently
explained, “One would not say that it is even rational,
never mind ‘appropriate,’ to impose billions of dollars
in economic costs in return for a few dollars in health
or environmental benefits.” Michigan v. EPA, 135 S.
Ct. 2699, 2707 (2015). Yet, under the Fifth Circuit’s
ruling, courts are not permitted to review FWS’s cost-
benefit determination, no matter how irrational, and
even if there is no benefit at all.

23

The Fifth Circuit sought to distinguish
Michigan, noting that the defendant in that case (EPA)
had explicitly declined to consider costs before
imposing new Clean Air Act (CAA) regulations (despite
a statutory requirement to consider whether the
regulation was “appropriate and necessary”), while
FWS did “tak[e] into consideration” economic impact
before designating Unit 1. Pet. App. 36a. But surely,
§ 1533(b)(2)’s “taking into consideration” requirement
mandates more than simply adding up potential costs.
It also mandates an analysis of whether designation is
warranted in light of those costs and the complete
absence of benefits—an analysis that FWS (all evidence
suggests) never undertook. More importantly, nothing
in § 1533(b)(2) indicates that courts are barred from
reviewing Petitioner's claim that FWS failed to take
economic impact into consideration when deciding not
to exclude Unit 1.

lift. THE DECISION BELOW SERIOUS ERODES THE
AUTHORITY OF FEDERAL COURTS TO REVIEW
FEDERAL ADMINISTRATIVE ACTION

Review of the Fifth Circuit's decision is
particularly warranted because it represents a frontal
assault on the presumption of reviewability of agency
action. Numerous federal statutes use permissive
language when describing the authority of agencies to
act or not act. If mere use of the word “may” in a
statute is to be viewed as a signal that an agency's
decision not to desist from enforcement action is not
reviewable, then little will be left of the “strong
presumption” of reviewability.

In particular, the immigration laws are replete

24

with discretionary language regarding the federal
government's authority to desist from removing an
alien who is present in the United States without
authorization. See, e.g., 8 U.S.C. § 1158(b)(1)(A) (“The
Secretary of Homeland Security or the Attorney
General may grant asylum to an alien who has applied
for asylum in accordance with the requirements and
procedures [they] establish[ ]”) (emphasis added). If
the decision below is allowed to stand, the rights of
large numbers of aliens to contest their removal in
federal court could reasonably be called into question.

Nor is there anything unique about FWS's
contention in this case that its no-exclusion decision is
unreviewable. Indeed, FWS has espoused this
interpretation of § 1533(b)(2) for at least nine years.
See Solicitor, Department of Interior, The Secretary’s
Authority to Exclude Areas from a Critical Habitat
Designation under Section 4(b)(2) of the ESA (Oct.
2008).° Unless review is granted, FWS will continue to
urge courts to adopt the same unwarranted
interpretation of § 1533(b)(2) adopted by the Fifth
Circuit.

‘Given the “strong presumption” of reviewability of
administrative action that courts employ when construing federal
statutes, FWS’s restrictive interpretation of § 1533(b)(2) is not
entitled to deference from the courts.

25

CONCLUSION
The Court should grant the Petitions.
Respectfully submitted,

Richard A. Samp

(Counsel! of Record)
Mark S. Chenoweth
Washington Legal Found.
2009 Massachusetts Ave., NW
Washington, DC 20036
202-588-0302

rsamp@wlf.org
August 14, 2017

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0771%3A19. Public record. Not legal advice.