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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0771%3A30

## Record

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

## Text

No. 17-71

In the
Supreme Court of the Anited States

°
WEYERHAEUSER COMPANY,

Petitioner,

Vv.

UNITED STATES FISH AND WILDLIFE SERVICE,
ET AL.
Respondents.

°
On a Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit

°
BRIEF OF AMICT CURIAE BUILDING INDUSTRY
LEGAL DEFENSE FOUNDATION, CALIFORNIA
CATTLEMEN’S ASSOCIATION, CALIFORNIA
BUSINESS PROPERTIES ASSOCIATION,
CALIFORNIA FORESTRY ASSOCIATION, AND
CALIFORNIA CHAMBER OF COMMERCE IN
SUPPORT OF PETITIONER WEYERHAEUSER
COMPANY AND RESPONDENTS MARKLE

INTERESTS, LLC, ET AL.
+

PHILIP A. SANDICK PAUL J. BEARD II
Alston & Bird LLP Counsel of Record
1201 West Peachtree Street MAUREEN F. GORSEN
Suite 4900 Alston & Bird LLP
Atlanta, GA 30309-3424 1121 L Street, Suite 700
(404) 881-7000 Sacramento, CA 95814

(916) 498-3354

paul beard@alston com

Counsel for Amici Curiae

i
QUESTION PRESENTED

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

2. Whether an agency decision not to exclude
an area from critical habitat because of the economic
impact of designation is subject to judicial review.

il

TABLE OF CONTENTS

QUESTION PRESENTED....................c.c0:000e0000+

TABLE OF AUTHORITIEG...................cc00-ssee00s

IDENTITIES AND INTERESTS OF AMICI

If.

DESIGNATIONS OF ACTUAL
HABITAT ALREADY IMPOSE
SUBSTANTIAL RISKS AND COSTS
ON SOCIETY AS A WHOLE;
RAMPANT DESIGNATIONS OF NON-
HABITAT WOULD DRAMATICALLY
WORSEN THOSE RISKS AND COSTS

HABITAT DESIGNATIONS AFFECT
EVEN PROJECTS THAT DO NOT
REQUIRE FEDERAL ACTION..............

STATES, LOCAL GOVERNMENTS,
AND THE PRIVATE SECTOR ARE
PLAYING AN EVER-GROWING ROLE
IN SPECIES CONSERVATION,
MAKING IT UNNECESSARY—AND
UNWISE—TO EXPAND THE
SERVICE’S DESIGNATION POWER
TO INCLUDE NON-HABITAT WITH

NO NEXUS TO A LISTED SPECIES ....

iv

TABLE OF AUTHORITES
Page(s)

Cases
Bennett v. Spear,

ERT SEE nan enaenoesomme nar 10
Markle Interests, L.L.C. v. United States

Fish & Wildlife Serv.,

848 F.3d 635 (Sth Cir. 2017).................:cccceccceseeeeeee 5
Rapanos v. United States,

a ca caadiinbslianeniemnetniics 7
Ross v. Cal. Coastal Comm'n,

199 Cal. App. 4th 900 (2011) .................:0ccccceeeee 17
Sackett v. Environmental Protection Agency,

a RE A DC 11
Tenn. Valley Auth. v. Hill,

cen ctarciernatatl 10
Federal Statutes
a scsemneitiesipmanioneniantan 4
Be ee ie I asi ccccccscnsecsctancesoscstsntivsconsese 4
i ssrasicenaniislameieenibiael 9

Cc _

State Statutes

Cal. Fish & Game Code § 2050 (West 2018) .............. 7
Came, PU, TDR, CR BD oc cccccccsccccccccccssecceescoce 7, 16
Se Be By I ncricstccccnctnnnsscnssnascsanescaneoes 7
Cal. Pub. Res. Code § 3000.5 ..0............:.:cccceeccecesees 17
Cal. Pub. Res. Code § 30107.5 ...0...........:ccccccecccceeeees 18
Cal. Pub. Res. Code § 30240 (a) ....0...0......00ccccccccccceeeee 18
Regulations

III eincnsiicclouistisituninnnitsisnnnmintnesnednedenensiibiieid 9
Re ITI silico cin remenpatinslennesintncudictnnisladnduendint 10
SE TORE are ate a 10
ee Oe acer sciscicnnacidgutsininictandsteeiccsonnancinenien 10
49 Fed. Reg. 27510 (July 5, 1984)..0.000 ee 10
76 Fed. Reg. 2863 (Jan. 18, 2011)..........00.00000000000. 16
77 Fed. Reg. 35118 (June 12, 2012).......0000000........ 5, 13
77 Fed. Reg. 35123 (June 12, 2012) 2000.20... 5
77 Fed. Reg. 35129 (June 12, 2012).....0200 eee. 5
77 Fed. Reg. 35141 (June 12, 2012).....0000000000....... 5, 13

77 Fed. Reg. 35146 (June 12, 2012) 0000000000... ccce cece e 5

Other Authorities

Adler, Jonathan H., Wetlands, Property
Rights, and the Due Process Deficit in
Environmental Law, 2012 Cato Sup. Ct.
Be cs dics cdaiuihieenistinncnascitananssconéenenes 12

Arha, Kaush, et al., Endangered Species Act
and Federalism: Effective Species
Conservation through Greater State
Commitment 9 (Woods Inst. for
Environment, Stanford L. Sch. Policy
Paper)
https://woods.stanford.edu/sites/default/f
iles/files/Endangered-Species-Act-Policy-
Paper-20050224. pdf. ............c0ccecescese00-0e 20, 21, 22

California Coastal Commission, Revised
Staff Report and Recommendation on
Consistency Certification, for
Consistency Certification No. CC018-07
29 (Feb. 6, 2008)
https://documents.coastal.ca.gov/reports/
2008/2/WSb-2-2008 pdf .........2222..00ccccccesseeeeeeeeeenes 19

California State Senate Majority Caucus,
Confronting California’s Housing Crisis
(2018),
http://focus.senate.ca.gov/housing# ..................... 14

Camacho, Alejandro E., et al. Assessing
State Laws and Resources for
Endangered Species Protection, 47 Envti.
e BTU CII SED ceccesccwscrscsensecsncenssessccscors 2?

vii

CRA International, Economic Effects of
Critical Habitat Designation for the
California Tiger Salamander in Sonoma

Sy Oe as crcscettssvenrcccnscescescoccses 17
Dougherty, Conor, California Housing

Problems Are Spilling Across Its

Borders, N.Y. Times, Mar. 20, 2018.................... 14

Farewell, Dashiell, Revitalizing Critical
Habitat: The Ninth Circuit’s Pro-
Efficiency Approach, 46 Envtl. L. 653

Geddes, Pete, The Yellowstone of the Future,
Be is I SI III iticsiscisicccvessitconioncdecnccnses 22

Huggins, Laura, Contracting for
Conservation, Property and
Environment Research Center (Sept. 14,
2017),
https://www.perc.org/2017/09/1 4/contract
EA ee x

James, Norman D., et al, Critical Habitat’s
Limited Role Under the Endangered
Species Act and Its Improper
Transformation into “Recovery” Habitat,
34 UCLA J. Envtl. L. & Pol’y 1, 6 (2016)............ 11

Liebesman, Lawrence R, et al., Federal
Agency Consultation and Recovery
Planning Under The Endangered Species
Act, SLO91 ALI-ABA 327, 333 (June

viii

Nagle, John Copeland, The Original Role of
the States in the Endangered Species Act,
53 Idaho L. Rev. 385, 388 (2017) ...........000...00....

Schatz, Bryan, California’s Housing Crisis
Is So Bad, Families Are Squatting
Abandoned Homes Just to Survive,
Mother Jones (Mar./Apr. 2018),
https://www.motherjones.com/crime-
justice/2018/04/retake-the-house/........................

Sinden, Amy, The Economics of Endangered
Species: Why Less Is More in the
Economic Analysis of Critical Habitat
Designations, 28 Harv. Envtl. L. Rev.

Turner, Andrew, J, et al., A Wider View of
the Impacts of Critical Habitat
Designation: A Comment on Critical
Habitat and the Challenge of Regulating
Small Harms, 43 Envtl. L. Rep. News &
ee ee ininiccunticceticctitccmvetatssntcinccsnets

United States Fish and Wildlife Service,
Critical Habitat under the Endangered
Species Act (June 13th, 2017)
https://www.fws.gov/southeast/endanger
ed-species-act/critical-habitat/.............................

Western Governors’ Association, Species
Conservation and Endangered Species
Act Initiative,
http://westgov .org/initiatives/species-
EE cctiscceisnatictecdaricibuiusavabintdcseeseccnminnss

13

ix

Wilde, Candee, Evaluating the Endangered
Species Act: Trends in Mega-Petitioners,
Judicial Review, and Budget Constraints
Reveal a Costly Dilemma for Species
Conservation, 25 Villanova Envtl. L.J.
ERR EI SSS A ea 8

Wozny, Kateri, Hope for California’s
Housing Crisis?, U.S. News and World
Report (April 3, 2018, at 12:01 a.m.),
https://www.usnews.com/news/best-
states/articles/20 18-04-03/is-there-hope-
for-californias-housing-crisis .............................. 14

Zabel, Jeffrey E., et al., The Effects of
Critical Habitat Designation on Housing
Supply: An Analysis of California
Housing Construction Activity, 46 J.
Reg’l Sci. 67 (2006) ............00cccccecececececesecesereres 12,13

l

IDENTITIES AND INTERESTS OF AMICI
CURIAE

Building Industry Legal Defense Foundation,
California Cattlemen’s Association, California
Business Properties Association, California Forestry
Association, and California Chamber of Commerce
submit this brief amicus curiae in support of
Petitioner Weyerhaeuser Company and Respondents
Markle Interests, LLC, et al.'

The Building Industry Legal Defense
Foundation (“BILD”) is a non-profit mutual benefit
corporation and a subsidiary of the Building Industry
Association of Southern California, Inc.
(“BLASC”). BLASC represents approximately 1,200
member companies across Southern California that
are active in all aspects of the building industry,
including land developers; builders of housing,
commercial, and infrastructure; and architects,
engineers, planners, contractors, and suppliers. The
purposes of BILD are, in part, to initiate or support
litigation or agency action designed to improve the
business climate for the building industry and to
monitor government regulation critical to the
industry.

California Cattlemen’s Association is the
preeminent organization of cattle grazers in

' The parties have filed a blank consent to the filing of amicus
curiae briefs. 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 amicus curiae, ite members, or ita counsel
made a monetary contribution to ita preparation or submission.

2

Califormia, and acting in conjunction with its affiliated
local organizations, it endeavors to promote and
defend the interest of the livestock industry. Formed
in 1917 as a non-profit trade association, the
Cattlemen's Association promotes the interests of
ranchers both large and small in California. Beef
cattle producers operate on over 38 million of
California’s 100 million acres. The Cattlemen's
Association has 35 local cattlemen’s association
affiliates that serve as a strong link between the
grassroots membership and the association. The
Cattlemen's Association represents its members’
interests before the California State Legislature,
Congress, and federal and state regulatory agencies
on a wide range of issues including federal lands
grazing fees and regulation, wetlands, conservation
programs, air quality, wildlife management, parcel
fees, and other issues affecting the use and ownership
of California’s rangelands.

California Business Properties Association
(“CBPA”) is a commercial real estate trade association
that serves as the legislative and regulatory advocate
for property owners, tenants, developers, retailers,
contractors, land-use attorneys, brokers, and other
professionals in the commercial real estate industry.
With over 10,000 members, CBPA is the largest
consortium of commercial real estate professionals in
California. Its members range from some of America’s
largest retailers and commercial property owners and
tenants, to individual and family-run commercial rea!
estate interests.

California Forestry Association is a nonprofit,
nonpartisan organization dedicated to sustainable

3

uses of renewable resources and responsible forestry.
Association membership includes forest land owners,
forestry professionals, loggers, manufacturers,
wholesalers, and retailers who are engaged in the
production and distribution of wood products. These
members own 3.8 million of the 7.4 million acres of
private forest land in California and are committed to
protecting and enhancing the natural life cycle of
California’s forests. They also supply wood resources
by contracting to purchase and harvest significant
amounts of timber from public lands, including the
national forests.

The California Chamber of Commerce
(“CalChamber’) is a non-profit business association
with over 13,000 members, both individual and
corporate, representing virtually every economic
interest in the state of California. For over 100 years,
CalChamber has been the voice of California business.
While CalChamber represents several of the largest
corporations in California, seventy-five percent of its
members have 100 or fewer employees. CalChamber
acts on behalf of the business community to improve
the state's economic and jobs climate by representing
business on a broad range of legislative, regulatory
and legal issues. CalChamber often advocates before
federal and state courts by filing amicus curiae briefs
and letters in cases, like this one, involving issues of
paramount concern to the business community.

Amici represent a broad cross-section of those
individuals and businesses who own, lease, and make
productive use of private lands in California. As a
consequence, they are deeply concerned about the
proper scope of the power of the United States Fish

4

and Wildlife Service (“FWS” or “Service”) under the
Endangered Species Act to designate private property
as “critical habitat” for protected species. If, as the
Fifth Circuit Court of Appeals in this case held, the
FWS has the authority to impose a “critical habitat”
designation even on property that is not habitat for
any protected species—and is not even suitable for
that purpose— then Amici’s members face increasing
regulatory burdens on and uncertainty over their
ability to use and develop their properties.

INTRODUCTION AND SUMMARY OF THE
ARGUMENT

The Endangered Species Act (“ESA”) requires
the FWS? to identify and list endangered and
threatened animals and plants. 16 U.S.C.
§ 1533(a)(1). The listing of an animal species triggers
the Service’s statutory obligation to designate “critical
habitat” for that species “to the maximum extent
prudent and determinable.” /d. § 1533(a)(3)(A)(i). In
this case, a panel of the Fifth Circuit upheld the
Service’s designation of private land in Louisiana as
“critical habitat” for a listed species despite the fact

2 The United States Department of Interiors FWS and the
United States Commerce Department's National Marine
Fisheries Service (“NMFS”) both administer the ESA. The FWS
has primary responsibility for terrestrial and freshwater
wildlife, like the Dusky Gopher Frog here, while NMFS has
jumsdiction over marine wildlife. For simplicity’s sake, this bnef
refers only to FWS given that the case involves a species within
ita jurisdiction, but the same principles discussed herein apply to
NMFS.

5

that the land is uninhabited—and uninhabitable—by
that species.

All of the known Dusky Gopher Frogs live in
Mississippi more than 50 miles away from the
Louisiana land at issue. See Final Rule for the
Designation of Critical Habitat for the Dusky Gopher
Frog (the “Final Rule”), 77 Fed. Reg. 35118, 35146
(June 12, 2012) (showing map of critical habitats). The
Service could not relocate the frogs onto the Louisiana
land without the landowner’s consent, see id. at
35,123, and the landowners have consistently
explained that they do not and will not consent. See
Markle Interests, L.L.C. v. United States Fish &
Wildlife Serv., Case No. 14-31008, Doc. 005128568 10,
Joint Brief of the Appellants at 7 n.2 (quoting public
comments). Further, if the frogs somehow ended up on
the Louisiana land as it exists today, they would die.
See Final Rule, 77 Fed. Reg. at 35,129. Nonetheless,
the Louisiana land was designated as “essential” to
the species’ conservation, imposing substantial costs
on the landowners—$34 million by the Service's
calculation—and creating a precedent that puts
virtually all United States land at risk of designation.
See 77 Fed. Reg. 35118, 35141; Markle Interests,
L.L.C. v. United States Fish & Wildlife Serv., 848 ¥ 3d
635, 637 (5th Cir. 2017) (Jones, J., dissenting from
denial of rehearing en banc).

Drawing partly on the California experience,
the first and second parts of this brief describe the
impacts on landowners and consumers that will result
from a federal power to designate non-habitat as
“critical habitat” for protected species. The Service
routinely assures private landowners that

6

designations of their property as “critical habitat” do
not affect their land ownership or establish a refuge,
wilderness, reserve, preserve or other conservation
area. See, e.g., United States Fish and Wildlife
Service, Critical Habitat under the Endangered
Species Act (June 13th, 2017)
https://www_.fws.gov/southeast/endangered-species-
act/critical-habitat/, It emphasizes that such
designations do not allow the federal government or
the public to access their lands, and do not result (at
least automatically) in closure of the designated area
to private use and development. /d. At worst, the
Service claims, a “critical habitat” designation affects
only projects on private lands requiring federal action
that may adversely modify the designated critical
habitat, e.g., projects requiring a federal permit, a
federal license, or federal funding. /d. In that case, the
federal agency undertaking the action must consult
with the Service to avoid jeopardizing the existence of
listed species and their critical habitat.“

The Service's narrative masks the harsh reality
faced by developers, businesses, ranchers, foresters
and others with a “critical habitat” designation on
their land. First, as federal permitting jurisdiction
has expanded over the last several decades, so too
have the circumstances under which federal agencies
need to consult with the Service to ensure that use

* According to the Service's representations at oral argument
before the Fifth Circuit, there is virtually no effect on the land
until the landowner receives a determination by the Service or
the U.S. Army Corps of Engineers that a proposed development
qualifies as an “adverse modification.” And at that point, the
Service offered, the landowner could challenge the adverse
modification determination.

7

and development of the property are limited to avoid
adverse modification to any critical habitat. And
second, the designation itself is costly in terms of
additional permitting impediments and decreased
land value. Those are on top of the costs of the
consultation process itself. See Lawrence R.
Liebesman & Rafe Petersen, Federal Agency
Consultation and Recovery Planning Under The
Endangered Species Act, SLO91 ALI-ABA 327, 333
(June 2006) (“The consultation process can be lengthy
and complex with extensive negotiations between a
project applicant, the Corps and the FWS.”).

The third part of this brief discusses how
federal designations of non-habitat are both
duplicative of and inimical to state and local efforts,
and private initiatives, to conserve species.
“Regulation of land use” is “a quintessential state and
local power.” Rapanos v. United States, 547 U.S. 715,
738 (2006) (plurality). With the discretion to designate
even non-habitable land as “critical habitat,” the
Service’s power and influence over private property in
the United States will rise to an unprecedented
level__far beyond what Congress contemplated or the
Constitution permits. Indeed, nowhere does the ESA
contain the “clear and manifest statement from
Congress” that is expected when statutes authorize an
“unprecedented intrusion” into an area of “traditional
state authority” such as land-use regulation. /d.
(internal quotation and citation omitted). California is
a case in point. With the California Environmental!
Quality Act, Cal. Pub. Res. Code § 21000 (West 2018)
(“CEQA”), the California Coastal Act, Cal. Pub. Res.
Code § 30000 (West 2018) (“CCA”), the California
Endangered Species Act, Cal. Fish & Game Code

8

§ 2050 (West 2018) (“CESA”), and a potpourri of other
environmental statutes, California—and many other
states like it—are well-equipped to balance important
economic interests (such as the need to address the
critical shortage of housing), and the state’s interest
in protecting threatened and endangered animals on
private lands.

What’s more, the private sector has begun
supporting conservation initiatives in new and more
significant ways. See, eg., Laura Huggins,
Contracting for Conservation, Property § and
Environment Research Center (Sept. 14, 2017),
https://www.perc.org/20 17/09/14/contracting-for-
conservation/. Private entities that historically may
have resisted conservation efforts are now aligned
with those efforts. Affirming the Service’s unlimited
“designation” power threatens to reverse the organic
trend of state, local and private efforts to deal with
quintessentially local concerns.

Finally, given its limited resources, the Service
can barely pursue its statutory priorities. Indeed, as
the countless lawsuits against it over the years show,
the Service finds it challenging even to meet the most
basic deadlines for completing “status reviews” of
listed species every five years and other obligations.
Candee Wilde, Note, Evaluating the Endangered
Species Act: Trends in Mega-Petitioners, Judicial
Review, and Budget Constraints Reveal a Costly
Dilemma for Species Conservation, 25 Villanova
Envtl. L.J. 307, 321-23 Wan. 1, 2014). The last thing
the Service needs is the power to pursue low-priority
objectives—like searching for, and designating as
“critical habitat,” land that does not host and is

9

inhospitable to any protected species. Such new power
can be expected to create a new cottage industry of
litigation against the Service, thereby further
undermining the agency’s more important priorities.

For all these reasons, the Fifth Circuit's decision
should be reversed, and the Service’s power limited to
designating actual habitat that is critical to a listed

species.
ARGUMENT

I. DESIGNATIONS OF ACTUAL HABITAT
ALREADY IMPOSE SUBSTANTIAL
RISKS AND COSTS ON SOCIETY AS A
WHOLE; RAMPANT DESIGNATIONS OF
NON-HABITAT WOULD DRAMATICALLY
WORSEN THOSE RISKS AND COSTS

As alluded to above, the Service's designation
of land as “critical habitat” is legally consequential.
Section 7 of the ESA requires that federal agencies
ensure that their “actions” are not likely to jeopardize
the continued existence of a listed species or destroy
or adversely modify its critical habitat. 16 U.S.C.
§ 1536(a)(2). “Actions” are defined as “all activities or
programs of any kind authorized, funded, or carried
out, in whole or in part, by Federal agencies in the
United States or upon the high seas,” and include “the
granting of licenses, contracts, leases, easements,
rights-of-way, permits, or grants-in-aid.” 50 C.F_R.
§ 402.02. Thus, the range of federal actions that can
trigger consultation is extraordinarily broad.

Under Section 7, federal agencies must consult
with the Service on any actions that may affect listed

10

species and their habitats to ensure that reasonable
and prudent measures will be undertaken to mitigate
impacts on listed species. 16 U.S.C. § 1536(b)(3)(A); 50
C.F.R. § 402.14; see also Bennett v. Spear, 520 U.S.
154, 158 (1997). Consultation with the Service can be
either formal or informal depending on the likelihood
of the action to adversely affect listed species or
critical habitat. 50 C.F.R. §§ 402.13, 402.14. Once a
formal consultation is initiated, the Service will issue

a Biological Opinion (either a “no jeopardy” or a
“jeopardy” opinion) indicating whether the proposed
agency action will jeopardize the continued existence
of a listed species or result in the destruction or
modification of its critical habitai. 16 U.S.C.
§ 1536(b)(3)(A); 50 C.F_R. § 402.14(g). Importantly, a

permit will not be issued for a project with a
“jeopardy” opinion unless it is redesigned to lessen
impacts; needless to say, “biological opinions under
Section 7 have the power to stop development projects
in their tracks and have sometimes done so.” Amy
Sinden, The Economics of Endangered Species: Why
Less Is More in the Economic Analysis of Critical
Habitat Designations, 28 Harv. Envtl. L. Rev. 129, 141
(2004); see, e.g., Tenn. Valley Auth. v. Hill, 437 U.S.
153 (1978) (ruling that the almost-constructed Tellico
Dam, the completion of which (it was thought*) would

* Subsequent to the Court's decision, “several small relict
populations” of snail darter were discovered in other streams.
See Zygmunt J.B. Plater, Law and the Fourth Estate:
Endangered Nature, the Press, and the Dicey Game of Democratic
Governance, 32 Envtl. L. 1, 8 n.22 (2002). In 1984, the Service
downlisted the fish to threatened status and rescinded ita critica!
habitat. See 49 Fed. Reg. 27,510 (July 5, 1984).

11

eradicate the endangered snail darter (a small
freshwater fish), could not proceed).

If landowners hardly ever needed federal
authorization or funding for projects proposed on their
properties, critical habitat designations might be
considered relatively inconsequential from a legal and
economic standpoint. But that is not the case.
Increasingly, landowners have witnessed ever-greater
involvement by federal agencies in land use and
development. “As federal regulatory programs have
expanded, an increasing number of non-federal
activities require some sort of federal permit or
approval, or some other federal nexus that triggers
Section 7(a)(2) and the duty to avoid the adverse
modification of critical habitat.” Norman D. James &
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. & Pol’y 1, 6 (2016).

Nowhere has the expansion of federal
regulatory programs been more pronounced than in
the area of federal permitting of projects under the
Clean Water Act. As one commentator has noted,
“(t]he most likely source of a federal nexus for a
private development project is Section 404 of the
Clean Water Act, which requires private parties to
obtain permits from the Army Corps of Engineers
before conducting dredging or filling activities in the
“waters of the United States,” including wetlands,
rivers, creeks, and streams. Sinden, supra, at 177
n.216 (citing 33 U.S.C. § 1344; 33 C.F_R. § 328.3(a)).
But, as this Court is well aware, “[t]he reach of the
Clean Water Act is notoriously unclear.” Sackett v.

12

Environmental Protection Agency, 566 U.S. 120, 132
(2012). Faced with that statutory ambiguity, the
federal agencies charged with the Act's
implementation and enforcement—the Army Corps of
Engineers and the Environmental Protection
Agency—-have pushed their federal permit
jurisdiction to the limit (and, arguably, beyond).
Jonathan H. Adler, Wetlands, Property Rights, and
the Due Process Deficit in Environmental Law, 2012
Cato Sup. Ct. Rev. 139, 142-49 (2012) (tracing the
expansion of federal regulatory jurisdiction under the
Clean Water Act over the last four decades).

The upshot is that landowners risk having the
federal government control the extent to whch they
can use and develop their properties. Federal
regulatory programs, like the Clean Water Act, are
expanding. And if the Fifth Circuit's decision stands,
federal “critical habitat” designations will proliferate
across the country—if not on the Service's own
initiative, then certainly with the prodding of third-
party environmentalist lawsuits demanding
prophylactic designations of hypothetical habitat as a
means of undermining productive use of property.

The market recognizes the cost of that risk as
early as the proposal stage. According to a study
funded by the Service itself, when the Service
proposes to designate undeveloped land as critical
habitat by publishing its property map, the price per
acre of that land decreases by an average of 20
percent. See Jeffrey E. Zabel and Robert W. Paterson,
The Effects of Critical Habitat Designation on Housing
Supply: An Analysis of California Housing
Construction Activity, 46 J. Reg’l Sci. 67, 73 (2006)

13

(noting this particular finding had a p value of only
0.091). That same study found that the supply of
single-family residential housing permits decreases
markedly when critical habitat is proposed—by 23.5
percent in the short run and 37.0 percent in the long
run. See id. at 93.

“The results indicate the proposal of {critical
habitat] acts as a signal that all development in the
[municipality] will be more costly.” Jd. at 68. The
results are “consistent with anecdotal evidence that
cities where [critical habitat] has been designated
tend to become more risk averse and hence more
stringent in issuing new building permits regardless
of whether or not they are for land in [critical habitat)-
designated areas.” Id. at 94 (emphasis added). The
study focused on residential construction permits, but
there is little reason to believe the effects are limited
to that particular land use. And even the Service
recognizes that critical habitat designations have
significant ramifications on property valuation; its
own economic analysis determined the Louisiana
landowners burdened in this case will lose up to $34
million in development opportunities if the
designation remains in place. 77 Fed. Reg. 35118,
35141.

Finally, upholding the Service's power to
designate non-habitat will harm the average
consumer of the goods and services that are the
product of land uses: housing, commercial space,
locally produced food, and other basic goods and
services that are made possible only through the
productive use of land. See, e.g., Andrew J. Turner &
Kerry L. McGrath, A Wider View of the Impacts of

14

Critical Habitat Designation: A Comment on Critical
Habitat and the Challenge of Regulating Small
Harms, 43 Envtl. L. Rep. News & Analysis 10678,
10678 (2013) (‘The designation of critical habitat
under the Endangered Species Act (ESA) can result in
significant and costly consequences for landowners,
industry, government, and other entities—often with
little if any evidence of a commensurate benefit to the
species involved.”).

Consider California’s housing crisis. Working
people are homeless. See Kateri Wozny, Hope for
California’s Housing Crisis?, U.S. News and World
Report (April 3, 2018),
https://www.usnews.com/news/best-states/articles/20
18-04-03/is-there-hope-for-californias-housing-crisis.
Multiple generations of a family share a single house.
Unluckier families must share beds, garages, and
even cars as their sleeping quarters. See Bryan
Schatz, California’s Housing Crisis Is So Bad,
Families Are Squatting Abandoned Homes Just to
Survive, Mother Jones (Mar/Apr. 2018),
https://www.motherjones.com/crime-justice/20 18/04/r
etake-the-house/. State and local politicians are
working frantically to address the housing shortage in
California. See, generally, California State Senate
Majority Caucus, Confronting California’s Housing
Crisis (2018), http://focus.senate.ca.gov/housing?#.
Californians—companies and citizens alike—are
leaving the state. See Conor Dougherty, California
Housing Problems Are Spilling Across Its Borders,
N.Y. Times, Mar. 20, 2018, at B1. The Service's ability
to designate actual habitat already has taken land out
of productive use, including for home-building
purposes. Imagine how the power to designate

15

hypothetical habitat on land that is uninhabitable by
any protected species will undermine efforts in
California to provide housing to its residents. The
harm to the average individual and family in
desperate need of affordable housing in California and
other states cannot be overstated.

Il. HABITAT DESIGNATIONS AFFECT
EVEN PROJECTS THAT DO NOT
REQUIRE FEDERAL ACTION

In addition to the economic cost burdens
described above, a “critical habitat” designation can
impose regulatory burdens on a landowner even when
a project requires no federal action. Specifically, land
that has been designated as “critical habitat” can be
used by state and local governments to justify
significant limits on a _ propertys use and
development. For although federal law may not
compel state and local governments to engage in
Section 7 consultation with the Service or mandate
project modification based on the existence of
federally designated critical habitat, state and local
laws can and do render such critical habitat relevant
to (and often decisive in) the decision whether or the
extent to which to allow a particular use.

The Service is well aware of the significant
influence that its critical habitat designations have on
state and local permit decision-making. That
influence will only grow if the Service’s designation
power is expanded to the extent sanctioned by the
Fifth Circuit in this case. See, e.g., Dashiell Farewell,
Revitalizing Critical Habitat: The Ninth Circuit’s Pro-
Efficiency Approach, 46 Envtl. L. 653, 663 (2016)

16

(“With more parties on notice the more likely it is that
habitat will receive the consideration and protection
it deserves. . . . [A]gencies involved in restoration and
conservation efforts will be more aware of areas worth
their attention.”).

We know the Service is aware of the effect of
designation on local decision-making because the
Service has recognized it in the past. California—one
of the jurisdictions where state and local agencies
regularly rely upon federally designated critical
habitat to limit land use and development, even where
there is no federal nexus—provides a number of
examples.

In 2011, the Service proposed a_ rule
designating critical habitat for the Sonoma County
Distinct Population Segment of the California Tiger
Salamander. Revised Proposed Rule for the
Designation of Critical Habitat for the Sonoma
County Distinct Population Segment of the California
Tiger Salamander, 76 Fed. Reg. 2863 (Jan. 18, 2011).
In analyzing the proposed rule's effect on small
businesses, the Service recognized that, “even in the
absence of a Federal nexus, indirect incremental
impacts fon small businesses] may result if, for
example, a city requests project modifications via the
city’s review under the California Environmental
Quality Act (CEQA), due to the designation of critical
habitat.”® Jd. at 2869.

® CEQA is the California statute that requires state and local
agencies to identify the significant environmental impacts of
their actions and to avoid or mitigate those impacts if feasible.
See Cal. Pub. Res. Code § 21000 et seq.

17

Indeed, the report produced “to assist the
Secretary of the Interior in determining whether the
benefits of excluding particular areas from the
designation outweigh the biological benefits of
including them” found the designation was likely “to
impose losses of over $336 million relating to lost
development opportunities.” See CRA International,
Economic Effects of Critical Habitat Designation for
the California Tiger Salamander in Sonoma County |,
3 (Sept. 23, 2005). Those effects were expected to be
concentrated in the real estate development sector,
particularly where there are few alternative sites for
development or housing is highly rationed. The report
recognized that “[t]he welfare impacts of critical
habitat designations are affected by the nature and
extent of prior interventions such as zoning, urban
growth boundaries and other policies.” See id. at 23;
see also id. at 25-26 (discussing the intersection
between Clean Water Act requirements and the Santa
Rosa Plain Conservation Strategy).

Another example comes from the California
Coastal Commission, the state agency responsible for
regulating and permitting land use and development
along the California coast. See Cal. Pub. Res. Code
§ 30001.5; Ross v. Cal. Coastal Comm'n, 199 Cal. App.
4th 900, 923 (2011) (referring to the agency's
governing statute, the Coastal Act, as “a
comprehensive scheme to govern coastal land use
planning for the entire state”). One of the Coastal
Commission’s strongest weapons against land use and
development is the Coastal Act’s concept of an
“Environmentally Sensitive Habitat Area” (“ESHA”),
which is defined as:

18

any area in which plant or animal life
or their habitats are either rare or
especially valuable because of their
special nature or role in an ecosystem
and which could be easily disturbed or
degraded by human activities and
developments.

Cal. Pub. Res. Code § 30107.5.

Designation of property as “ESHA” is the death
knell of almost any use or development of private
property. That is because only so-called “resource-
dependent uses” of property are allowed in an ESHA.
See id. § 30240(a) (“Environmentally sensitive habitat
areas shall be protected against any significant
disruption of habitat values, and only uses dependent
on those resources shall be allowed within those
areas.”).

How precisely does the Coastal Commission go
about deciding whether an area of land is an ESHA?
It turns out that the California Coastal Commission
assumes property is ESHA—and is_ therefore
undevelopable—if it is or ever has been federally
designated as critical habitat. For instance, when the
Coastal Commission was reviewing a proposed
development of a toll road in Southern California in
what was then mostly undeveloped open space, it
observed that some of that area was federally
designated critical habitat. That WaS enough to
declare the area an undevelopable ESHA and, partly
on that basis, the Commission denied the project:

|Ajithough the Commission is not
limited to designated critical habitats

19

when defining ESHA, the Commission
can rely on critical habitat designations
as one of the components supporting an

As detailed below, the Commission
finds that those areas within the
coastal zone portion of the proposed
project area that are currently or have
previously been specifically designated
as critical habitat by the U.S. Fish and
Wildlife Service (FWS) due to the
recognized and established presence of
federally listed threatened or
endangered species and/or _ the
importance of these areas to the
conservation of threatened or
endangered species also qualify as
environmentally sensitive habitat
areas, ESHA.

California Coastal Commission, Revised Staff Report
and Recommendation on Consistency Certification,
for Consistency Certification No. CC018-07 29
(Feb. 6, 2008) https://documents.coastal.ca.gov/report
s/2008/2/W 8b-2-2008 pdf.

In sum, the effect of a “critical habitat”
designation is not limited to projects requiring federal
action. The designation can also influence and, in
some cases, influence the permit decisions of state and
local agencies, to the detriment of developers,
ranchers, business owners, foresters, and other
property owners. The power to designate even non-
habitat as “critical habitat” is the power to further

20

threaten and erode their ability to use their
properties.

lil. STATES, LOCAL GOVERNMENTS, AND
THE PRIVATE SECTOR ARE PLAYING
AN EVER-GROWING ROLE IN SPECIES
CONSERVATION, MAKING IT
UNNECESSARY—AND UNWISE--TO
EXPAND THE SERVICE’S
DESIGNATION POWER TO INCLUDE
NON-HABITAT WITH NO NEXUS TO A
LISTED SPECIES

The federal government's constitutionally
limited role in species conservation does not leave
endangered and threatened species unprotected.
States are actually quite good at regulating land use
in an effort to protect such species, including on
private property. California has some of the most
burdensome and extensive environmental regulations
in the country. “The primary benefit for enhanced
state responsibility in species conservation derives
from sheer institutional presence and strength on the
land where conservation action is needed.” Kaush
Arha and Barton H. “Buzz” Thompson, Endangered
Species Act and Federalism: Effective Species
Conservation through Greater State Commitment 9
(Woods Inst. for Environment, Stanford L.. Sch. Policy
Paper) https://woods.stanford.edu/sites/default/files/fi
les/Endangered-Species- Act-Policy-Paper-

20050224 pdf.

A chart of 2005 resources devoted to wildlife
conservation in California demonstrates the State’s
presence and strength in that space:

21

CA Fish & USFWS NOAA
Game Dept.| si _-‘Fisheries —
# of 350 20 14

# of 886 168** 52

Total 1,236 188 66

Total 283,158,000 | 32,500,000* | 29,920,000
**

* does not include state or federal biologists stationed at state or
federal wildlife refuges or fish hatcheries as there job entails
managing that parcel of land rather than working with entities
outside the confines of the hatchery or wildlife refuge.

** the number refers to FWS biologists in both California &
Nevada.

*** represents only the appropriated funds to Sacramento Office
of FWS.

Id. at 11-12.

Indeed, “|gliven the familiarity of state
institutions with the ecological, economic, and social
landscape of the state they are better positioned than
the transient representatives of the federal
government to design and implement species

22

conservation programs with better effect and at less
cost.” Id. at 12. That is not to say states are perfect.
See Alejandro E. Camacho, Micheel Robinson-Dorn,
Asena Cansu Yildiz, and Tara Jeegarden, Assessing
State Laws and Resources for Endangered Species
Protection, 47 Envtl. L. Rep. 10838 (Oct. 2017). But
states like California—and regional bodies like the
Western Governors’ Association—can and do put
significant resources toward species conservation. See
Western Governors’ Association, Species Conservation
and Endangered Species Act Initiative,
http://westgov.org/initiatives/species-conservation-
and-esa. “[TJo reach the full potential of our species
conservation efforts states agencies need to take the
lead, as they did in game management, buttressed by
federals laws and resources.” Arha and Thompson at
15; see also John Copeland Nagle, The Original Role
of the States in the Endangered Species Act, 53 \daho
L. Rev. 385, 388 (2017) (“The Congress that enacted
the ESA in 1973 expected that states would play a
lead in conservation efforts because the states already
had substantially more wildlife management
expertise than the federal government. The federal
role, as the Department of the Interior testified at the
time, was ‘an overseeing operation’ to ensure that
states were fulfilling the purposes of the law.”).

The private sector has in recent years begun
playing an ever greater role in species conservation as
well. The American Prairie Reserve, for example,
combines “existing public lands with private resources
and a businesslike approach to securing land.” Pete
Geddes, The Yellowstone of the Future, N.Y. Times,
Dec. 28, 2015, at Al9. The organization has raised
“$100 million from private supporters to purchase 25

23

properties, which are now open to the public for
camping, hiking, and hunting.” Huggins, supra.
American Prairie Reserve has reintroduced bison,
converted existing fences to more migration-friendly
boundaries, and incentivized neighboring farmers and
ranchers to permit wandering wildlife to find a meal
on their land.

The arc of environmental conservation in many
states, like California, is bending toward greater
state, local, and voluntary protection of threatened
and endangered species. Affirming the Fifth Circuit
and blessing the Service’s unfettered ability to
designate private land as critical habitat when that
land is neither habitat nor critical threaten to
undermine that trend and institute greater top-down
controls that serve neither the States, its businesses
and consumers, nor the resource-strapped federal
Service.

CONCLUSION

For the reasons stated above, and those stated
in the briefs of Petitioner and of Respondents Markle
Interests, LLC, et al., Amici urge the Court to reverse
the Fifth Circuit’s decision.

DATED: April 2018

PHILIP A. SANDICK
Alston & Bird LLP

1201 West Peachtree St.

Suite 4900
Atlanta, GA 30309-3424
(404) 881-7000

24

Respectfully submitted,

PAUL Jd. BEARD II

Counsel of Record
MAUREEN F.. GORSEN
Alston & Bird LLP
1121 L Street, Suite 700
Sacramento, CA 95814
(916) 498-3354
Counsel for Amici Curiae

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0771%3A30. Public record. Not legal advice.