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

No. 17-71

Iu The

Supreme Court of the Anited States

,

vv

WEYERHAEUSER COMPANY,

Petitioner,

Vv.

UNITED STATES FISH AND

WILDLIFE SERVICE, ET AL.,

Respondents.

e

¥

On Writ Of Certiorari To The

United States Court Of

For The Fifth Circuit

—@

BRIEF OF CAUSE OF ACTION

INSTITUTE AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

i

QUESTIONS PRESENTED

1. Whether the Endangered Species Act prohibits

designation of private land as unoccupied critical hab-

itat that is neither habitat nor essential to species con-

servation.

2. Whether an agency decision not to exclude an area

from critical habitat designation because of the eco-

nomic impact of designation is subject to judicial re-

view.*

* Amicus Curiae Cause of Action Institute only addresses

the second Question Presented in this brief.

il

TABLE OF CONTENTS

Page

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Interest of the Amicus Curiae .................0..00c000004 1

Summary of the Argument........................0.c00000- 2

Statement of the Case ..................cccssscceeeceeseeeenees 4

BERTIE ccctcnrgusessscnatstitinineiimmidamipiieiee 8

I. The Service’s decision not to exclude Unit

1 from a critical habitat designation is

subject to judicial review....................00.00+. 8

A. The Fifth Circuit failed to apply the

“strong presumption” of judicial re-

viewability of agency actions............... 8

B. This Court has recognized that the ex-

ception for agency actions committed

to agency discretion under § 701(a)(2)

is narrow and requires “careful exam-

ination” of the underlying statute....... 12

C. The language of 16 U.S.C. § 1533(b)(2)

and overall structure of the ESA do

not preclude judicial review ................ 15

D. The Fifth Circuit failed to conduct the

sort of “careful examination” required

to establish that judicial review is pre-

cluded under § 701(a)(2)..................... 18

CI ss nccccntctniiimeciincsicitecdneenaiterenmmenicnena tani 23

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Abbott Laboratories v. Gardner, 387 U.S. 136

EEE EEE SS 12

Aina Nui Corp. v. Jewell, 52 F. Supp. 3d 1110 (D.

EE ETS ES AS 21

Bear Valley Mutual Water Co. v. Jewell, 790 F.3d

a 18, 19, 20, 21

Bennett v. Spear, 520 U.S. 154 (1997)................. passim

Bldg. Indus. Ass’n of the Bay Area v. U.S. Dep't of

Commerce, 792 F.3d 1027 (9th Cir. 2015)............... 21

Cape Hatteras Access Pres. Alliance v. U.S. Dep't

of Interior, 731 F. Supp. 2d 15 (D.D.C. 2010).......... 21

Citizens to Preserve Overton Park, Inc. v. Volpe,

I 10, 12, 13, 18

Dickerson v. Sec’y of Defense, 68 F.3d 1396 (D.C.

EE 16

Franklin v. Massachusetts, 505 U.S. 788 (1992) ........ 14

He Mer v. Chaney, 470 U.S. 821 (1985).............. passim

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

Wildlife Serv., 2006 WL 3190518 (E.D. Cal.

eee 20, 21

ICC v. Locomotive Engineers, 482 US. 270

EE 14

Lincoln v. Vigil, 508 U.S. 182 (1993)..................... 13, 14

Mach Mining, LLC v. EEOC, 135 S. Ct. 1645

i ceteesernserrevnccasecscumestevesesnsuscssencsesescenenees 3, 8,9, 11

iv

TABLE OF AUTHORITIES — Continued

Page

Motor Vehicles Mfrs. Ass’n of U.S., Inc. v. State

Farm Mut. Auto Ins. Co., 463 U.S. 29 (1983) .......... 18

Mulloy v. United States, 398 U.S. 410 (1970).............. 16

Webster v. Doe, 486 U.S. 592 (1988)... passim

STATUTES

Administrative Procedure Act, 5 U.S.C. §§ 701 et

seq.

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Ee a a ne a ee i)

EE ee Le ae 9

aire aici ama tania i)

Endangered Species Act, 16 U.S.C. §§ 1531 et

seq.

ET ee eee Annan ee OEY 4

SER Wie oP SUM Scns 4

iit ibcbaneseniestinticehiinicainicialinn hipaa denial sam 4

SA are ee wR cat cae Ne: 4

SS SERRA ee ear 4

v

TABLE OF AUTHORITIES

REGULATIONS

75 Fed. Reg. 31387 (June 3, 2010)..

76 Fed. Reg. 59774 (Sept. 27, 2011)

77 Fed. Reg. 35118 (June 12, 2012)

— Continued

1

BRIEF OF AMICUS CURIAE

CAUSE OF ACTION INSTITUTE

IN SUPPORT OF PETITIONER

Pursuant to Supreme Court Rule 37.2, Cause of

Action Institute (“CoA Institute”) respectfully submits

this amicus curiae brief in support of Petitioner.'

°

INTEREST OF THE AMICUS CURIAE

Amicus Curiae CoA Institute is a 501(c\(3) nonpar-

tisan, nonprofit strategic oversight group committed to

ensuring that government decision-making is open,

honest, and fair.? CoA Institute uses various investiga-

tive, legal, and communications tools to educate the

public on how government accountability, transpar-

ency, and the rule of law protect liberty and economic

opportunity. As part of this mission, it works to expose

and prevent government and agency misuse of power

by, inter alia, representing third-party plaintiffs in ac-

tions against the federal government and appearing as

e.g., McCutcheon v. Fed. Election Comm’n, 134 S. Ct.

1434, 1460 (2014) (citing brief).

' Ln accordance with Supreme Court Rule 37.2(a), blanket

consent has been granted by all parties. No counsel for a party

authored this brief in whole or in part, and neither the parties,

their counsel, nor anyone except CoA Institute financially contrib-

uted to preparing this brief.

® See Cause of Action Inst., About, www.causeofaction.org/

about (last visited Apr. 26, 2018).

2

CoA Institute has a particular interest in this

matter, because the Fifth Circuit’s determination that

the United States Fish and Wildlife Service’s (“FWS”

or the “Service”) failure to exclude an area of land from

Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq., is discre-

tionary and thus not subject to judicial review is con-

trary to existing law and precedent. As Judge Edith

Jones articulated in her dissent from denial of rehear-

ing en banc, the “ramifications” of the panel’s decision

“for judicial review of agency action cannot be under-

estimated.” Pet. App. 126a. The panel’s decision

“playls| havoc with administrative law.” Jd. at 156a

(Jones, J., dissenting). This is because the determina-

tion is both contrary to existing law and precedent, but

also because the consequences of denying judicial re-

view are not limited to decisions made by the Service,

but may be felt throughout the entire administrative

state. An adverse ruling as the potential to deprive

individuals and businesses affected by the regulatory

powers of the administrative state of their right to

challenge agency abuses of discretion.

°

SUMMARY OF THE ARGUMENT

The strong presumption in favor of judicial review

of administrative actions was not overcome below.

Stripping actions of such import as are found here of

judicial review is inconsistent with precedent and the

statutory scheme. Under the Administrative Proce-

dure Act (“APA”), 5 U.S.C. §§ 701 et seq., there is a

3

“strong presumption” of the judicial reviewability of

agency actions. See Mach Mining, LLC v. EEOC, 135

S. Ct. 1645, 1651 (2015). The Court of Appeals for the

Fifth Circuit’s majority opinion did not overcome this

presumption in its determination that the Service's de-

cision not to exclude land from a critical habitat desig-

nation is not judicially reviewable.

In making its determination, the panel failed to

adequately consider the language of 16 USC.

§ 1533(b)(2) and the overall structure of the ESA, and

erroneously relied on caselaw from the Ninth Circuit

and several district courts that suffer from similar an-

alytical impairments. The panel’s decision that judicial

review is precluded under 5 U.S.C. § 701(a)(2), is con-

tradicted by this Court’s emphasis on “careful exami-

nation of the statute on which the claim of agency

illegality is based.” Webster v. Doe, 486 U.S. 592, 600

(1988). The overall structure of the ESA and the spe-

cific language of 16 U.S.C. § 1533(b)(2) stand in stark

contrast to the consistent holdings of this Court that

the presumption of judicial review can only be over-

come in narrow instances in which no standard is

available to conduct such review. This is not that case.

Thus, the FWS’s decision not to exclude land from a

critica] habitat designation is judicially reviewable. Cf

Bennett v. Spear, 520 U.S. 154, 171-72 (1997).

°

4

STATEMENT OF THE CASE

The ESA generally requires that the Service, “de-

termine whether any species is an endangered species

or threatened species” due to certain natural or

manmade factors. 16 U.S.C. § 1533(a)(1). The determi-

nation must be made “solely on the basis of the best

scientific and commercial data available” and is sub-

ject to formal rulemaking processes. See 16 U.S.C.

§ 1533(b)(1)A); § 1533(a)(1). Upon making such a de-

termination, the Service shall “to the maximum extent

prudent and determinable ... designate any habitat

of {an endangered or threatened species] which is

then considered to be critical habitat.” 16 U.S.C.

§ 1533(aX(3XA). “Critical habitat” may be either oc-

cupied habitat or unoccupied habitat. See 16 U.S.C.

§ 1532(5)A\(i)-(ii). Unoccupied habitat is those “spe-

cific areas outside the geographical area occupied by

the species at the time it is listed in accordance with

the provisions of section 1533” of the ESA. 16 U.S.C.

§ 1532(5)(A)(ii). Unoccupied areas may only be desig-

nated as critical habitat if“such areas are essential for

the conservation of the species.” Ibid.

The ESA requires that

[t]he Secretary shall designate critical habi-

tat, and make revisions thereto, under subsec-

tion (a3) on the basis of the best scientific

data available and after taking into consider-

ation the economic impact, the impact on na-

tional security, and any other relevant impact,

of specifying any particular area as critical

habitat. The Secretary may exclude any area

5

from critical habitat if he determines that the

benefits of such exclusion outweigh the bene-

fits of specifying such area as part of the crit-

ical habitat, unless he determines, based on

the best scientific and commercial data avail-

able, that the failure to designate such area as

critical habitat will result in the extinction of

the species concerned.

16 U.S.C. § 1533(b)(2).

In 2001, the FWS listed the dusky gopher frog,

Rana sevosa, as an endangered species.’ As required

under the ESA, the Service began the critical habitat

designation process for the frog in 2010 and released a

proposed rule, which identified areas in Mississippi as

critical habitat for the frog. See 75 Fed. Reg. 31387,

31395 (June 3, 2010). In 2011, the FWS published a

Revised Proposed Rule, which identified additional ar-

eas for designation as critical habitat, including over

1,500 acres of private land in Louisiana (“Unit 1”). See

76 Fed. Reg. 59774, 59780 (Sept. 27, 2011).

In 2012, the FWS published a final rule designat-

ing over 6,400 acres in Mississippi and Louisiana

as “critical habitat,” which included Unit 1. See 77

Fed. Reg. 35118 (June 12, 2012); JA100. Unit 1 is

owned by several private property owners (collectively

“Landowners” or “Petitioners”). See Pet. App. 88a-89a.

Throughout the designation process and to this day,

* The dusky gopher frog was originally listed as the “Missis-

sippi gopher frog” but its name was later changed by the Service

during the time that the rule designating its critical habitat was

being developed. See Pet. App. 111a-112a; JA101.

6

Unit 1 has functioned as a closed canopy commercial

loblolly pine timber operation by Petitioner Weyerhae-

user. See Pet. Weyerhaeuser Brief at 2; see also Pet.

App. 88a-89a.

As identified during the critical habitat designa-

tion process, the dusky gopher frog requires three basic

environmental features, or “primary constituent ele-

ments” (“PCEs”), in its habitat to survive: (1) small,

isolated, ephemeral ponds located in an open canopy

forest for breeding; (2) upland, open canopy forests

frequented by fires often enough to maintain the open

canopy and sustain “herbaceous ground cover” for

nonbreeding habitat; and (3) similar type upland hab-

itat connecting “breeding and nonbreeding habitat.”

See 77 Fed. Reg. at 35131; JA153-JA154. Of these three

PCEs, Unit 1 only partially meets the first require-

ment — the existence of isolated ephemeral ponds. /d.

at 35123; JA121. Further, the dusky frog has not

been seen in the area of Unit 1 since the 1960s. Jd. at

35124; JA124. Not only is Unit 1 currently uninhabit-

able by the frog, but designating the land as critical

habitat could result in up to $34 million of lost devel-

opment opportunities for the Landowners, which the

Service acknowledged in its own economic analysis. /d.

at 35140; JA188. Despite these facts, the Service in-

cluded Unit 1 in the critical habitat designation for the

dusky gopher frog because it determined that, inter

alia, critical habitat designation does not require the

presence of the PCEs for survival on the designated

land and the Service’s “economic analysis did not iden-

tify any disproportionate costs that are likely to result

7

from the designation.” Jd. at 35141; JA190. The Ser-

vice also stated that it “believeld| that the benefits” of

designating the Unit 1 as critical habitat was “best ex-

pressed in biological terms” rather than economic con-

siderations. Id.; JA137. Despite these facts, FWS still

declared Unit 1 as critical habitat for the dusky gopher

frog, a place where no such frog exists or according to

the Service could survive in its present state.

In 2013, the Landowners challenged the designa-

tion of Unit 1 as critical habitat for the dusky gopher

frog. Despite the district court’s recognition that the

Service’s determination “that the economic impacts on

Unit 1 are not disproportionate” was “troubling,” the

district court granted summary judgement in favor of

the Service, deferring to the FWS’s determination to

include Unit 1 in the critical habitat designation and

finding itself “without power” to overturn the Service’s

decision. Pet. App. 101a, 113a-114a, 118a.

On appeal, a divided Fifth Circuit panel affirmed

the district court. Id. la-77a. The panel decided that

the Service’s determination not to exclude Unit 1 on

the basis of disproportionate economic impacts was not

subject to judicial review once the FWS “fulfilled its

statutory obligation to consider” those impacts because

that determination was discretionary and there were

no manageable standards for the court to apply. Jd. at

32a-36a. In February 2017, the Fifth Circuit denied

the Landowners’ petition for rehearing en banc, by

an 8-6 vote. Id. at 124a. Judge Jones, joined by five

other dissenting judges, issued an opinion warning

that the “ramifications” of the panel majority’s decision

8

regarding judicial review of agency action “cannot be

underestimated.” Jd. at 126a. In response to the

panel’s ruling that the Service’s economic analysis was

not subject to judicial review, Judge Jones noted that

the panel failed to consider Bennet v. Spear and its

“clear signal that the Service’s decision is reviewable.”

Id. at 161a. As Judge Jones argued, “[t/he panel major-

ity’s refusal to conduct judicial review is insupportable

and an abdication of our responsibility to oversee, ac-

cording to the APA, agency action.” Jd. at 162a.

ee

A

ARGUMENT

I. The Service’s decision not to exclude Unit

1 from a critical habitat designation is sub-

ject to judicial review

A. The Fifth Circuit failed to apply the

“strong presumption” of judicial review-

ability of agency actions

Amicus agrees with Petitioner that “instead of pre-

suming reviewability, the court presumed unreviewa-

bility.” Pet. Weyerhaeuser Brief at 48 (emphasis in

original). The presumption of unreviewability adopted

by the panel is in clear contradiction to this Court’s

“‘strong presumption’ favoring judicial review of ad-

ministrative action.” Mach Mining, LLC v. EEOC, 135

S. Ct. 1645, 1651 (2015).

The APA sets forth “comprehensive provisions

for judicial review of ‘agency actions’” in §§ 701-06.

Heckler v. Chaney, 470 U.S. 821, 828 (1985). The APA

9

entitles persons “adversely affected or aggrieved by

agency action” to judicial review of “final agency action

for which there is no other adequate remedy in a

court.” See 5 U.S.C. §§ 702, 704. Availability of judicial

review of final agency action is limited in only two

circumstances: (1) where reviewability is precluded

by statute; or (2) the “agency action is committed to

agency discretion by law.” 5 U.S.C. § 701(a). The APA’s

standards and scope of review are set forth in § 706,

which requires a reviewing court to “hold unlawful and

set aside agency action, findings, and conclusions

found to be,” amongst other things, “arbitrary, capri-

cious, an abuse of discretion, or otherwise not in ac-

cordance with law.” 5 U.S.C. § 706(2).

In Mach Mining, this Court recognized that there

is a “‘strong presumption’ favoring judicial review of

administrative action” because “Congress rarely in-

tends to prevent courts from enforcing its directives to

federal agencies.” 135 S. Ct. at 1651. This presumption

is rebuttable. See id. As the Court articulated, the pre-

sumption favoring judicial review of administrative ac-

tion “fails when a statute’s language or structure

demonstrates that Congress wanted an agency to po-

lice its own conduct.” Jd. However, the “heavy burden”

establishing “that Congress ‘prohibitled] all judicial re-

view’ of the agency’s compliance with a legislative

mandate” is borne by the agency. Id. (quoting Dunlop

v. Bachowski, 421 U.S. 560, 567 (1975)). Amicus agrees

with Petitioner that this presumption is not defeated

by the “permissive phrasing” of a statue because such

phrasing only “indicates that Congress has given the

10

agency discretion” not barred judicial review outright.

Pet. Weyerhaeuser Brief at 48.

The second exemption, where agency action is

“committed to agency discretion by law” is “a narrow

one.” Heckler, 470 U.S. at 826, 838. Heckler affirmed

that an agency decision not to enforce a statute is

presumed to be immune from judicial review under

§ (a)(2), as traditionally committed to agency discre-

tion. See Heckler, 470 U.S. at 830-31. Within its anal-

ysis of the reviewability of enforcement decisions,

Heckler identified two key characteristics of an

agency’s decision not to act: the lack of exercise of

the agency’s “coercive power”; and the lack of “focus

for judicial review” that the exercise of power would

provide. Id. at 832 (citing FTC v. Klesner, 280 U.S. 19

(1929)). These characteristics, which are present when

an agency does not act at all, cut the other way once an

agency has acted to exercise its coercive power, thus

providing a focus for judicial review.

Heckler also confirmed the analysis of Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402

(1971), that judicial review under § (a)(2) requires a

meaningful standard against which to judge, and that,

where such a standard exists, judicial review may be

had — even in the special case of decisions not to en-

force. See Heckler, 470 U.S. at 830-31, 835 (“If |Con-

gress] has indicated an intent to circumscribe agency

enforcement discretion, and has provided meaningful

standards for defining the limits of that discretion,

there is ‘law to apply’ under § 701 (a)(2), and courts

may require that the agency follow that law.”).

11

While the § (a)(1) and § (a)(2) exceptions are dis-

tinct, as discussed infra, the strong presumption of re-

viewability of §(a)(1) is also applicable to § (a)(2)

because “Congress rarely intends to prevent courts

from enforcing its directives to federal agencies.” Mach

Mining, 135 S. Ct. at 1651; see also Heckler, 470 U.S. at

848 (Marshall, J., concurring in the judgment) (noting

that “[slince passage of the APA, the sustained effort of

administrative law has been to ‘continuously narr|ow|

the category of actions considered to be so discretion-

ary as to be exempted from review’” (internal citation

omitted)).

Application of the “strong presumption” of review-

ability to both the § (a)(1) and § (a)(2) exceptions is par-

ticularly important in cases such as the present

matter, where Congress has provided law to apply, the

agency has exercised its coercive power, agency action

has provided a focus for judicial review, and where the

court’s decision to decline judicial review under § (a)(2)

contravenes the text of the statute and the overall

structure of the law, may lead to significant economic

harm, and encumbers private property. Cf Bennett,

520 U.S. at 171-72, 176-77 (1997). The panel’s failure

to apply the “strong presumption” of reviewability is in

error.

12

B. This Court has recognized that the ex-

ception for agency actions committed

to agency discretion under § 701(a)(2)

The exceptions provided by § 701(a)(1) and (a)(2)

are distinct. As noted in Heckler, the language of

§ 701(a) “clearly separates the exception provided by

§ (a)\(1) from the § (a2) exception.” 470 U.S. at 830.

Section 701(aX(1) “applies when Congress has ex-

pressed an intent to preclude judicial review.” Jd. The

Court has recognized that access to judicial review un-

der § 701(a)(1) may only be restricted “upon a showing

of ‘clear and convincing evidence’ of a contrary legisla-

tive intent.” Abbott Laboratories v. Gardner, 387 U.S.

136, 141 (1967), abrogated on other grounds by Cali-

fano v. Sanders, 430 U.S. 99 (1977).

In contrast, the APA’s legislative history indicates

that § 701(a)(2) “is applicable in those rare instances

where ‘statutes are drawn in such broad terms that in

a given case there is no law to apply.’” Overton Park,

401 US. at 410 (quoting S. Rep. No. 752, 79th Cong.,

lst Sess., 26 (1945)). The “no law to apply” standard of

§ 701(aX(2) applies “if the statute is drawn so that a

court would have no meaningful standard against

which to judge the agency's exercise of discretion.”

Heckler, 470 U.S. at 830. Under such circumstances,

the Court has stated that “the statute (‘law’) can

be taken to have ‘committed’ the decisionmaking to

the agency’s judgment absolutely.” Id. The Court indi-

cated that such a construction “avoids conflict with

13

the ‘abuse of discretion’ standard of review in § 706”

because “if no judicially manageable standards are

available for judging how and when an agency should

exercise its discretion, then it is impossible to evaluate

agency action for ‘abuse of discretion.’” Id. The excep-

tion created by § 701(a)(2) is “narrow” and remains so.

See id. at 838 (citing Overton Park, 401 U.S. 402).

A determination that an exception under

§ 701(aX(2) applies to an agency action “requires care-

ful examination of the statute on which the claim of

agency illegality is based.” Webster, 486 U.S. at 600.

What a “careful examination” comprises is undefined.

However, Webster suggests that the examination in-

cludes review of the language of the specific provi-

sion, as well as, “the overall structure” of the law at

issue. See id. at 600-01 (analyzing “(t]he language of

§ 102(c) lof the National Security Act of 1947 (“NSA’)|”

and the “overall structure of the NSA” to determine

that “Congress meant to commit individual employee

discharges to the Director’s discretion”). Thus, “careful

examination” to determine if an exception under

§ 701(aX(2) applies requires something more than a

conclusory determination that judicial review is pre-

cluded.

This Court has also recognized the existence of

“certain categories of administrative decisions” that

are precluded from review under § 701(a)(2) because

the “courts traditionally have regarded” such catego-

ries “as ‘committed to agency discretion.’” Lincoln v.

Vigil, 508 U.S. 182, 191 (1993). Such categories have

included the decision not to undertake an enforcement

14

action, see Heckler, 470 U.S. 821; the denial of a petition

to reopen based only on “material error,” see ICC v. Lo-

comotive Engineers, 482 U.S. 270 (1987); the decision

to terminate an employee for national security con-

cerns, see Webster, 486 U.S. 592; and “|t/he allocation

of funds from a lump-sum appropriation,” see Lincoln,

508 U.S. at 191. These traditional categories represent

those “areas” of agency decisionmaking “in which

courts have long been hesitant to intrude.” See Frank-

lin v. Massachusetts, 505 U.S. 788, 819 (1992) (Stevens,

J., concurring in part and concurring in judgment).

Effectively, the narrow exception that an agency

action is committed to agency discretion under

§ 701(a)(2) applies when it falls within one of the tra-

ditional categories committed to agency discretion or

is one of the “rare circumstances where the relevant

statute ‘is drawn so that a court would have no mean-

ingful standard against which to judge the agency’s ex-

ercise of discretion.’” Lincoln, 508 U.S. at 191 (quoting

Heckler, 470 U.S. at 830). Under either instance, the

determination requires a “careful examination” of the

language of the provision and overall structure of the

statute being challenged and is subject to the “strong

presumption” in favor of reviewability.

15

C. The language of 16 U.S.C. § 1533(b)(2)

and overall structure of the ESA do not

preclude judicial review

The ESA does not explicitly preclude judicial re-

view of critical habitat designations. Nor is the deter-

mination by FWS not to exclude Unit 1 from being

designated as critical habitat under the ESA the type

of administrative action that the courts have been hes-

itant to intrude upon. Thus, judicial review of the Ser-

vice’s decision is only barred if 16 U.S.C. § 1533(b)(2) is

drawn in such a way that precludes a reviewing court

from having a “meaningful standard against which to

judge the agency’s exercise of discretion.” See Heckler,

470 U.S. at 830. To determine if the § 701(a)(2) excep-

tion applies to decisions not to exclude areas from crit-

ical habitat designations, a court must engage in a

“careful examination” of the language of 16 U.S.C.

§ 1533(b)(2) and the overall structure of the ESA. Con-

sistent with this Court’s “strong presumption” in favor

of judicial review of agency actions, a court’s conclusory

determination that judicial review is precluded is not

sufficient to establish that the § 701(a)(2) exception ap-

plies.

Both the language of 16 U.S.C. § 1533(b)(2) and

the overall structure of the ESA indicate that Congress

did not intend to preclude judicial review of decisions

not to exclude lands from a critical habitat designation,

especially where, as here, significant economic impacts

occur. The determination to inflict millions of dollars of

economic harm on private Landowners based on erro-

neous analysis of the ESA is precisely the type of

16

agency action the APA was designed to combat. The

ESA requires that

[tlhe Secretary shall designate critical habi-

tat, and make revisions thereto, under subsec-

tion (a3) on the basis of the best scientific

data available and after taking into consider-

ation the economic impact, the impact on na-

tional security, and any other relevant impact,

of specifying any particular area as critical

habitat. The Secretary may exclude any area

from critical habitat if he determines that the

benefits of such exclusion outweigh the bene-

fits of specifying such area as part of the crit-

ical habitat, unless he determines, based on

the best scientific and commercial data avail-

able, that the failure to designate such area as

critical habitat will result in the extinction of

the species concerned.

16 U.S.C. § 1533(b)(2) (emphasis added). The language

of 16 U.S.C. § 1533(b)(2) is “plainly |that] of obligation

rather than discretion.” Bennett, 520 .S. at 172. The

grant of discretion from Congress to an agency, as in-

dicated by permissive statutory language, does not bar

judicial review. See, e.g., Mulloy v. United States, 398

U.S. 410, 415-16 (1970) (“permissive” statutory lan-

guage does not permit a board to act “arbitrarily”);

Dickerson v. Sec’y of Defense, 68 F.3d 1396, 1401-02

(D.C. Cir. 1995) (“permissive” statutory language such

as “may” indicates “that Congress intends to confer

some discretion on the agency” but “does not mean the

matter is committed exclusively to agency discretion”

(emphasis in original)).

17

Further, the language of 16 U.S.C. § 1533(b)(2) ar-

ticulates a “meaningful standard against which to

judge the agency’s exercise of discretion.” See Heckler,

470 U.S. at 830. As the panel recognized, 16 U.S.C.

§ 1533(b)(2) “articulates a standard for reviewing the

Service’s decision to exclude an area.” Pet. App. 35a.

Further, as noted by the dissenters, it is undisputed

that the decision to include an area as critical habitat

is also judicially reviewable. Pet. App. 160a n. 21

(Jones, J.). As Judge Jones stated, “the Service’s deci-

sion not to exclude Unit 1 is really part and parcel of

the Service’s decision to include Unit 1” as critical hab-

itat. Jbid. (emphasis in original). Thus, the Service’s

decision not to exclude an area from a critical habitat

designation is also judicially reviewable. As Petitioner

argues, “[t]he panel’s recognition that courts may re-

view decisions to exclude should have compelled the

conclusion that courts also may review decisions not to

exclude.” Pet. Weyerhaeuser Brief at 49 (emphasis in

original).

The overall structure of the ESA also commands

that judicial review is not precluded in this matter. In

Bennett, the Court noted that the ESA serves an “over-

all goal of species preservation.” 520 U.S at 176. How-

ever, that is not the ESA’s only goal. The ESA’s other

“objective (if not indeed the primary one) is to avoid

needless economic dislocation produced by agency

officials zealously but unintelligently pursuing their

environmental objectives.” Jd. at 176-77. This latter

goal, of avoiding “needless economic dislocation” by

the unintelligent pursuit of the FWS’s “environmental

18

objectives” is precisely what is at issue in the present

matter. The Service determined that it “did not identify

any disproportionate costs” resulting from the designa-

tion of Unit 1 as critical habitat for the dusky gopher

frog despite its own recognition that the designation

could lead to nearly $34 million of lost development op-

portunities for the Landowners, which was not offset

by its belief that the benefit of the designation was

“best expressed” in unquantified “biological terms.”

See 77 Fed. Reg. 35118, 35140-141, JA188-JA190. The

Fifth Circuit’s failure to consider and carefully exam-

ine the structure of the ESA, and this goal in particu-

lar, was error. The designation of land, where a species

cannot live, as critical habitat creates a clear judicially

reviewable question. See, eg., Motor Vehicles Mfrs.

Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463

U.S. 29, 43 (1983).

D. The Fifth Circuit failed to conduct the

sort of “careful examination” required

to establish that judicial review is pre-

cluded under § 701(a)(2)

The panel failed to engage in the type of “careful

examination” of the language of 16 U.S.C. § 1533(b)(2)

and overall structure of the ESA required by Overton

Park and its progeny. To support its determination that

judicial review was precluded, the panel erroneously

relied on the Ninth Circuit’s decision in Bear Valley

Mutual Water Co. v. Jewell, 790 F.3d 977 (9th Cir.

2015), as well as the opinions of several district courts.

See Pet. App. 34a-35a. In Bear Valley Mut. Water Co.,

19

the Ninth Circuit misquotes this Court’s discussion in

Heckler regarding reasons supporting the “general un-

suitability for judicial review of agency decisions to re-

fuse enforcement” and uses the misappropriated quote

to support its determination that permissively written

statutes are “presumptively unreviewable.” Compare

Heckler, 420 U.S. at 832 with Bear Valley Mut. Water

Co., 790 F.3d at 989. Notwithstanding the Ninth Cir-

cuit’s failure to apply the correct framework articu-

lated in Heckler, this determination is in clear

opposition to the recognition that permissive statutory

language does not bar judicial review.

Heckler argues that agency decisions to refuse en-

forcement proceedings are unsuitable for judicial re-

view because they lack a focus for judicial review. As

stated in Heckler, “when an agency does act to enforce,

that action itself provides a focus for judicial review,

inasmuch as the agency must have exercised its power

in some manner. The action at least can be reviewed to

determine whether the agency exceeded its statutory

powers.” 470 U.S. at 832 (emphasis in original).

In contrast, the Ninth Circuit guts the context of

this statement from Heckler — that it relates solely to

reasons why decisions not to enforce are generally un-

suitable for judicial review — and instead states that

“where a statute is written in the permissive, an

agency's decision not to act is considered presump-

tively unreviewable because courts lack ‘a focus for ju-

dicial review ... to determine whether the agency

exceeded its statutory powers.’” Bear Valley Mut. Wa-

ter Co., 790 F.3d at 989 (quoting Heckler, 470 U.S.

20

at 832) (ellipses in the original). This turns Heckler on

its head.

Consideration of the facts of a case and the lan-

guage and structure of laws is necessary to create con-

text for a court’s analyses and decisions. That context

in turn may signal limitations on a court’s rationale or

holdings. Such limitations should be applied, or in the

very least considered in subsequent matters. To strip,

or separate facts and context and only apply bare

statements from the caselaw, as the Ninth Circuit did

in Bear Valley Mut. Water Co., removes important guid-

ance, not just for the courts, but for agencies and indi-

viduals as well. This erroneous analysis by the Ninth

Circuit, supporting its determination that an agency’s

decision not to exclude critical habitat is not reviewa-

ble, is an improperly applied, irrelevant, and incorrect

construction of this Court’s limited rationale in Heck-

ler. Any reliance on Bear Valley Mut. Water Co. is erro-

neous.

Similarly, the other cases cited by the panel also

suffer comparable analytical infirmities. A review of

the cases relied on by the panel indicate that the entire

rationale in support of the unreviewability of decisions

not to exclude lands from a critical habitat designation

boils down to a single district court’s approximately

255-word “analysis.” See Home Builders Ass’n of N. Cal.

uv. U.S. Fish & Wildlife Serv., 2006 WL 3190518, at *20

(E.D. Cal. 2006). In establishing that there are alleg-

edly “no substantive standards by which to review the

F'WS’s decisions not to exclude certain tracks” of land,

the court in Home Builders Ass’n of N. Cal., failed to

21

consider the overall structure of the ESA and only en-

gaged in a limited analysis of 16 U.S.C. § 1533(b)(2)’s

language. See id. Despite this, subsequent courts have

continued to apply the same deficient analysis in Home

Builders Ass’n of N. Cal. in support of finding that de-

cisions not to exclude areas from critical habitat desig-

nations are not subject to judicial review. See Bldg.

Indus. Ass’n of the Bay Area v. U.S. Dep’t of Commerce,

792 F.3d 1027, 1034-35 (9th Cir. 2015), aff’g No. C 11-

4118 (stating that any consideration of the dual objec-

tives identified in Bennett was simply “foreclosed” by

the Ninth Circuit’s earlier decision in Bear Valley Mut.

Water Co.); Aina Nui Corp. v. Jewell, 52 F. Supp. 3d

1110, 1132 n. 4 (D. Haw. 2014) (baldly citing the district

court’s determination in Bldg. Indus. Ass’n of Bay Area

v. U.S. Dep’t of Commerce, 2012 WL 6002511, at *7

(N.D. Cal. Nov. 30, 2012)); Cape Hatteras Access Pres.

Alliance v. U.S. Dep’t of Interior, 731 F. Supp. 2d 15, 29

(D.D.C. 2010) (quoting Home Builders Ass’n of N. Cal.,

2006 WL 3190518, at *20). The APA provides the well-

known arbitrary and capricious standard, and destroy-

ing millions in economic returns to private land hold-

ers to designate land upon which, by the Service’s own

analysis cannot live, is easily justiciable and subject to

review.

The subsequent repetitions of the erroneous deter-

mination in Home Builders Ass’n of N. Cal., does not

cure it of its analytical faults. The bald parroting of

prior court decisions falls short of Webster’s require-

ment that courts undertake “careful examination” of

the language of the provision and the overall structure

22

of the law in determining whether the § 701(a)(2) ex-

ception applies. See 486 U.S. at 600-01. Such “careful

examination” was never considered in Home Builders

Ass’n of N. Cal., a failure which infects subsequent re-

liance on that determination including the panel’s de-

cision at issue here.

The panel’s decision contravenes existing law and

precedent regarding the availability o/ judicial review

of agency action and “play|s] havoc with administra-

tive law.” Pet. App. 156a (Jones, J., dissenting). The

panel’s determination, that the Service’s decision not

to exclude Unit 1 from a critical habitat designation

was unreviewable, was error because the panel failed

to undertake the proscribed “careful examination” as

contemplated in Overton Park, Heckler, and Webster,

and relied on analytically infirm caselaw.

,

¥

23

CONCLUSION

For the foregoing reasons, the Court should re-

verse the Fifth Circuit, and remand for proceedings

consistent with this Court’s order.

Respectfully submitted,

JOHN J. VECCHIONE

Counsel of Record

KARA E. MCKENNA

CYNTHIA F. CRAWFORD

CAUSE OF ACTION INSTITUTE

1875 Eye Street N.W.

Washington, D.C. 20006

(202) 499-4232

John. Vecchione@causeofaction.org

Counsel for Amicus Curiae