Amicus Curiae Brief — Babbitt v. Sweet Home Chapter, Communities for Great Ore.

ON Warr OF CERTIORARI TO ‘tHE UNITED STATES

Cig OR A A ee are Oe CORUM

Bes agit ed ia.

BRUEF OF CONORESSMAN But BAKER (R-CA),

6 CONGRESSMAN RICHARD POMBO (R-CA), AND THE

Wes. BUILDING INDUSTRY ASSOCIATION OF NORTHERN CALIFORNIA

fe As Amici Curiae in Support of Respondents

sit Virginia S. Albrecht

fae | Counsel of Record

Beveridge & Diamond, PC.

1350 1 Street, N.W., Suite 700

Washington, D.C. 20005

(202) 789-6000

Paul B. Campos

General Counsel

Building Industry Association of

Northern California

Post Office Box 5160

200 Porter, Drive, Suite 200

San Ramon, CA 94583

(510) 820-7626

i

TABLE OF CONTENTS

The Service’s Expansive Definition of “Harm” Is

Inimical To the Language, Structure, and Intent of the

Act

II.

Il.

The Critical Habitat Process Is the Exclusive

Means Whereby the Federal Government Is

Authorized to Regulate Activities Affecting

Rg OF. Pere rere CeeeTeTeeee

A. The Existing Critical Habitat Process.......

B. The Original Critical Habitat Process ......

C. The Hill Decision and Congressional

Reaction: the 1978 Amendments To the

CHIICG! FESUSIMS PYOCOSS . 0. ccc ccc cceeae

While Congress Intended the Critical Habitat

Process To Be a Cornerstone of the Act, and a

Balance Between Species’ Habitat Regulation and

Economic Considerations, the Service Has

Trivialized the Critical Habitat Process Through

Its Expansive Definition of “Harm” ...........

The Service Has Consciously Invoked an

Expansive Definition of “Harm” To Regulate

Habitat Modification In Order To Avoid the

Critical Habitat Designation Process, Which It

Perceives To Be Cumbersome, Taxing, and

ara a ea wala a doa ace o yiaie oe © 6-2

ss eS a ek oa

il

TABLE OF AUTHORITIES

CASES:

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837

| Peewee rr errr rrrer rrr rr

Church of the Holy Trinity v. United States, 143

OD. 037 CONGEs 6 ns taveecweesenectemes

Gustafson v. Alloyd Co., 1995 U.S. LEXIS

BODE CIGNGD i ce cccocctncccnenvenstsoewes

Northern Spotted Owl v. Lujan, 758 F. Supp.

GZ1 (WD. Wine. 3991) 2. cccccscncseens

Tennessee Valley Auth. v. Hill, 437 U.S. 153

Cee hoc 0es stokes cuvaee ee eee

STATUTES:

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

SPO 82k pe acdevened ckntvbecsneseees

Li, od Ler remy

16 U.S.C. § 1532(5)(A) .. 0.0.0. cece eens

16 U.S.C. § 1532(5)(C) ....... 0 cece ee.

16 U.S.C. § 1533(a)(3)(A).......0.00 eee

16 U.S.C. § 1533(b)(2) 20... eee ee eee.

16 U.S.C. § 1533(b)(5)(E) ... 20.20.0000:

16 U.S.C. § 1533(b)(6)(C) ......... 00

16 U.S.C. § 1533(b)(8) 20.0... e eee eee.

1h AE BEI S. .. o os nv exdenecee

16 U.S.C. § 1536(a)(2) 2.2.0.0. eee ee eee

16 U.S.C. § 1536(h)(1)(A)(iii) ... 20.002.

REGULATIONS:

i.e tk ent ee

50 CER. § 424.12(c) ... ccc cece cece eee.

PAGE

5

4,14

2, 10, 11, 21

passim

3

a

8

7, 8

5, 8

21

5, 8

passim

6

5, 9

12

ee

iil

PAGE

43 Fed. Reg. 870 (1978) .......---++eeee: 10

45 Fed. Reg. 47,355 (1980) ........---+-+- 17

45 Fed. Reg. 63,812 (1980) .........--++-- 18

54 Fed. Reg. 27,377 (1989) ......-.--+5+5: 17

55 Fed. Reg. 425 (1990) ........---+-++-- 18

57 Fed. Reg. 1796 (1992) .......--++e ees 5,17

58 Fed. Reg. 33,212 (1993) ........---++5: 17

58 Fed. Reg. 68,543 (1993) .......---+++-- 17

59 Fed. Reg. 4845 (1994) ........---0-5-. 18

59 Fed. Reg. 5820 (1994) ........----05. 16, 17

59 Fed. Reg. 65,256 (1994) .........--+--- 16

LEGISLATIVE HISTORY:

Endangered Species Act Amendments of

1978, Pub. L. No. 95-632, 92 Stat. 3751

SE eo ee 11

H.R. Rep. No. 1625, 95th Cong., 2d Sess.

Sa ee 13, 19

S. Rep. No. 874, 95th Cong., 2d Sess. (1978) . 13

124 Cong. Rec. 21,571 (dailey ed. July 19,

1978) (statement of Sen. Garn).......-.-. 14

MISCELLANEOUS:

FWS Comments to City of Livermore,

Alameda County, California, Regarding

Private Development Project Tentative Tract

Map #6686 (Aug. 5, 1994) .......-.-.--- ?

G. Coggins and I. Russell, Beyond Shooting

Snail Darters in Pork Barrels: Endangered

Species and Land Use in America,

70 Geo. L.J. 1433, 1495 (1982) .........--- 13

iV

PAGE

J. Salzman, Evolution and Application of

Critical Habitat under the Endangered Species

Act, Harv. Envtl. L. Rev. 311 (1990) ....... passim

K. Yagerman, Protecting Critical Habitat under

the Federal Endangered Species Act, 20 Envtl.

me Ft. Pe PeeeT ee Teri ey Teere yy 32

T. Gup, Owl v. Man, TIME, June 25, 1990,

OP Oe 6 oe ir a a ee eh ee eek 5

O. Houck, The Endangered Species Act, and its

Implementation by the U.S. Departments of

Interior and Commerce, 54 U. Colo. L. Rev.

pe PPE Sree Tee ee ee Tee ere ee 13, 14, 19, 21

T. Kenworthy, Sacrificing for Salmon,

Washington Post, Jan. 14, 1992, at Al...... 17

U.S. GAO, Endangered Species Act:

Information on Species Protection on

Nonfederal Land (Dec. 1994)............. 3, 6

U.S. GAO, Endangered Species Act: Types and

Number of Implementing Actions (May 1992) . 15, 18

No. 94-859

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

BRUCE BABBITT, SECRETARY OF THE INTERIOR, ET AL.,

Petitioners

V.

SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT

OREGON, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF CONGRESSMAN BILL BAKER (R-CA), CONGRESS-

MAN RICHARD POMBO (R-CA), AND THE BUILDING INDUS-

TRY ASSOCIATION OF NORTHERN CALIFORNIA AS Amici

Curiae in Support of Respondents

The individuals and organization listed above respectfully

file this brief as amici curiae in support of Respondents. Written

consent has been obtained from counsel for Petitioners and

Respondents for the filing of this brief pursuant to Supreme

Court Rule 37. The letters reflecting consent have been filed with

the clerk’s office.

INTEREST OF AMICI CURIAE

Congressmen Bill Baker (R-CA) and Richard Pombo (R-

CA) are Members of the United States House of Representa-

tives, representing the 10th and 11th Districts in California,

respectively. The Congressmen have a two-fold interest in this

case. First, as members of the Legislative Branch, they believe

2

that the U.S. Fish & Wildlife Service, an agency of the Executive

Branch, has infringed impermissibly on the power of the Legisla-

tive Branch by issuing a regulation that exceeds the scope of the

Endangered Species Act of 1973. Second, as the elected repre-

sentatives of farmers, business people, landowners, and others

who are regulated under the Endangered Species Act of 1973,

the Congressmen are concerned that the U.S. Fish & Wildlife

Service has exceeded the scope of its authority and in the process

caused severe hardships for their constituents. :

The Building Industry Association of Northern California

(“BIANC’”) is a non-profit association of homebuilders and

related professionals. BLANC’s members have been adversely

affected by the U.S. Fish & Wildlife Service’s application of its

“harm” regulation to normal homebuilding activities.

STATEMENT OF THE CASE

Amici adopt the statement of the case contained in the

Brief for Respondents.

SUMMARY OF ARGUMENT

Our system of government is, after all, a tripartite

one, with each branch having certain defined functions

delegated to it by the Constitution... . [I]t is

equally—and emphatically—the exclusive province of

the Congress not only to formulate legislative policies

and mandate programs and projects, but also to estab-

lish their relative priority for the Nation. Once Con-

gress, exercising its delegated powers, has decided the

order of priorities in a given area, it is for the Executive

to administer the laws.

Tennessee Valley Auth. v. Hill, 437 U.S. 153, 193 (1978)(emphasis

added).

The issue presented by this case is whether the U.S. Fish &

Wildlife Service (“FWS” or “Service”), an agency of the Execu-

tive Branch, has exceeded its authority by defining the term

3

“harm” in the Endangered Species Act of 1973 (“ESA’ or

-“Act”), 16 U.S.C. §§ 1531-1544!, to include modification of the

habitat of endangered and threatened species. Amici contend

that it has. The Service’s expansive? definition of “harm” con-

flicts with Congress’ “unambiguously expressed intent”? regard-

ing the federal government’s authority to regulate habitat

modification under the Act.

The argument of amici can be summarized thusly. First, as

the Service (often) emphasizes, the Act does state that one of its

purposes is “to provide a means whereby the ecosystems upon

which endangered species and threatened species depend may

be conserved.’”

Second, in enacting the Endangered Species Act of 1973

and subsequent amendments thereto, Congress created a clear,

! The Endangered Species Act is jointly administered by the Secretary

of the Interior and the Secretary of Commerce. The Act delegates most

responsibilities to FWS and the National Marine Fisheries Service

(“NMFS”).

2 Amici have reason to question the Solicitor General’s contention that

“the court of appeals greatly exaggerated the breadth of the ‘harm’ regula-

tion,” and that there are “significant limitations on the regulation’s applica-

tion.” Pet. App. 19. See, e.g., FWS Comments to City of Livermore,

Alameda County, California, Regarding Private Development Project Ten-

tative Tract Map #6686 (Aug. 5, 1994)(‘“Harm’ has been further defined to

include habitat destruction when it kills or injures a listed species by

interfering with essential behavioral patterns, such as breeding, foraging,

or resting. Indirect adverse impacts, such as construction of buildings, roads

or fences, that interrupt or prohibit the movement patterns of a listed animal

species could be considered ‘take’ by the Service.”) (emphasis added). In

addition, from 1988-93, the Service has on seven occasions prosecuted and

obtained convictions under Section 9 of the Act for “modification of

habitat.” These convictions are distinguished from the 32 convictions based

on species mortality. U.S. General Accounting Office, Endangered Species

Act: Information on Species Protection on Nonfederal Land (Dec. 1994) at

13. .

3. Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 843 (1984).

4. 16 U.S.C. §1531(b).

Meee?

4

detailed, and unambiguous process under which the federal gov-

ernment would regulate the effects of development projects and

other economic activity on the ecosystems (habitat) of endan-

gered and threatened species.

Third, the clear, detailed, and unambiguous process cre-

ated by Congress is the designation of critical habitat pursuant to

Section 4 of the Act, along with the concomitant stricture found

in Section 7(a)(2), that any action authorized, funded, or carried

out by a federal agency shall not “result in the destruction or

adverse modification of habitat of such [endangered or

threatened] species which is determined by the Secretary . . .

to be critical .. . .”5

Fourth, Section 7(a)(2), which reaches not only federal

actions and federal lands, but also any action authorized or

funded by a federal agency, was intended to provide the exclusive

authority for federal regulation of habitat modification.

Fifth, the Service’s expansive definition of “harm” has

allowed it to interpret and administer the critical habitat pro-

cess—which Congress intended to be the Act’s most “influential

enforcement tool’’®—in a manner that is flatly inconsistent with

the Act.

Sixth, by regulating habitat modification almost exclusively

within the ambit of its expansive definition of “harm,” the Ser-

vice has eviscerated the carefully considered substantive and

procedural provisions, including the consideration of economic

impacts, that Congress wrote into the critical habitat designation

process, with the result being a Service interpretation of the

5. “This statutory directive is consistent with Congress’ stated objective

that the ESA ‘provide a means whereby the ecosystems upon which endan-

gered species and threatened species depend may be conserved.’ ” North-

ern Spotted Owl v. Lujan, 758 F. Supp. 621, 624 (W.D. Wash. 1991) (quoting

Endangered Species Act, 16 U.S.C. §1531(b)).

6. J. Salzman, Evolution and Application of Critical Habitat under the

Endangered Species Act, 14 Harv. Envtl. L. Rev. 311 (1990) [hereinafter

Salzman].

5

critical habitat provisions that leads to unreasonable and absurd

results.’

Seventh, the Service has consciously invoked its expansive

definition of “harm” to regulate habitat modification in order to

avoid the critical habitat designation process, which it perceives

to be cumbersome, taxing, and controversial.

In sum, amici advance this fundamental argument: in deter-

mining whether an agency of the Executive Branch has improp-

erly encroached on the functions of Congress, i.e. that it has

interpreted a statutory term in a way that is inconsistent with the

statute as it is written, or is an unreasonable interpretation of a

statutory term, this Court should look primarily within “the four

corners of the statute.”® Within the four corners of the Endan-

gered Species Act, not far from Section 9 and the prohibition on

the “take” (including “harm”) of endangered or threatened spe-

cies, one finds a prohibition against the destruction or adverse

modification of such species’ critical habitat.? One also finds a

Congressional definition of critical habitat, a detailed process for

the designation of critical habitat, and an explicit provision for

precluding designation of critical habitat upon consideration of

the “economic impact, and any other relevant impact” of

designating critical habitat.'°

7. Compare FWS, Designation of 6 Million Acres as Critical Habitat for

the Northern Spotted Owl, 57 Fed. Reg. 1796, 1833 (1992) (“Based on the

information discussed in this rule concerning public projects and private

activities within critical habitat units, it is not clear whether significant

economic impacts will result from the critical habitat designation.”’) with T.

Gup, Owl v. Man, TIME, June 25, 1990, at 56 (“The possible result [of ESA

restrictions]: mill closings and cutbacks costing 30,000 jobs over the next

decade. Real estate prices would tumble, and states and counties that

depend on those shares of the revenue from timber sales on federal land

could see those funds plummet . . . . By decade’s end, the plan could cost

the U.S. Treasury $229 million in lost timber money each year’’).

8. Gustafson v. Alloyd Co., 1995 U.S. LEXIS 1804, at *42 (Feb. 28, 1995)

(Thomas, J., dissenting).

9 16 U.S.C. § 1536(a)(2).

10. See 16 U.S.C. §§ 1532(5)(A), 1533(b)(2), 1533(b)(6)(C), 1533(b)(8).

6

Amici submit that the Service’s expansive definition of

“harm” is inconsistent with the language, structure, and intent of

the Endangered Species Act of 1973. The Act admits of the

regulation'! of species habitat through one, and only one, mecha-

nism: the critical habitat process. The Service, however, has

bypassed the critical habitat process, choosing to regulate habitat

through Section 9 and its expansive definition of “harm.” In the

process, the Service has ignored explicit Congressional policy

concerning competing societal interests and the due process

rights of property owners throughout the country.

ARGUMENT

THE SERVICE’S EXPANSIVE DEFINITION OF “HARM”

IS INIMICAL TO THE LANGUAGE, STRUCTURE, AND

INTENT OF THE ACT.

At issue in this case is the validity of a regulation issued by

the U.S. Fish & Wildlife Service pursuant to the Endangered

Species Act of 1973. The regulation, codified at 50 C.FER. § 17.3,

defines the statutory term “harm” in an expansive manner to

include modification of the habitat of endangered and

threatened species. Thus, by Executive regulation, the Service

has made it a federal crime for private parties to use private

property in a manner that the Service deems unsuitable for

threatened and endangered species, notwithstanding the fact

that there is no federal involvement and the property in question

has not been designated critical habitat under the Act.!?

This result is simply irreconcilable with the Endangered

Species Act as it was written by Congress. In the Act, Congress

provided an explicit and exclusive vehicle for federal regulation

of development projects (both federal and nonfederal) that

adversely affect the habitat (whether on federal or nonfederal

'l. As opposed to the preservation of habitat, which is accomplished

through the land acquisition provisions of Section 5. 16 U.S.C. § 1534.

'2. See U.S. General Accounting Office, Endangered Species Act: Infor-

mation on Species Protection on Nonfederal Land (Dec. 1994).

7

land) of endangered and threatened species. That vehicle is the

critical habitat process. As demonstrated below, the Service’s

definition and administration of the “harm” regulation so

marginalizes the critical habitat process, that the result is unrea-

sonable and absurd." It should also be noted that in marginaliz-

ing the critical habitat process, the Service has also collapsed

Section 7’s two distinct standards—“adverse modification” and

“jeopardy”—into one, quite contrary to the intent of Congress. '*

I. THE CRITICAL HABITAT PROCESS IS THE

EXCLUSIVE MEANS WHEREBY THE FEDERAL

GOVERNMENT IS AUTHORIZED TO REGULATE

ACTIVITIES AFFECTING HABITAT UNDER THE

ACT.

A. The Existing Critical Habitat Process.

The critical habitat process is clear, detailed, and unambig-

uous. Section 4(a)(3) of the Act provides that “[t}he Secretary,

by regulation promulgated in accordance with subsection (b) and

to the maximum extent prudent and determinable shall . . .

designate any habitat of such species which is then considered to

be critical . . . .” 16 U.S.C. § 1533(a)(3)(A).

Section 3(5)(A) defines critical habitat as “the specific

areas within the geographical area occupied by the species, at the

time it is listed . . . , on which are found those physical or

biological features (I) essential to the conservation of the species

and (II) which may require special management considerations

or protection . . . and specific areas outside the geographical

area . . . upon a determination by the Secretary that such areas

are essential for the conservation of the species.” ESA at

§ 1532(5)(A).

'3. See Church of the Holy Trinity v. United States, 143 U.S. 457, 459

(1892).

'4 See Salzman at 329-39; K. Yagerman, Protecting Critical Habitat under

the Federal Endangered Species Act, 20 Envtl. L. Rev. 811, 833-44 (1990)

[hereinafter Yagerman].

8

Section 3(5)(C) provides that “[e]xcept in those circum-

stances determined by the Secretary, critical habitat shall not

include the entire geographical area which can be occupied by

the threatened or endangered species.” ESA at § 1532(5)(C).

Section 4(a)(3) provides that “to the maximum extent pru-

dent and determinable,” critical habitat shall be designated con-

currently with the determination to list a species as endangered

or threatened. ESA at § 1533(a)(3)(A).

Section 4(b)(2) provides that prior to designating any area

as critical habitat, the Secretary shall take “into consideration

the economic impact, and any other relevant impact, of specify-

ing any particular area as critical habitat.” ESA at § 1533(b)(2).

Section 4(b)(2) also provides that “[t}he Secretary may

exclude any area from critical habitat if he determines that the

benefits of such exclusion outweigh the benefits of specifying such

area as part of the critical habitat, unless he determines . . .

that the failure to designate such area as critical habitat will

result in the extinction of the species concerned.” /d. (emphasis

added).

Section 4(b)(6)(C) provides that if a final regulation

designating critical habitat is not published concurrently with the

final regulation listing the species, the Secretary must, within a

one-year period, “publish a final regulation, based on such data

as may be available at that time, designating, to the maximum

extent prudent, such habitat.” ESA at § 1533(b)(6)(C).

Section 4(b)(8) provides that “[t]he publication . . . of

any proposed or final regulation . . . shall include a summary

by the Secretary of the data on which such regulation is

based . . . and if such regulation designates or revises critical

habitat, such summary shall, to the maximum extent practicable,

also include a brief description and evaluation of those activities

9

(whether public or private) which, in the opinion of the Secre-

tary, if undertaken may adversely modify such habitat, or may be

affected by such designation.”'5 ESA at § 1533(b)(8).

Section 7(a)(2) provides that any action authorized,

funded, or carried out by a federal agency shall not “result in the

destruction or adverse modification of habitat of such [endan-

gered or threatened] species which is determined by the Secre-

tary to be critical.” ESA at § 1536(a)(2).

The foregoing discussion demonstrates that (1) Congress

contemplated federal regulation of endangered and threatened

species habitat, (2) Congress crafted a detailed process by which

such regulation would occur, and (3) Congress tempered such

regulation by mandating the consideration of its economic and

other impacts. Since Congress thoughtfully created the critical

habitat process, with its balancing of competing interests and its

requirement of formal rulemaking, it is difficult to conceive how

Congress could have intended to allow the Service to circumvent

that process entirely through the use of Section 9. This difficulty

is compounded when one considers the history of the critical

habitat process. ~

B. The Original Critical Habitat Process.

The Endangered Species Act, as enacted originally in 1973,

neither defined critical habitat nor provided a process for its

designation. Indeed, it has been suggested that Congress was

“oblivious” to the “potentially absolute power’ of Sec-

tion 7(a)(2), including the prohibition against the destruction or

adverse modification of critical habitat.'®

'S 50 C.ER. § 424.12(c) provides that “[eJach critical habitat will be

defined by specific limits using reference points and lines as found on

standard topographic maps of the area. Each area will be referenced to the

State(s), county(ies), or other local governmental units within which all or

part of the critical habitat is located.”

© Salzman at 316.

10

Undefined by the statute itself, critical habitat was defined

by Service regulation:

‘Critical habitat’ means any air, land, or water area

(exclusive of those existing man-made structures or set-

tlements which are not necessary to the survival and

recovery of a listed species) and constituent elements

thereof, the loss of which would appreciably decrease

the likelihood of the survival and recovery of a listed

species or a distinct segment of its population. The

constituent elements of critical habitat include, but are

not limited to: physical structures and topography,

biota, climate, human activity, and the quality and

chemical content of land, water, and air. Critical

habitat may represent any portion of the present

habitat of a listed species and may include additional

areas for reasonable population expansion.

43 Fed. Reg. 870, 874 (1978).

Congress did not remain oblivious to the importance of the

Act’s critical habitat provisions. Nor did it remain oblivious to

the Act’s lack of standards and procedures for designating criti-

cal habitat, or to the Service’s expansive definition of critical

habitat. As will be discussed below, this Court’s decision in Ten-

nessee Valley Auth. v. Hill, 437 U.S. 153 (1978) (“Hill”), brought

these issues to Congress’ attention in resounding fashion. Also

discussed below will be Congress’ reaction to the decision—in

particular, Congress’ wholesale révision of the critical habitat

process.

C. The Hill Decision and Congressional Reaction: the

1978 Amendments To the Critical Habitat Process.

On June 15, 1978, the U.S. Supreme Court issued its deci-

sion in Hill. The Court framed the questions presented as fol-

lows: “(a) would TVA [the Tennessee Valley Authority] be in

violation of the Act if it completed and operated the Tellico Dam

as planned? (b) if TVA’s actions would offend the Act, is an

injunction the appropriate remedy for the violation?” Hill,

11

437 U.S. at 172. Notwithstanding the $100 million that Congress

had already expended on the Tellico Dam, the Court held that

“both questions must be answered in the affirmative.” Id.

The Court based its decision on its determination that

“(o}ne would be hard pressed to find a statutory provision whose

terms were any plainer than those in §7 of the Endangered

Species Act. Its very words affirmatively command all federal

agencies ‘to insure that actions authorized, funded, or carried

out by them do not jeopardize the continued existence’ of an

endangered species or ‘result in the destruction or adverse modi-

fication of habitat of such species . . .’” Hill, 437 U.S. at 173

(citation and emphasis omitted).

Applying the language of the Act, language that “admits of

no exception,”!” the Court concluded that operating the Tellico

Dam constituted a “carrying out” of an action that had been

“authorized” and “funded” by a federal agency, and that such

action did not “insure” that the snail darter’s habitat would not

be disrupted. Hill, 437 U.S. at 172. The Court therefore enjoined

completion and operation of the Tellico Dam.

In dissent, Justice Powell stated that “I have little doubt

that Congress will amend the Endangered Species Act to prevent

the grave consequences made possible by today’s decision.” Hill,

437 U.S. at 210 (Powell, J., dissenting). Congress soon proved

Justice Powell prescient.'®

Almost immediately following publication of the Hill deci-

sion, Congress enacted the 1978 Amendments.'? The 1978

Amendments effected two substantial revisions to the Act. First,

the 1978 Amendments established a Cabinet-level group denom-

inated the Endangered Species Committee. The newly-created

17. Hill, 437 U.S. at 173.

18. See, e.g., Salzman at 317 (the Hill decision “halted construction of the

dam, triggered hearings on Capitol Hill, and evoked public cries to amend

the ESA.”).

19. Endangered Species Act Amendments of 1978, Pub. L. No. 95-632,

92 Stat. 3751 (1978) [hereinafter “1978 Amendments”.

12

committee was empowered to exempt a project from the Act if,

among other things, the project “is of regional or national

significance.”’2°

~ Second, and more important for the question in this case,

the 1978 Amendments produced a wholesale revision of the

Act’s critical habitat provisions. The revision created the critical

habitat process that is in place currently, see supra.*!

As previously discussed, Congress’ revisions created a ciear,

detailed, and unambiguous process under which the federal gov-

ernment would have authority to regulate development projects

and other economic activity that affected the habitat of endan-

gered and threatened species. The revised critical habitat pro-

cess included the following elements: (1) an_ explicit

Congressional definition of critical habitat; (2) a presumption

against designating a species’ entire habitat as critical habitat;

(3) a presumption that critical habitat be designated for all listed

species; (4) a presumption that the designation of critical habitat

be concurrent with the listing of the species; (5) a requirement

that the economic impacts of Cesignating critical habitat be con-

sidered; (6) a provision allowing the exclusion of any area as

critical habitat if the benefits of such exclusion (and therefore the

costs associated with inclusion) outweigh the benefits of

designating that area as critical habitat; and (7) a presumption

that concurrent with the designation of critical habitat, the Ser-

vice identify those activities that may be affected by the

designation.

The scope and detail of the critical habitat process are,

themselves, a striking indication of the significance which Con-

gress attached to the critical habitat process. They are also

fundamentally inconsistent with the notion that the Act allows

2016 U.S.C. § 1536(h)(1)(A)(iii).

71 In 1982 Congress modified that process slightly, providing two nar-

row exceptions to the requirement that designation of critical habitat occur

concurrently with the listing of endangered species. See Salzman at 322,

323.

13

the regulation of species habitat through any other mechanism.

This point is underscored when one considers that the 1978

Amendments were a Congressional reaction to the first judicial

illustration of the vast potential reach of Section 7’s habitat

modification provisions. )

It is clear that through the 1978 Amendments, Congress

intended to restrict the scope of the Act. Equally clear is that

Congress intended to do so by limiting federal authority to regu-

late habitat modification.2? Indeed, Senator Garn, the Senate

sponsor of the 1978 Amendments that revised the critical habitat

process, “predict[ed] that the ESA might be gutted entirely

22. “(T]he existing regulatory definition could conceivably lead to the

designation of virtually all of the habitat of a listed species as its critical

habitat.” H.R. Rep. No. 1625, 95th Cong., 2d Sess. 25 (1978); “[The agency

regulation] substantially increases the amount of area involved in critical

habitat designation and therefore increases proportionately the area that is

subject to the regulations and prohibitions which apply to critical habi-

tats.” S. Rep. No. 874, 95th Cong., 2d Sess. 10 (1978). See also O. Houck,

The Endangered Species Act and its Implementation by the U.S. Departments

of Interior and Commerce, 64 U. Colo. L. Rev. 278, 297 (1993) [hereinafter

Houck] (“The concept of protecting critical habitat . . . was attacked

vigorously . . . following the Tellico Dam decision, leading Congress in

1978 to provide two safety valves to its application to development projects.

The first, on the front end, is an economic screen for determining critical

habitat for listed species . . . . The second . . . is an exemption process

for projects that would destroy critical habitat . . . .).”

See G. Coggins and I. Russell, Beyond Shooting Snail Darters in Pork

Barrels: Endangered Species and Land Use in America, 70 Geo. L.J. 1433,

1495 (1982) (“[W]e think it is time to come to grips with the negative

impact of this Act on man. In addition to the Act’s adverse effects on the

use of federaliy-owned lands, its potential for infringing upon private prop-

erty rights is frightening. If a threatened or endangered species has a

critical habitat on private land, the private landowner could be prevented

from enjoying his constitutional right to full use of his land” (emphasis

added)) (quoting joint statement of the National Cattlemen’s Ass’n, Public

Lands Council, and National Woolgrowers Ass’n).

14

unless it were amended . . . [to] introduc[e] cost-benefit analy-

sis in section 7 decisions.” The 1978 Amendments were there-

fore the product of Congressional balancing of the competing

interests of federal regulation of habitat and economic activity.

Through its habitual use of Section 9 and its expansive definition

of “harm,” the Service has done an end-run around the substan-

tive and procedural provisions which Congress deliberately

wrote into the Act to reflect that balancing.

II. WHILE CONGRESS INTENDED THE CRITICAL

HABITAT PROCESS TO BE A CORNERSTONE OF

THE ACT, AND A BALANCE BETWEEN SPECIES’

HABITAT REGULATION AND ECONOMIC

CONSIDERATIONS, THE SERVICE HAS

TRIVIALIZED THE CRITICAL HABITAT PROCESS

THROUGH ITS EXPANSIVE DEFINITION OF

“HARM.”

Commentators, courts, and legislators have recognized that

the critical habitat process was to be a cornerstone of the Act.”

23. Salzman at 319. See also 124 Cong. Rec. 21,571, 21,572 (daily ed.

July 19, 1978) (statement of Senator Garn) (“[W]e are only at the begin-

ning of our experience with the Endangered Species Act. Over 1,800 plant

species and 100 animal species have now been proposed for designation as

endangered or threatened; more than 40 different habitats are being con-

sidered for designation as critical. And I point out to the Senate that some

of these ‘habitats’ are of enormous size . . . . Senator McClure has

already brought to the attention of the Senate the problems coming with

the designation of the habitat of the grizzly bear .. . .”).

24. See Houck at 297 n.134 (1993) (“Nearly every commentator on the

Endangered Species Act has noted the importance Congress placed on

protecting the critical habitat of endangered and threatened species.’’);

Northern Spotted Owl v. Lujan, 758 F. Supp. 621, 626 (W.D. Wash. 1991)

(“The designation of critical habitat is to coincide with the final listing

decision absent extraordinary circumstances.”); 124 Cong. Rec., 21,575,

21,576 (daily ed. July 19, 1978) (statement of Senator Garn) (“It may well

be the case . . . that the designation of critical habitat is more important

than the designation of an endangered species itself . . . . Placing it on

the list does not necessarily do that [protect the species]. If you do not have

(footnote continues)

15

This view is quite logical, given the language and history of the

Act’s critical habitat provisions. As envisioned—and written—by

Congress, the critical habitat process was to balance the desire to

“provide a means whereby the ecosystems upon which endan-

gered species and threatened species depend may be conserved,”

with the need to consider the “economic and other impacts” of

critical habitat designation. Whatever one’s position regarding

the wisdom of the 1978 Amendments, there is no denying their

purpose and importance. The 1978 Amendments were no

afterthought.*5

The Service’s administration of the critical habitat process

stands in stark contrast to the scheme envisioned by Congress.

Not only has the Service refused to designate critical habitat for

the vast majority of listed species,” but in the rare instances in

which it does designate critical habitat, the Service so trivializes

the designation process as to render it virtually meaningless.

Service analyses of the economic impacts of critical habitat

designations illustrate this point. As discussed above, the Act

explicitly mandates the consideration of the economic impacts

associated with critical habitat designations. Congress injected

this requirement into the Act via the 1978 Amendments. The

1978 Amendments were enacted by Congress to balance habitat

requirements with the economic costs to society result*~g from

habitat regulation. As shown below, the Service has all but

erased economic impacts from the decisional process by constru-

ing the economic impacts of critical habitat designation as being

(footnote continued)

the area designated for its critical habitat . . . then you may have infringe-

ments upon that area that could endanger the species.”)

2S. Indeed, “the inclusion of economic considerations in the designation

process was sharply criticized by some [legislators], who argued that such

considerations should only arise in the post-listing, post-designation

exemption process.” Yagerman at 832.

26. As of 1992, FWS and NMFS had not designated critical habitat for

546 of 651, or 84%, of listed species. U.S. General Accounting Office,

Endangered Species Act: Types and Number of Implementing Actions at 26

(May 1992).

16

solely those economic impacts that are in addition to those occa-

sioned by the listing of the species, in particular those occasioned

by the Service’s alleged authority to regulate habitat modifica-

tion under its expansive definition of “harm.”

The Service defines the economic impacts of critical habitat

as follows:

“(T]he impacts of designating critical habitat are in

addition to the economic and other impacts attributa-

ble to (1) listing of the species, (2) economic effects

resulting from conservation actions taken by other Fed-

eral agencies under section 7(a)(1) of the Act, and

(3) regulatory actions required by other laws.

Section 9 of the Act and Service regulations prohibit

the taking of delta smelt without express authorization

from the Service. Under Service regulations, ‘take’ may

include significant habitat modification or degradation

that actually kills or injures protected species .. .

Therefore, the direct economic and other impacts result-

ing from designation of critical habitat are relatively small

because the Act provides substantial protection of habitat

through the listing of the species itself (emphasis

added).”’

The foregoing Service interpretation of economic impacts, an

inevitable by-product of its expansive definition of “harm,” leads

to a vast disparity between Service findings concerning the eco-

nomic impacts of critical habitat proscriptions under the Act,

27. NMFS, Designation of Critical Habitat for the Delta Smelt, 59 Fed.

Reg. 65,256, 65,261 (1994). See also FWS, Designation of Critical Habitat

for the Mojave Population of the Desert Tortoise, 59 Fed. Reg. 5820, 5826

(1994) (“The economic analysis assumed those values that were in place

prior to critical habitat (e.g., final Bureau of Land Management (BLM)

plans, section 7 jeopardy standard, the Clark County short-term habitat

conservation pian, and section 9 prohibitions) as the baseline for this analy-

sis. As a result, critical habitat effects were those incremental impacts that

would occur solely as a result of the critical habitat proposal above and

beyond the effects of these other actions.”) (emphasis added).

se

a

17

and common sense. Compare NMFS, Determination of Critical

Habitat for the Snake River Chinook Salmon, 58 Fed. Reg.

68,543, 68,544 (1993) (“The economic and other impacts result-

ing from this critical habitat designation, over and above those

arising from the listing of the species, are expected to be mini-

mal.”), with T: Kenworthy, Sacrificing for Salmon, Washington

Post, Jan. 14, 1992 at Al (“The impending sacrifices in behalf of

the salmon represent another example of the sweeping power of

the federal Endangered Species Act, which has seldom, if ever,

been applied to a case involving so large an area or such a wide

range of economic interests. The act already has put large

swatches of Northwest timberland off-limits to logging to protect

the northern spotted owl, and in the case of salmon it will affect

the region’s economic lifeline, the Columbia and its main tribu-

tary, the Snake.”28

28. See also, NMFS, Designation of Critical Habitat for the Sacramento

River Winter-Run Chinook Salmon, 58 Fed. Reg. 33,212, 33,218 (1993)

(“The economic and other impacts resulting from this critical habitat des-

ignation, over and above those arising from the listing of the species under

the ESA, are expected to be minimal . . . . The designation of critical

habitat only duplicates and reinforces the substantive protection resulting

from the listing; therefore, the economic and other impacts resulting from

designation are expected to be minimal . . . .”); FWS, Designation of 6.4

Million Acres as Critical Habitat for the Mojave Population of the Desert

Tortoise, 59 Fed. Reg. 5820, 5826 (1994) (“As a result of this analysis, the

Service concluded that the economic impacts that would be incurred from

critical habitat designation would not be significant to either the regional

(seven-county) or national economy.”); FWS, Designation of 6 Million

Acres as Critical Habitat for the Northern Spotted Owl, 57 Fed. Reg. 1796,

1833 (1992) (“Based on the information discussed in this rule concerning

public projects and private activities within critical habitat units, it is not

clear whether significant economic impacts will result from the critical

habitat designation.”); FWS, Designation of Critical Habitat for the Con-

cho Water Snake, 54 Fed. Reg. 27,377, 27,381 (1989) (“No significant

economic or other impacts are expected from this designation of critical

habitat for the Concho water snake.”); FWS, Designation of Critical

Habitat for the San Marcos Salamander, San Marcos Gambusia, Texas

Wild Rice, and Fountain Darter, 45 Fed. Reg. 47,355, 47,362 ( 1980) (“The

Service has prepared an impact analysis and believes that economic and

(fooinote continues)

18

Ill. THE SERVICE HAS CONSCIOUSLY INVOKED AN

EXPANSIVE DEFINITION OF “HARM” TO

REGULATE HABITAT MODIFICATION IN ORDER

TO AVOID THE CRITICAL HABITAT DESIGNATION

PROCESS, WHICH IT PERCEIVES TO BE

CUMBERSOME, TAXING, AND CONTROVERSIAL.

The Service designates critical habitat for approximately

sixteen percent. of the species listed as endangered or

threatened.”° This, despite the unmistakable emphasis Congress

placed on designating critical habitat in the ESA. The question

therefore arises: why is the Service so reluctant to utilize the

critical habitat process?

Several explanations that might be proffered can be dis-

missed summarily. The notion that the economic impact analysis

will overwhelm habitat protection considerations is implausible

given the fact that the Service routinely dismisses economic

impacts in practice. The notion that it is generally “not prudent”

to designate critical habitat is so implausible as not even to pass

(footnote continued)

other impacts of this action are not significant in the foreseeable future.”’);

FWS, Designation of Critical Habitat for the Coachella Valley Fringe-Toed

Lizard, 45 Fed. Reg. 63,812, 63,818 (1980) (“The Service has prepared an

impact analysis and believes that economic and other impacts of this action

are not significant in the foreseeable future.’’); FWS, Designation of Criti-

cal Habitat for the Least Bell’s Vireo, 59 Fed. Reg. 4845, 4848 (1994)

(“Numerous Federal, State, and local agencies have jurisdiction over the

affected activities . . . . Although a number of agencies expressed con-

cern that the designation of critical habitat would affect proposed or future

projects and asked to have various project areas removed, the economic

costs attributable to critical habitat for those projects are expected to be

insignificant.”); FWS, Designation of Critical Habitat for the Mount Gra-

ham Red Squirrel, 55 Fed. Reg. 425 (1990) (finding no significant economic

or other impacts from designating critical habitat).

29. U.S. General Accounting Office, Endangered Species Act: Types and

Numbers of Implementing Actions at 26 (May 1992).

19

the “red face” test. The notion that critical habitat designation

does not provide the Service with sufficient regulatory authority

over the actions of nonfederal entities on private property, and

that therefore the purposes of the Act can only be effectuated by

reliance on an expansive definition of “harm,” misperceives the

potential scope of critical habitat designations and unlawfully

expands the Service’s authority under Section 9 of the Act.2!

The Service’s primary motivation for avoiding critical

habitat designation is a political one. The general public oper-

ates under the assumption that the federal government possesses

regulatory authority only over those areas that the Service has

designated as critical habitat. This public perception, coupled

with the requirement that critical habitat designations include

. “The proposition that the great majority of listed mammals, birds,

reptiles, and amphibians are also so victimized by collectors that special

protections for their habitat would not be prudent is largely a straw man for

an institutional reluctance to go through the designation process, and to

the designation itself.” Houck at 305. See also, H.R. Rep. No. 1625, 95th

Cong. 2d Sess. 17 (1978). (“The committee intends that in most situations

the Secretary will, in fact, designate critical habitat at the same time that a

species is listed as either endangered or threatened. It is only in rare

circumstances where the specification of critical habitat concurrently with

the listing would not be beneficial to the species.”).

31. “The number of private projects and activities that could run into [§7]

problems under the Act is coextensive with the regulatory and financial

reach of the federal government. These private actions include, but are not

limited to, every project that affects a navigable waterway, every water

pollution point source, every housing project financed by the Department

of Housing and Urban Development, every offshore oil lease, every deep

sea mining operation, every major hydropower project, every interstate

natural gas pipeline, every federally financed highway, and every significant

coastal zone activity,” Coggins and Russell at 1513-14 (citations omitted);

see also 16 U.S.C. § 1533(b)(8) (any proposed or final regulation

designating critical habitat “shall . . . include a description and evalua-

tion of those activities (whether public or private) which . . . may adversely

modify such habitat, or may be affected by such designation”) (emphasis

added).

20

detailed maps, often creates public opposition that the Service

would prefer to avoid:

[T]here is a genuine reluctance on the part of Fish

and Wildlife to designate critical habitat based on other

factors. Designation has been a source of vociferous

public opposition in a number of cases. Fish and Wild-

life is reluctant to arouse that sleeping dragon and is

very much predisposed to find a_ reason of

imprudence.”’

Interview with Michael J. Bean, Chairman, Wildlife Program,

Environmental Defense Fund (Feb. 10, 1989), quoted in Salz-

man at 333-34 n.98.*

The Service has largely eschewed the critical habitat pro-

cess for political reasons, choosing to regulate habitat modifica-

tion through its expansive definition of “harm.” In essence, the

Service has deconstructed the Act, discarded the critical habitat

process, along with its substantive and procedural elements, and

seized on a statement of purpose concerning ecosystem conser-

vation as a justification for making a federal crime out of modify-

ing non-critical habitat.

In the process, the Service has subverted at least three key

provisions of the Act: (1) that habitat regulation be tempered by

32. See also Interview with Donald Barry, Former Assistant Solicitor for

Fish and Wildlife, Department of the Interior (Feb. 11, 1989), quoted in

Salzman at 335-36 (“{critical habitat] maps galvanize opposition immedi-

ately. The local Chamber of Commerce goes into a siege mentality and hits

the panic button. Most Members [of Congress] have run into an endan-

gered species in their districts.”); Interview with John Spinks, Former

Director, Office of Endangered Species, U.S. Fish and Wildlife Service

(March 15, 1989), quoted in Salzman at 336 (“[C]ritical habitat can lead to

serious problems with local people and creates a very hostile opposition to

the species. As soon as you draw a line on the map, they see it as the first

step toward the feds condemning the land . . . . It may be paranoid, but it

was a commonplace problem that led to us protecting species in a terribly

hostile context. Time after time and place after place we faced local opposi-

tion and hostility.”’).

re AR he. ste

21

economic considerations; (2) that habitat subject to federal regu-

lation meet strict biological criteria; and (3) that property own-

ers, who face federal criminal prosecution for violating the Act,

be given adequate notice and opportunity to be heard regarding

potential federal regulation of private property under the Act. 33

CONCLUSION

For all of the foregoing reasons, the Court should strike

down the Service’s expansive definition of “harm.” Members of

the Court have previously expressed the concern that “the reach

of this regulation . . . is virtually limitless.” Hill at 208 (Powell

and Blackmun, JJ., dissenting).

It is time for the Court to act on that concern. For “while

the Department of the Interior has been busy making as little as

possible out of the mandatory provisions of section 7 [regarding

critical habitat], it has allowed sections 9 and 10 to grow into

something substantial, to the point that the two programs...

have begun to merge into one large and largely-discretionary

exercise.”34

Through this large and discretionary exercise, the Service

has undermined explicit Congressional directives and severely

33. See 16 U.S.C. § 1533(b)(8)(requiring description of private activities

potentially subject to critical habitat regulation); 16 U.S.C. § 1533(b)(5)(E)

(requiring public hearing on proposed regulation to designate critical

habitat, if requested by any person).

34. Houck at 352,

22

infringed on the due process rights of property owners. The

decision below should be affirmed.

Respectfully submitted,

Virginia S. Albrecht

Counsel of Record

Beveridge & Diamond, PC.

1350 I Street, N.W., Suite 700

Washington, D.C. 20005

(202) 789-6000

Paul B. Campos

General Counsel

Building Industry Association of

Northern California

Post Office Box 5160

200 Porter Drive, Suite 200

San Ramon, CA 94583

(510) 820-7626

March 24, 1995