Amicus Curiae Brief — Douglas County v. Babbitt

&)

No. 95-371

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

DOUGLAS COUNTY, OREGON

v, Petitioner,

BRUCE BABBITT, SECRETARY OF THE INTERIOR

HEADWATERS, INC., AND UMPQUA VALLEY AUDUBON SOCIETY

Respondents.

On Petition For a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF

THE NATIONAL ASSOCIATION OF HOME BUILDERS,

TEXAS CAPITOL AREA BUILDERS ASSOCIATION,

OREGON STATE HOME BUILDERS ASSOCIATION,

AND UMPQUA VALLEY HOME BUILDERS ASSOCIATION

IN SUPPORT OF PETITIONER

Glen Franklin Koontz* Patrick J. Hurd

1201 Fifteenth St., N.W. Keller and Heckman

Washington, D.C. 20005 1001 G Street, N.W.

(202) 822-0359 Suite 500 West

Washington, D.C. 20005

Thomas C. Jackson

Kelley Drye & Warren (202) 434-4100

1200 Nineteenth St., N.W. Counsel for Texas Capital

Washington, D.C. 20036 Area Builders Association,

Oregon State Home

Builders Association, and

Umpqua Valley Home

Builders Association

*Counsel of Record

Counsel for the National

Association of Home

Builders of the

United States

i

TABLE OF CONTENTS

PAGE(S)

TABLE OF AUTHORITIES ....ccccccccccseces ii

INTERESTS OF AMICI CURIAE...........---: 1

SUMMARY OF REASONS FOR GRANTING

> 8 |) Se qeren ol a ree) ir 3

REASONS FOR GRANTING THE WRIT........-. 4

A. The NEPA Process Serves As An Information

ee Bo 8s 6 TA HER SORT E EAN Boe He 4

B. The NEPA Applies To The Designation of Critical

Habitat Under The ESA ........c2cccceeees 6

1. There Is No Conflict Between The NEPA And

I are oC ee CORE Ce eee es 6

2. The NEPA’ Application To The Designation

Of Critical Habitat Is Important To Private

Property Owners ...... 00-0 e ee eeeees 7

we & ht 8 | ee rere ee 11

ii

TABLE OF AUTHORITIES

Cases PAGE(S)

Agins v. City of Tiburon, 447 U.S. 255 (1980) ...... 1

Baltimore Gas & Electric Co. v. Natural Resources

Defense Council, 462 U.S. 87 (1983) ........... 6

Concerned About Trident v. Rumsfeld, 555 F.2d 817

tome A See Ferrer ry re ey 7

Dolan v. City of Tigard, 114 S.Ct. 2309 (1994)...... 1

Douglas County v. Babbitt, 810 F. Supp. 1470 (D.Or.

|! eer rere se er tre emery fre 8

First English Evangelical Lutheran Church of Glendale

v. County of Los Angeles, 482 U.S. 304 (1987)..... 1

Flint Ridge Dev. Co. v. Scenic Rivers Ass’n, 426 U.S.

re. 0). prreeinr aerate ire re: 6, 7

Izaak Walton League v. Marsh, 655 F.2d 346 (D.C.

+. | Peper yerrre rrr eo er. eS 7

Kleppe v. Sierra Club, 427 U.S. 390 (1976) ........ 4

Lucas v. South Carolina Coastal Council, 112 S.Ct.

ye | rrr Pr ere ery ye rr ee ee ee 1

MacDonald, Sommer & Frates v. County of Yolo, 477

U.S. 340, reh’g denied, 478 U.S. 1035 (1986) ..... 1

Metropolitan Edison Co. v. U.S. Nuclear Regulatory

Comunn, S60 US. TOO (ISGS) skies cea svsee ds 7

Nollan v. California Coastal Comm’n, 483 U.S. 825

¢.0 1j ery erie a rae pre yo ee re 1

Olmstead v. United States, 277 U.S. 438 (1928) ..... 2

ili

Robertson v. Methow Valley Citizens Council, 490

a a nn on x.

San Diego Gas & Electric Co. v. City of San Diego,

SS ae ae

Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985) ...........

Yee v. City of Escondido, 112 S.Ct. 1522 (1992) ....

Statutes

ee) et eee

NE ds, bs darsos Owe

SITES

oe hg we hw oes

ane an

S| a

Ee a ae

OE ne ere

SE ee ee

MRM era, 6 ie 8d

a re

Ne gh a ae

Regulations

eh kc asd c

R055 kc isc ads cacees

PAGE(S)

passim

iv

Miscellaneous

59 Federal Register 5827 (1994) .......-22+++005

59 Federal Register 13374 (1994) .......--0+00055

59 Federal Register 58982 (1994) ......---++5055

59 Federal Register 65256 (1994) ........-++++5:

60 Federal Register 5893 (1995) ......-+-0ee0055

60 Federal Register 10694 (1995) ......--+-++055

60 Federal Register 25882 (1995) ......--+++++55

60 Federal Register 29914 (1995) .....---5-++055

60 Federal Register 40892 (1995) ......--+00e055

Houston Post (August 28, 1994) .......-.---+--

Endangered Species Act: Information on Species

Protection on Non-Federal Lands (GAO,

Dec. 1994)

“6s 6 @ 8 &.e 6 @-@ 6-98.09 2S oe 8S 8 SS Se SS

PAGE(S)

6 Ae. SOON

te ai -_

The National Association of Home Builders of the United

States (“NAHB”) and the Texas Capitol Area Builders Associa-

tion (“TxCBA’Y have received the written consent of the parties

to file this brief in support of Petitioner Douglas County, Ore-

gon, and have filed the letters of consent with the Clerk of this

Court.

INTEREST OF THE AMICI CURIAE

The NAHB represents more than 180,000 builders and

associate members organized in approximately 850 affiliated

state and local associations in all fifty states, the District of

Columbia, and Puerto Rico. Its members include not only peo-

ple and firms that construct and supply single-family homes, but

also apartment, condominium, commercial and industrial build-

ers, as well as land developers and remodelers. It is the voice of

the American shelter industry.’

The TxCBA is a not-for-profit corporation organized under

the laws of the State of Texas. TxCBA is an NAHB affiliate,

representing over 700 members employing in excess of

8,000 people regularly conducting business related to the hous-

ing industry in the Austin, Texas area.”

1 The NAHB has been before this Court either as an amicus curiae in

support of, or as of counsel on behalf of, the property owner in prior cases

involving government land use decisions. Dolan v. City of Tigard, 114 S.Ct.

2309 (1994); Lucas v. South Carolina Coastal Council, 112 S.Ct. 2886

(1992); Yee v. City of Escondido, 112 S.Ct. 1522 (1992); Nollan v. California

Coastal Comm’n, 483 U.S. 825 (1987) First English Evangelical Lutheran

Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987); MacDon-

ald, Sommer & Frates v. County of Yolo, 477 U.S. 340, reh’g denied, 478 U.S.

1035 (1986); Williamson County Regional Planning Comm'n v. Hamilton

Bank, 473 U.S. 172 (1985); San Diego Gas & Electric Co. v. City of San

Diego, 450 U.S. 621 (1981); Agins v. City of Tiburon, 447 U.S. 255 (1980).

The NAHB brief was cited approvingly in this Court’s Nollan opinion, 483

US. at 840.

2 NAHB and TxCBA have filed an action against Secretary Babbitt —

NAHB v. Babbitt, Civ. No. 1:95CV01552 JLG (D.D.C. 1995) —challenging

(footnote continues)

2

The Oregon State Home Builders Association (“Oregon

HBA’) is a for-profit corporation organized under the laws of

the State of Oregon. The Oregon HBA is an NAHB affiliate,

representing over 4,814 members organized in 17 local organiza-

tions throughout Oregon.

The Umpqua Valley Home Builders Association (“Ump-

qua Valley HBA’) is a not-for-profit corporation organized

under the laws of the State of Oregon. The Umpqua Valley HBA

is an NAHB affiliate, representing 156 members doing business

in Douglas County, Oregon — the geographic subject of this

action. The ultimate resolution of this action, while important to

all NAHB members, is of particular importance to these

builders.

The Building Industry Amici’s interests lie in seeing that

the implementation of laws concerning or affecting the use of

private property remains consistent, fair, and cognizant of the

need to protect the rights of the inglividual when confronted with

government actions which impinge on constitutional guaran-

tees.3 The Building Industry Amici have a particular interest in

the administration of federal environmental statutes, such as the

National Environmental Policy Act (“NEPA”), 42 U.S.C.

§§ 4321-4370d and the Endangered Species Act (“ESA”), 16

U.S.C. §§ 1531-1544, given the far-reaching impact that these

laws have upon private land use and land-use regulation.

(footnote continued)

the Interior Department’s failure to comply with the Nationa! Environ-

mental Policy Act in its listing of the Golden-cheeked Warbler as endan-

gered. This action involves issues similar to those raised by petitioner in

this case.

3 As Justice Brandeis insightfully admonished:

Experience should teach us to be most on our guard to protect liberty

when the government’s purposes are beneficent ... The greatest

dangers to liberty lurk in insidious encroachment by men of zeal, well-

meaning but without understanding.

Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J.,

dissenting).

— — =

3

The Building Industry Amici believe that this brief will

assist the Court in making its decision whether to grant review of

the issues presented in the Petition. The Building Industry

Amici’s concerns are much broader than those of Petitioner

Douglas County, Oregon, since its members are faced with

countless regulatory decisions on a daily basis across the nation

that affect the use of privately held land. The Building Industry

Amici’s brief addresses the broader public policy reasons why

review should be granted.

SUMMARY OF THE REASONS FOR

GRANTING THE WRIT

The Court should grant Petitioner’s writ because the lower

court has decided a question of national importance in a way that

conflicts with this Court’s precedents. The Court has made it

clear that one of the fundamental purposes of the NEPA is to

provide to decisionmakers and the public at large information

regarding the environmental impacts of federal decisions. The

lower court’s decision frustrates this purpose even though there

is no necessity for doing so, and contravenes the mandate of this

Court that the NEPA’s requirements may be dispensed with only

where another law makes compliance impossible.

Compliance with the NEPA in designating critical habitat is

of great importance. The Secretary has already designated criti-

cal habitat for dozens of species covering millions of acres and

hundreds of river miles; hundreds of other species still await

designation of critical habitat. These designations can have sig-

nificant environmental impacts. Only through compliance with

the NEPA will these impacts be fully explored and disclosed to

the public as intended by Congress.

4

? REASONS FOR GRANTING THE WRIT

A. The NEPA Process Serves As A Vital Information

Resource

Through the NEPA, federal agencies historically have

ensured that they possess sufficient information concerning the

environmental impacts of a proposed federal action to make an

informed judgment about whether to proceed with the action.

Yet federal agencies are not the sole focus for making this

information available through the NEPA. The NEPA‘s policies

are fully achieved only if the President, the Congress, state and

local agencies, and the general public also have the opportunity

to assess the information that is collected by federal agencies

concerning the environmental consequences of a government

action. These policies which include, inter alia:

1) “To declare a national policy which will encourage

productive and enjoyable harmony between man and

his environment;”

2) “(T]o promote efforts which will prevent or eliminate

damage to the environment and biosphere and

stimulate the health and welfare of man;” and,

3) “{T]o enrich the understanding of the ecological systems

and natural resources important to the Nation.”

42 U.S.C. § 4321 (emphasis added). These goals are realized

“through a set of ‘action-forcing’ procedures that require that

agencies take a “hard look’ at environmental consequences,’

and that provide for broad dissemination of relevant

environmental information.” Robertson v. Methow Valley Citizens

Council, 490 U.S. 332, 350 (1989) (quoting Kleppe v. Sierra Club,

427 U.S. 390, 410 n.21 (1976)). Thus, one of the clear benefits

derived from the proper application of the NEPA is the

availability of information regarding the environmental

consequences of government actions.

By evaluation, investigation, and assessment, along with the

dissemination of information gathered through the NEPA

5

process, federal agencies ensure not only that they possess

information sufficient to make an environmentally sound

decision, but also that the President, Congress, and the general

public possess this same information. These other parties —

through their possession and understanding of this

information — not only can evaluate federal agency decisions,

but they can also act in their own capacities based upon this

information.

Absent the dissemination of this information, it is not

possible to encourage productive and enjoyable harmony, or to

promote efforts preventing environmental damage, or certainly

to enrich the understanding of the Nation’s resources. Moreover,

the withholding of information frustrates

the continuing policy of the Federal Government, in

cooperation with state and local governments, and

other concerned public and private organizations, to

use all practicable means... to create and maintain

conditions under which man and nature can exist in

productive harmony .. .

42 U.S.C. § 4331 (a). Indeed, “[t]he Congress recognizes ...

that each person has a responsibility to contribute to the

preservation and enhancement of the environment.” 42 U.S.C.

§ 4331 (c).

While common sense alone dictates that the widespread

dissemination of information is critical to furthering the NEPA‘

goals, Congress acted to ensure the dissemination of information

by codifying this requirement. Section 4332 (c) clearly provides

that Environmental Impact Statements (“EIS”) prepared

pursuant to the NEPA:

shall be made available to the President, the Council on

Environmental Quality and to the public ... and

shall accompany the proposal through the existing

agency review processes[.]

42 U.S.C. § 4332 (emphasis added). Thus, federal agencies are

mandated by Congress to disseminate copies of an EIS prepared

6

pursuant to the NEPA. The “[p]ublication of an EIS

serves a larger informational role. It gives the public the

assurance that the agency "has indeed considered environmental

concerns in its decisionmaking process[.]’” Robertson v. Methow

Valley Citizens Council, 490 U.S. at 349 (quoting Baltimore Gas &

Electric Co. v. Natural Resources Defense Council, 462 U.S. 87, 97

(1983)).

The Ninth Circuit’s decision below frustrates the purposes

of the NEPA by halting the flow of information in the context of

the ESA critical habitat designation. As argued above, this Court

has clearly recognized that the NEPA goes beyond providing

information to the federal agency during the rulemaking process,

since it “also guarantees that the relevant information will be

made available to the larger audience that may also play a role in

both the decisionmaking process and the implementation of that

decision.” Robertson v. Methow Valley Citizens Council, 490 U.S.

at 349. Furthermore, as argued below, the enforcement of the

NEPA with respect to the designation of critical habitat under

the ESA is required in furtherance of Congressional directive

and policy.

B. The NEPA Applies To The Designation Of Critical

Habitat Under The Endangered Species Act

1. There Is No Conflict Between The NEPA And |

The ESA

This Court has interpreted the NEPA provision directing

the application of that act “to the fullest extent possible” to be a

“deliberate command.” Flint Ridge Dev. Co. v. Scenic Rivers

Ass'n, 426 US. 776, 787 (1976). “[E]ach agency of the Federal

Government shall comply with the directives set out in (s 102(2))

unless the existing law applicable to such agency's operations

expressly prohibits or makes full compliance with one of the

directives impossible . . . ” Flint Ridge Dev. Co., 426 US. at

787-788 (quoting 115 Cong. Rec. 39703 (1969) (House confer-

ees); 115 Cong. Rec. 40418 (Senate conferees)) (other citation

omitted).

7

Absent a “clear and unavoidable conflict in statutory author-

ity”, the NEPA is applicable to all major federal actions. Flint

Ridge Dev. Co., 426 U.S. at 788; Metropolitan Edison Co. v. U.S.

Nuclear Regulatory Comm’n, 460 U.S. 766, 772 (1983) (“[W]here

an agency action significantly affects the quality of the human

environment, the agency must evaluate the ‘environmental

impact’ and any unavoidable adverse environmental effects of its

proposal”); Robertson, 490 U.S. at 350 (“NEPA itself does not

mandate particular results, but simply prescribes the necessary

process”); Concerned About Trident v. Rumsfeld, 555 F.2d 817,

823 (D.C. Cir. 1976) (“There is no support in either the statute

or the cases for implying a ‘national defense’ exemption from

NEPA”); Izaak Walton League v. Marsh, 655 F.2d 346, 367 (D.C.

Cir. 1981) (NEPA applicable absent clear conflict).

There is no “clear and unavoidable conflict” between the

NEPA and the Endangered Species Act, nor is there any statu-

tory exemption from the NEPA in the ESA.‘ The NEPA — by its

clear statutory language — applies to the designation of critical

habitat pursuant to the ESA.° Thus, the lower court’s decision

flies in the face of this Court’s precedents.

2. The NEPA’s Application To The Designation Of

Critical Habitat Is Important To Private Property

Owners

Critical habitat designations are made by the Secretary of

Interior “on the basis of the best scientific data available and

after taking into consideration the economic impact, and any

other relevant impact,” of such designation. 16 U.S.C.

§ 1533 (b)(2). If the benefits of excluding an area from a critical

habitat designation outweigh the benefits of its inclusion, the

4 On other occasions, Congress has affirmatively acted to create statu-

tory exemptions from the NEPA. That it has not done so with the ESA is

clear evidence that it intended the NEPA process to apply to actions taken

pursuant to the ESA.

5 Secretary Babbitt does not claim that the designation of critical habitat

is not a major federal action affecting the human environment.

8

Secretary of the Interior may exclude the area from a critical

habitat designation.®

Economic and other relevant factors constitute information

typically included in a NEPA EIS, which is designed to analyze a

wide range of impacts on the human environment.’ Mere state-

ments, however, in a preamble to a critical habitat designation

regulation do not provide solid evidence that such factors were

given the requisite “hard look” by the Secretary. See Douglas

County v. Lujan, 810 F. Supp. 1470, 1480 (D. Or. 1992). The

preparation of an EIS regarding the designation of critical

habitat ensures a comprehensive and systematic examination of

all relevant impacts while also permitting the President, the Con-

gress, state and local agencies, as well as the general public to

evaluate the Secretary’s decision in the context of such factors.

The general public’s access to this information is most

important. As of May 1993, 90% of the 781 species listed as

endangered or threatened under the ESA inhabit non-federal

lands. Of these listed species, 517 have over 60% of their total

habitat on non-federal lands.®

The habitat for these species and the 184 species that have

been listed as endangered or threatened since May 1993 covers

tens of millions of acres, much of it private property, and hun-

dreds, if not thousands, of river miles. The Secretary has already

designated critical habitat for some 115 species covering millions

6 Jd. If the exclusion of an area from a critical habitat designation will

lead to the extinction of a species, the Secretary may not exclude that area

from the designation on economic or other grounds. 16 U.S.C.

§ 1533 (b)(2).

7 The Ninth Circuit provides no basis for its assertion that the Secretary

cannot take into account a wide variety of environmental impacts when

designating critical habitat. The statute requires consideration of “relevant

impacts” without limiting in any way the scope of impacts that may be

relevant. It would be odd to allow the Secretary to decline to designate an

area of critical habitat because of economic impacts, but not because of

other environmental impacts.

8 See General Accounting Office, Endangered Species Act: Information

on Species Protection on Non-Federal Lands, 4-5 (Dec. 1994).

9

of acres.? The designation of such critical habitat imposes on all

' federal agencies an obligation to ensure that their actions will

not result in the adverse modification of that critical habitat. 16

U.S.C. §1536(a)(2). This obligation extends to all types of fed-

eral actions, including actions relating to private property, e.g.,

federal funding for state, local, and private projects; issuance of

federal permits to discharge dredged or fill material into wet-

lands and other waters of the United States pursuant to Sec-

tion 404 of the Clean Water Act, 33 U.S.C. § 1344; issuance of

other permits under the Clean Water Act, 33 U.S.C.

§§ 1251-1387; and the Clean Air Act, 42 U.S.C. §§ 7401-7671q;

and, the provision of federal flood insurance. These prohibitions

are likely to be extended to tens of millions of additional acres in

the future as the Secretary designates critical habitat for some of

the 800 endangered and threatened species currently lacking

critical habitat designations or some of the more than 3000 spe-

cies that are currently candidates for listing under the ESA."°

9 For example, the Secretary has designated approximately 6.9 million

acres as critical habitat for the Northern spotted owl in this case; 4.6 million

acres for the Mexican spotted owl, 60 Fed. Reg. 29914 (1995); 6.4 million

acres for the desert tortoise, 59 Fed. Reg. 5827 (1994); and 6.3 million acres

for the gray wolf, 50 C.ER. § 17.95 (a). In addition, the Secretary has

designated 1,980 miles of the Colorado River and its tributaries as critical

habitat for four fish species, 59 Fed. Reg. 13374 (1994); and has designated

the entire Sacramento-San Joaquin River delta — which lies at the heart of

the water system serving much of the State of California — as critical

habitat for the delta smelt, 59 Fed. Reg. 65256 (1994).

10 For instance, the Secretary has proposed to designate 4.45 million

acres in three states as critical habitat for the marbled murrelet, 60 Fed.

Reg. 40892 (1995), 860,000 acres of lake, stream and shoreline for the Lost

River sucker and the shortnose sucker, 60 Fed. Reg. 5893 (1995), and

20,000 acres on 210 miles of coastline (10% of the California, Oregon and

Washington coastline) for the Western snowy plover, 60 Fed. Reg.25882

(1995). The Secretary at one time considered a proposal to designate

portions of 33 Texas counties as critical habitat for the Golden-cheeked

Warbler. Scott Harper, Endangered: Species or Rights, Houston Post,

August 28, 1994 at Al. Other newly listed and candidate species also have

extensive ranges. The Southwestern willow flycatcher is thought to inhabit

(footnote continues)

10

The designation of critical habitat, particularly on this scale,

can have significant environmental impacts of the type that

would typically be discussed in an EIS. The district court noted

the environmental impacts that could reasonably be expected to

result from the designation of critical habitat for the Northern

Spotted Owl including impacts on the economy, employment,

public and social services.!! Other designations can be expected

to have similar effects. For instance, while designation of critical

habitat for a species may tend to preserve the designated habitat,

the designation will at the same time push development and

other human activities into other nearby areas which will

undoubtedly serve as habitat for other species.

Clearly, given these numbers, the impact of critical habitat

designation has a massive impact on the human environment. If

the federal government is going to initiate an action such as the

designation of private land as critical habitat for an endangered

species, which brings a host of restrictions and prohibitions upon

the use of land, it is not unreasonable for those impacted by the

decision to have full access to information concerning the extent

of those impacts. Indeed, “the EIS serves the function of offering

[ ]{property owners and builders] adequate notice of the

expected consequences [of an agency decision] and the opportu-

nity to plan and implement corrective measures in a timely man-

ner.” Robertson, 490 U.S. 332, 350 (1989). Absent this

information, builders are operating in the dark — or at least in a

murky half-light — unable to either fully participate in the

rulemaking process or to plan for the eventual and probable

impacts of the critical habitat designation.

(footnote continued)

portions of seven states. 60 Fed. Reg. 10694 (1995). The Northern goshawk,

a species which the Secretary has determined may warrant listing as endan-

gered or threatened, is found throughout much of the conterminous

United States. See 59 Fed. Reg. 58982, 58990 (1994) (goshawk historically

has nested in 26 states and regularly visited 19 others).

!1 These impacts are of the type that may be considered in an EIS. See

40 CER. § 1508.8.

11

CONCLUSION

Therefore, for the reasons stated above, and in the Petition

for Writ of Certiorari, the NAHB, TxCBA, Oregon State HBA,

and Umpqua Valley HBA pray that this Court issue a writ of

certiorari to review the judgment and opinion of the United

States Court of Appeals for the Ninth Circuit.

Respectfully submitted,

GLEN FRANKLIN KOONTZ*

1201 Fifteenth Street

Washington, D.C. 20005

(202) 822-0359

THOMAS C. JACKSON

Kelley Drye & Warren

1200 Nineteenth Street, N.W.

Washington, D.C. 20036

(202) 955-9600

Counsel for Amicus Curiae,

The National Association of Home

Builders

PATRICK J. HURD

Keller and Heckman

1001 G Street, N.W.

Suite 500 West

Washington, D.C. 20001

(202) 434-4200

Counsel for Amici Curiae,

Texas Capital Area Builders

Association, Oregon State Home

Builders Association, and Umpqua

Valley Home Builders Association

*Counsel of Record

November 1, 1995