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Bennett v. Spear

ELR Citation: 27 ELR 20824
Nos. 95-813, 117 S. Ct. 1154/520 U.S. 154/(U.S., 03/19/1997) Rev'd sub nom. Bennett v. Spear

The U.S. Supreme Court holds that ranchers and irrigation districts have standing to challenge a U.S. Fish and Wildlife Service (FWS) biological opinion recommending that the Bureau of Reclamation maintain minimum reservoir levels to protect endangered fish. The court first holds that the Endangered Species Act's (ESA's) citizen-suit provision negates the zone of interests test. The provision allows "any person" to commence a civil suit—an authorization of remarkable breadth when compared with the language Congress ordinarily uses. Further, the overall subject matter of the ESA is the environment, a matter in which all persons have an interest, and the obvious purpose of the citizen-suit provision is to encourage enforcement by "private attorney generals." There is no textual basis for saying that the provision's expansion of standing requirements applies to environmentalists alone. The court then holds that petitioners have standing under Article III of the U.S. Constitution. Petitioners' claim that the reservoir level restrictions will reduce the quantity of available irrigation water satisfies the "injury-in-fact" element of Article III standing. Petitioners also sufficiently alleged that their injury is fairly traceable to the biological opinion and is redressable by a favorable judicial ruling. While the Bureau of Reclamation is technically free to disregard the biological opinion, it does so at its own peril, for any person who knowingly takes an endangered or threatened species is subject to substantial civil and criminal penalties. The court next holds that petitioners' claim that the biological opinion implicitly designates critical habitat without considering the designation's economic impact is reviewable under §11(g)(1)(C), which permits suits against the Secretary of the Interior for failure to perform nondiscretionary actions under §4. The terms of §4(b)(2) are plainly those of obligation rather than discretion. However, petitioners' claim that the Secretary violated §7 by not using the best scientific and commercial data available is not reviewable under §11(g)(1)(A) or (C). Subsection (C) covers only violations of §4, and subsection (A) only authorizes injunctive actions against any person who is alleged to be in violation of the ESA or its regulations. The Secretary's conduct in implementing or enforcing the ESA is not a "violation" of the ESA.

The court then holds that petitioners' §7 claims may be brought under the Administrative Procedure Act. The Ninth Circuit erred in concluding that petitioners did not fall within the ESA's zone of interests because they were neither directly regulated by the ESA nor seeking to vindicate its overarching purpose of species preservation. Whether a plaintiff's interest is arguably protected by a statute is to be determined not by reference to the overall purpose of the Act in question, but by reference to the particular provision of law on which the plaintiff relies. Here, each agency is required to use the best scientific and commercial data available to ensure that the ESA is not implemented haphazardly and to avoid needless economic dislocation produced by agency officials zealously but unintelligently pursuing their economic objections. Petitioners' claim that they are victims of such a mistake is plainly within the zone of interests that the provision protects. Last, the court holds that the biological opinion constitutes final agency action because the opinion and accompanying incidental take statement alter the legal regime to which the Bureau is subject, authorizing it to take endangered species if it complies with the prescribed conditions. The biological opinion has direct and appreciable legal consequences.

[The Ninth Circuit's opinion is published at 25 ELR 21479. Briefs in the case are digested at ELR BRIEFS & PLEADS. 66369 and 66510.]

Counsel for Petitioner
Gregory K. Wilkinson, Zachary R. Walton
Best, Best & Krieger
400 Mission Sq.
3750 University Ave., Riverside CA 92502
(909) 686-1450

Counsel for Respondent
Anne S. Almy, Robert L. Klarquist
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000