BENNETT et al. v. SPEAR et al.(1997)

No. 95-813

Argued: November 13, 1996Decided: March 19, 1997

The Endangered Species Act of 1973 (ESA) requires the Secretary of the Interior to specify animal species that are “threatened” or “endangered” and designate their “critical habitat,” 16 U.S.C. § 1533 and requires federal agencies to ensure that any action they authorize, fund, or carry out is not likely to jeopardize a listed species or adversely modify its critical habitat, §1536(a)(2). If an agency determines that a proposed action may adversely affect such a species, it must formally consult with the Fish and Wildlife Service, which must provide it with a written statement (the Biological Opinion) explaining how the proposed action will affect the species or its habitat. §1536(b)(3)(A). If the Service concludes that such action will result in jeopardy or adverse habitat modification, §1536(a)(2), the Biological Opinion must outline any “reasonable and prudent alternatives” that the Service believes will avoid that consequence, §1536(b)(3)(A). If the Biological Opinion concludes that no jeopardy or adverse habitat modification will result, or if it offers reasonable and prudent alternatives, the Service must issue a written statement (known as the “Incidental Take Statement”) specifying the terms and conditions under which an agency may take the species. §1536(b)(4). After the Bureau of Reclamation notified the Service that the operation of the Klamath Irrigation Project might affect two endangered species of fish, the Service issued a Biological Opinion, concluding that the proposed long term operation of the project was likely to jeopardize the species and identifying as a reasonable and prudent alternative the maintenance of minimum water levels on certain reservoirs. The Bureau notified the Service that it would operate the project in compliance with the Biological Opinion. Petitioners, irrigation districts receiving project water and operators of ranches in those districts, filed thisaction against respondents, the Service’s director and regional directors and the Secretary, claiming that the jeopardy determination and imposition of minimum water levels violated §1536, and constituted an implicit critical habitat determination for the species in violation of §1533(b)(2)’s requirement that the designation’s economic impact be considered. They also claimed that the actions violated the Administrative Procedure Act (APA), which prohibits agency actions that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). The District Court dismissed the complaint, concluding that petitioners lacked standing because they asserted “recreational, aesthetic, and commercial interests” that did not fall within the zone of interests sought to be protected by the ESA. The Court of Appeals affirmed, holding that the “zone of interests” test–which requires that a plaintiff’s grievance arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit–limits the class of persons who may obtain judicial review not only under the APA, but also under the ESA’s citizen suit provision, 16 U.S.C. § 1540(g); and that only plaintiffs alleging an interest in the preservation of endangered species fall within the zone of interests protected by the ESA.

Held: Petitioners have standing to seek judicial review of the Biological Opinion. Pp. 5-24.

(a) The Court of Appeals erred in concluding that petitioners lacked standing under the zone of interests test to bring their claims under the ESA’s citizen suit provision. The test is a prudential standing requirement of general application, see, e.g., Allen v. Wright, 468 U.S. 737, 751 , that applies unless expressly negated by Congress. By providing that “any person may commence a civil suit,” §1540(g)(1) negates the test. The quoted phrase is an authorization of remarkable breadth when compared with the language Congress ordinarily uses. The Court’s readiness to take the term “any person” at face value is greatly augmented by the interrelated considerations that the legislation’s overall subject matter is the environment and that §1540(g)’s obvious purpose is to encourage enforcement by so called “private attorneys general.” See Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 210 -211. The “any person” formulation applies to all §1540(g) causes of action, including actions against the Secretary asserting overenforcement of §1533; there is no textual basis for saying that the formulation’s expansion of standing requirements applies to environmentalists alone. Pp. 5-11.

(b) Three alternative grounds advanced by the Government–(1) that petitioners fail to meet Article III standing requirements; (2) that §1540(g) does not authorize judicial review of the types of claimspetitioners advanced; and (3) that judicial review is unavailable under the APA–do not support affirmance. Petitioners’ complaint alleges an injury in fact that is fairly traceable to the Biological Opinion and redressable by a favorable judicial ruling and, thus, meets Article III standing requirements at this stage of the litigation. Their §1533 claim is clearly reviewable under §1540(g)(1)(C), which authorizes suit against the Secretary for an alleged failure to perform any nondiscretionary act or duty under §1533. Their §1536 claims are obviously not reviewable under subsection (C), however. Nor are they reviewable under subsection (A), which authorizes injunctive actions against any person “who is alleged to be in violation” of the ESA or its regulations. Viewed in the context of the entire statute, subsection (A)’s reference to any ESA “violation” cannot be interpreted to include the Secretary’s maladministration of the Act. The §1536 claims are nonetheless reviewable under the APA. The ESA does not preclude such review, and the claim that petitioners will suffer economic harm because of an erroneous jeopardy determination is plainly within the zone of interests protected by §1536, the statutory provision whose violation forms the basis for the complaint, see Lujan v. National Wildlife Federation, 497 U.S. 871 . In addition, the Biological Opinion constitutes final agency action for APA purposes. It marks the consummation of the agency’s decisionmaking process, Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U.S. 103, 113 . It is also an action from which “legal consequences will flow,” Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 , because the Biological Opinion and accompanying Incidental Take Statement alter the legal regime to which the Bureau is subject, authorizing it to take the endangered species if (but only if) it complies with the prescribed conditions. Franklin v. Massachusetts, 505 U.S. 788 , and Dalton v. Specter, 511 U.S. 462 , distinguished. Pp. 11-23.

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