EQUAL ACCESS TO COURTS UNDER ESA AND 

CITIZEN'S FAIR HEARING ACT 

HEARING 

BEFORE THE 

COMMITTEE ON RESOURCES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTH CONGRESS 

SECOND SESSION 

ON 

EQUAL ACCESS TO COURTS UNDER THE 

ENDANGERED SPECffiS ACT 

AND 

H.R. 3862 

A BILL TO AMEND THE ENDANGERED SPECIES ACT 

OF 1973 TO CLARIFY THE INTENT OF CONGRESS 

AND ENSURE THAT ANY PERSON HAVING ANY ECONOMIC INTEREST THAT IS DIRECTLY OR INDIRECTLY HARMED BY A DESIGNATION OF CRITICAL 

HABITAT MAY BRING A CITIZEN'S SUIT UNDER THAT 

ACT 

35-457 

SEPTEMBER 17, 1996-WASHINGTON, DC 

Serial No. 104-100 

Printed for the use of the Committee on Resources 

U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1996 

For sale by the U.S. Government Printing Office 

Superintendent of Documents, Congressional Sales Office, Washington. DC 20402 

ISBN 0-16 -0 53796-7 
COMMITTEE ON RESOURCES 

DON YOUNG, Alaska, Chairman 

W.J. (BILLY) TAUZIN, Louisiana 

JAMES V. HANSEN, Utah 

JIM SAXTON, New Jersey 

ELTON GALLEGLY, California 

JOHN J. DUNCAN, JR., Tennessee 

JOEL HEFLEY, Colorado 

JOHN T. DOOLITTLE, California 

WAYNE ALLARD, Colorado 

WAYNE T. GILCHREST, Maryland 

KEN CALVERT, California 

RICHARD W. POMBO, California 

PETER G. TORKILDSEN, Massachusetts 

J.D. HAYWORTH, Arizona 

FRANK A. CREMEANS, Ohio 

BARBARA CUBIN, Wyoming 

WES COOLEY, Oregon 

HELEN CHENOWETH, Idaho 

LINDA SMITH, Washington 

GEORGE P. RADANOVICH, California 

WALTER B. JONES, JR., North Carolina 

WILLIAM M. (MAC) THORNBERRY, Texas 

RICHARD (DOC) HASTINGS, Washington 

JACK METCALF, Washington 

JAMES B. LONGLEY, JR., Maine 

JOHN B. SHADEGG, Arizona 

JOHN E. ENSIGN, Nevada 

GEORGE MILLER, California 

EDWARD J. MARKEY, Massachusetts 

NICK J. RAHALL II, West Virginia 

BRUCE F. VENTO, Minnesota 

DALE E. KILDEE, Michigan 

PAT WILLIAMS, Montana 

SAM GEJDENSON, Connecticut 

BILL RICHARDSON, New Mexico 

PETER A. DEFAZIO, Oregon 

ENI F.H. FALEOMAVAEGA, American 

Samoa 

TIM JOHNSON, South Dakota 

NEIL ABERCROMBIE, Hawaii 

GERRY E. STUDDS, Massachusetts 

SOLOMON P. ORTIZ, Texas 

OWEN B. PICKETT, Virginia 

FRANK PALLONE, JR., New Jersey 

CALVIN M. DOOLEY, Californi~ 

CARLOS A. ROMERO-BARCELO, Puerto 

Rico 

MAURICE D. HINCHEY, New York 

ROBERT A. UNDERWOOD, Guam 

SAM FARR, California 

PATRICK J. KENNEDY, Rhode Island 

DANIEL VAL K:ISH, Chief of Staff 

ELIZABETH MEGGINSON, Chief Counsel 

CHRISTINE KENNEDY, Chief Clerk/ Administrator 

JOHN LAWRENCE, Democratic Staff Director 

(II) 
CONTENTS 

Hearing held September 17, 1996 ......................................................................... . 

H.R. 3862 ................................................................................................................. . 

Statement of Members: Chenoweth, Hon. Helen, a U.S. Representative from Idaho ........................ . Young, Hon. Don, a U.S. Representative from Alaska, Chairman, Committee on Resources ..................................................................................... . 

Statement of Witnesses: Carr, John, Executive Director, Direct Service Industries, Inc ................... . Prepraed Statement ................................................................................. . Christensen, Earl, Idaho Farm Bureau ......................................................... . Prepraed Statement ................................................................................. . Hays, David, Commissioner, Williamson County, Georgetown, TX ........... .. Kazman, Sam, General Counsel, Competitive Enterprise Institute in 

Washington ............................................................................................ ....... . Prepraed Statement ................................................................................. . Leshy, John., Solicitor, Department of Interior ...... ..................................... .. Prepraed Statement ......................................................... ........... ........ ..... . Macleod, John A. , Crowell and Moring ......................................................... .. Prepraed Statement ................................................................................. . Marzulla, Nancie G., President, Chief Legal Counsel, Defenders of Propert?r~;~~e~ St~~~~~t:·:::: ::::::::::: :::: :::::::::::::::: :: :: :::: ::::::: :: ::::::::::::::::: :::::::: Torgerson, John, Alaska State Senator ........................................................ .. 

Additional material supplied: American Farm Bureau Federation ............................................................... . National Association of Home Builders ....................... ................................. .. 

Communications submitted: 

Letter dated September 24, 1996, from Arthur L. Godi to Hon. Don ·Young ........................................................................................................... .. Due to the high cost of printing, a copy of Supreme Court of the United 

States No. 95-813 Bennett v. Plenert, may be found in the Committee 

files . .............................................................................................................. .. 

(III) 

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72 

EQUAL ACCESS TO COURTS UNDER ESA AND 

CITIZEN'S FAIR HEARING ACT 

TUESDAY, SEPTEMIJER 17, 1996 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON RESOURCES 

Washington, DC. 

The Committee met, pursuant to call, at 2 p.m., in room 1324, 

Longworth House Office Building, Washington, D.C., Hon. Don 

Young (Chairman of the Committee) presiding. 

STATEMENT OF HON. DON YOUNG, A U.S. REPRESENTATIVE 

FROM ALASKA; AND CHAIRMAN, COMMITTEE ON RESOURCES 

Mr. YoUNG. Good afternoon. Welcome to the hearing for the 

Committee of Resources on the implementation of the Endangered 

Species Act. This hearing will take a close look at how the Federal 

courts are deciding who can seek judicial review of decisions made 

by the 9th Circuit's decision on ESA. To put it in a layman's language, the courts have opened the door of the courthouse to the environmental community, paid their attorneys' fees, and invited 

them to keep coming back, while at the same time they have closed 

the doors of the courthouse to the average citizen just trying to protect themselves from abuse by the government. To say this is unfair is a gross understatement. It is unfair to an extreme; in addition, it is resulting in an unreasonable and unbalanced public policy. And when we lose the support of the public, we lose the intent 

of legislation. 

It is no secret that Federal judges are playing a key role in implementing in the ESA, people that were not elected, people that 

were appointed are now writing the legislation in their decisionmaking. When the Secretary of the Interior adopts new rules, he 

is required by law to receive public comment from any member of 

the public. When Federal judges interpret the law, they can exclude the general public and allow only the limited viewpoint to be 

heard. It is no wonder that we end up with judge made law that 

is so unbalanced and unreasonable in so many cases. Not all judges 

would tum away those citizens who wish to sue to protect our economic, social, or recreational interests. Judge Rosenbaum of the 

U.S. District Court in Minnesota had this to say when the government lawyers asked him to dismiss a suit filed by a group of 

snowmobilers: he scolded the government because they could not 

identify a single person who would have been qualified to complain 

about the government's overprotection of endangered species. 

Judge Rosenbaum said the court is not willing to adopt the view 

that the Fish and Wildlife Service is "unrestrained in any of its 

(1) 
2 

acts in the lawful role of endangered and threatened species protection. This is a form of totalitarianism in virtue, a concept for which 

no precedent has been advanced, and we should conform to the rule 

of law." He apparently does not agree with the Secretary's view 

that under the law the Federal Government can never go too far 

in protecting endangered species. 

In their brief to the Supreme Court the government says that no 

one can sue them if they go too far. This is our government in action. No one can sue them if they go too far, even though they've 

admitted that they've gone too far. According to the Federal Government's lawyers, if the government violates the constitution, 

legal rights of the citizen, if it has failed to follow the requirements 

in the ESA designed to protect citizens rights, there is no citizen 

who can sue to stop such government overreaching. Again, the government has overreached. This incredible statement by our Justice 

Department lawyers sworn to uphold our Constitution-not their 

Constitution-our Constitution and our Bill of Rights. I agree with 

Judge Rosenbaum that allowing only professional environmentalists to use the ESA to further their agenda, whatever that agenda 

may be, is foreign to the principles of fairness and due process of 

forty-some years. 

We need to let the citizens who are directly impacted by the 

ESA, into the courthouse so that the courts can hear all of the 

facts, all of the evidence and let the truth guide their decision. 

When only one side is allowed to present the facts, the truth becomes a victim of injustice. I want to thank all of the witnesses 

who have agreed to appear before the committee today. I also want 

to comment that we've asked a number of environmental representatives to provide testimony, but again they declined participation, 

utilizing the courts to their exclusive use. 

I also want to point out that we invited the attorney for the Bennett's-defending the claimant, but since he is handling the case 

without charge for the plaintiffs, he cannot afford to accept our invitation. Again, thank all of you who participated in this process. 

This is a process that will continue until we've finally reached a 

ratification and a solution to the ESA problems. First, I'd like to 

have Senator John-oh, excuse me, Mr. Kildee? 

Mr. KILDEE. Thank you very much, Mr. Chairman, however I 

may submit a statement later, for the record. [H.R. 3862 may be found at end of hearing.] 

Mr. CHAIRMAN. Mrs. Chenoweth? I'm sorry. Thank you for your 

vision. 

Mrs. CHENOWETH. Mr. Chairman, I do have a statement. Mr. CHAIRMAN. Please. Your record. 

STATEMENT OF HON. HELEN CHENOWETH, A U.S. 

REPRESENTATIVE FROM IDAHO 

Mrs. CHENOWETH. I want to thank you, Mr. Chairman, for holding this hearings on my bill, H.R. 3862, the Citizen's Fair Hearing 

of 1996. I want you to know how much I appreciate your work and 

the work of Representative Pombo on the Endangered Species Act 

in general and on the standing issue, specifically. 

But before I continue, I would like to extend a welcome to thefrom the committee today, to a fellow Idahoan, Mr. Earl 
3 

Christensen. Mr. Christensen is a farmer from Burley, Idaho, and 

is testifying on behalf of the Idaho Farm Bureau Federation. Mr. 

Christensen has experienced first hand the inherent unfairness of 

the Endangered Species Act. He, like many others, have been denied a fair hearing in the courts when questioning an agency's ap- plication of the ESA. He was denied a fair hearing not because his 

claim was without merit, but because he is not within the so-called 

"zone of interest." The purpose of my bill, H.R. 3862, is to remedy 

this inherent unfairness, and I look forward to his testimony. 

Mr. Chairman, I doubt there is a person in America who doesn't 

applaud the goal of the Endangered Species Act, which is to save 

species of animals from extinction. 

I remember in the early days of the debate of the Act that we 

were trying to save the bald eagle-the very symbol of America. 

However, in crafting the Act, Congress understood that several factors must be considered. Among these factors must be the economic 

impact. In fact, the Endangered Species Act specifically states that 

the "Secretary shall designate critical habitat after taking into consideration the economic impact," at 16 U.S.C. section 1533(b)(2). 

Unfortunately, Mr. Chairman, that aspect of the law has been ignored and the courts have adopted a hard line approach that appears to have gone away from Congress's original intent. The Ninth 

Circuit is denying standing to anyone unless their interest is to 

broaden the application of the ESA. My bill fixes this misinterpretation of the law by clarifying the original intent of the Act. I introduced H.R. 3862 July 22nd, 1996, with 44 of my colleagues 

from both sides of the aisle and it now has 49 co-sponsors. Richard 

Pombo, of California is the major co-sponsor. The purpose of the 

measure is simple: to provide standing to individuals who can demonstrate having suffered an economic or other injury resulting from 

the violation of the ESA. That's it. The bill is straightforward and 

very simple. It makes no changes to the listing process, the designation of critical habitat provisions, or any other provision of the 

ESA. It merely reasserts the Fifth Amendment's guarantee that 

"no person shall be deprived of life, liberty, or property, without 

due process of law; nor shall private property be taken for public 

use without just compensation." 

Chairman Young, some place along the line, the Federal Government has gone awry and the courts have appeared to condone this. 

Mter it became clear to me that we weren't going to be able to address the Endangered Species Act in its entirety, I became convinced that we must set out to fix the most egregious problem of 

the ESA. And that, to me, is the standing issue. 

Right now, Mr. Chairman, as the law is being interpreted, plants 

and animals have standing to sue under the ESA; flesh and blood 

humans do not. In fact, the Ninth Circuit Court of Appeals held in 

Bennett v. Plenert that "only plaintiffs who allege an interest in the 

preservation of endangered species fall within the zone of interests 

protected by the ESA." And that is a quote from Bennett v. Plenert, 

from the Ninth Circuit decision. 

The message the court is sending, therefore, is that unless you 

want more land locked up or more water reserved as designated 

critical habitat, you have no place in the court and cannot challenge the agency's action. Only those who think the agency didn't 
4 

go far enough and are suing for broader Federal action are welcome 

in court. Never mind the fact that the ESA specifically states that 

the "Secretary shall designate critical habitat after taking into consideration the economic impact." 

I cannot understand why it is the Ninth Circuit Court refuses to 

recognize that because the ESA confers upon the Secretary an affirmative duty to consider the economic impact of critical habitat 

designation, those who are economically impacted therefore have 

standing to sue the Secretary. 

Fortunately, Mr. Chairman, there is a split in the Circuits, as to 

whether economics plays a role in the Endangered Species Act. 

Other Circuits recognize that recreationists, outfitters and municipalities and other users of the public lands and resources have an 

economic interest in agency decisions and therefore have standing. 

Why the Ninth Circuit does not comprehend this seemingly very 

simple concept, I do not know. 

My bill, The Fair Citizen's Hearing Act, 1996, gives standing to 

those flesh and blood people who were economically damaged from 

application of the rules and regulations of the ESA. As the ESA is 

currently interpreted by the Ninth Circuit, economically injured 

families do not have standing to sue. 

Because humans are not allowed to sue, the United States Forest 

Service does not need to negotiate with humans who have been adversely impacted. They only are forced by the law, in the interpretation of the law, to negotiate with the environmental groups. Then 

that effect is that the environmental group decides what is and 

what isn't critical habitat. My bill simply restores to the people 

their seat at the negotiation table and access to the courts. 

Last, Mr. Chairman, I would like to note that in its brief for the 

Ninth Circuit case, the government clearly spelled out, in the government's opinion, that plaintiff Bennett, as an irrigator and municipality, did not have standing to sue because Bennett was not 

within the zone of interest. Yet, in the government's brief to the 

Supreme Court, the zone of interest argument is nowhere to be 

found. I find that strange. 

And in addition, Mr. Chairman, I would like to note that after 

repeated invitations to the environmental groups, none accepted 

our invitations to testify against this common sense bill. 

With that being said, Mr. Chairman, I thank you for allowing 

this time for me to enter my statement into the record. 

Mr. CHAIRMAN. I thank the good lady, and as soon as I recognize 

Mr. Pombo and bring the witnesses to the table, I'm going to ask 

you to take the chair too. Mr. Pombo? 

Mr. POMBO. I have no opening statement. 

Mr. CHAIRMAN. Now we'll bring the first panel to the floor. I'm 

proud to introduce first witness, Senator John Torgerson, Alaska 

State Senate, Kasilof, Alaska; Mr. John Macleod, Crowell and 

Moring, D.C.; Mr. Earl Christensen, Idaho Farm Bureau; Mr. John 

Leshy, Solicitor, U.S. Department of the Interior; Ms. Nancy 

Marzulla, President and Chief Legal Counsel, Defenders of Property Rights. Before you all sit down I'm going to ask you to stand 

and we're going to issue the oath today. And I'll have you Senator, please, you'll be first testimony. And 

then I do apologize-the rest of you-I have to go to a meeting in 
5 

the back of the room here, and then I'll come back as soon as possible. Senator, you're up. 

[Whereupon Mrs. Chenoweth assumed the Chair.] 

STATEMENT OF SENATOR JOHN TORGERSON, ALASKA STATE 

SENATE, KASILOF, ALASKA 

Mr. TORGERSON. Thank you, Mr. Chairman, members of the committee. I'd like to thank you for the opportunity to be heard today 

on this legislation H.R. 3862, and on the issue of endangered species in general. I am John Torgerson, a member of the Alaska State 

Senate and I Chair the Senate Community and Regional Affairs 

Committee. I'm testifying today on behalf of Senate President Drue 

Pearce, Speaker of the House Gail Phillips, and the majority members of the Alaska Legislature. 

The legislation before you today, H.R. 3862, addresses an important and needed reform to the Endangered Species Act, and does 

so in a straight forward and effective manner. The Alaska Legislature supports this legislation. In the same straight-forward fashion, 

I will not tax you with over-lengthy testimony. 

Mr. Chairman, from your leadership on this issue, this committee, I am sure, has a highly developed sense for the concerns of 

Alaskans regarding the application of the Endangered Species Act. 

Its original intent is one most everyone embraces: the use of rational measures to conserve species and related habitat. In practice, 

however, the ESA has often drifted far beyond the rational and 

necessary. The result has been undue hardships for everyone from 

private property owners to local and state governments. 

In Alaska we have kept abreast of developments in this issue 

and have evaluated each of the ESA reforms that have been put 

forward and been considered by this committee. As you will recall, 

we have spoken in favor of H.R. 2275, encouraged by its sensibility, 

the breadth of its reform and its attempt to recapture the original 

intent of Congress. We remain hopeful that the most important elements of that legislation will eventually be worked out and enacted. 

H.R. 3862 puts forward one measure of reform that will allow 

more balance in the judicial consideration of conflicts involving the 

ESA. It is an especially important reform that warrants immediate 

attention: citizens whose property or livelihoods are threatened by 

actions to implement the ESA must have recourse to the Federal 

courts. 

This legislation will reverse the course taken by the U.S. Ninth 

Circuit Court of Appeals, which deemed that property owners have 

no right to protect their property interests through judicial review. 

The court held, incorrectly in our view, that even though a landowner could demonstrate harm to his interests from an ESA action, 

he had no standing under the ESA to ask for court review of that 

action. Now, without recognition of standing under the ESA for economic injury, there in no balance in the system. Anyone may sue 

on behalf of other species-and as we see today, it is done with 

great frequency-but none may bring an action related to adversely 

affected human interests. The Ninth Circuit decision blocks the 

court house door to our citizens-a decision that must be countermanded by Congress. H.R. 3682 does just that. 
6 

Mter the consideration of H.R. 3862, when Congress again focuses on amending the Endangered Species Act, it is our hope that 

those reforms do the following: Create an effective partnership arrangement between states and the Federal Government; base listing actions on findings which have undergone appropriate peer review; replace the court-imposed standard of "complete recovery regardless of costs or consequences" with a more rational standard of 

conservation and protection; enable comprehensive voluntary species conservation agreements with private landowners; consider 

and protect private property rights when adopting Endangered 

Species Actions. 

Mr. Chairman, we have appreciated the opportunity to present 

to Congress and the Nation the problems of the State of Alaska 

and its citizens have experienced lately, in terms of ESA based regulation, enforcement and judicial action. Recognition of citizen interests and fair and open processes have been guiding principles 

behind ESA reform. H.R. 3862 is consistent with these principles 

and it ensures that those citizens who have economic or other interests adversely affected by the ESA will have redress to their 

courts. 

Thank you again for hearing our views. I welcome any questions 

you may have. Mrs. CHENOWETH. I thank you, Senator. You've come a long 

ways, and thank you very much for your testimony. Next, we'd like 

to hear from Mr. John Macleod. You're up, Mr. Macleod. 

STATEMENT OF JOHN A. MACLEOD, CROWELL AND MORING, 

WASHINGTON, DC 

Mr. MACLEOD. Mr. Chairman and members of the Committee, 

thank you for the opportunity to testify today in support of H.R. 

3862. 

I am John Macleod and I'm testifying on behalf of the American 

Forest & Paper Association. 

I have represented the interests of the forest products industry 

and other owners and users of land in a number of cases under the 

Endangered Species Act. Last year, for example, I represented a 

group of economically affected interests in an important ESA case, 

called Sweet Home, that was decided by the U.S. Supreme Court. A couple of months ago, my law firm filed an Amicus Brief in another important ESA case, Bennett v. Plenert, that will be considered by the Supreme Court this term. 

Like H.R. 3862, the Bennett case involves the question of prudential standing under the Endangered Species Act. In Bennett, 

two ranchers and irrigation districts in Oregon were economically 

hurt by a decision under the ESA, that had the effect of restricting 

the water they could use in their operation. They filed a lawsuit 

challenging that decision, claiming that it didn't comply with the 

ESA's requirements. The Ninth Circuit said they had no right to 

be heard. It said the only people with standing to sue under the 

ESA are those who seek the preservation of listed species. In other 

words, if your complaint is that regulation under the ESA does not 

go far enough, we will hear you. But if your complaint is that it 

goes too far, we will not. Fortunately, the Ninth Circuit's view was 

not the law of the land. The Eighth Circuit and the D.C. Circuit 
7 

have read Congress's intent on ESA standing differently and have 

both ruled that economically injured persons do in fact have standing to sue under the ESA. 

But there is uncertainty in the courts about what Congress does 

intend. And so there is a need for Congress to be clear. H.R. 3862 

would do that. It would make clear that those who are economically 

injured by regulatory excesses under the ESA have the right to sue 

to curb those excesses. 

The bottom line must be the law and what Congress intended in 

enacting it. Those who enforce the ESA must be true to its terms. 

They must be accountable if they regulate too little and they must 

be accountable if they regulate too much. 

I support H.R. 3862 because I think Congress, and not individual 

judges, should say what Congress intends on this important issue 

and because it will level the playing field. It will avoid a situation 

in which the law moves incrementally but inevitably in the direction of the only interest group that is given standing to complain 

about the way that it is being applied. It will give meaning to the 

economic protection that Congress built into the ESA. For while it's 

true that the law's purpose is to protect species, it is not without 

limits. The Supreme Court recognized, in Sweet Home, that the 

ESA encompasses a vast range of economic and social enterprises 

and endeavors, and that all who comply with it will face difficult 

questions that must be resolved in individual cases. 

Finally, I support H.R. 3862 because fundamental fairness and 

the important public interest in government accountability require 

it. As the D.C. Circuit explained only last month, in a case on ESA 

standing, "Denial of standing to private parties adversely affected 

by excessive agency zeal would leave the countervailing values with 

no conceivable champion in the courts." 

And so if those suffering economic injury are barred from the 

courts, there would be no suits to assure, for example, the integrity 

of the listing process, under Section 4 of the ESA, or that critical 

habitats are properly designated through the public participation 

processes laid out by the Congress and only after considering the 

economic impact of a designation. There would be no suits, for example, to assure that the consultation requirements of Section 7 

are met or that jeopardy findings are properly made, or that reasonable and prudent alternatives are economically reasonable, as 

the law requires. And finally, there would be no judicial review to 

assure that under Section 9 the government is not stretching the 

prohibition on "take" beyond permissible limits, either 

programmatically, or in individual applications. That was what the 

Sweet Home suit was all about-a check to be sure that the government wasn't going too far. It is ironic that the Supreme Court 

in Sweet Home welcomed the plaintiffs economically based challenge and thought it worthwhile, and yet, under the Bennett standard, that case could never have been brought. 

We support H.R. 3862 because it would prevent such a silencing 

of legitimate points of view. 

Thanks again for the opportunity to testify. I'd be delighted to 

answer any questions the Committee might have. 

[The prepared statement of John Macleod may be found at the 

end of hearing.] 
8 

Mrs. CHENOWETH. Thank you, Mr. Macleod. Mr. Christensen? 

Good luck on your testimony. 

STATEMENT OF EARL CHRISTENSEN, IDAHO FARM BURJEAU, 

BURLEY, IDAHO 

Mr. CHRISTENSEN. Mr. Chairman, Congressman Chenoweth, 

members of the committee, greetings from Idaho. I am Earl 

Christensen, a farmer and member of the Idaho Farm Bureau Federation from Burley, in the southern Idaho area, where I raise a 

variety of agricultural products. Some of my farm is along the 

banks of the Snake River and the irrigation water which is vital 

to my farm comes from that river. I truly appreciate this opportunity to appear before the committee and am particularly pleased 

to be able to support Congressman Helen Chenoweth's bill of the 

Citizen's Fair Hearing Act of 1996, that will provide standing to 

challenge abuses of the Endangered Species Act. 

The intent of the ESA is noble in its design to protect threatened 

and endangered species; however, the Act has become a doubleedged sword, creating enormous financial and economic burdens on 

the citizens generally and individually, in regards to their private 

property rights and economic well being. As it is presently being 

interpreted by the courts, these same citizens are even being denied standing to bring judicial review over decisions and actions; 

therefore, H.R. 3862 is badly needed, so as to prevent the disenfranchisement of the citizens. The Idaho Farm Bureau Federation of which I am a member has some firsthand experience and 

knowledge in this area of having no recourse in a suit to de-list five 

Snake River snail species. In his summary and observations on 

page 35 of the Memorandum Decision and Order, Judge BoylE!; explains and states-and I quote, "The Court's conclusion that plaintiffs do not have standing to assert their claims in this action is 

compelled by the recent U.S. Supreme Court and Ninth Circuit 

Court of Appeals rulings on the doctrine of standing, which this 

court is bound to follow. Moreover, the court's ruling is required by 

specific language of the ESA as interpreted by the Federal appellate courts that compels this conclusion. Any other decision made 

by this court would not be based on controlling legal principlE!S or 

precedent, and would be judicial legislation which is not the role 

of the judiciary in resolving disputes. Consequently, the relief 

plaintiffs seek is best directed to Congress and committed to the 

political process, wherein such issues and debates are handled 

most consistently within our constitutional and democratic form of 

government. In the court's view, it is Congress and the legislative 

process, and not the judiciary that has the authority and is in the 

best position to remedy the inequities presented in the Endangered 

Species Act that have been so aptly demonstrated in this case." 

The Idaho Farm Bureau lawsuit attempted to point out the economic impacts and the cultural challenges as being vast and farreaching people impacts. Certainly, these items should be major 

discussion and consideration points, but they cannot be made because of the no-standing situation via the zone of interest requirement in the citizen suits. H.R. 3862 will correct this injusticE!. It 

will restore due process considerations granted by the Constitution. 
9 

We applaud you, Congressman Chenoweth, and your efforts and 

pledge our support and urge this committee ;and the House to approve this much needed amendment to the Endangered Species 

Act. And I thank you. 

[The prepared statement of Earl Christensen may be found at 

the end of hearing.] 

Mrs. CHENOWETH. Mr. Christensen, and I thank you very much 

for your testimony. I'd like to now call on Mr. John Leshy, Solicitor, 

U.S. Department of Interior. Mr. Leshy? 

STATEMENT OF JOHN LESHY, SOLICITOR, U.S. DEPARTMENT 

OF THE INTERIOR, WASHINGTON, DC 

Mr. LESHY. 

Thank you, Madam Chairman. I am pleased to be here today. 

Let me begin with a little bit of caution, concerning the fact that 

there are some pending court cases, particularly the Bennett case 

in the Supreme Court, involved here. The Solicitor General of the 

United States, as you probably know, sets the litigating position of 

the U.S. Government. And the Solicitor General has a wise and 

long standing policy about not commenting on the details of pending cases. That's why he doesn't give press conferences and the 

like. He doesn't want to be accused of trying our cases in the Congress or in the newspapers. So I'll have to be very cautious about 

commenting on details of pending litigation. I'm certainly happy to 

be here to share our views on this legislation and our views on the 

general approach about how the ESA ought to be applied in litigation under the government, but I do want to put that caution in 

the record. The basic position of the United States is simple: that litigants 

who meet the Constitutional standards for going to court ought to 

be able to take us to court, to challenge our decisions implementing 

the ESA or any other statute. And the playing field should be as 

level as possible, so that no matter where you come from, or what 

property interest you have or don't have, whether you're environmentalist, regulated industry or whatever, you ought to be able to 

and, generally speaking, are able to take us to court to challenge 

our actions. In fact, we're involved at any one time in about 2,000 

different lawsuits challenging our decisions under various laws, 

and the vast majority of those are brought by people with economic 

interests. In the Endangered Species Act in particular, there have 

been any number of important recent cases that have been brought 

by regulated industry. Mr. Macleod referred specifically to the 

Sweet Home case. That's probably the most important case ever 

litigated on the Endangered Species Act, and was brought by local 

governments and timber industry associations, and litigated on the 

merits to conclusion in the U.S. Supreme Court. 

Let me say a few words specifically about the pending legislation. 

In our view this is a flawed solution to a problem that doesn't exist. 

That is, as I just said, people with economic interests have been 

able to take us to court in all sorts of contexts, challenging decisions we have made under the Endangered Species Act. People are 

not having the court house door shut in their faces all over the 

country. In the 30 year history of the Endangered Species Act this 

is not a significant problem. It hardly happens at all. To the extent 
10 

that the lower court in Bennett v. Plenert (now Bennett v. Spear), 

did that, it was an aberrant decision. As Mr. Macleod just pointed 

out, it is not the law of the land. The U.S. Supreme Court has 

agreed to review that lower court decision and the decision in the 

Supreme Court is expected quite shortly. 

Second, this bill reflects a good deal of confusion, I think, about 

the relative roles of Congress and the higher courts. Congress has 

plenty to do, as we all know. Among other things, it still needs to 

pass an Interior Department appropriation for the fiscal year that 

starts in a couple of weeks. And it has to deal with other fundamental problems. It's unusual, to say the least, for Congress to 

be in the position of policing an occasional aberrant lower court decision, especially one that the Supreme Court has already granted 

review in and is actively considering. If Congress wants to sit as 

some sort of intermediate court of appeals, it would do little else. 

We have dozens of lower court decisions kicking around we think 

the courts have decided them wrongly, and we think it would be 

a mistake to start taking those cases to the Congress, instead of 

to higher courts. 

Third, if the Supreme Court does decide Bennett v. Spear in a 

way that creates some sort of problem, there's ample opportunity 

to address it once the decision comes down. To try to fix a possible 

problem and anticipate a problem coming out of that decision is a 

bit like playing Pin the Tail on the Donkey. We don't know what 

the problem is because it hasn't really been created yet; so how do 

we know how to fix it? 

The ESA, as you know, is up for reauthorization. Presumably, 

next spring there will be a lot of activity in Congress, looking at 

the ESA, and plenty of opportunity at that time to deal with any 

problems that might come up. Finally, let me say that H.R. 3862 is not well crafted. I think it's 

going to create confusion and likely muddy the legal waters considerably, and ultimately won't accomplish, I think, what its sponsors 

apparently want to accomplish. 

Let me give you a couple of examples. The title of H.R. 3862 says 

its purpose is to amend the Endangered Species Act, to insure that 

any person having any economic interest directly or indirectly 

"harmed by designation of critical habitat" may bring a citizen's 

suit under the Act. Now, there's nothing else in the body of th•e bill 

that deals with critical habitat, and it's very confusing. Is the bill 

limited to critical habitat designation? Is the bill in effect creating 

some new definition of critical habitat from the one now in law? If 

that's the case, it will certainly create a gold mine of litigation for 

skilled lawyers. 

Second, Section II of the bill has Congress making a finding that 

persons have sought to bring civil actions for recovery of damages 

imposed by the Act, and says that the Ninth Circuit decision <:ame 

up in one of those cases. To the best of our knowledge, this is 

wrong. No such suit for recovery of damages under the Endangered 

Species Act has ever been brought. The Bennett v. Spear case that 

has been discussed here did not seek the recovery of damagE!S. If 

that's the purpose of the bill-to essentially amend the Endangered 

Species Act to authorize· damages under that Act, it would be a 

very major change. We can't tell whether that is the purpose of the 
11 

bill or not. Again, if it were enacted it would create a great deal 

of confusion and instability. 

For those reasons we oppose the legislation. We think it is premature. We think it is probably unnecessary. Thank you for the opportunity to testify. I'll be happy to answer 

questions. [The prepared statement of John D. Leshy may be found at the 

end of hearing.] 

Mrs. CHENOWETH. Thank you General, and I'd like to call on 

Nancy Marzulla for her testimony. 

STATEMENT OF NANCIE G. MARZUL~ PRESIDENT AND 

CHIEF LEGAL COUNSEL, DEFENDERS OF PROPERTY 

RIGHTS, WASHINGTON, DC 

Mrs. MARzULLA. Thank you very much for the opportunity to testify before you here today. I will limit my comments to two chiefs 

point, but ask that my written testimony be made part of the formal record. 

My name is Nancie Marzulla and I am President and Chief Legal 

Counsel of Defenders of Property Rights. Defenders is a Washington, D.C., based national public interest legal foundation. We represent property owners from all across the country in courts across 

the country, whose property rights have been taken due to operation and application of government regulatory programs, including 

the Endangered Species Act. 

Most recently we filed a Friend of the Court Amicus Curiae Brief 

in the Bennett v. Plenert, or as it's now known, Bennett v. Spears 

case, in the U.S. Supreme Court on behalf of our members as well 

as a number of other property rights groups across the country. 

Defenders national membership consists of property owners who 

are interested in and direct beneficiaries of our nation's rich heritage and tradition of private property rights. Defenders is dedicated 

to the proposition that property owners are the best stewards of 

our natural and environmental resources. At the same time, we believe that government should accomplish its objectives by the Constitutional way of paying for its-for what it takes because as the 

Supreme Court has repeatedly held, the fundamental purpose of 

the Fifth Amendment's Just Compensation Clause is to insure that 

the cost of achieving social good is not fairly placed on an individual singled out to bear the burden of achieving that social good. 

My first point is that our Constitutional form of government indicates that the court is to interpret and apply the law as it is written by Congress. Judges are not free to make up the law as they 

think it should be. Legislators, not judges, write the law. The reasons for this division of power should be obvious. The legislative 

process allows for the accommodation of a number of competing interests which is usually reflected in any statute. When a court 

reads out of existence certain provisions of a statute or fails to 

apply the law as it is written, then the balancing of interests, 

which takes place in the legislative process is destroyed. The Endangered Species Act is a classic example of a complex regulatory 

scheme and it reflects a balancing of various interests; however, in 

Bennett v. Plenert, the Ninth Circuit read the title of the statute 

and decided for itself, at the outset of the case, what it, meaning 
12 

the court, thought is protective of endangered species, and held 

that only people suing to protect an endangered species get standing. And the court further held that in the courts-that it was the 

court itself who gets to decide who really wants to protect endangered species and therefore, has standing. 

In point of fact, we all want to protect endangered species . That 

is why the Endangered Species Act citizen's suit provision is written so broadly-to allow any person to enforce that statute. Deciding how endangered species are to be protected and who has standing to enforce the Act is the role for Congress; not for the court. 

The Ninth Circuit also completely ignored the fact that there are 

11 different provisions of the Act. These Sections, or provisions, reflect an attempt by Congress to balance the interest of the property 

owners and economic interest while achieving the overarching goal 

of protecting species on the brink of extinction. Part of how Congress intended to insure that competing interests were to be protected in its scheme to protect endangered species was to give any 

person, including those with economic or constitutional injury, due 

to application of the Act, a right to sue to enforce the Act. 

Now the Ninth Circuit's decision has read those interests out of 

the statute, thus rendering the ESA unique among environmental 

statutes. Persons with an economic or constitutional injury have a 

right to sue to enforce the Clean Water Act, the Clean Air Act, 

SMFRA, FIFRA, TASCA, EFRA, CERLCA, RCRA to name a few. 

Under the Bennett decision, those same persons cannot sue to enforce the ESA. Although the current Citizen's Suit provision in the 

Act, Section L (ll)(g)(l) is as plainly written as one can imagine 

to confer standing on all persons affected by application of the Act. 

Apparently legislation is needed to insure that courts, like the 

Ninth Circuit, can get it right. And although statutory construction is not a complex issue, the 

issue in the Bennett case is the intent of Congress; so therefore, I 

think it's not only highly appropriate, but it's absolutely essEmtial 

that Congress clarify what it meant by this Citizen's Suit Provision. 

My second point is that protecting property rights and economic 

interests is an integral aspect of achieving protection of endangered 

species. The irony of the Ninth Circuit decision is that the end result is that less, rather than more, environmental protection. will 

result if that decision is not reversed. That is because that dec:ision 

reads the few provisions in the Act, such as the Habitat Conservation Plan and the Authority to Acquire Privately Owned Water or 

Property Rights out of existence. 

With no venue for relief, property owners are left with no choice 

but to be sworn enemies of the ESA. However, as we all know, no 

conservation policy can survive without the support of the tegulated community. 

Experience with the Endangered Species Act is already borne 

that out. That is why so many in the regulated community, particularly landowners who have habitat on their property, strongly 

believe that the Endangered Species Act should be refonned to provide even greater protection for private property rights. 

We highly support this effort to bring clarity to this issue and I'd 

be happy to answer any further questions. 
13 

[The prepared statement of Nancie G. Marzulla may be found at 

the end of hearing.] 

Mrs. CHENOWETH. Thank you, Mrs. Marzulla. I do want to state 

for the record that we already have technical amendments prepared to change the language that Mr. Leshy pointed out and I 

thank him for his vigilance but we had already picked up on that. 

Thank you. Nancie, that was very good testimony. Thank you very 

much. I'd like to call on the senior member first for questioning, 

Richard Pombo. 

Mr. POMBO. Thank you. Mr. Leshy, the couple of points that you 

picked out in the bill, dealing with critical habitat and recovery of 

damages, in Section II, are there any other problems that the Administration sees with this legislation, other than those two-the 

first one in the title of the bill and the second in the findings? Are 

there any problems in Section III, which is the main part of the 

bill? 

Mr. LESHY. In terms of technical problems? I think there's probably some confusion in section three (about the relationship between the-let me back up). Section III would say that any person 

who suffers or is threatened with economic or other injury resulting from violation of the Act is deemed to be within the zone of interests, provided that person satisfies the requirements of the Constitution. That is actually an important issue. I am simply not sure 

whether this language is clear enough because as you undoubted 

know, there are Constitutional requirements for standing and there 

are statutory requirements for standing, and the line between the 

two is somewhat blurry. The courts have never made it entirely 

clear. So that to say that we are changing the Endangered Species 

Act, but preserving the constitutional requirements of standing, 

may lead to some further confusion I think. I'm not sure there's an 

easy way to address that, but I'm suggesting that the meaning of 

this Section in relation to the constitutional requirements will be 

probably the subject of some litigation, if this were to become law. 

Mr. POMBO. In this section of the bill, the first requirement is 

that any person that satisfies the requirements of the Constitution-you wouldn't have any problem with that? 

Mr. LESHY. No, I mean, obviously Congress can't change the requirements of the Constitution as far as the law is concerned. I 

think the difficulty comes in saying "and demonstrates that you are 

threatened with economic or other injury." Well, if the bill provides 

standing if you're only threatened with injury and haven't suffered 

injury, you may create a confusion in relation to the Constitutional 

requirement, which is that you must have an injury in fact. The 

Supreme Court has said that the Constitution says you have to 

have an injury in fact; this says you only have to show that you 

are threatened with injury. I think that is going to be confusing for 

the courts because the Constitution seems to say one thing and the 

statute seems to say another, but also says you have to comply 

with the Constitution. That's the source of potential confusion here. 

Mr. POMBO. Mrs. Marzulla, in that provision, do you see a confusion in that provision on Section III? 

Mrs. MARZULLA. Well, I'm not confused. It seems clear to me. It 

seems to me because the word and is used-that you've got the Article III requirement, injury in fact, and then on top of that you're 
14 

adding the statutory requirement, so that you're clarifying that 

those who have-present the economic injury and the threatened, 

I think, goes to the fact that the person doesn't have to be wiped 

out before he can sue. Rather, he can show that he is in danger 

of being wiped out. 

Mr. POMBO. So what you're telling us is that the person doesn't 

have to be bankrupted before they can file a lawsuit. They ean just 

show the court that if the regulation is put in place, that thE!Y could 

be bankrupted by that, or they could be economically damaged by 

that. 

Mrs. MAR.zULLA. Precisely. That is the way I read it. 

Mr. POMBO. Mr. Macleod, again, on Section III, is there a confusing part on that? Is there a way that that should be changt~d, that 

would be fnore correct? 

Mr. MACLEOD. I share Ms. Marzulla's view that it's not confusing 

to me, Congressman Pombo, and I would take some slight issue 

with my brother, Leshy. The Constitutional requirements do in fact 

address injury in fact, but that has been interpreted by the Supreme Court in Lujan v. Defenders of Wildlife to include threatened imminent injury. So in that sense, the language of Section III 

seems to track and is consistent with the Constitutional requirements for standing, and I shouldn't think that there would be any 

basis for confusion as a result of that. It does not impose an additional test. 

Mr. POMBO. Thank you. Mr. Leshy, other than the specifics that 

you brought out so far on this, the overall idea of citizens having 

standing, property owners having standing under the Endangered 

Species Act, what would the Administration's position be on that, 

in general? 

Mr. LESHY. We think the existing law is basically adequate because we think, properly interpreted, it authorizes anyone who can 

show injury of any kind to be able to take us to court, whether 

under the Endangered Species Act or the Administrative Procedure 

Ac., That is the position we are taking in the Bennett case. Mr. POMBO. I think the key word in what you said is "if properly 

administered" and that seems to be the problem that we are having-not just in this instance, but in other instances with ESAis if properly administered, then we don't have a problem. And it 

is Congress's job to fix a law that does not seem to be working, 

where the courts may have interpreted it a different way than 

what Congressional intent would be. Mter all, we do that all the 

time. I mean, that's most of our time is spent making laws and 

;that's kind of what we do, and it's-in your statement you say that 

it's premature, but it's my understanding that in the Supreme 

Court case you're not arguing this specific part of it, so I don't 

know if it is premature in that aspect. and int he other aspect, 

there are a number of people that have not only contacted me and 

other Members of Congress, but that ;are testifying her today, that 

;they have a real problem in finding standing under the current 

law, that many times that that's not the case. How would you respond to Mr. Christensen or others that have brought out cases 

that say that they felt that they were injured, but were told that 

they didn't have standing to sue? 
15 

Mr. LESHY. Madam Chairman, Mr. Pombo, I would respond this 

way. Congress does make laws, but Congress usually doesn't fix 

what ain't broke-that's an expression we hear around here all the 

time and it's a good one. There has been 30 years of litigating history on the Endangered Species Act and as I said earlier, many of 

the biggest court decisions construing the Act have been brought by industry plaintiffs. The problem of people with economic injuries getting into court really hasn't proved to be a problem. They get into court all the time. There is one major decision, of one court, 

this Bennett v. Plenert decision, that has seemed to-after 30 years of history-cast doubt on the ability of people with economic interests to get to court under the Endangered Species Act. 

There are, I think two other major courts, one, as Mr. Macleod 

pointed out, the D.C. Circuit here, that issued a decision a few 

weeks ago, saying Bennett is wrong. And most important, tl: 1upreme Court has granted review in the Bennett case, and as )st 

court observers know, that is usually a signal that the Ju :es 

don't like a lower court decision. The court is going to hear . ;ument in that case in the next few weeks. I won't predict the outcome but I would suggest that it would be very prudent for Congress to await the outcome of that case to see if there is indeed a 

problem. 

Again, until we see that there is a problem, we don't know how 

to fix it because the Supreme Court could decide that case in any number of different ways. And this Congress can try to legislate 

now to anticipate a problem that the court might create, but until 

you see the decision, you don't know what it is going to say. Frankly, we expect that there will be a favorable outcome to that case, 

in the sense that the 30 year history of opening up the decisions 

of the Federal agencies under the ESA to judicial review will continue. 

Mr. POMBO. My time has expired but I would venture to say that 

it is not one case that is being tried before our courts today; that 

there's been testimony about a number of cases where standing 

was not granted. Just in this hearing right here there has been a 

number of cases that have been brought out. So it is not just one 

case that we're dealing with. If it was only one case it would be 

much simpler. This is an effort to fix a problem with current law 

and it has been compounded by a number of cases. There is one 

case that I know that you can't comment on directly, but ;there is 

one case that is in the courts right now. There are a number of 

cases that are out there, where individuals, because of a lack of 

money or ability to take a case all the way to the Supreme Court, 

haven't had that opportunity to do that. And I think that it's not 

an anticipation of court decision; it's reaction to a problem that 

definitely exist. But thank you. Mrs. CHENOWETH. Thank you, Mr. Pombo. Mr. Leshy, you always 

are a very interesting witness and I just wanted to ask you, with 

regards to the Sweet Home case that the U.S. Supreme Court decided, didn't the court state that Congress had not been specific enough in drafting legislation to make sure that there was protec-· tion for private property owners? 

Mr. LESHY. I'm sorry. It's been many months since I read the 

Sweet Home case and I think you had probably better ask that of 
16 

Mr. Macleod. The Sweet Home case did, however, certainly hold 

that the industry plaintiffs could challenge the Interior Department's regulations interpreting and applying the Endangered Species Act in that case. So there was a clear cut example of why I 

say this has not proved to be a problem under the Act. 

Mrs. CHENOWETH. Mr. Leshy, you made a very interesting comment about injury in fact, versus the threat of injury. Isn't it true 

that many timber sales are halted before a tree is cut because the 

cutting of that tree-the threat and danger of cutting of that tree 

may create imminent harm, that is irreplaceable? 

Mr. LESHY. Yes, and I don't contest Mr. Macleod's view that the 

injury in fact requirement of the Constitution can be satisfied with 

some threat of injury. I think, though, when you write a statute 

that says~r propose a bill that says, "you may bring a court action if you satisfy the requirements of the Constitution," and then 

go on to say-"and show threatened economic or other injury," 

you're creating the possibility of confusion. I mean, it may be clear 

to a lot of people, but I could almost guarantee you that if this became law, there would be a lot of litigation about it. We all know 

how lawyers are. 

Mrs. CHENOWETH. Setting aside the many acres because of the 

spotted owl designation and stopping logging because of the spotted 

owl designation, wasn't that in fact pretty well based on the threat 

of injury to the species? 

Mr. LESHY. I guess that is right, to the best of my recollection. 

I'm not thoroughly familiar with all of the spotted owl litigation. 

Mrs. CHENOWETH. Mr. Leshy, I wanted to ask you personally, do 

you really-do you or do you not believe that the Bennett v. Plenert 

decision is wrong, since in your testimony you implied that it would 

be wrong? Do you personally believe that that Ninth Circuit decision is wrong? 

Mr. LESHY.I hesitate to inject personal beliefs into this. I would 

say this: my view and the United States view in general is the 

same, which is that people should be able to take the government 

to court, to have their decisions reviewed. I think that is a very 

healthy thing. I think that judicial review promotes better government decisions. Anybody who has worked in government knows 

that if you're involved in the decisionmaking process and you have 

the possibility of the courts looking over your shoulder, you're 

frankly going to do a better job. And the position the government 

is taking in the Supreme Court in Bennett is consistent with that; 

that is, the decisions taken by government agencies, if you satisfy 

the Constitutional requirements and sue the right people and conform to the technical requirements that apply to everybody, in 

terms of bringing litigation, then you can review the government's 

decision. So in that sense, my firm belief in the importance of judicial review is, I think, validated by the government's position here. 

Mrs. CHENOWETH. Thank you, Mr. Leshy. I wanted to call on Mr. 

Macleod for his opinion on Sweet Home, and then I do want to ask 

Mr. Christensen about injury. Mr. Macleod, could you elaborate for 

us on what the court said about whether Congress was specific 

enough? 

Mr. MACLEOD. Yes, Congressman Chenoweth. I think that what 

you're referring to was in the concurring opinion of Justice O'Con-
17 

nor. The majority opinion itself was very clear-it recognized first 

of all, that the plaintiffs were there because of economic injury to 

the plaintiffs. Now, courts have an independent duty to examine 

standing and the Supreme Court apparently had no difficultly with 

the plaintiffs' economically based standing in that case. The major- ity of the court did say that there were very difficult questions of 

proximity and degree presented by the Act, that would have to be 

resolved on a case by case basis. It recognized the broad sweep of 

the Act in affecting various kinds of social and economic behavior. 

And indeed, in her concurring opinion, Justice O'Connor did very strongly suggest-! believe her exact words were, "Congress may wish to revisit this issue." 

Mrs. CHENOWETH. Thank you, Mr. Macleod. And Mr. 

Christensen, I think that the government may have some doubt 

about whether individuals out there are suffering injury or threatened injury, with regards to their not being able to be-have standing in court. I wonder if very briefly you could let us know what 

your personal experience has been with that? 

Mr. CHRISTENSEN. Thank you, Madam Chairman. In response to 

that, I'm a farmer and I belong to several different units of government: the county government; the irrigation district that provides the water, maintains the system; and the Idaho Farm Bureau. 

From each of those areas now, injury in anticipation of the needed 

or demanded changes to facilitate clear, cool water in the Five 

Snail case, the local irrigation district then had to allocate moneys 

to projects to accommodate whatever was necessary that the Interior was going to lay upon them to take care of the water that it 

would be clean enough and cool enough to re-enter the river and 

:hot harm the snail. And they started. So I end up paying money in addition to---<>r they increase or they have to allocate, or cut 

back somewhere else to fund this activity. The county likewise had 

to do the same thing because of the effects of the Act or the designation on them and the anticipation of where they may have to 

go. This is all getting prepared for after watching some of the other 

cases that have gone through the court and the necessary activities 

that go on, so we end up paying money for these projects, financially, I mean. Through the Farm Bureau, as far as having some 

standing, personally, I donated a lot of time and some money to the 

case that we were involved in and I think as an organization we 

have spent in excess of $100,000 to $150,000 to find out we didn't 

have standing. Now that's-as far as I'm concerned, under a limited resource situation-that's injury to me, to spend all of that 

money to be told you don't have standing; you shouldn't even be in 

court. And so I would rely upon the good judge's comment-that he 

felt like that our case particularly-and he was basing his decisions 

upon the traditions and precedence of the Ninth Circuit court-he 

indicated that Congress needed to clarify this. And our case "aptly demonstrated"-was his words-the necessity of this. 

Mrs. CHENOWETH. So this was a case in point, where there was 

economic damage and there's no remedy because you've been rejected by the court. 

Mr. CHRISTENSEN. That's right. That is correct, madam. 

Mrs. CHENOWETH. And the snails are still listed and the case isor the government is pursuing the listing of critical habitats? 
18 

Mr. CHRISTENSEN. Yes, the snails are still listed and I just found 

out yesterday, one of the-malacologists which we used to do a lot 

of findings, in the past summer was doing work and has found additional colonies in an expanded area. But I didn't know until just 

yesterday that he has passed away, Dr. Konapake. He drowned. Of 

course, that news from Boise doesn't come to Burley in our papers, 

you know. We can't print all of the obituaries in the local paper, 

so I just learned that just yesterday in preparation for coming here. 

So, yes, he spent a lot of time and we spent a lot of money helping 

him, paying him to find some of these and he did find additional 

colonies of these endangered snails, which U.S. Fish & Wildlife 

Service said didn't exist in sufficient numbers-they had to be listed. 

Mrs. CHENOWETH. Thank you, Mr. Christensen. I want to ask 

Mr. Pombo for further questions. 

Mr. POMBO. Yes, I just had a couple more. Mr. Christensen, in 

reviewing your testimony, you challenged this based on a lack of 

scientific evidence-this listing that you had economic damage. But 

you challenged based on a lack of scientific data, whether it was 

on the critical habitat or the listing, that they hadn't done sufficient or accurate scientific research on that. But the court did not 

find that the scientific information that was used in the listing or 

adopting a critical habitat or anything else was correct. What they 

found was that you didn't have standing to sue, so they n•~ver did 

determine whether or not it was accurate. 

Mr. CHRISTENSEN. Yes, those points were moot because we did 

not have standing. 

Mr. POMBO. So will we indeed find out whether or not you were 

correct in your assertion that the scientific information was not accurate? 

Mr. CHRISTENSEN. This is a limited area of research. An issue, 

as I understand it, that the whole case grew out of a situation 

where, there-aren't a lot of malacologists looking for microscopic 

snails in the Snake River. And the "research" that was done, that 

was submitted, was done along the borders of the river; not out in 

the deep waters. It was unscientifically grided. It was sampling. It 

wasn't scientifically done on a grid scale and sampled as per 

science would dictate. So that's, I would suggest, some of the reasons why it is listed as unscientifically. In an additional sampling 

that we commissioned to have done,-the zone of the snails was increased significantly, where they weren't previously, and the conditions that were conducive to the snails as being cool runnin~t water, 

we found snails that were in slack water. There were snails found 

in slack water areas and so actually, the information relative to the 

habitat of the snail isn't really complete or totally known either. 

Mr. POMBO. Do you think that if you had been granted standing 

and would have went through the lawsuit, that whether you were 

right or wrong about what you believed that it should have been 

listed or should not have been listed, do you think that we would 

have ended up with knowledge as to whether or not the sdentific 

information was accurate, or whether or not new information would 

have been developed, which would have substantiated the listing or 

caused us to de-list? 
19 

Mr. CHRISTENSEN. I think that the U.S. Fish & Wildlife Service 

has done significant additional sampling too, since the lawsuit and 

we don't know any of those numbers. 

Mr. POMBO. You have not gotten any of that information? 

Mr. CHRISTENSEN. No, there's no reason to disclose. We don'tit's a moot point because it's--

Mr. PoMBO. And without the lawsuit, then you don't know what 

that information was? 

Mr. CHRISTENSEN. That's right. 

Mr. POMBO. Mr. Leshy, without commenting directly on the case, 

if the plaintiffs were to lose at the Supreme Court level, would not 

the Ninth District Court's opinion stand, nationally, then, because---

Mr. LESHY. Yes, if the Supreme Court affirmed, that is, approved 

or validated the Ninth Circuit decision, it would become the rule 

nationwide. Right now it is only the rule in the Ninth Circuit, with- in the jurisdiction of the Ninth Circuit Court of Appeals. And I 

might add that in terms of Mr. Christensen's dilemma here, the 

reason, as I understand it, that the trial court ruled against his 

standing as plaintiff was because it was following the Ninth Circuit 

decision; in other words, the District Court in Idaho is in the Ninth 

Circuit, and is bound by the Court of Appeals' decisions. So it was 

simply applying the Court of Appeals' decision. Now, it's that Court 

of Appeals decision which, dictated the result in his case, which is 

being reviewed by the Supreme Court. So if the Supreme Court 

does something different with that case it would automatically affect his case. If the Supreme Court, in other words, reversed the 

Ninth Circuit and said you're wrong, they would also, in effect, be 

saying in Mr. Christensen's case that the district court in his case 

was wrong too, because it simply followed the Court of Appeals' decision. So his case, I believe, is still active, pending in the Court 

of Appeals, sitting there waiting for the Supreme Court to decide 

the Bennett case that it has in front of it. So he's still in court, trying to make his case. Mr. CHRISTENSEN. Although I have no standing. Mr. LESHY. Well, the courts--

Mr. PoMBO. As long as he can afford to pay his attorneys, he can 

keep this going and-I've had attorneys tell me that before: 

"There's still a hope. Just-as long as you pay your bill there's still 

a hope." 

But the simple matter is if they affirm the lower court case, that 

would become the law of the land. Even though everyone, including 

the Administration; seems to believe that that's not a good idea, it 

could happen? 

Mr. LEsHY. But the court, if it were to affirm the Ninth Circuit, 

would have to disagree with a lot of other courts. For example, on 

the listing question we have been sued several times by people alleging economic injuries as a result of our listing particular plants 

or animals, and those people have been granted standing by the 

courts. The most notable example was in California. In the coastal 

gnatcatcher case, the building industry, of southern California 

brought a lawsuit in the District of Columbia, here in the Federal 

courts, challenging our decision to list, whether it was properly 

made and whether the scientific evidence was there, et cetera. 
20 

Mr. PoMBO. Just to correct one thing you said. They're not suing 

based on economic damages. Economic damages gives them standing. They're suing based on faulty scientific information. There's a 

difference there. 

Mr. LESHY. I agree, yes, they are suing, alleging that the listing 

is causing them economic injury. And they are challenging the listing on scientific grounds; that is, scientific validity. But they got 

the courts to grant them standing and the courts actually went 

ahead and reviewed the Fish & Wildlife Service decision as to 

whether or not it was scientifically credible. In fact it was in that 

case where the courts said there was some question as to the scientific basis, and asked the Fish & Wildlife Service to take another 

look. So there's a big example where the Act worked, I think, as 

it was intended. 

Mr. POMBO. But in that particular case, if I'm not mistakEm, that 

would be in the Ninth District Court today and they would not be 

granted standing today, based on the Ninth District decision. So 

that case that you would consider a success, that it's working, 

would be thrown out today because they would not be given standing. 

Mr. LESHY. Well, this is where if you're a clever plaintiff you can 

game the courts. The Building Industry sued in the District of Columbia, which they're entitled to do because the defendant, the 

United States, is found in the District of Columbia. So they sued 

here and thereby avoided Ninth Circuit decisions. So any time 

you're challenging a listing decision, if you want to avoid the Ninth 

Circuit, just sue us in D.C. and you'll have the courts following the 

D.C. Circuit Court of Appeals, which has just said the Ninth Circuit, in the Bennett case is wrong. That case could have happened 

the same way today. 

Mr. POMBO. So that helps the Washington lawyers if.--

Mr. LESHY. I guess that's right. 

Mr. POMBO. Thank you. 

Mrs. CHENOWETH. Thank you, Mr. Pombo. I do find it interesting 

that the Builder's case was brought in D.C., and I thank you for 

bringing that out. It's very difficult for a single rancher, though, to 

be able to put up the dollars that it takes to hire Washington lawyers and come in to Washington, D.C., and plead their case. I really think that it is far more valuable for the Congress to be very 

explicit and precise in its law-making responsibilities. I wanted to 

ask Nancie Marzulla, if property owners can't challenge the legality 

of agency actions because they're not in the zone of interest, what 

are their alternatives to protect their legal interest in their property, and at what expense? 

Ms. MAR.zULLA. Well, I'm glad you asked that question. There 

aren't many. The avenue of relief that we're talking about here 

today is of itself a slender reed to rely upon, but it's about all that 

there is for property owners. We've been talking about cases in 

which the court has denied standing. I wish I had numbers that 

could demonstrate all the cases that we have reviewed and have 

determined that we can't do anything to help property owners, because there is no way we can get into court. We have got two major 

cases we are looking at right now, both of which I won't spec:ifically 

identify because we are looking at them. But one we have been 
21 

looking at for an entire year, waiting for that magic moment that 

it might be challengeable under the AP A. Likewise, another case 

that we have started looking at, weare looking to see if we can get 

an AP A challenge because the real issue there is that their property rights have been taken. What we'd really like to do is to be 

able to go into court and to seek just compensation for the taking 

of their property rights, but we know we would never be able to 

do that because the way that the law is structured under the Endangered Species Act, coupled with the way the Fifth Amendment's 

jurisprudence is, your case is never ripe to get into court, to get a 

court to review a taking sort of challenge. 

So that's why I think this issue-the issue presented in Bennett 

is so critically important, because there is really no other opportunities for property owners to get relief. 

Mrs. CHENOWETH. Thank you, Nancie. Well, if ;the zone of interest is upheld up by the Supreme Court and applied across the 

board, what are the future implications for private property rights 

in this country? 

Ms. MARzULLA. Well, as I alluded to in my comments, I think 

that it does not bode well for the Endangered Species Act because 

it sets up a direct tension. It really does create a system, which is 

already somewhat present in the current Endangered Species Act, 

whereby the property owner is punished if an endangered specie is 

present on his land. 

Already the Act is harsh with respect to the restrictions placed 

on a property owner, of what he can or cannot do with his property 

under the habitat designation that can be imposed under the Act. 

And so therefore, if you remove then the only venue that exists in 

some instances-obviously, not out in the Ninth Circuit-it certainly would not exist at all if the Bennett decision is upheld by 

the Supreme Court. Then you've got an Act which can be very 

harsh and often, in some instances, draconian, and the property 

owner has nowhere to go to for relief. And I just don't think that's 

the kind of situation any of us want to see because as I said earlier, 

we all believe endangered species should be protected. But we believe that other interests, such as our civil rights, should be protected as well. 

Mrs. CHENOWETH. Thank you, Mrs. Marzulla. Mr. Pombo, do you 

have any other questions? I want to thank the panel very much. 

Senator, I thank you very; much for coming all the way from Alaska. This panel is dismissed. I'd like to call to the witness table, Mr. 

Sam Kazman, general Counsel for Competitive Enterprise Institute 

in Washington, D.C.; Mr. David Hays, Commissioner from 

Williamson County, Texas, Georgetown, Texas; Mr. John Carr, Executive Director of Direct Service Industries, Inc., in Portland, Oregon. 

STATEMENT OF MR. SAM KAZMAN, GENERAL COUNSEL FOR 

COMPETITIVE ENTERPRISE INSTITUTE IN WASHINGTON, DC 

Mr. SAM KAzMAN. Thank you, and thank you on behalf of Competitive Enterprise Institute for this opportunity to testify. I'd like 

to start with some general observations about the whole notion of 

the zone of interests test before we get into the specific issue of the 

Endangered Species Act. 
22 

Life is not a sure thing. Many bad things can happen to peoplesome of them caused by acts of nature, some caused by acts of 

other people and some caused by acts of government. But at least 

when it comes to acts of government, there are some basic assurances. 

One of those is that if you have a grievance, you'll have your day 

in court. You'll get your hearing; your arguments will be heard. But 

for many people, and the Bennett case is only one specific example, 

this turns out not to be so. They do have injuries that meets the 

Constitutional criteria for standing. Their injuries are concrete. 

They're caused by the actions that they are complaining about. 

They're redressable by the relief that they seek in court. They meet 

the constitutional criteria and they have legal arguments that are 

valid; that is, they can point to specific provisions of the United 

States Code that have been violated. But they still do not fall within some alleged zone of interests test, and so they do not have their 

day in court. 

The zone of interest standards is a test. but it is not a test of 

one's legal arguments. It's really a test involving who you are and 

where you're trying to go. In a certain way, it can be regarded as 

a sort of environmental loyalty oath in the case of Endangered Species Act. Now if this sounds like it's an exaggeration, consider some 

of the language contained in the recently decided D.C. Circuit case 

of Mountain States Legal Foundation v. Secretary of Agriculture. 

This was decided several weeks ago. It explicitly disagrees with the 

Bennett case but it notes-and here it talks not about the Endangered Species Act, but about NEPA, the National Environmental 

Policy Act,-''NEPA standing is not limited to those who anl pure 

of heart." Those are the court's words. In a certain way, you can regard the Bennett case as saying that 

Endangered Species Act standing is limited to those who are pure 

of heart. And so the question is, is there any real justification for 

that reading, by the Ninth Circuit, of that statute? We submit that 

there isn't. 

The zone of interests test is a limitation on who can be heard in 

court. But remember, it is not the first criterion you've got to pass. The first criterion is a constitutional one. We are all talking about 

people who already have passed those basic constitutional criteria 

regarding concreteness of injury. And then all of a sudden, a court 

brings in zone of interests. 

This issue really has to be decided on a case by case basis, or 

rather on a statute by statute basis. But in the case of the Endangered Species Act, the issue is: are there any good reasons to impose the zone of interests test. Remember, the basic thrust of the 

Endangered Species Act is regulatory. If you begin to impose a 

zone of interests test that cuts out those who oppose regulation, 

you turn it not only into a one-way street, but into a one-way 

thruway. And this has several results. 

First of all, it destroys an attempts that Congress made to impose some checks and balances in the Endangered Species Act itself. It does the equivalent of what Justice Stephen Breyer noted 

in his classic study of overregulation, Breaking The Vicious Circle. He comes up with the notion of tunnel vision, which in the case of 

regulatory agencies he described as follows: "Tunnel vision, a clas-
23 

sic administrative disease, arises when an agency carries single· 

minded pursuit of a single goal too far, to the point where it brings 

about more harm than good." 

Now, if you look at the ESA as it stands, it's clear that there are 

some attempts to impose checks on this tendency. Congress does 

talk about the requirement or the ability of the Secretary to look 

at economic impact. But under Bennett, look at what happens to 

those attempted checks. And this is aside from all the debate we 

can have about whether even congressionally inserted checks and 

balances have any real braking effect on the statute. 

Under Bennett, you first come up with a single overriding pur· 

pose to the Endangered Species Act. Once you've got that, that 

gives you a perfect reason to begin to disregard the various checks 

that are in that statute. And so, when someone comes up with an 

economic interest and points to a specific economic impact provi· 

sion in the statute, he or she or it is held to be raising a secondrate claim, an interest that does not fall within the zone of inter· 

ests. 

In fact, every provision within the Endangered Species Act has 

its own purpose. There is no single overriding purpose. The at· 

tempt to find one is really a judicial excuse to ignore the balances 

inserted by Congress. 

Second, when you begin to focus on single overriding interestss, 

you get a very distorting effect in how you construe a statute. Once 

you find one major purpose, you will bend everything to carry that 

purpose further and further on. You engage, actually, in the judi· 

cial equivalent of tunnel vision. 

And finally, you have the fact that the zone of interests test, es· 

pecially as applied to these cases, ends up being a denial of simple 

justice; that is, the notion that someone who has a legitimate griev· 

ance ought to have the ability to raise those claims in court. Thank 

you. 

[The prepared statement of Sam Kazman may be found at the 

end of hearing.] 

Mrs. CHENOWETH. Thank you Mr. Kazman. I'd like to call on Mr. 

Hays now for his testimony. 

STATEMENT OF MR. DAVID HAYS, COMMISSIONER, 

WILLIAMSON COUNTY, GEORGETOWN, TEXAS 

Mr. HAYS. Thank you. I am an elected Commissioner of 

Williamson County, Texas, which is located just north of Austin, 

Texas. The people of Williamson County have a long history of deep 

ties with the land, and have used time-tested practices of good land 

stewardship for decades. The people of Williamson County are also 

interested in having a growing economy with good jobs, good school 

and the other amenities that come with hard work. Ironically, 

under the current Endangered Species Act, the people of 

Williamson County have been too good at achieving both of those 

goals: our sound land stewardship has made the County home to 

a number of endangered species, and our vibrant economic growth 

has made the endangered species issue one of controversy between 

the County and the Federal Government. 

As a public official of the County, I take my responsibility to the 

environment and the economy of the County very seriously. I want, 
24 

and I now the people I represent want a program of environmentally responsible growth. That is why, as the U.S. Fish & Wildlife Service began in the 1980's listing species with habitat in the 

County as endangered, the County did its best to adjust to the situation as it planned its infrastructure. Eventually, however, the 

County became aware of infonnation that led to our disillusionment with the Federal Government's lack of fairness with rc~spect 

to the endangered species in the County. Unfortunately, our story 

was ignored by the agency and was never heard in the Federal 

court litigation we filed in Texas, because the courts ruled we 

hadn't suffered specific enough injury and thus had no standing. 

Mter having been ignored by both the Federal agency and the 

Federal courts, I can assure you the County was very pleased to 

hear that someone in the Federal Government,namely your Committee, was willing to hear our cause. And I have come to tell you 

our story because, even though our litigation was dismissed for 

somewhat different reasons than the subject matter of H.R. 3862, 

it positively calls out for Congress to pass H.R. 3862 in order to ensure that others who have suffered the kind of economic injmy the 

County has suffered will not be stifled, suppressed, and shut up by 

arcane, unfair,and overly restrictive rules of standing. If nothing 

else is done in this Congress to improve the Act, please at least 

pass this measure. Our story has to do with several species of small invertebrate 

creatures that live in the hundreds of dark, cool caves spread throughout the County. We call them our cave bugs, although I am 

told that most of them are not true bugs. In 1988 the Fish & Wildlife Service listed five of these species as endangered on the 

grounds that they existed in a few closely situated caves. At the 

time, because the area involved was so limited, no one paid attention. We later learned, however, that the agency suppressed the 

truth before the listing and pulled a sleight of hand afterwards, all 

designed to spread the regulatory impact of this supposedly limited 

listing to an area covering about half our County. Records we later obtained from the agency reveal that a state 

agency independently wrote the FWS before the final listing to note 

that caves abound throughout the Williamson County area. The 

agency asked an obvious question to anyone familiar with the geology of the area: Shouldn't caves other than the few mentioned in 

the proposed listing document be checked out to see how abundant 

and widespread these species really are? In a short response letter, 

FWS dismissed the state agency's concern as simply not of merit. 

FWS's exact words were that "the potential for significant range 

extensions is too limited to affect the species' status." 

Soon after the listing, however, FWS started finding the species 

in other caves; then it pressured private landowners to look in 

their caves, and more were found. This kept going on until today, several of the species are found in scores of caves spanning the 

western half of the County and are also found in other counties. 

Whereas before the listing the FWS repeatedly insisted that the six 

identified caves include the entire known ranges of the species, 

after the listing the agency has stated that some of the species are 

found in upwards of 100 caves and the areas where the species are 

potentially found covers thousands of acres. 
25 

By the early 1990's, the situation had become critical. A major 

development project in the County was halted because one of the 

species was found there. By the time the development got back on 

line with its ESA permit, it was out several years and a million 

plus dollars. The Country's tax revenues were diminished as well. 

At the same time, the county itself was under increasing pressure 

to avoid caves, so it hired a staff person in the County Engineer's 

office to be responsible for ESA compliance. With that person's 

input,the County plans to investigate the ESA impacts of all of its 

infrastructure, and to redesign projects to minimize this impact. 

Naturally, the County was not alone in having to make such expenditures. All landowners in the so-called karst species zone were 

acting under fear of FWS regulation, spending large sums to poke 

and probe their land to ensure they were clear. 

By 1993, the situation had become intolerable. The last straw 

was when the agency in June 1993 added two new cave bugs to the 

endangered list with absolutely no opportunity for public notice 

and comment, saying the species would have been listed in 1988, 

had the agency know then about them, so it's o.k. to list them 

today without following the procedures. At that point, the County filed a petition to delist. The petition 

was denied in 1994. We appealed that; that was also denied. 

Amazingly, the government defended the suit on the ground that 

the County had suffered no injury within the meaning of the constitutional requirements. 

Our case demonstrates that the deck is already stacked. The constitutional standing requirements are strict and rigidand are used 

aggressively by government lawyers to keep litigants out of court. 

We can see the need for a filter, though we believe it worked too 

well in our case. 

The way the Ninth Circuit has applied the zone of interest test, 

what little will is left in public and private economic interests to 

speak up in the Endangered Species Act will be lost, and this 

forum will be lost altogether. In the Ninth Circuit, it would have 

mattered either way because even with a showing of economic injury, one cannot bring an ESA suit to challenge illegal agency conduct. 

In short, the Ninth Circuit has turned standing doctrine into a 

form of political suppression. It should }l.ot be the case that one has 

to have not only injury, but the corre~t claim in order to have 

standing. I therefore urge you to pass H.~. 3862. Thank you. 

[The prepared statement of David S. Hays may be found at the 

end of hearing.] 

Mrs. CHENOWETH. Thank you, Mr. Hays. I want to call on Mr. 

John Carr, for his testimony now. 

STATEMENT OF MR. JOHN CARR, EXECUTIVE DIRECTOR OF 

DIRECT SERVICE INDUSTRIES, INC., PORTLAND, OREGON 

Mr. CARR. I am the executive director for Direct Service Industries, Inc. 

DSI, Inc. represents eight large industrial entities that purchase 

electric energy directly from the bulk power market, buying the 

majority of their power from the Bonneville Power Administration. 

For most of these companies, the price they pay for power is the 
26 

single most important factor that determines their ability to compete successfully in the worldwide markets in which they operate. Traditionally, these companies have purchased between 25 percent 

and 30 percent of the power that Bonneville sells, and these purchases provide an equivalent share of Bonneville's revenues. 

When a decision to alter hydropower operations or spend money 

to improve Fish & Wildlife is made by the EPA, the DSis pay for 

it through an increase in rates. Currently, the DSis are paying 

over $100,000,000 a year for Fish & Wildlife, primarily related to 

the Endangered Species Act. 

We're here today because a decision made by the Ninth Circuit 

denied our standing to challenge Federal agency decisions to dramatically increase Columbia River flows for salmon, taken under 

the Endangered Species Act; regardless of the fact that the DSis 

have significant economic interest in those actions. This issue does 

not go to whether an agency decision was right or wrong, or whether it was lawful or unlawful. When a party is denied standing, the 

court will not even hear whether the party has a valid complaint 

or whether the party was injured by a Federal agencies violation 

of the law. 

By creating a zone of interest test for standing to seek review of 

actions taken under the ESA, the Ninth Circuit has prevented parties that suffer huge economic injury, such as the DSis, any ability 

to require Federal agencies to act in compliance with the law. 

Being denied standing in Court greatly erodes our ability to affect 

agency decisions. The agencies take you much less seriously if your 

opponents can sue them and you can't. 

H.R. 3862 is a positive step toward ensuring the right of full and 

fair judicial review for all interests, including economic interests 

under the ESA. It can be improved, however. Rather than declaring 

economic interests to be within the zone of protected interests of 

the ESA, it would be preferable to prohibit a Court from using the 

zone of interest test to impose barriers greater than the showings 

required by the Constitution. In addition, the bill's scope should be expanded beyond critical 

habitat determinations to other Federal actions under ESA. 

We're also concerned that the remedy proposed in this bill may 

not be adequate to allow citizens to protect their economic interests 

from potentially arbitrary agency action. Judicial review of agency 

action is based on the administrative record submitted by the agency to the court. Therefore, agency proceedings must be open to all 

interests. Citizens should be notified and provided an opportunity 

to participate in any ESA consultation that is likely to affect that 

citizen's economic interests. 

Finally, a citizen's interest may not have been harmed by an 

agency's initial action, but that interest may be threatened by actions some other citizen is seeking to compel through judicial action. Therefore, it is important that citizens have standing to intervene in lawsuits initiated by others under the ESA whenever that 

suit threatens their economic or other interests. 

On behalf of the members of Direct Service Industries, Inc., I appreciate the opportunity to address this Committee regarding an 

issue that has significant potential effect on our fundamental economic interests. Thank you. 
27 

[The prepared statement of John Carr may be found at the end 

of hearing.] 

Mrs. CHENOWETH. Thank you very much, Mr. Carr. I'd like to 

turn the hearing over to Mr. Pombo. 

[Whereupon Mr. Pombo assumed the Chair.] 

Mr. POMBO. Thank you. Mr. Carr, in your particular case, you . were denied the right to have your suit heard because you didn't 

have standing. 

Mr. CARR. That is correct. We were not able to bring a suit on 

agency actions that affected the hydropower operations. Mr. POMBO. Why didn't you have standing? What was-did you 

not show that you had economic loss, that the decision was not--

Mr. CARR. It was fundamentally the same argument that other 

witnesses have made. There was no denial by the Ninth Circuit 

that we had an economic interest at stake. The argument was 

made by the Ninth Circuit that, in the case of hydropower oper- ations, economics was our only interest. To the extent we were 

wishing to bring suit against Federal agencies for misapplication of 

the law in determining jeopardy requirements, section consultation 

requirements or even biological determinations to determine the 

level of hydropower operations, the Court determined our interests 

were not within the zone of interest of the Endangered Species Act. 

Mr. POMBO. So they did not deny that you had an economic interest. They just determined that the provisions of the Endangered Species Act did not give you standing to sue, based on the fact that 

you weren't-let me put it this way. If you were suing to increase 

the amount of restrictions under the Act, would you then have 

standing? 

Mr. CARR. Yes, in fact in one of the two averages, the same 

Ninth Circuit did give us standing to .file suit against the Federal 

agencies for not making enough harvest restrictions. 

Mr. POMBO. Mr. Kazman, in your prepared testimony, you state 

in two hypothetical cases, that if on one side someone was suing because the restrictions weren't tough enough and if someone was 

suing because they were too tough, one would be given standing and the other wouldn't, just based upon what they were suing on. Mr. KAzMAN. That's based on Bennett's reasoning and it would 

be especially true if, suppose, it were the case that a designation of critical habitat was at issue and you got one set of plaintiffs arguing that the economic. impact had been considered, but that it 

had been given too much importance, way out of proportion to what 

the actual impact was. Therefore, the designation was not as wide 

as it should have been. It didn't encompass as much property as 

it should have been and therefore it's invalid. Those types of arguments, which are most typically raised by traditional environmentalist groups, would be heard in court. Those 

groups would be held to have an interest; namely, the furtherance 

of preservation or conservation. That is the purpose of ESA, accord~ 

ing to the Ninth Circuit. Now suppose someone else complains about the exact same designation of critical habitat, arguing that not only were economic interests and impact not overemphasized; in fact, they were illegally ignored by the Secretary. That person, that plaintiff would not 

have standing. 
28 

You've got two groups arguing about the exact same act, both 

raising what are procedurally identical arguments, namely was 

economic impact given due consideration or not. And yet you've got 

a totally disparate outcome based on who you are and which way you're pushing. 

Mr. POMBO. Is there any justification in common law or written 

statute or anywhere, that you're familiar with, which would justify giving people standing based upon which side of the argument they're arguing, or which side of the debate they're on? 

Mr. KAzMAN. It would only-eould only be supported by an incredibly stretched notion of congressional intent. Courts do give 

Congress quite a bit of leeway in determining just what interests 

or injuries or interests are cognizably important. And if they really thought that Congress intended to give all the advantages to the 

pro-preservationists and none to anyone concerned with regulation going too far, yes, you could say there is a rationale for that court 

decision. 

If, for example, you had a citizen's provision that said only those 

interested in the conservation of the species or in the government activities to conserve the species, and no one else, can file citizen's 

suit, arguably, that would be upheld. But there is nothing to indicate that that was in fact what Congress intended. 

Yeah, you're talking about Congressional intent and I can tell 

you over the past couple of years I've spent a great deal of time 

on the Endangered Species Act. I'm reading old Committee hearings, finding out what the debate was, what the Congressional intent was at the time that it was passed, at the time that amendments were adopted. 

To the best of my memory, I don't remember this issue every coming up in any one at any time ever testifying or speaking to the 

effect that if you're on this side of the debate you have standing, but if you're on the other side of the debate you don't. So I think 

it would be, in your words, quite a stretch to say that there wasthat they pulled this out of Congressional intent. I have never read 

anywhere in anything that anyone has said, coming out of Congress, that this was the intent; so I don't believe that that's the 

case. 

And if they're saying it's based on law, I don't know how it's 

based on law because it's not what the original Endangered Species 

Act said. It's not based on any interpretation that has ever come 

out. It seems like they just decided that they would pick one side 

that they liked better than the other. Mr. KAzMAN. I think what happens is that this court believed 

that-well, it either ehose to or felt obligated to come up with a single, overriding purpose for the statute; which means to go from the 

text of the statute to where you start to divining some overriding 

purpose. Then you use that divining-that overriding purpose that 

you've divined to be the definition for a zone of interests. So it's a 

double jump from the text of the statute itself. And in each of those 

jumps you get a stretch or a total twisting of what is actually stated in law. And the result you get, because you've got the courts try- ing to come up with a single purpose, is a real distorted form of 

statutory construction. 
29 

Mr. POMBO. So they take a law and then take court decisions 

that are made and then re-interpret the law based upon the court 

decisions that are made and somehow end up in a place that nobody intended for them to go. The administration witness testified-Mr. Leshy testified earlier that he was personally not comfortable with this decision as well. It doesn't seem to me that anybody intended us ever to end up where we are today. And yet, 

we've had a string of witnesses that have testified that this has become a real problem. 

Mr. K.AzMAN. And that in a sense is all the more reason for this 

Committee not really to feel it has to await a Supreme Court ruling 

here. The entire issue of the Supreme Court ruling will be what did 

Congress intend? It all comes back to Congress. There is nothing 

that says when you've got this sort of issue the Supreme Court 

shall go first or Congress shall go last. If the issue is congressional 

intent, if this Committee wants to address it, it is perfectly free to 

do so at this point. And I think that quite a bit of the testimony 

here indicates that there is good reason for it, in fact, to act. 

Mr. POMBO. Mr. Hays, in your testimony, the lawsuit that you 

talked about was based upon faulty scientific data, that you believed or the County believed that the scientific data that was used 

for listing was inaccurate and in terms of adopting a critical habitat, originally they said it existed in six caves, and then after it 

was listed they found it in hundreds of others. That was the basis 

that you were suing under, that it was faulty scientific data and 

the attempt was being made on the part of the County to find out 

whether or not it was endangered, if it was endangered, what it's 

habitat was, but you were not given standing because you did not 

have an economic loss? 

Mr. HAYS. That's correct. That's correct. 

Mr. POMBO. In the intervening years, since the late 1980's, up 

until the more listing of additional species, if I remember your case 

accurately, they have found that throughout the entire County, 

that not just your County-throughout that entire region of Texas 

as well. 

Mr. HAYS. That's right. 

Mr. POMBO. Do you feel that with the knowledge that you have 

today, that the science that was originally used was inaccurate in 

that listing? 

Mr. HAYS. We feel like there should have been a longer period 

of discovery, and time for other governmental entities to participate 

in the process, before they designated the species endangered. 

There are seven species. Two of the species we're finding everywhere in the central Texas region-every rock, every crevice has 

two of the species. The other five probably are extinct but they 

don't pose a problem necessarily, because preserves can be set up 

when we find them, that will adequately protect them but will still 

allow for growth and development. But it's two that were put on 

there that--

Mr. POMBO. That you're finding everywhere? 

Mr. HAYS. That we feel like-that we agree absolutely that the 

science was not done prior to two of these species being placed on 

the endangered species list. 
30 

Mr. POMBO. The two that you're talking about, were they part of 

the original listing in 1988, or were they subsequently added? 

Mr. HAYS. They were the original-part of the original. 

Mr. POMBO. They were a part of the original listing? 

Mr. HAYS. And then what they did was they put five species on 

and then they added sub-species. From these there might be one 

small component on some of these-bugs that would have created 

a sub-species and so they were adding. 

Mr. POMBO. So some caves have the sub-species of--

Mr. HAYS. Those same species. 

Mr. POMBO. But those two are your major problems because 

you're finding them everywhere? 

Mr. HAYS. That's right. And we've looked briefly at the proposed 

changes in the Endangered Species Act and you know, if they 

stayed on course, where they currently are, we think they're going 

to be balanced in the Act. But we also feel like this legislation is 

essential because if you are economically injured, you have to be 

able-surely you ought to be able to file a suit. Mr. POMBO. Your case was not heard because you did not have 

standing. It had nothing to do with your arguments being 

meritless? 

Mr. HAYS. Correct. 

Mr. POMBO. No one has ever said that your argument was 

meritless, that there was no reason to hear the case based upon 

your argument. It was only based upon the fact that you had an 

economic injury and you were not suing on behalf of the bugs. 

Mr. HAYS. That's correct, and also, we could not-the court ruled 

that we could not show the County itself-the governmental entity 

of the County could not show a specific entity-specific injury; that 

we couldn't represent the landowners in our County; that they would have to try their case separately and independently. But we 

could not show that specific injury and therefore, we failed the 

Constitution. 

Mr. POMBO. If you were a scientist looking at your specific case, 

and you had everything that Fish & Wildlife had given out, and 

based upon the information that they released publicly, you would 

determine that it's endangered based upon that information, and as 

a scientist would determine that yes, they are endangered because 

this is what the information at Fish & Wildlife has given us. But 

if you had done further studies and looked at what was really out 

there, you may come up with a different opinion? 

Mr. HAYS. That's right. And we may also have a different opinion 

on how they should be preserved. 

Mr. POMBO. Thank you. 

Mrs. CHENOWETH. Thank you, Mr. Pombo. Mr. Hays, I wanted 

to ask you about these cave bugs. Do they ever come out of the 

cave? 

Mr. HAYS. Well, we've had a hard time determining-we call 

them cave bugs, but it would actually-we find them under large 

rocks, crevices. They don't-! don't think they come out. They like 

dark places below the surface. But I don't think they're wandering 

around above surface. I think they're all blind. 

Mrs. CHENOWETH. They're all what? 

Mr. HAYS. I think they're blind. 
31 

Mrs. CHENOWETH. Are they blind? 

Mr. HAYS. I think they are. 

Mrs. CHENOWETH. But you find them only at night. They're nocturnal or? 

Mr. HAYS. Well, no, you can find them. When environmentalists· or biologists go out and look for them, they go down with flashlights into the caves or these crevices and find them. But 

they're--

Mrs. CHENOWETH. So what is the logic of listing the surface, that 

where there's sunlight and so forth, where humans usually existoutside of the crevices and the caves? 

Mr. HAYS. Well, in central Texas there are limestone formations 

that encompass most of the County, and when it rains it goes 

through the topsoil and goes through the limestone and creates 

these caves. So what you have to do, when you're preserving the 

cave you also have enough land around the cave so that run-off, 

when it rains, doesn't go into the cave and-or say you had a development going in, you know, street, drainage, anything that could 

possibly contaminate the entrance into the cave or crevice would go 

in there and destroy the species. 

Mrs. CHENOWETH. You know, I remember early on in this term, 

Mr. Pombo was heading up the Endangered Species Act task force 

and we had a couple of hearings in Texas. And I've got to say, aside 

from Idaho, you have the most incredible cases down there. Blind 

cave bugs that impact an entire one-half of your County. Interesting. Mr. Kazman, I wanted to ask you some questions and I thank 

you for your good testimony. In Section G, under Penalties and Enforcements, do you happen to have the Act with you? 

Mr. KAzMAN. Yes. 

Mrs. CHENOWETH. OK. I'm under Citizen's Suits, Section D, and 

I just want to read this because it is quite broad. But then it narrows up the application of the Act it appears, "Except as provided 

in paragraph two of this subsection," are you with me? 

Mr. KAzMAN. Yes. 

Mrs. CHENOWETH. OK. "Except as provided in laragraph two of 

this subsection, any person may commence a civi suit on his own 

behalf." And then it narrows it down: "To enjoin any person, including the United States and any other governmental instrumentality or agency who is alleged to be in violation of any provision 

of this Act or regulation issued under the authority thereof." 

And Section B and C also seem to take the tail of this little animal right back and put it in its mouth. So it appears that the 

Ninth Circuit decision in Bennett v. Plenert may be a strict interpretation of this provision. Do you see it this way? 

Mr. KAzMAN. Are you asking if the Ninth Circuit engaged in a 

misinterpretation of this? 

Mrs. CHENOWETH. Do you believe this is where they got their decision that humans are outside of the zone of interest? Where it 

talks about citizen suits, and yet, takes it right back into the Endangered Species Act in enforcement and in process. Mr. KAzMAN. I think really the error is this, and I ought to mention, it's not as if just because a court takes a zone of interests approach to the Endangered Species Act that you get this sort of very 

bad decision, because the D.C. Circuit's Mountain States Legal 
32 

Foundation case also adopts the zone of interest test. The big distinction is that in the Ninth Circuit Bennett case, the court looks 

at ESA and-! have to say does not look at it very carefully-says 

its overriding purpose is that of conservation, preservation of species. And from there it basically adopts a twisted of interpretation 

of language. It figures, here's a citizen suit provision, we understand Congress to be creating a whole set of interests which citizens can pursue through court action, but it's got to be read in accordance with the whole statute. For the Ninth Circuit, that means 

in accordance with this one overriding purpose. The D.C. Circuit's 

interpretation, on the other hand, is yes, the ESA is primarily concerned with preservation, conservation of species, but no statute 

pursues its objective at all costs, or in total disregard to costs. And 

for that reason, the balancing references to economic impact that 

are contained in the ESA can't be read out of the statute. They've 

got their own purposes. And even though those purposes might not 

make it into the very title of the Act, they nonetheless represent 

a specific congressional intent as well. And in a sense you've got 

some checks here. We've got to give recognition to those checks, 

and so we're not going to construe zone of interests in the same one 

dimensional manner that the Ninth Circuit did. And in a sense, even though there is a lot of talk about congressional intent, it really has to do with fidelity to the language of the 

statute. If you find references to economic impacts, it means that 

Congress wanted economic impacts to be considered. 

And that means that Congress almost certainly wanted people 

who have suffered those impacts, and who can state a claim that 

those impacts were not adequately considered, to have redress 

under the statute. 

Mrs. CHENOWETH. Mr. Kazman, isn't NEPA made a part of the 

law by reference in the Endangered Species Act? 

Mr. KAzMAN. Yes, it is but I mentioned NEPA in terms of NEPA 

not applying solely to those who are pure of heart. Quite a few 

cases, especially cases involving interest in information-information that might have been contained in environmental assessment, 

in an environmental impact statement-these are called informational interest cases-quite a few of those cases have been brought 

under NEPA. And there, even though NEPA itself is very wideranging, the interpretation adopted under zone of interests is that 

it's not enough to have an interest in the information. Your interest 

has to be of an environmental nature. If your interest in the information that might be produced regarding NEPA has to do with 

something else, then you're out of luck. 

And we, ourselves, ran into this situation in connection with a 

series of court cases that we filed against the National Highway 

Traffic Safety Administration on what are known as the CAFE 

rules-the government's new car fuel economy standards. Our 

claim was that CAFE kills people by causing cars to be downsized. 

And all other things being equal, small cars are less safe than 

large cars. NHTSA claimed that this was not so. 

We ended up winning on the merits. The court held that 

NHTSA's claim of no safety impact from CAFE was based on "bureaucratic mumbo-jumbo." Those were the court's words-not ours. 
33 

But specifically, we also had a NEPA claim. We argued that 

under NHTSA's own NEPA regulations, which talk about social 

and human impacts, NHTSA should have looked at the fact that 

CAFE was going to kill people, and considered it just the way it 

considered whether CAFE would ;Ufect wetlands, air quality, wildlife and 50 other different environmental factors. 

NHTSA did not do that. The court held that we did not have 

standing to pursue that claim. We were lucky because we succeeded in getting standing under the CAFE statute. But if we had 

been limited to NEPA, it would have had the effect that an agency could examine CAFE's effect on everything in the world except humans, and realizing that humans might be killed still get away with that omission. 

Mrs. CHENOWETH. Mr. Kazman, let me ask you. I'm sort of reaching back quite a ways, back into the 1970's. And the Supreme Court decision, I believe entitled Zero Club v. Morton. It involved 

a ski hill or a proposed ski hill. And suit was brought to enjoin the 

Secretary from moving ahead, and allowing this ski hill to be developed. And they brought it on the basis of that it would cause aesthetic damage. It would ruin the view. As I remember right, the 

court ruled that because there was no economic injury to the plain- tiffs, they were outside the zone of interest. And while they did not 

use the term, the zone of interest, I do remember that decision. I 

would like to discuss it further with you, but right now, assuming that what I'm trying to remember is true, wouldn't, then, Bennett 

v. Plenert have overturned the zone of interest doctrine that was 

already established by NEPA, and in fact, came in to the whole picture of the Endangered Species Act because NEP A has been made 

a part of the law by reference? 

Mr. KAZMAN. I ought to mention first, the fact that NEPA is 

referred to in the ESA does not necessarily mean that any claim 

brought under the ESA is going to be subject to the NEPA zone of 

interests, or vice-versa. But my recollection of the Sierra Club case 

was that the purely generalized allegation of aesthetic injury-and 

as I recall, the court harped on the fact that there were no particu- lars given, no specific members were identified, no specific items of 

beauty or geographic locations giving rise to that aesthetic value 

were identified. It was just about as broad a generalization as you could get. I think also it was something that was done deliberately, in an attempt to widen environmentalist standing. And the court 

found that insufficient. But I think it was based on the Constitution; that is, it just did not meet the constitutional criteria. But I've 

got to admit my memory of that case is somewhat foggy. But since 

then you have had a general expansion of environmentalist standing. It is an expansion that is treated very critically in a book that 

we cite in our testimony, by Michael S. Greve, only recently pub- lished · by AEI, entitled, The Demise of Environmentalism in American Law. 

But really, that expansion had to do with very, very nebulous 

sorts of injuries and what is interesting, with respect to Bennett, 

is here you have a court taking the most concrete form of injury imaginable-a pocketbook impact, an impact on your bottom oper- ating line-and saying that's not good enough. Whereas, these incredibly nebulous allegations generally do continue to suffice. 
34 

Mrs. CHENOWETH. Thank you, Mr. Kazman. That's very interesting. Mr. Carr, I wanted to ask you, with regards to your clients in 

the Pacific northwest, how much economic injury can you estimate 

has occurred because of spilling water at the dams, because of the 

endangered species in the rivers? 

Mr. CARR. Well, there's something like $400 million a year spent 

on salmon. It's funded through the BPA rates. Our fundamental 

view is a lot of that money is being spent on things that aren't 

doing the fish much good. It could be spent much better on other 

things. The $20-30 million a year that's involved with spilling 

water over dams probably does more harm than good. As I said in 

my testimony, on those type of issues we don't have standing to 

raise in court. But, of course, like everyone else has been talking 

about, the environmentalists do have the opportunity to raise those 

issues once a decision is made by the Federal Government and can 

argue that the Federal restrictions don't go far enough. Of course, 

we don't get our day in court to be able to argue that either the 

science or the statutory interpretation underlying the restrictuions 

are faulty. But the spill program has cost certainly, over the last 

few years, tens of millions of dollars. Mrs. CHENOWETH. I think that if your company had a $435 million cap to explore what it may take to save the salmon, I think 

you could probably accomplish that task maybe, couldn't you? 

Mr. CARR. We probably could. 

Mrs. CHENOWETH. Mr. Pombo, do you have any other questions? 

Mr. POMBO. Yeah, just a couple more. One, Mr. Kazman, maybe 

you can explain to me why can an environmental group sue on behalf of its members in one of these cases, but the County can't sue 

on behalf of its constituents? 

Mr. KAzMAN. I'd like to look at the court decision but my hunch 

is that in the court's view, the connection between what landowners would do under this regulation and how that in turn might 

affect tac revenues of the County was judged to be too speculative. 

And so that was the killer; whereas, the traditional environmentalist groups suing on behalf of their members, you know, it's pretty 

well established in terms of standing. 

Mr. POMBO. Would a home owners group or a property rights 

group have standing then? 

Mr. KAzMAN. I would guess that they should but once again, this 

tends to be so dependent upon the actual facts. And also, to the extent that the environmentalist standing is viewed with this eye toward promoting one set of interests and not really having any balances that create their own citizen's suit enforcement provisions as 

a betting person, I'd bet against it. 

Mr. POMBO. Unless ... Mr. KAzMAN. I'm not sure what the betting line would be, 

though. Maybe you could help me with what the proper odds would 

be. 

Mr. POMBO. Unless legislation like this were to pass. 

Mr. KAzMAN. That's right. I think legislation will-at least expressly mentioning the words "economic injury" puts it on a totally 

different footing than it otherwise would be. 

Mr. POMBO. I have a press release here that was put out by the 

defenders of wildlife, that lists the Pacific Northwest Generating 
35 

Co-op v. Brown as one of the successes under the ESA, that shows 

that individuals, private industries can and do sue the Federal 

Government. Mr. Carr, in your testimony, you referenced that spe- cific case and said that you were not-that you were a co-plaintiff in that, but that you were not allowed to sue. Why were they allowed to sue and you weren't? 

Mr. CARR. Well, it's one of these difficult decisions to explain. We 

and the other plaintiffs were asking for standing not only to challenge the decisions that the Federal Government was making regarding hydropower operations, but also challenging decisions they 

were making about how much commercial harvest should be allowed; how much hatchery production should be allowed, and habitat type issues. 

The initial decision by the district court was that we and the 

other plaintiffs didn't have standing to sue on any of those issues. 

The Ninth Circuit, on reflection, on appeal, decided that we had 

the right to sue on the non-hydropower related issues; that is, harvest, hatchery production, things of that nature, because they decided it was probably in our best economic interests to obtain recovery of the fish. That was the court's decision. For us tq pursue additional harvest restrictions or challenge hatchery operations would probably lead to a zone of interest, which would derive more 

fish. If there were more fish, then we would probably be economically benefited. That was their logic on that case, basically. Regarding hydropower operations, they said that there was a direct economic connection. If we argued against the Federal Government's determination on hydropower operation, our only goal was 

to cut back on restrictions on hydropower operations. They then 

leaped to basically a factual decision and said that, now this is my interpretation, more flows for fish was good. The only thing we 

would be in court arguing, they thought, was less flows for fish to 

save money to us. Therefore, we only had this pure economic interest and that fell outside the zone of interest of the Endangered Species Act. So on the bottom line, we were able to get standing for pursuing cases on harvest and things of that nature. But we 

were not able to get into court and challenge the things really most 

basic to our long-term economic vitality. 

Mr. POMBO. When you say, "we" are you referring to Pacific 

Northwest as well? 

Mr. CARR. I'm referring to the DSis. That's my organization. There's also two other umbrella groups involved in this: the Pacific 

Northwest Generating Co-op and the Public Power Council. 

Mr. POMBO. So they were not allowed standing on the issues. They were only allowed standing if they wanted to restrict more 

harvesting of the salmon? 

Mr. CARR. That's correct. The decision applied to all three of us. 

Mr. POMBO. So this is not exactly accurate. They were allowed 

only if they were arguing that side of the issue. If they were argu- ing the other side of the issue, they were not allowed. 

Mr. CARR. That's correct. None of us were allowed under that decision to challenge the Federal Government's determinations about 

hydropower operations, the very thing that basically determined 

our economic livelihood. 

Mr. POMBO. OK. Thank you very much. 
36 

Mrs. CHENOWETH. Thank you, Mr. Pombo. I just want to conclude this hearing by putting in the record some very interesting information. Both Mr. Pombo and I were concerned about the cost 

that it takes for individuals to see justice if they ever could get standing under the ESA. Endangered Species Act allows for attorneys to be paid attorneys fees and under the Fund for Animals v. 

Lujan, the environmental attorneys received $67,500. Under Dioxin 

Organo-chlorine Center and Columbia River United v. Rasmussen, 

the environmental attorneys received $61,500. And Defenders of 

Wildlife v. Thomas, the attorneys were $122,500. Natural Resource 

Defense Council v. Rodell, they received $18,000--oh, $518,000. I 

thought that was a $ sign. $5198,000. Defenders of Wildlife v. 

Thomas, $122,500. And Greenpeace v. Bridge Baldridge, NYE, they 

received $88,794. And there's many pages of these; so there is an 

economic reason to keep these suits going, suits that very often 

stop us from pursuing our way of life and our work. So I want to 

thank all of you for joining us. All of you who have joined us to 

listen to the hearing and those of you who have participated. Just 

a moment. Oh, all of these numbers that I have read in the settlements of the attorneys fees was information submitted by the De- partment of Justice, in their records. 

And so with that I'd like to call this hearing to a close, thanking 

you gentlemen for your participation. The hearing record will remain open for ten working days. With 

that, this hearing is adjourned. 

[Whereupon, at 4:12p.m., the Committee was adjourned; and the 

following was submitted for the record:] 
37 

104TH CONGRESS H R 386 2 2D SESSION 

• • 

To amend the Endangered Species Act of 1973 to clarify the intent of 

Congress and ensure that any person having any economic interest that 

is directly or indirectly harmed by a designation of critical habitat may 

bring a citizen's suit under that Act. 

IN THE HOUSE OF REPRESENTATIVES 

J ULY 22, 1996 

Mrs. CHENOWETH (for herself, Mr. POMBO, Mr. YOUNG of Alaska, Mr. DooLITTLE, Mr. SMITH of Texas, Mr. CALVERT, Mr. STOCKMAN, Mr. BREWSTER, Mr. COOLEY of Oregon, Mr. STUMP, Mrs. CUBIN, Mr. 

RADANOVICH, Mr. TAUZIN, Mr. CUNNINGHAM, Mr. BARTLETT of Maryland, Mr. DORNAN, Mr. HAsTINGS of Washington, Mrs. VUCANOVICH, 

Mrs. SEASTRAND, Mr. FIELDS of Texas, Mr. BARTON of Texas, Mr. 

STENHOLM, Mr. ROHRABACHER, Mr. BAKER of Louisiana, Mr. SOLOMON, Mr. LAUGHLIN, Mr. HUNTER, Mr. HERGER, Mrs. MYRICK, Mr. 

DICKEY, Mr. CRAPO, Mr. ISTOOK, Mr. MCKEON, Mr. HILLEARY, Mr. 

BURTON of Indiana, Mr. COMBEST, Mr. FUNDERBURK, Mr. BARR of 

Georgia, Mr. MciNTOSH, Mr. METCALF, · Mr. Cox of California, Mr. 

LUCAS of Oklahoma, Mr. RIGGS, Mr. SAM JOHNSON of Texas, and Mr. 

HANSEN) introduced the following bill; which was referred to the Committee on Resources 

A BILL 

To amend the Endangered Species Act of 1973 to clarify 

the intent of Congress and ensure that any person having 

any economic interest that is directly or indirectly 

harmed by a designation of critical habitat may bring 

a citizen's suit under that Act. 
38 

2 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the "Citizen's Fair Hearing 

5 Act of 1996". 

6 SEC. 2. FINDINGS. 

7 The Congress finds the following: 

8 (1) The Endangered Species Act of 1973 grants 

9 broad regulatory authority to various agencies to 

10 take actions to protect, preserve, and recover species 

11 of plants and animals determined to be in danger of 

12 extinction or threatened with becoming so within the 

13 foreseeable future. 

14 (2) Recently, private property owners and other 

15 · persons that have been adversely impacted by Fed16 eral agency actions under the Endangered Species 

17 Act of 1973 have sought to bring civil actions for re18 covery of damages imposed by the Act. The United 

19 States Circuit Court of Appeals for the 9th Circuit 

20 has found that plaintiffs in those actions do not have 

21 standing to bring the suits, because they do not fall 

22 into the zone of interests protected by the Endan23 gered Species Act of 1973. 

•HR 3862 m 
39 

3 

1 SEC. S. GIVING PERSONS WITH AFFECTED ECONOMIC IN2 

3 

TERESTS EQUAL STANDING TO SUE UNDER 

THE ENDANGERED SPECIES ACT OF 1973. 

4 Section 11 (g) ( 1) of the Endangered Species Act of 

5 1973 (16 U.S.C. 1540(g)(1)) is amended by striking so 

6 much as precedes subparagraph (A) and inserting the fol7 lowing: 

8 "(g) CITIZEN SUITS.-(1) Except as provided in 

9 paragraph (2), any person that satisfies the requirements 

10 of the Constitution and demonstrates having suffered or 

11 being threatened with economic or other injury resulting 

12 . from a violation of the Act or a failure of the Secretary 

13 to act in accordance with the Act is deemed to be within 

14 the zone of protected interests of this Act and shall have 

15 standing to commence a civil suit on his or her own be16 half-". 

0 

•HR S862 m 
40 

PREPARED STATEMENT OF JOHN MACLEOD 

Mr. Chairman and members of the Committee, thank you for the 

opportunity to testify today in support of H.R. 3862, the Citizen's Fair Hearing 

Act of 1996. 

I am John Macleod. I am a partner in the law firm of Crowell & Moring 

LLP in Washington, D.C., and am testifying today on behalf of the American 

Forest & Paper Association ("AF&PA"), the national trade association of the 

forest, pulp, paper, paperboard and wood products industry. 

I have represented the interests of the forest products industry and other 

owners and users of land in a number of cases under the Endangered Species 

Act, 16 U.S.C. § 1531 et seq. ("ESA"). Last year, for example, I represented a 

group of civic organizations, small landowners, and contract loggers in an 

important ESA case -- called Sweet Home -- that was decided by the United 

States Supreme Court. See Babbitt u. Sweet Home Chapter of Communities 

for a Great Oregon, 115 S.Ct. 2407 (1995). And only a few months ago, my 

firm filed an amicus brief on behalf of the American Forest & Paper 

Association, the American Petroleum Institute and other groups in another 

important ESA case -- called Bennett u. Plenert -- that will be considered by 

the Supreme Court this term. See Bennett u. Plenert , 63 F.3d 915 (9th Cir. 

1995), cert. granted and before the Supreme Court as Bennett u. Spear, No. 95· 

813. 

- 1-
41 

Like H.R. 3862, the Bennett case involves the question of "standing" 

under the ESA. "Standing" is a rather technical legal term, but in essence it 

boils down to the right to have a complaint heard by the courts. The Ninth 

Circuit decision that the Supreme Court will review in Bennett held that 

landowners and others who are economically hurt by regulatory excesses in 

enforcing the ESA have no right -- or "standing" ·· to go to court to challenge 

those excesses. Such a proposition is both unnecessary and unfair . 

. The American Forest & Paper Association supports H.R. 3862 because it 

stands for the fairer and more sensible proposition that the courthouse doors 

should be open to all who are aggrieved by regulation under the ESA. 

I would like to address the benefits of providing fair and even access to 

the courts under the ESA, as H.R. 3862 would. Of necessity, I begin by laying 

the legal framework. 

I. WHAT IS "STANDING"? 

"Standing" is the name given to the set of tests for deciding wl).ether a 

particular person is a proper person to invoke the court's jurisdiction. There is, 

first, a requirement of "constitutional standing" that derives from the 

limitation of judicial authority in Article III of the United States Constitution 

to active "Cases or Contro:versies." An active controversy requires that the 

plaintiff be injured; it is well-established that constitutional standing is only 

. 2. 
42 

satisfied when it is shown that the plaintiff has suffered: (1) an injury in fact 

or imminent threatened injury; (2) which is fairly traceable to the action being 

challenged; and (3) which is likely to be redressed by a favorable judicial 

decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61 (1992). 

Economic injury satisfies the constitutional aspects of standing, as "palpable 

economic injuries have long been recognized as sufficient to lay the basis for 

standing." Sierra Club v. Morton, 405 U.S. 727, 733-34 (1972). 

A second aspect -- "prudential standing'' -· consists of judge-made law or 

prudential principles that can be altered by Congress. "Congress may, by 

legislation, expand standing to the full extent permitted by Art. III, thus 

permitting litigation by one 'who otherwise would be barred by prudential 

standing rules."' Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100 

(1979). 

Prudential standing principles have been significantly influenced by the 

Supreme Court's interpretation of the Administrative Procedure Act ("APA") 

requirement that a plaintiff be "adversely affected or aggrieved within the 

meaning of a relevant statute". See 5 U.S.C. § 702. Based on that 

requirement, the Supreme Court has held that, in a suit brought under the 

APA, "the interest sought to be protected by the complainant [must be) 

arguably within the zone of interests to be protected or regulated by the 

. 3. 
43 

statute or constitutional guarantee in question." Association of Data 

Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970). 

Although the Supreme Court has stated that the "zone of interests" test 

generally applies only to suits brought under the APA, and that the test is not 

especially demanding, Clarke v. Securities Industries Association, 479 U.S. 

388, 395-401 (1987), some lower courts have applied the test aggressively to 

deny standing to economically-injured plaintiffs even where suits are brought 

under broad citizen suit provisions in organic statutes, not the APA. 

II. THE ESA'S CITIZEN SUIT PROVISION 

Under the ESA, "any person" may bring a civil suit "to enjoin any 

person, including the United States and any other governmental 

instrumentality or agency . . . who is alleged to be in violation" of the Act or a 

regulation implementing it. 16 U.S.C. § 1540(g)(1). This provision is routinely 

used by environmental groups and others who seek to maximize protection for 

endangered and threatened species, not just to allege that certain actions by 

governmental or private persons may be causing injury to given species but 

also to allege procedural violations. Suits are brought, for example, to force 

more aggressive and far-reaching regulation by federal agencies. 

The citizen suit provision has also been used by landowners and 

development interests who have been injured economically by what they see as 

- 4-
44 

excess regulation under the ESA. While these interests have no quarrel with 

the ESA's objective, they believe the government should be true to the 

procedural and substantive dictates that Congress set forth in the ESA. 

Bennett was such a case. Two ranchers and two irrigation districts in 

Oregon sued to enjoin a government biological opinion that would effectively 

restrict their water use in order to protect two species of fish. The complaint 

challenged the science underlying the government's opinion and asserted both 

procedural and substantive violations of the ESA in developing the opinion. 

But the Ninth Circuit declined to consider those issues. It held that 

economically-injured persons lack standing to bring ESA claims because 

economic injuries purportedly are outside the "zone of interests" protected by 

the ESA. In the Ninth Circuit's view, only plaintiffs who are trying to 

maximize the protection for ESA-listed species are within the ESA's "zone of 

interests" and have standing to enjoin claimed ESA violations. Under this 

interpreta tion, economically-injured plaintiffs -- such as the rancher-irrigator 

plaintiffs in Bennett and the timber industry plaintiffs I often represent -- are 

denied standing and left without a remedy for ESA violations. As a result, for 

example, the Sweet Home case, which resulted in an important clarification 

and narrowing of the law of ESA "take" of wildlife, would not have been 

considered because the Sweet Home plaintiffs were economically injured and 

were advocating less-burdensome ESA regulation of their activities. 

- 5-
45 

IlL RR. 3862 GUARANTEES AIL CITIZENS A FAIR HEARING 

H.R. 3862 would clarify that economically-injured "persons" have 

standing to sue under the ESA. It provides that a citizen who is "being 

threatened with economic or other injury" due to an alleged violation of the 

ESA by the "Secretary" of the Interior (or any other person) ·· and, of course, 

who meets the constitutional standing requirements ·· "is deemed to be within 

the zone of protected interests of this Act and shall have standing to commence 

a civil suit on his or her own behalf." 

This language would ensure that economically-injured plaintiffs have 

standing to bring ESA claims. It would specifically override the binding 

precedent in the Ninth Circuit that economic interests are outside the "zone of 

interests" protected by the ESA. 

IV. THE REASONS WHY H.R. 3862 SHOULD BE ADOPI'ED 

I urge the enactment of H.R. 3862 for several common-sense reasons. 

H.R. 3862 Would Plunote Fairness And A Level Playing Field. 

H.R. 3862 is aptly named the "Citizens' Fair Hearing Act of 1996." It would 

provide for fair judicial hearings on claimed ESA violations by all potential 

citizen-plaintiffs. Economically-injured citizens would have standing on their 

ESA grievances to the same extent that environmental group plaintiffs have 

. 6. 
46 

standing. H.R. 3862 thus meets an elemental test for fairness: a level playing 

field. 

ILR 3862 Would AVO.d Unfairly Skewed lnterpretati<nS Of The ESA- If 

only one interest group (here, environmental groups) has standing, the 

inevitable result is that the law in question (here, the ESA) will move in the 

direction of that interest group. The nature of the judicial process is such that. 

when only one side of a continuing public controversy has access to the courts, 

the law moves incrementally towards legitimizing the position of the interest 

group that can invoke the courts' jurisdiction. The position of the party barred 

from the courts is never heard, is never embraced by the courts, and receives 

no recognition in judicial opinions. Moreover, this can produce substantive 

changes in agency behavior, as an agency evaluates its obligations against the 

backdrop of judicial decisions construing those obligations and with an eye 

towards who can sue the agency. 

Thus, a one-sided standing doctrine unfairly skews the interpretation of 

the ESA. While providing for citizen watchdogs to assure that the government 

does not fall short in its regulatory duty under the ESA, a one-sided doctrine 

silences the voices of any that might point out that the government has gone 

too far -- beyond what the statute says, or what Congress intended. H .R. 3862 

encourages balanced and fair interpretations of the ESA by providing standing 

- 7-
47 

to economically-injured citizens, t hereby ensuring that their voices and 

arguments too will be heard in court. 

If H.R. 3862 is enacted, there would be no question that courts have 

jurisdiction to consider claims that the government has engaged in overzealous 

regulation which violates the limits or protections in the ESA. Over-regulation 

by the government can establish inappropriate and unlawful standards that 

Congress never intended; if unchecked, it will inevitably and improperly 

constrain private property owners and other citizens from pursuing their 

economic livelihoods, because the government's unreviewable interpretations 

are backed up by the ESA's potent criminal and civil sanctions and injunctions. 

See 16 U.S.C. § 1540(a), (b), (e)(6), and (g). 

H.R 3862 Would Resolve Uncertainty On ESA Standing- The enactment 

of H.R. 3862 would end the current legal uncertainty over whether economic 

interests have standing to raise ESA claims. The federal appellate courts, at 

present, are taking at least three different approaches to that question: 

1. In the Ninth Circuit, under the precedent established in Bennett, there 

is a stringent "zone of interests" barrier to ESA standing which prevents 

economically-injured citizens from being able to claim that the 

government has engaged in over-regulation that violates the ESA. 

2. In contrast, the Eighth Circuit has held that the "any person" may sue 

any other "person" language in the ESA's citizen suit provision, 16 U.S.C. 

-8-
48 

§ 1540(g}(l), eliminates any judge-made barrier to ESA standing (such as 

the "zone of interests" test) and expands standing to its Article III 

constitutional limits. Defenders of Wildlife u. Hodel, 851 F.2d 1035, 1039 

(8th Cir. 1988). 

3. The District of Columbia Circuit has recently introduced a third variant. 

Looking not at the ESA as a whole but at individual provisions, it held 

that economic interests have standing on critical habitat claims because 

they are within the "zone of interests" protected by the ESA, in light of 

the explicit mention of economic concerns in the ESA's critical habitat 

provision (16 U.S.C. § 1533(b)(2}). Mountain States Legal Foundation u. 

Glickman,_ F.3d _, 1996 WL 475794 (D.C. Cir. Aug. 23, 1996). 

This confusion and conflict in the courts on the proper tests for standing 

under the ESA's broad citizen suit provision creates an unhealthy atmosphere 

of uncertainty. It is expensive and it encourages forum-shopping and 

procedural wrangling. Courts may not reach meritorious ESA claims due to a 

misapplication of standing law. It is appropriate and efficient for Congress to 

end this uncertainty by legislating an explicit test for ESA standing. 

H.R. 3862 Would Reassert The Legislative Prerogative To Waive JudgeMade Barriers To Standing - Congress, and not individual judges, should 

decide whose claims are entitled to be heard under the ESA. It is, of course, 

- 9-
49 

Congress's prerogative to say what the law is as regards the prudential 

barriers to standing. 

As Bennett illustrates, some courts are establishing judge-made barriers 

to standing that go well beyond the standing requirements of the Constitution. 

The courts are doing so under the guise of cai:rying out the ESA legislative 

intent (though the case results sometimes seem to reflect, instead, the 

philosophical bents of the individual judges). Since the courts are attempting 

to understand and apply the legislative intent, Congress should make clear 

what its intent is on ESA standing. 

In the pending appeal to the Supreme Court, the Plaintiffs-Petitioners in 

Bennett have argued that the ESA citizen suit provision should be interpreted 

as eliminating the prudential "zone of interests" barrier to standing and as 

allowing standing to the full Article III constitutional limits. In the amicus 

brief we flled on behalf of various natural resource groups, my law firm 

supported that petition. 

Congress should not delay action on H.R. 3862 based on the expectation 

that the Supreme Court will resolve all ESA standing problems in Bennett v. 

Spear. Although the Ninth Circuit's ruling in the case prohibits economic 

interests from having ESA standing anywhere within the Circuit, and although 

the government's briefs below supported and encouraged that ruling, the 

government is now taking the position that the Supreme Court should not 

. 10. 
50 

reach the prudential "zone of interests" standing issue. It urges, instead, that 

the Supreme Court should dispose of the appeal on constitutional standing or 

other technical grounds. See Brief For the Respondents in Bennett v. Spear, 

No. 95-813 (S.Ct. filed July 1996). Accordingly, it is quite possible that the 

Supreme Court will not reach the bottom-line issue addressed by H.R. 3862 ·· 

that economic interests have standing to raise ESA claims. Alternatively, the 

Court might not resolve ESA standing in accordance with H.R. 3862's 

principles. 

Congress has control over the scope of the citizen suit provision it created 

in the ESA. By enacting H.R. 3862, Congress can make its intent clear and 

assure that individual judges will no longer deny fair hearings to economically 

aggrieved citizens under the ESA. 

By Clarifying that Eamcm.ically-Affected Interests Have ESA Standing, 

H.R 3862 Gives Meaning to the Eamcm.ic Protecti<DS in the ESA - While the 

ESA is designed to protect and recover endangered and threatened species, it 

does not do so regardless of economic and social costs. Instead, the ESA builds 

in consideration of economics and protection of economic interests at several 

points -- and this justifies the conclusion that adversely affected economic 

interests should have standing to challenge regulatory excesses under the ESA. 

For example, ESA § 4 explicitly requires "consideration (of] the economic 

impact" and "any other relevant impact" in deciding how much acreage to 

- 11 -
51 

designate as critical habitat. 16 U.S.C. § 1533(b)(2). If the Fish & Wildlife 

Service ("FWS"), the agency primarily charged with administering the ESA, 

determines that a federally-assisted action would cause jeopardy, it must 

identify "reasonable and prudent alternatives" that are "economically and 

technologically feasible" that would avoid jeopardy impacts and still allow a 

project to be "implemented in a manner consistent with the intended purpose 

of the action." 16 U.S. C. § 1536(b)(3)(A); 50 C.F.R. § 402.02. 

Similariy, economic factors are significant in FWS's design of the 

"reasonable and prudent measures" that may be imposed in issuing incidental 

take statements under ESA § 7(b)(4). 16 U.S.C. § 1536(b)(4). The reasonable 

and prudent measures must be economically reasonable -- "they should be 

minor changes that do not alter the basic design, location, duration, or timing 

of the action." 51 Fed. Reg. 19937 (June 3, 1986) (preamble to the final ESA 

§ 7 regulations). 

As these examples illustrate, economic interests are recognized and 

protected by the ESA. Accordingly, H.R. 3862's explicit statement that 

economic interests are protected by the ESA for standing purposes faithfully 

implements the ESA legislative intent. 

- 12 -
52 

V. UNDER A STRINGENT "WNE OF INTERESTS" TEST FOR ESA 

STANDING, MANY MERITORIOUS SUITS WOULD NOT BE HEARD 

Under a standing test that would only allow ESA suits by environmental 

groups, many important claims would never be considered by the courts. 

Without giving economically-affected interests access to the courts, the ESA is 

devoid of any safeguard against regulatory excesses and abuses. I thought it 

might be useful to review some of the types of cases that would be precluded by 

a one-way approach to standing: 

1. ESA § 4 Listing Cases- The Bennett precedent could bar suits by 

economically-injured plaintiffs alleging that FWS violated the ESA in 

listing a particular species as endangered or threatened. Thus, there 

would be no judicial review to assure that: (1) the listed entity is in fact 

a "species" within the meaning of 16 U.S.C. § 1532(16); (2) substantively, 

the listed entity is in fact "endangered" or "threatened" under the 

standards in § 1533(a); or (3) the listing decision was not based on junk 

science, instead of the "best scientific and commercial data available" as 

required by § 1533(b)(l). Examples of such challenges to ESA listings 

include Idaho Farm Bureau Federation v. Babbitt, 900 F. Supp. 1349 (D. 

I d. 1995) (dismissed for lack of standing due to the controlling Ninth 

Circuit precedent in Bennett); Alabama-Tombigbee Rivers v. Department 

of the Interior, 26 F.3d ll03 (llth Cir. 1994) (successfully challenging a 

report used in listing the Alabama sturgeon); and Endangered Species 

- 13-
53 

Committee of the Building Industry Association v. Babbitt, 852 F. Supp. 

32 (D.D.C. 1992) (finding that the Service erred in not disclosing data 

that called into question whether the California gnatcatcher was a 

"species"). 

2. ESA § 4 Critiml Habitat Cases · The Bennett precedent could bar suits 

by economically-injured plaintiffs alleging that FWS violated the ESA in 

designating critical habitat. Thus, there would be no judicial review to 

assure that: (1) "consideration [of] the economic impact" and "any other 

relevant impact" of designating an area as critical habitat was in fact 

given, as required by 16 U.S.C. § 1533(b)(2); (2) the designation was 

based on the "best scientific and commercial data available," as required 

by § 1533(b)(1); or (3) the designation was made in accordance with the 

public participation requirements and other procedural mandates of 

§ 1533(b). Examples of such challenges to critical habitat designations 

include Bennett v. Plenert, 63 F.3d 915 (9th Cir. 1995) (standing denied), 

and Mountain States Legal Foundation v. Glickman, _ F.3d _, 1996 

WL 475794 (D.C. Cir. Aug. 23, 1996) (standing found). 

3. ESA § 7 Cases · The Bennett precedent could bar suits by economically· 

injured plaintiffs alleging that FWS violated ESA § 7 in its biological 

opinion on a federally-assisted action. This would preclude judicial 

review, for example, of arguments that the ESA was violated because: 

0 14 ° 
, 54 

(1) the action in question is not subject to ESA § 7, see, e.g., Riverside 

Irrigation District v. Andrews, 758 F.2d 508 (lOth Cir. 1985); (2) the 

agency took an economically-damaging action without conducting the 

formal consultation required by 16 U.S.C. § 1536(b) and without 

involving the "applicant," see, e.g., Region 8 Forest Service Timber 

Purchasers Council v. Alcock , 993 F.2d 800 (11th Cir. 1993) (standing 

denied); (3) FWS improperly found jeopardy under the 16 U.S.C. § 1536 

standards, see, e.g., Bennett v. Plenert (standing denied); (4) the 

"reasonable and prudent alternatives" that the agency imposed to avoid 

jeopardy are not economically reasonable as required by § 1536(b)(3), see, 

e.g., Westlands Water District v. U.S. Department of the Interior, 850 F. 

Supp. 1388 (E.D. Cal. 1994); or (5) the "incidental take statement" 

included in the agency's biological opinion imposed land use restrictions 

for activities that are not in fact "takes" under the ESA, see, e.g., 

Mausolf v. Babbitt, 913 F. Supp. 1334 (D. Minn. 1996). 

4. ESA § 9 Take Cases - The Bennett precedent could bar suits by 

economically-injured plaintiffs alleging that FWS violated the ESA in 

asserting that particular land uses were "takes" of wildlife under 16 

U.S.C. § 1538(a). In that situation, the important contribution that the 

Supreme Court made in Sweet Home , by clarifying what constitutes a 

"take" of wildlife and narrowing FWS's interpretation of that term, would 

- 15-
55 

never have occurred. See Babbitt u. Sweet Home Chapter of 

Communities for a Great Oregon, 115 S.Ct. 2407 (1995). 

Thus, there are many types of ESA citizen suits where plaintiffs can 

allege over-regulation in violation of ESA limitations or protections. I believe 

that such suits perform a valuable public service. They are an important check 

to ensure that zealous regulators do not overstep their legal authority when 

regulating private property and economically-productive activity. As such, they 

assure a critically needed balance in the administration of the ESA. H.R. 3862 

would guarantee that such suits are not dismissed for lack of standing, and 

would allow them to be considered and decided on their own merits. 

VI. CONCLUSION 

Thank you for the opportunity to present the views of the American 

Forest & Paper Association and to voice our support for H.R. 3862. I would be 

delighted to answer any questions you might have. 

- 16-
56 

... PREPARED STATEMENT OF EARL CHRIST'ENSEN 

AMERICAN FARM BUREAU FEDERATION ® 225 TOUHY AVENUE • PARK RIDGE • ILLINOIS • 60068 • (312) 39g.5700 • FAX (312) 39g.5896 

600 MARYLAND AVENUE S.W. • SUITE 800 • WASHINGTON. D.C. • 20024 • !202) 484-3600 • FAX (202) 484-3604 

STATEMENT OF EARL CHRISTENSEN 

IDAHO FARM BUREAU FEDERATION MEMBER 

BEFORE THE HOUSE RESOURCES COMMITTEE 

ON THE ENDANGERED SPECIES ACT 

September 17, 1996 
57 

STATEMENT OF EARL CHRISTENSEN 

IDAHO FARM BUREAU FEDERATION MEMBER 

BEFORE THE HOUSE RESOURCES COMMITTEE 

ON THE ENDANGERED SPECIES ACT 

September 17, 1996 

Mr Chainnan, Congressman Chenoweth and members of the committee. I am Earl Christensen, 

a farmer and Idaho Farm Bureau member from the Burley, Idaho, area of southern Idaho, where I 

raise a wide variery of agriculture products including sugarbeets, hay, grain, beans, sheep and 

cattle. My farm is on the banks of the Snake River and the irrigation water which is vital to my 

existence comes from the Snake River. I truly appreciate the opportunity to appear before the 

committee and am particularly pleased to be able to support Congressman Helen Chenoweth's 

bill to have standing to challenge abuses of the Endangered Species Act. 

H.R. 3862 is a simple bill that is badly needed by any citizen in the United States that is 

adversely affected by the Endangered Species Act. The intent of the ESA is noble in that it is 

designed to protect threatened and endangered species. However, the act is a double-edged 

sword in that in trying to protect a species, we end up creating enonnous financial and economic 

burdens for vast numbers of American citizens. These citizens simply do not have any recourse 

to such actions under the ESA, as it is now being interpreted by the courts, for they are denied 

standing to bring judicial review over such decisions and actions. The end result of this is to 

disenfranchise affected private citizens by giving them no way to appeal agency decisions 

regarding their private property and economic well-being. 

The Idaho Farm Bureau Federation, of which I am a member, has some first-hand knowledge in 

this area of "having no recourse" in attempts to de-list five Snake River snail species; the Bliss 

Rapids snail, Utah Valvata snail, Idaho Springs snail, Banbury Springs limpet and Snake River 

Physa snail. The Idaho Farm Bureau Federation did file a suit in Federal District Court on behalf 

of our members, challenging the listing of the above five snails. The basis of our suit was as 

follows: 

a. The final rule did not have scientific evidence supporting the range, population, distribution, 

or habitat of the mollusks. This has been substantiated this year in that additional populations of 

these snails have been found in the Snake River. The USFWS based the listing on very limited 

evidence and extremely limited knowledge of the species. The listing nonetheless proceeded, 

and the Farm Bureau Lawsuit was dismissed on the basis of no standing. 

b. The final rule and USFWS recovery plan targeted farming practices and irrigation projects 

and activities as being activities that could threaten the existence of the snails. With no real 

scientific knowledge of the habitat or needs of the snail, targeting traditional uses of the river 

from irrigation to recreation was subjective, non-scientific and speculative. Nonetheless, 

USFWS proceeded with listing and the Idaho Farm Bureau Federation suit was dismissed on the 

basis of no standing. 
58 

c. The final rule was not adopted in a timely manner and gave no time or consideration for 

review by county officials, thus depriving them of the ability to ascenain customs, cultural and 

economic consequences to said county. Again, the listing proceeded and the suit was dismissed 

as having no standing. 

The listing of the five snails still has the potential to eliminate farming, ranching, hunting, rock 

climbing, sightseeing, picnicking, rafting, kayaking, canoeing, scuba diving, fishing, water skiing 

and modem irrigation. The Idaho Farm Bureau lawsuit attempted to point out these economic 

impacts, cultural challenges and recreational closures as being vast and far-reaching "people" 

impacts in the middle segment of the Snake River. Cenainly, the loss of these economies and 

activities should be a major discussion and consideration point utilized in whether or not a 

species should or could be listed. These points cannot be made because of the no standing 

situation and "zone of interest" required in citizen suits. H.R. 3862 will correct this injustice. It 

will restore due process considerations granted by the Constitution of the United States and will 

allow citizens the ability to place in evidence information that is critical in making informed 

decisions on an endangered species. Congressman Chenoweth, we applaud your effon and 

pledge our suppon of H.R. 3862 and would urge the Committee and House to quickly pass this 

much-needed amendment to the Endangered Species Act. 
59 

PREPARED STATEMENT OF JOHN D . LESHY 

Statement of John D. Leahy 

Solicitor 

U.S. Department of the Interior 

Before the Committee on Resources 

u.s. House of Representatives 

on H.R. 3862 

September 17, 1996 

Mr . Chairman and Members of the Committee, thank you for the 

opportunity to testify today on H.R. 3862, a bill which seeks to 

ensure that persons affected economically by actions violating o r 

taken under the Endangered Species Act may bring a so-called 

citizen's suit under the Act. The Department opposes H.R. 3862 

because it is in all likelihood unnecessary and is certainly 

premature. 

As the Committee is aware, the Supreme Court has agreed to review 

the Ninth Circuit Court of Appeals decision in the Bennett v. 

~ (formerly Bennett v. Plenert) case. This case is 

referenced in section 2(2) of the bilL and concerns the same 

issue the legislation addresses. The Supreme Court has already 

received written briefs from the parties, as well as many "friend 

of the court" briefs, and will hear oral argument in the case on 

November 13, 1996 . We expect a decision in the next few months. 

Under these circumstances, there is no need to legislate 

concerning this issue. Should the Commit tee find the Court's 

decisio n unacceptable, the Committee can act t o remedy the 

situation then . In short , this legis lat ion is p remature . 

Moreover, as the brief for the United St ates in the Bennett case 
60 

makes clear, we believe that under current law plaintiffs with 

economic interests can obtain review of the Secretary's actions 

under the ESA equivalent to the review available to environmental 

plaintiffs. In our brief, copies of which were provided to the 

Committee shortly after it was filed in mid-July, we state that 

plaintiffs who allege injury to economic interests should be able 

to obtain judicial review of governmental action concerning 

protected species if they structure their lawsuits appropriately. 

Thus we have told the Supreme Court that while we think the 

result in Bennett was correct -- because the plaintiffs did not 

sue the federal agency actually taking the action which they 

claimed harmed them -- we do not believe it excludes plaintiffs 

with economic interests from the courtroom on ESA issues. This 

approach will be taken in all cases nationwide that involve this 

issue. Again, if the Court rejects our argument and decides that 

plaintiffs with economic interests cannot seek judicial review of 

ESA-related agency decisions, t he Committee of course can address 

this matter legislatively, within constitutional limits. 

In short, the pending Supreme Court case makes consideration of 

this proposal premature . Further, because our interpretation of 

the law permits all citizens who meet constitutional minimums to 

obtain judicial review of ESA-related decisions, the bill is also 

unnecessary. The Department therefore opposes this l egislation . 

I would be pleased to answer any questions you may have. 
61 

PREPARED STATEMENT OF NANCIE G. MAilzULU 

Testimony of 

Nancie G. Marzulla 

President and Chief Legal Counsel 

DEFENDERS OF PROPERTY RIGHTS 

Before United States House or Representatives 

Committee on Resources 

September 17, 1996 

Mr. Chairman and Members of the Committee: 

Thank you for the opportunity today to discuss the Citizen's Fair Hearing Act of 

1996. Specifically, I will address the concerns this proposed legislation raises for private 

property .owners. 

I serve as President and Chief Legal Counsel of Defenders of Property Rights, the 

only national legal defense foundation dedicated exclusively to the protection of private 

property rights. Through a program of litigation, education and legislative support, 

Defenders seeks to realize the promise of the Bill of Rights of the U.S. Constitution: "nor 

shall private property be taken for public use, without just compensation." U.S. CONST. 

amend. V. Defenders has a large national membership representative of the property 

owners, users and beneficiaries of the rights protected by the Constitution and traditional 

Anglo-American property law. Founded in 1991, Defenders has since participated in every 

landmark property rights case, including Lucas v. South Carolina Coastal Council, Dolan 

v. City of Tigard, Oregon, and Babbitt v. Sweet Home Chapter of Communities for a 

Great Oregon., and more recently, Bennett v. Plenert , 63 F.3d 915 (1995), cert. granted 

sub nom Bennett v. Spears, No. 95-813 (U.S. 1996) which is scheduled for oral argument 

before the United States Supreme Court on November 13. Defenders has also devoted a 

significant amount of resources to analyzing legislative proposals concerning property 

rights at both the federal and state levels. 
62 

The United States Constitution contains no fewer than three provisions to protect 

private property rights. As already mentioned, the Fifth Amendment states that: "No 

person ... shall be deprived of life, liberty, or property, without due process of law; nor 

shall private property be taken for public use, without just compensation." This last clause, 

the Just Com1:Cnsation Clause, contains the only express provision for money damages in 

the entire Constitution. The Fourth Amendment protects "[t]he right of the people to be 

secure in their persons, houses, papers, and effects, against unreasonable searches and 

seizures ... " The Fourteenth Amendment states that "No State ... shall deprive any 

person of life, liberty, or property, without due process of law." The language used in 

these Amendments is not vague or prefatory, nor does it admit of any exception. The 

language chosen is clearly designed to protect property rights. 

Yet, despite these clear constitutional mandates to protect property rights and pay 

owners if their property is taken, citizens today are less secure in their ownership of 

property than at any time in United States history. The culprit is our very own 

government. Quite often, government avoids the duty to compensate property owners by 

simply regulating the uses of property rather than asserting a public necessity for the 

property and offering the owner compensation. When this happens, the government 

violates the principle contemplated by the Just Compensation Clause, which is to prevent 

government from "forcing some people alone to bear burdens which, in all fairness and 

justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. 

40, 49 (1960). 

Since 1922, the government has known that if its regulations go "too far," then it 

must pay for the taking. Pennsylvania Coal v. Mahon, 260 U.S. 393,415 (1922). 

Nevertheless, ~overnment routinely overlooks how far its regulations go toward depriving 

citizens of Fifth Amr,ndment guarantees to use and enjoy private property. Such regulation 

is unprecedented in its complexity, intrusiveness. and hardship inflicted on innocent 

citizens. The Endangered Species Act (ESA), as presently drafted, is an example. 

2 
63 

Under the interpretation of the ESA by the United States Court of Appeals for the 

Ninth Circuit (Ninth Circuit) in Bennett v. Plenert, 63 F.3d 915 (1995), the only way to 

protect endangered species is the way the court deems best-- not the·way Congress deemed 

best by adopting a broad citizen' suit provision in the ESA. This interpretation by the 

Ninth Circuit_denies the opportunity for individuals to seek redress who are directly 

affected by actions under the ESA. 

I. CONGRESSSHOULD ADOPT LEGISLATION TO CLARIFY ITS 

INTENTION TO GIVE INDIVIDUALS WHO ARE INJURED BY 

VIOLATIONS OF THE ENDANGERED SPECIES ACT, STANDING TO 

COMMENCE A CIVIL SUIT, SO LONG AS SUCH INDIVIDUALS 

SATISFY CONSTITUTIONAL REQUIREMENTS. 

The ESA has a provision allowing private citizens to sue other private parties or 

goveniments to enforce all of the sections of the Act: 

Except as provided in paragraph (2) of this subsection any person may commence a civil suit on his own behalf--

(A) to enjoin any person, including the United States and any other 

governmental instrumentality or agency (to the extent permitted by the eleventh 

amendment to the Constitution), who is alleged to be in violation of any 

provision of this chapter or regulation issued under the authority thereof. 

16 u.s.c. § 1540(g)(l). 

The citizen suit provision of the ESA is very broad. Of course, an individual must first 

satisfy the standing requirements of the case or controversy clause of Article III of the 

United States Constitution in order to be entitled to sue under the ESA citizen suit 

provision. 

Article III has been interpreted to mean that only parties with direct interests in a 

controversy or an "injury in fact" can sue in federal court. Lujan v. Defenders of Wildlife, 

504 U.S. 555 (I 992). In other words, parties cannot sue for the benefit of others, or for 

the benefit of the general public. Clearly Congress cannot by adopting a statute confer 

standing to sue beyond the constitutional requirements of "case or controversy." 

3 
64 

Congress is free, however, to promulgate statutes with more restrictive standing 

requirements than those provided in Article Ill, or which confer standing co-terminus with 

Article Ill. In addition, when considering whether a plaintiff has standing to sue, courts 

apply a test to decide whether a plaintiffs interest was within the "zone of interest" that 

Congress inte1_1ded to protect by passage of the statute at issue. Congress can identify 

which interests are within the "zone of interest," as the United States Supreme Court held 

in a case involving the right of plaintiffs to sue to enforce the Worker Adjustment and 

Retraining Notification Act: "As we noted in Warth, prudential limitations are rules of 

'judicial self-governance' that Congress may remove ... by statute.' ... It has done so 

without doubt in this instance." United Food and Commercial Workers Union, Inc. v. 

Brown Group, Inc., 116 S. Ct. 1529 (1996). 

Similarly, Congress removed any doubt on an aggrieved individual's right to sue to 

enforce the terms of ESA. When drafting the ESA, Congress expressly chose to make 

standing co-terminus with Article Ill standing. As discussed below, an individual meeting 

Article Ill standing requirements would also have standing under the citizen suit provision 

of the ESA. 

Nevertheless, some courts have disregarded the plain language of the ESA citizen suit 

provision. Most recently, the United States Court of Appeals for the Ninth Circuit held that 

"the fact that a statute contains a citizen-suit provision does not necessarily establish that 

Congress intended that any particular plaintiff have standing to assert a violation." Bennen 

v. Plenert, 63 F.3d 915 (9th Cir. 1995). The Ninth Circuit erroneously concluded that 

Congress cannot confer standing co-tenninus with Article Ill standing, as it seems to have 

done with the ESA citizen suit provision: "We note that, whether or not the zone of 

interests test applies, the class of plaintiffs that Congress had in mind was necessarily more 

limited than the literal language of the citizen suit provision suggests. As Lujan makes 

clear, Congress may not permit suits by those who fail to satisfy the constitutionally 

mandated standing requirements. For that reason, suits under the ESA, no less than suits 

4 
65 

under any statute, are clearly not available to 'any person' in the broadest possible sense of 

that term." /d. at 918. 

According to the Ninth Circuit, courts are free to ignore the plain language of a citizen 

suit provision if the court believes that the language chosen by Congress interferes with the 

court's view all to the "real" purpose of the statute in question: 

/d. 

In light of our consistent use of the zone of interests test in determining the 

standing of plaintiffs who have sued under citizen-suit provisions, we hold that 

the ESA does not automatically confer standing on every plaintiff whose 

satisfies constitutional requirements and claims a violation of the Act's 

procedures. A contrary ruling would permit plaintiffs to sue even though their 

purposes were plainly inconsistent with, or only 'marginally related' to, those 

of the Act 

Employing the "zone of interest" test, the Ninth Circuit ignored the text of the ESA and 

instead turned to court decisions, specifically Tennessee Valley Authority v. Hill, 437 U.S. 

153 (1978) and Babbitt v. Sweet Home Chapter of Communities for a Great Or., 115 S. 

Ct 2407 (1995), for discerning the intent of Congress in passing the ESA. The United 

States Supreme Court, however, has held that the starting point for determining whether a 

plaintiffs claim is within a statute's zone of interest is to look at the statute itself. United 

Food and Commercial Workers Union, Inc. v. Brown Group, Inc., 116 S. Ct. 1529 

(1996). 

By failing to follow the rules of statutory construction, the Ninth Circuit took the 

overall goal of the ESA -- which is obviously to protect endangered species -- and simply 

refused to enforce those provisions of the Act which the court believed were inconsistent 

with that purpose. Rather than focusing on the balancing-of-interests analysis chosen by 

Congress to protect endangered species, the Ninth Circuit explained away the plain 

language of the Act, to the point of absurdity: "Certainly, [Congress] did not intend 

impliedly to confer swing on every plaintiff who could conceivably claim that the failure 

to consider one of those factors adversely affected him." Bennett v. Plenert, 63 F.3d 915, 

918. 

5 
66 

It is now up to Congress to reiterate the plain meaning of the ESA citizen suit provision 

and clear up the erroneous interpretation of it by the Ninth Circuit. 

II. A BROAD CITIZEN SUIT PROVISION IS CONSISTENT WITH 

THE ESA GOAL OF PROTECTING PRIVATE PROPERTY RIGHTS 

AND EC-ONOMIC INTERESTS TO INSURE PROTECTION OF 

ENDANGERED SPECIES. 

The 1973 Endangered Species Act adopted by the 92nd Congress was this nation's ftrst 

attempt to achieve by law protection of endangered and threatened species of flora and 

fauna The Act made clear that success in their massive undertaking depended upon active 

pursuit of this goal by all sectors of our society -- public and private. Hence, various 

provisions in the Act address issues of private concern; notably, economic interests and 

private property rights. Decades of enforcement have underscored the Act's balanced 

approach to protecting endangered species. 

A. THE PLAIN LANGUAGE OF THE ESA AND ITS LEGAL 

HISTORY DEMONSTRATE CONGRESS'S INTENTION TO 

RESPECT PRIVATE PROPERTY AND ECONOMIC 

INTERESTS THAT ARE PROTECTED BY THE 

CONSTITUTION. 

The purpose of the ESA, as demonstrated through its text and its legislative history, is 

to set out a program to conserve endangered and threatened species. Congress adopted a 

system to accomplish this purpose through (I) federal land acquisition of private property; 

(2) outright avoidance of adverse impacts on endangered species by the federal 

government; and, (3) prohibitions on the "taking" of endangered species by any person or 

entity. 

Through its land acquisition program, the ESA reflects Congress' intent to avoid 

foisting off on individuals the whole burden of species conservation, ·by requiring the 

federal government to condemn private property necessary to protect a species. Explaining 

the purposes of the land acquisition program, floor manager for the ESA, Senator Tunney, 

6 
67 

stated: "Through these land acquisition provisions, we will be able to conserve habitats 

necessary to protect fish and wildlife from further destruction." 119 Con g. Rec. 25,669 

(1973). Representative Sullivan, the floor manager for H.R. 37 --the House version of 

the bill -- confumed this approach: 

For the l:lJ.OSt part, the principal threat to animals stems from the destruction of their 

habitat. .. . Whether it is intentional or not, however, the result is unfortunate for 

the species of animals that depend on that habitat, most of whom are already living on the edge of survival. H.R. 37 will meet this problem by providing funds for 

acquisition of critical habitat through the use of the land and water conservation 

fund. It will also enable the Department of Agriculture to cooperate with willing 

landowners who desire to assist in the protection of endangered species, but who are understandably unwilling to do so at excessive cost to themselves. 

119 Cong. Rec. 31,062 (1973). See also Babbitt v. Sweet Home Chapter of Communities 

for a Great Or., 115 S. Ct. 2407, 2415 ( 1995) (discussing the purposes of the Section 5 

land acquisition procedure which is to allow the government to protect habitat before 

activity harms an endangered or threatened animal). 

Other sections of the Act also reflect an attempt by Congress to protect private property 

rights. The consultation process under Section 7 can affect private landowners if a project 

or activity on private land requires some form of federal approval, such as a permit, or 

involves the expenditure of federal funds. Another example is the habitat conservation 

planning process under Section 10, which involves nonfederal projects or activities not 

requiring federal authorization or funding that may result in a prohibited taking of a listed 

animal or plant Through this process, private landowners with activities or projects that 

may harm listed species can obtain a permit that allows the incidental taking of a listed 

species. /d. 

To obtain an "incidental take" permit, the private landowner must develop a habitat 

conservation plan (HCP) --a formal plan that specifies the effects that landowners' 

activities are likely to have on listed species, the measures that will be taken to minimize 

and mitigate these effects, the alternatives that the applicant considered and reasons why 

such alternatives were not implemented, and any other measures the Service may require. 

7 
68 

(16 U.S.C. § 1539(a)(2)(A)(i-iv)). Successful development of a habitat conservation plan 

under the Act depends on balancing of interests. 

With respect to the recently approved Balcones Habitat Conservation Plan, 

commentators have observed: "[T]he plan enjoys broad support among environmental and 

business groups and represents a surprising consensus on am important issue in a city that 

thrives on debate." Ralph K. M. Haurwitz, Travis County's Balcones Conservation Plan 

Takes Off, Austin American-Statesman, May 4, 1996, at 2. United States Department of 

Interior Secretary Bruce Babbitt, commenting on this plan, revealed his understanding of 

the importance of balancing of interests reflected in the ESA in achieving its goals: 

The Balcones Canyonlands Conservation Plan is part of the Administration's focus on using the flexibility of the Endangered Species Act to find cooperative solutions 

that protect species. More than 140 habitat conservation plans that balance 

development with species protection under the Endangered Species Act are now in 

place. 

1996 WL 222408 (0.0.1.) 

B. PROTECTING PROPERTY RIGHTS AND ECONOMIC 

INTERESTS IS AN INTEGRAL ASPECT OF ACHIEVING 

PROTECTION OF ENDANGERED SPECIES. 

The 1973 Endangered Species Act is today widely regarded as one of the most 

important and powerful environmental laws in the country. See generally M. Lynne Com, 

Congressional Research Serv., Endangered Species Act Issues l (1992). Although a 

major component of the ESA is achieved by prohibitions on federal government activity on 

public land under Section 7 of the Act, another large component prohibits certain actions by 

private individuals on privately owned land under Section 9 of the Act 

Moreover, fifty percent of the endangered species in this county live on privately 

owned land and the habitat of endangered species is almost exclusively on private land. 

Thus, the ESA necessarily contains specific provisions (discussed above) that balance 

those private land'liim economic interests with the need to protect endangered species. See 

Hank Fisher et al., "Building Economic Incentives Into The Endangered Species Act," 

8 
69 

Endangered Species Technical Bulletin Vol. 19, No. 2, p. 4 (U.S. Fish and Wildlife 

Service 1994) 

As the Act itself reflects, Congress perceived protecting these private interests as 

directly and critically related to protecting endangered species. And the likelihood of 

protecting en~angered species is significantly increased when property rights and 

economic interests are respected. Examples of successful public-private 

partnerships are well documented. See generally PERC, The Endangered Species 

Act: Making Innocent Species The Enemy 12 (JaneS. Shaw ed., 1995). Clearly, 

no conservation policy can succeed without the support of the regulated community. 

Shortly after passage of the ESA, the Supreme Court held that Congress 

intended under the Act that endangered species were to be protected "whatever the 

cost" Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 (1978). Endangered 

species recovery has proven to be very costly-- in terms of both public and private 

resources. The cost of complying with the ESA is so costly in fact, that no 

definitive study on the total economic impact of the ESA has ever been conducted. 

U.S. Fish and Wildlife Service (Service) data shows that the estimated1 direct 

cost in 1994 of recovery plans for only 306 (of approximately 1200) species was 

over $4 million. National Wilderness Institute, Going Broke ? Costs Of The 

Endangered Species Act As Revealed In Endangered Species Recovery Plans 

(1994)(expressing the data in 1994 dollars). Other government estimates of the cost 

of recovery of all species are staggering. In 1990, the U.S. Department of Interior 

Inspector General estimated the potential future recovery costs for all endangered 

species to be over $4.6 billion. This figure was based on a conservative estimate by 

the Service based on a ten-year recovery plan. U.S. Fish and Wildlife Service, 

Federal and State Endangered Species Expenditures: Fiscal Year 1990 (1991). 

9 
70 

These recovery cost estimates only scratch the surface of the true cost to implement 

the ESA. No estimate is accurate without assessing at least three other cost factors. 

1. Cost or conservation activities other than recovery. 

The Service makes clear that its estimates do not cover all the costs of enforcing 

the Act: "A si~nificant portion of ... conservation activities at all levels include law 

enforcement, consultation, recovery coordination, and other actions [] are not easily 

or reasonably funded by species . .. . Accounting procedures for staff salaries and 

operational, maintenance and other support services are not normally creditable 

towards individual species totals. Also, there exists significant variability among the 

various federal and state agency reports." "Federal and State Endangered Species 

Expenditures for Fiscal Years 1991, 1990 and 1989, U.S. Fish and Wildlife 

Service" (1992). In 1992, for every one dollar the Service spent on actual species 

recovery, it spent $2.26 on related activities including permitting, consultation, 

enforcement and listing. U.S. Fish and Wildlife Service, U.S. Department of the 

Interior Budget Justifications: Fiscal Year 1993 (1993). 

2. Cost or compliance by state and other federal agencies. 

Other federal agencies, too, must spend money to comply with the Act. For 

example, in 1992 the U.S. Army Corps of Engineers spent $5.2 million to protect 

the California least tern. The Department of the Navy spent $.5 million that year on 

that same species. Indeed, in 1992, other federal and state agencies spent 5.4 times 

more on ESA compliance than the Service and the National Marine Fisheries 

Service, the two agencies primarily charged with implementing the Act. In addition, 

the Service estimates "do[] not reflect the total governmental (federal and state) effort 

toward threatened and endangered species conservation and presents an incomplete 

funding picture ... " /d. 

10 
71 

3. Cost to the private sector. 

The figures do not include indirect costs borne by private landowners of enforcement of 

the ESA, which is well known. Assistant Secretary of Interior, Fish, Wildlife, and Parks, 

George T. Frampton, Jr., has testified that future enforcement "must reduce administration, 

economic, and. regulatory burden on small landowners while providing greater incentives to 

conserve species." House Task Force on Endangered Species (May 18, 1995). Regulators 

are also aware that these costs are so great that some private landowners, "motivated by a 

desire to avoid potentially significant economic constraints ... are actively managing their 

land so as to avoid potential endangered species problems," -- a "predictable response to 

the familiar perverse incentives that sometimes accompany regulatory programs." 

Statement of Environmental Defense Fund attorney Michael Bean, to U.S. Fish and 

Wildlife officials, quoted in PERC, The Endangered Species Act: Making Innocent Species 

The Enemy 8-9 (JaneS. Shaw ed., 1995). 

CONCLUSION 

The cost to every American-- through public and private expenditures -- of protecting 

species under the current ESA program is tremendous, and as discussed above, practically 

inestimable. Given this investment, Congress should assure that every individual with a 

legitimate claim who meets constitutional standing requirements can seek redress under the 

Act Congress should assure that through the ESA the nation 1) sets high goals for 

endangered species protection and at the same time 2) protects the economic and property 

interests that are negatively affected by achievement of these lofty goals. 

The proposed bill, HR. 3862, would remove any doubt as to Congress's intent to give 

individual property owners who have met the constitutional Article ill injury-in-fact 

requirements, standing to enforce judicially the ESA. 

II 
72 

No. 95-813 

In The 

Supreme Court of the United States 

October Term, 1995 

--------·--------

BRAD BENNETT, et al., 

Petitioners, vs. 

MARVIN PLENERT, et al., 

Respondents. 

--------·--------

On Writ Of Certiorari 

To The United States Court Of Appeals 

For The Ninth Circuit 

--------·-------- BRIEF OF 

AMERICAN HOMEOWNERS FOUNDATION 

AMERICAN LAND RIGHTS ALLIANCE 

AS AMICI CURIAE* 

IN SUPPORT OF PETITIONERS 

May 24, 1996 

--------·-------- NANCIE G. MARZULLA 

LISA M. }AEGER 

BARRY C. HooGE 

DEFENDERS OF PROPERTY f~JCHTS 

6235 33rd St., NW 

Washington, DC 

20015-2405 

(202) 686-4197 

*Amici listing continued on next page 
6235 33rd Street NW • Washington, DC 20015 

phone (202) 686-4197 • rax (202) 686-0240 

73 

Defenders of Property Rights 

bill swmnary 

HR2364 Endangered Species Recovery and 

Conservation Incentive Act of 1995 

lmroduced by Congressman John Shadegg (R-AZ) on Septembtr 19th with 9 co-sponsors 

HR 23641Akes a nonregulatocy approach to protection of endangeftd species. Conservation and 10<0vecy or species 

must he achieved through volun!Acy, Incentive-based programs and the cooperation of private properly owners, and must be based on vaUd facts and science as well as account for the rights or people. 

DEFINmONS 

"Injure" is an act directly resulting in physical bann that will significantly reduce tbe chance of survival, other !.ban an unintended consequence of habitat modification. "Harm .. means an intentional and dlrect action that injures or kills a species and that is not an unintended consequence of a lawful activity. 

RECOVERY Wil.bin two years of listing a species, l.be Secretary of Interior must issue eil.ber a Plan, or where appropriatt: a more 

abbreviatt:d Statemen~ of practical conservation or recovecy endeavors. The Secretary must: include cost estimate, social benefits and a population goal in Plans and Statt:ments; give priority to species of ecological, medicinal or economic value; and encourage participation by l.be public and owners of propeny where l.be species occurs. Goals must be achieved l.brougb nonregulatol)' means. Intt:ntional killing of species remains prohibited. If emergency action is laken to prevent species or habitat destruction, l.be Unitt:d Statt:s is liable for resulting damages to 

propeny. 

DETERMINATION OF ENDANGERED ANIMALS AND PLANTS 

A review of the stallls of a species is conducted prior to its listing, and within two years the Secretary makes a determina- tion that the species is: endangered, not endangered, endangered but will not be listt:d due to adequate protections under 

existing law or conservation efortS. 

Dett:rminations must be based on independently verifiable data and lake into account existing conservation programs. 

Emergency listings are possible for species in danger of imminent extinction. Within one year the Secretary must make a 

dett:rmination whether recovery is a feasible goal for tbe species. 

Tbe Secretary must repon to Congress on l.be success and cost to conserve species. 

PROHIBITIONS 

Intt:ntional and direct killing or injuring of species carries criminal and civil penalties. 

Greatt:r penalties are imposed for poaching and malicious killing or injuring. Caplllre and attempted capture are illegal, wil.b greatt:r penalty for violations on national parks and wildlife refuges. 

ENDANGERED SPECIES RECOVERY FUND AND CONSERVATION INCENTIVES A fund is established to carcy out tbeAct. Revenue will derive in pan from admission fees to national parks and ol.ber federal lands wbere a fee is already cba.Jged. A Lifetime User Pass is to be established at a maximum ratt: of $500 to cover admission for life to any national park, refuge, recreation area, seashore, lakeshore or monument. A propeny tax credit is established for private propeny managed for species conservation. Estate tax deferral is established for propeny !.bat directly contributt:s to oonservation of species. A credit for expenses to further conservation or recovery may be established by the Secreta!)' . 

CONFORMING AMENDMENTS The Endangered Species Act of 1973 is amended to conform with this Act. Tbe Secretary shall not issue jeopardy opinions, list species or designatt: critical habitat under the 1973 Act. The Secretary shall review all species presently listt:d and determine whel.ber to retain the species on l.be list. Compensation shall be made for diminutions of at least 20% of the value of privatt: propeny due to the operation of l.be 1973 Act. If property is diminished in value by 50% or more, compensation for l.be entire portion will be made upon request by the owner. 

This document is injormaJional, and is not meant to suppot or oppose any /egislaJion before the House. 
6235 33rd Street NW • Washington, DC 20015 

phone (202) 686-4197 • fax (202) 686-0240 

74 

Defenders of Property Rights 

bill swmnary 

HR2275 Endangered Species Conservation 

and Management Act of 1995 

Introduced by Congressmen Don Young (R-AK) and Richald Pombo (R-CA) on September 7th with 93 co-sponsors 

HR 2275 amends the Endangend SpedesAct of 1973to pn»lde property rights pi'Diectlom, to ""!Ulre the consider· 

atlon of social and economic conoequences of the Act and to encourage creaUve, voluntary mea,.. of protocUng 

species. Companion biDs HR 2284 and HR 2:186 JIIOVlde tax ln<entlvesto landowners and ftDAndallncenUvesto 

farmers for wildlife conservation. 

PRIVATE PROPERTY RIGHTS AND VOLUNTARY INCENTIVES FOR PRIVATE PROPERTY OWNERS 

The federal government must compensate for 20% or more diminution in property value duo to application of ESA to 

private property. If the dimunition is 50% or more, the government may be obligated to purcbase the property . 

Voluntary species protection is encouraged through Habitat Conservation Grants, a Technical Assistance Program, and 

Cooperative Management Agreements. 

"Take" and "harm" are defined to mean direct action against a species that actually injures or kills the species. 

IMPROVING ABILITY TO COMPLY WITH THE ENDANGERED SPECIES ACT OF 1973 

Consultation procedures may be used by anyone who is concerned that future activity may endanger species. and the 

Secretary must issue a written opinion if a pennit is not requested. 

General permits may be issued nationwide or to any defined region for actions that will bave limited cwnulative impact 

on the survival of a species. 

IMPROVING SCIENTIFIC INTEGRITY OF LISTING DECISIONS AND PROCEDURES 

A determination that a species is endangered must be based on the best available scientific and commercial data and take 

into account existing conservation eforts. 

The Secretary may not adopt policies or regulations without providing an opportunity for public panicipation. 

Population counts must include captive-bred species and species on public conservation lands. 

BETTER MANAGEMENT AND CONSERVATION OF LISTED SPECIES 

A conservation objective must be developed by a team t.bat includes state government representatives and owners of property where the species is found. 

A conservation plan must define specific acts that would constitute an illegal "take" of a species; assess economic and 

social impacts of the plan; and suggest alternative strategies to achieve the conservation objective. 

Prior to implementing a Plan, the Secretary must consult with the Governor of any states where the species is found. publish 

a draft plan and bold at least one public bearing. 

Designation of critical habitat must take into account potential economic impact of the designation. 

HABITAT PROTECTIONS 

The Secretary may protect species and habitat through land acquistion or exchanges. 

A Federal Biological Diversity Reserve is established to coordinate species and babitat protection on federal lands, and 

with the voluntary cooperation of state government and private landowners, state and private lands as well. 

STATE AUTHORITY TO PROTECT ENDANGERED AND THREATENED SPECIES 

The Secretary must consult with appropriate states before a species is listed or a conservation plan is drlwn up. 

States have •nbancod opportunity to protect species on the state level. 

FUNDING OF CONSERVATION MEASURES 

Tbe federal government must share the cost of programs under this Act. 

A Species Conservation Trust Fund is establisbed to be used to carry out this Act. 

This document is informaJiOTilll, and is Mt meant to suppot or oppose any legislation before the House. 
75 

Pagl' 1 • Prupl rt~ · Righi~ REPOJ{TER • Summl'r 1')9:' 

Notes From the 

President's Desk 

ESA: The Government's 

"Land Lock Up Law" 

On June 29th, the United States Supreme Court upheld a 

government regulation purporting to protect endangered species. In reality, it validated the government's continued taking 

of millions of acres of private land as "habitat." At issue in 

Bruce Babbitt v. Sweet Home Chapter of Communities for a 

Great Oregon was whether the U.S. Fish and Wildlife Service 

could lawfully define "harm" in Section 9 of the Endangered 

Species Act (ESA) to include "habitat protection." 

The Court's six-to-three decision in Sweet Homegives the 

government a "blank check" to destroy an individual's entire 

investment in land or private enterprise - not because an 

endangered species lives on the land, but simply because it 

is the kind of land on which an endangered species might one 

day want to live. For example, Margaret Rector bought fifteen 

acres in Texas as an investment for her retirement. Now 

seventy-three years old, her land sits idle- not because an 

endangered species lives there, but because it is suitable 

habitat for the golden-cheeked warbler. In Florida, a rancher 

was told he could not clear scrub off of his land to grow 

blueberries for his family because the bird might want to move 

there. Neither was paid for the taking of his land. 

Moreover, there are no internal constraints requiring the 

government to respect private property rights. Indeed, the 

Clinton administration has been downright hostile to them. In 

Dolan v. City of Tigard, the government argued that Mrs. 

Dolan should not be paid for the taking of her land for a public 

bikepath. Associate Attorney General John Schmidt testified 

before the Senate Environment and Public Works Committee 

on June 27th, stating that if a community decides it wants 

private property, then the community's needs or desires 

should supersede any constitutional duty to pay for the taking 

of that property. In short, the Fifth Amendment has meaning 

only if the government does not want your land. 

Sweet Home shows that courts are simply not curtailing 

the wholesale destruction of property rights in America. Given 

that neither the courts nor the executive branch is doing much 

to protect them, it is not surprising that the property rights 

community is looking to Congress for sensible solutions. 

While this may appear to be an oxymoron, there are some 

proposals under consideration. Congressmen Don Young 

(R·AK) and Richard Pombo (R-CA) have introduced ESA 

reform legislation (HR 2275). Congressman John Shadegg 

(R·AZ) has introduced more sweeping reform (HR 2364). 

Orily time will tell whether such proposals will become law. 

If not, private property appears to be the next "species" 

headed for extinction. 
76 

Ausvn AmoneM-Statuman ~ COMMIHI'Ain' Wednesday. November 22 1995 A9 

Entti0iiet-¢'£ttir00d: ~ '~ those· Who oWn land 

8v NANCIE G. MARzuLJ..A Khlstlt·RICidtr l"'lbvne Nr~-vs Sel'lit:& 

Ftsn and Wlldll!o Service coUld lawfully de· fine "harm" 1n Sec!!on 9 of. the Ehdaniered Spect~ Aet to include "habitat proteetion." If you think the Endaniered Speci~ Aet The aovernrnent has been borrlng the use is fine just as it Is. you prob&bly don't own of. mllllons of acres of private land under 

any property- and don't hope to buy prop. this definition. The implications are stagerty sometime in the future. If you did, you iering In Texas almost 800 000 acres were would see things altogether dlfrerently. des!gMted as habitat for Just one "endan· ·. Even Interior Secretary Bruce Babbitt gered" bird: the iOlden-cheeked warbler. 

and !he National WUdltfe Federation think There are currimtly 895 species l!stod as 

the regulation needs to be changod. While "endangered" and almost 3,500 waiting to It is any body's guess be listed. 

whether Preoident The implleattons 

Clinton would actual· The government, for private property ly sign reform leglsla- owners are particu tlon, it looks like he Under the Endangered larly severe becaus~ will at least have the Snecies Act, can take the government, opportunity. ~ under the Endangered 

Coniressmen Don not only laJUl On Which Species Act, can take 

\'oung, R-Alaska, an endana~>red S:peCieS not only l$nd on chairman of the .,,. which an endangered 

House Resources Com· lives, but also kind .' species lives, but also mlttee. and Richard · land that some bu- Pombo, R·Callf., chair- that some bureaucrat reaucrat decides an 

man of the House rkcides .a .n endanaere .. d endangered species Task Force on En dan- e ml&ht one day want to 

gered Species, have Species might OM day Uve. For eJ<arnple: 

~":~~e~pe~~!s 6~!~~: ·:: ; want to ltve. souftt ~~~~~:I:la~~ vatton and Manage- planned to buUd a ma- rnent Act, following a rina. Since the area 1s year of public hearinKs across the country considered prime habitat for the en dan· The leg!s.lation now has 121 bipartisan co- gered piping plover, biologists spent nine 

sponsors and was passed out of the Re- days examining tho land. Eighteen plplng sources Committee in October. It could plovers were seen resting for a total of 11 come up for a floor vote at any thne. minutes on adjacent property. The birds The bill, among other things, would re· flew off in another direction, but the quire the federal govenunent to consider landowner was st111 told he oould not build. 

t,he social and economic consequences of Needless to say, no compensation was en[orcilli the Endangered SpeCies Act and pald to the property owner. That's why encourage cre&.ttve and Voluntary means property owners hoped the court wOuld of protecting species afrtsk. Most lmpor· rein In the government In the sweet Home tautly, 1f private land loses ~0 percent or case. Much to their dismay, however, the more of Its value due to the Endangered court upheld the government's position 

Species Act. the bill would require that the The Clinton administration also h~s !Jivner be con~pensated. balked at facing up to the need for proper-

. Another bill under serlouo consideration ry rights protection. According to Associ· is tho Endangered Specie$ Recovery and ate Attorney General John Schmidt's tes· Conservation Incentive Act, sponsored by t1mony before the Senate Environment and jlep. John Shadegs, R-Ariz. Thle bill takes Publlc Works Committee~ If a community a nonreauJatory approach to endanaered decides to take private property, then the 

sp~cles protection, based exclusively on a commWlity's desires supersede any con· voluntar): Incentive· based program that fos- stitutional duty to pay fbr the taking of that ters the cooperation or private property property. In ohort, according to Schmidt, .owners- avoiding thelnvolUI1tary "tak· the Fifth Amendment only has meaning If ing" of private property in the first instance. · the government does not want your land. . ~'the Senam, Slade Gorton, R-Wasb., has Given that neither the judicial nor exec- Introduced legJslation addreasiris the prob: ~ utly~ branch II doins an adequate J.ob of I em property owners now face th result ;;.Pro~tll]g prlvkte property rlahts. It IS not of having their land designated as habitat.;9surpr1sing th~t the property rights comfor an endangered or thre~toned species: munlty is looking to Congress for sensible 

Sen. Dirk Kempthorne. R-ldaho, also nas wluttons-to am~nd,laws so they will not 

teglslatlon requtrtna tile compensatlori. of.· · te$ult 1n the t_ak1ni 14 private propolij; "!'d 

owners If their property is devalued due to· requlrli)(· eo.!tlpeos~Uon If ~.taking ls >n· 

the Endangered Species Act. evltable. · · : .. · 

In short. Congress appears ready to pass Only time will. tell whether such propos· legislation that will provide greater pro· als will become law. If not, private propor- tectlons for private property ownero. The ty appears to be the next species headed for 

lrony ofcourse,lsthatthel)llllhfort~lls're- . OXtil1 !on., .... . ,,, •.. , ·" . . I form Is a direct result or-. dele. at 1n 'tha. .'Mnulji.Ja· .. · .. Ood cNOf·ie,.reouniOI onne DeSupreme Court. At lseue Iii Bruce· Babbitt .. \>( "Y ~fllllii Wo.stinaton . o.c.: 1M na- · 

vs. Sweet Home Chapter of·Conunwtltles. '' """'' ii!il;i J dofll)aO I!Julld•t.OO oo~cotod • .,.,_ 

for a Great Oregon was wh•!h,•.r the U.S. · "'"~ r.~:,"'- 01 ~ """"'"" ,.,,.. I 
77 

PREPARED STATEMENT OF SAM KAlMAN 

COMPETITIVE ENTERPRISE INSTITUTE 

TESTIMONY OF SAM KAZMAN, COMPETITIVE ENTERPRISE INSTITUTE, 

BEFORE THE HOUSE COMMITTEE ON RESOURCES 

REGARDING PROPOSED AMENDMENTS TO 

THE ENDANGERED SPECIES ACT UNDER H.R. 3862 

On behalf of the Competitive Enterprise Institute, I wish to thank this Committee for 

the opportunity to testify today. CEI is a nonprofit organization dedicated to advancing 

private solutions to regulatory issues, especially in environmental areas. CEI also has a 

special interest in raising public awareness of the hidden costs, human as well as monetary, of 

overregulation. Finally, CEI has itself encountered, in its own litigation efforts, obstacles to 

judicial standing that are similar to those being explored in this hearing. 

As explained below, the narrow zone of interests test applied to litigation under the 

Endangered Species Act (ESA) by the Ninth Circuit has a number of serious effects. It 

imposes a single domineering purpose on a complex statute whose provisions were intended to 

at least partially balance each other. It distorts the ESA' s implementation. Most importantly, 

it prevents the accomplishment of simple justice with respect to aggrieved parties on the basis 

of unfair distinctions. 

These problems would be alleviated by the proposed amendment to the ESA contained 

in H.R. 3862. 

1001 Connecticut Avenue, N.W. • Soite 1250 • Washington, D.C. 20036 

Phoneo (ZOZ) Jli· IOIO • Faxo (ZOZ) JJI.Q640 • E·maiL info@cei.org • Web siteo httpo//www.cei.org 
78 

I. While The Effects Of The Endangered Species Act Encompass A Wide Range 

Of Harms And Benefits, The Ninth Circuit's Interpretation Allows Only One Portion Of 

These Effects To Be Litigated. 

Environmental statutes and regulations have had dramatic impacts on the lives of 

millions of Americans. Some of those impacts have been beneficial, others have been 

detrimental. Yet while these environmental enactments can have drastically differing effects, 

their utilization in court is often skewed in one direction, and one direction only, and that is 

in the direction of "promoting" the statute's purposes. 

This is precisely the approach taken by the Ninth Circuit in Bennett v. Plenert, 63 F.3d 

915 (9th Cir. 1995), cert. granted, I 15 S.Ct. 2407 (1995). As the Ninth Circuit's decision 

makes clear, this approach is not unique to cases brought under the ESA (16 U.S.C. § 1531 et 

seq.); to the contrary, cases under NEPA and under the Clean Water Act are subject to similar 

requirements. 63 F.3d at 920. 

The rationale of the Bennett case is cast in terms of supposedly advancing rather than 

frustrating the ESA's purposes. But in reality this approach amounts to a rather incredible 

form of favoritism. No matter how ironclad or wide-ranging a statute's procedural safeguards 

or requirements may be, they can be utilized only by one type of litigant. No matter how 

flagrant the statutory violation may be, judicial redress is available for only one type of 

complainant. If you stand to be helped by an action taken under the ESA in the name of 

conservation, then you are "for" the statute and you're in luck; if you stand to be harmed, 

then you are "against" it and you're left out in the cold. 

2 
79 

The arguments offered to support this zone of interests approach are several. It 

supposedly prevents the ESA from being stretched beyond its intended limits. It reduces the 

likelihood of frivolous litigation. It facilitates the ESA's implementation. 

But even if these objectives are accomplished, they carry an unacceptable cost. The 

fact is that this approach contravenes the constitutional guarantee of equal protection of the 

law. Consider two litigants with ESA complaints that, on their face, are procedurally 

identical. The first litigant argues that economic impact was illegally ignored in the 

preparation of a biological opinion or in the designation of critical habitat; the second argues 

that it was illegally overemphasized. Both claims may be perfectly valid, but under the 

Bennett approach only the latter will be heard in court. This is not a reasonable approach. 

The situation of the first litigant described above is by no means hypothetical. The 

economic impacts of the ESA are widespread and can be devastating. Numerous individual 

property owners, businesses and local governments have suffered costly injuries as a direct 

result of the ESA' s administration and implementation.' That such aggrieved parties should 

not have standing to sue under the ESA for violations of that statute is without justification 

and contravenes the Act itself. 

1 See, e.g., Mann, Charles, C. and Mark L. Plummer, "The Butterfly Problem," Atlantic 

Monthly, January, 1992; Mann and Plummer, Noah's Choice: The Future of Endangered 

Species Conservation, Alfred A. Knopf, 1995; Fitzgerald, Randy, "When a Law Goes 

Haywire, "Reader's Digest, September, 1993; Gidari, Albert, "The Endangered Species Act: 

Impact ·of Section 9 on Private Landowners," E~Jvironmental Law, Vol. 24, No. 2, 1994; and 

Kazman, Sam, Amicus Curiae Brief of the Competitive Enterprise Institute in Support of 

Respondents, in Babbitt v. Sweet Home, March 24, 1995. 

3 
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II. The Ninth Circuit's Use Or The Zone or Interests Test For Endangered 

Species Litigation Results In A Form Or Political Favoritism That Cannot Be Justified. 

In one sense the Ninth Circuit's approach is outcomes-based; the court refuses to hear 

a party's argument not because of its soundness, but because of where that argument might 

lead. Regardless of how valid the argument is, if its conclusion is "politically incorrect" with 

respect to the statute at issue (that is, if it doesn't promote the alleged purposes of the statute), 

then it is terminated at the outset; the party has no standing to raise it. 

But in another sense this approach resembles a "loyalty oath" of sorts. First the ESA's 

sole purpose is construed to be that of preservation, and then loyalty to that purpose becomes 

a threshold criterion for a court hearing. In the words of the Bennett decision, 

"Given that the clear purpose of the ESA is to ensure the protection of 

endangered species, we conclude that suits by plaintiffs who are interested only 

in avoiding the burdens of that preservation effort ' are more likely to frustrate 

than to further statutory objectives."' 63 F.2d at 920 (citations omitted).

2 

In this manner the ESA's citizen suit provision is read to mean something quite 

different than what it says. It clearly provides for citizen suits, but it is construed to apply 

only to suits by "good' citizens; that is, by citizens loyal to its purposes. 

This may be an exaggeration to some extent, but not to a very great extent. In 

Mountain States Legal Foundation v. Glickman,_ F.3d _, 1996 U.S. App. Lexis 21741 

2 More precisely, the ESA' s stated purpose is to "conserve" listed species. Section 2 

of the Act defines "conservation" in terms of "recovery". See Sugg, Ike C., "Caught in the 

Act: Evaluating the Endangered Species Act, Its Effects on Man and Prospects for Reform," 

23 Cumberland L. Rev. I (I 993-I 994). But "conservation" is expressly characterized as a 

federal duty, not that of private landowners or other non-federal entities. 16 U.S.C. §§ 

153l(c)(I), I536(a). Yet under Bennett, non-federal entities who judicially object to having 

this federal duty imposed on them are held to be beyond the ESA' s zone of interests. 

4 
81 

(D.C. Cir., Aug. 23, 1996), a very recent decision whose approach on ESA standing is 

directly contrary to that of Bennett, the court noted that "NEP A standing is not limited to the 

'pure of heart"'; that is, to parties whose interests are solely environmental in nature. !d. at 

*19. While the court's choice of words may have been partly in jest, it does indicate that 

"purity of purpose", properly or improperly, can carry weight in certain tribunals. 

III. The Zone Of Interests Test Distorts Statutory Construction. 

The differing approaches taken in Bennett and in Mountain States point to a more 

subtle issue--that the zone of interests test may in some cases distort how a statute is actually 

construed by a court. Bennett sets forth a black-and-white, single-purpose reading of 

congressional intent in enacting the ESA--its "clear purpose ... is to ensure the protection of 

endangered species." 63 F.3d at 920. Mountain States, on the other hand, reads the ESA in a 

manner that is far more consistent with its actual statutory language: 

"While Congress clearly did not adopt the ESA for the purpose of protecting 

economic· interests, it equally clearly intended that such interests should come 

into play when critical habitats are designated." Lexis 21741 at *23.

3 

Both of these courts accepted the zone of interests test for standing, and so one cannot 

argue that this test automatically leads to strained statutory constructions. Nonetheless, a close 

reading of Bennett raises the suspicion that the court's emphasis on divining one overriding 

purpose for the ESA is responsible for its failure to give full weight to the statute's various 

provisions. In Bennett's words, 

3 In the words of one environmental group, Defenders of Wildlife, "at nearly every stage 

of the ESA regulatory process save one, economic considerations are explicitly authorized." 

"Saving America's Wildlife: Renewing the Endangered Species Act," Deftnders of Wildlife, 

July 1995, p. 61. 

5 
82 

"To interpret the statute in the manner suggested by plaintiffs would be to 

transform provisions designed to further species protection into the means to 

frustrate that very goal." 63 F .3d at 922. 

The Mountain States decision, by comparison, rejects the notion of a single overriding 

intent for the far more reasonable position that 

"no legislation pursues its purposes at all costs. Deciding what competing 

values will or will not be sacrificed to the achievement of a particular objective 

is the very essence of legislative choice--and it frustrates rather than effectuates 

legislative intent simplistically to assume that whatever furthers the statute's 

primary objective must be the law." Lexis 21741 at *24. 

The Bennett decision's view of the ESA is, in a way, similar to one of the administrative 

tendencies criticized by Justice Stephen Breyer in his study of overregulation, Breaking the 

Vicious Circle--Toward Effective Risk Regulation (1993): 

"Tunnel vision, a classic administrative disease, arises when an agency ... 

carries single-minded pursuit of a single goal too far, to the point where it 

brings about more harm than good." IQ. at II. 

In fact, every provision of the ESA manifests a congressional intent of one form or 

another. When, in the name of some allegedly overriding statutory purpose, a court 

downgrades the explicit statutory provisions that Congress enacted to prevent administrative 

tunnel vision, we have a classic case of statutory misconstruction. 

The zone of interests standing test may well increase the likelihood of such 

misconstruction for two reasons: I) it invites judicial attempts to divine overriding statutory 

purposes; and 2) it unnecessarily elevates the importance of such purposes, by enabling their 

use as threshold criteria that can cut off litigation at the outset. As a result, the purpose of 

statutory checks and balances tend to become downgraded or ignored altogether. In the name 

6 
83 

of a statute's major purpose, its counterbalancing details lose their force. This is not a proper 

form of statutory construction. 

In fact, for all of the emphasis in Bennett on "frustrat[ing] rather than further[ing] 

statutory objectives," it is ironic that the ESA' s onerous land-use regulations have imposed 

such severe costs on private landowners that the net result is more harm than good for species 

conservation. 

4 Indeed, by penalizing landowners for having endangered species on their land, 

the ESA has created such perverse incentives that landowners have little reason to attract such 

species to their land and every reason to ensure their absence. Thus, by excluding 

economically aggrieved parties from the courts, Bennett may welf "frustrate rather than further 

[the ESA's] statutory objectives," precisely the opposite of what that decision seeks to 

accomplish. 

IV. CEI's Own Experience With The Zone Of Interests Test Illustrates Its 

Dangerous Potential For Restricting Judicial Consideration Of Important Regulatory 

Issues. 

CEI has had its own litigating experience with environmental zones of interest. 

Several years ago, CEI brought a series of cases challenging actions taken by NHTSA, the 

National Highway Traffic Administration, in connection with its new car fuel economy 

program. This program is popularly known as CAFE, for Corporate Average Fuel Economy; 

it was enacted in 1975 as part of the Energy Policy and Conservation Act, codified at 15 

U.S.C. § 2001 et seq. 

4 See, e.g., Seasholes, Brian, "Species Protection and the Free Market: Mutually 

Compatible," Endangered Species UPDATE, Vol. 12, Nos. 4 & 5, 1995; "Reforming the 

Endangered Species Act: The Property Rights Perspective," written statement of Ike C. Sugg 

before the Endangered Species Act Task Force of the House Committee on Resources, May 

18, 1995. . 

7 
84 

In particular, CEI challenged NHTSA's claim that the downsizing effect of CAFE on 

passenger cars has no effect on the safety of those cars. In our first case, CEI-l (CEI and 

Consumer Alert v. NHTSA, 901 F.2d 107 (D.C. Cir. 1990)), we succeeded in establishing 

standing under CAFE but we lost on the merits. In the second case, CEI-11 (956 F.2d 321 

(D.C. Cir. 1992)), the court overturned NHTSA's position, finding that it was based on a 

combination of "fudged analysis", "statistical sleight of hand", and "bureaucratic mumbojumbo". IQ. at 324, 327. In the court's view, the evidence on record demonstrated that its 

"27.5 mpg standard kills people". IQ. at 327. In CEI-Ill, 45 FJd 481 (D.C. Cir. 1995) the 

agency's decision on remand (which took over a year to develop but which came to the same 

conclusion as before) was finally upheld, though the court noted that it still found NHTSA's 

treatment of the safety issue to be "troubling". IQ. at 486. 

What is relevant in these cases to this hearing is CEI's difficulty in obtaining standing. 

One of our original claims was that, in summarily claiming that CAFE had no safety impact, 

NHTSA had failed to comply with its own NEPA regulations. NHTSA's environmental 

assessment covered everything from CAFE's effect on wildlife to its effect on wetlands, but 

said not a word about its effect on people. In CEI-l, however, the court refused to hear this 

argument, ruling that neither CEI nor Consumer Alert fell within NEPA's zone of interests. · 

Because our concern was with human safety, rather than environmental effects, we were 

unable to raise any NEPA challenge to NHTSA's handling of its CAFE program, regardless 

of the fact that NHTSA' s own NEP A regulations encompassed social and safety impacts. See 

901 F.2d at 122-24. Thus, the standing of CEI and Consumer Alert was based only on the 

CAFE statute itself. 

8 
85 

Moreover, even though we succeeded in establishing standing under CAFE, even this 

would have been impossible had NHTSA construed that statute not to encompass safety 

concerns. Under such an alternative construction, complaints about the diminished safety of 

cars produced under CAFE may well have been regarded as lying beyond CAFE's zone of 

interests. As the CEl-li decision noted, such an interpretation "would have had a fair shot at 

being upheld." 956 F.2d at 323. 

In the words of one commentator, this makes the CEl-li decision a "most remarkable 

example of a counterfactual imputation of reasonableness, as exemplified by a consideration 

of the relevant trade-offs, into a congressional statute." M.S. Greve, The Demise of 

Environmentalism In American Law 75 (1996). But unless Congress has made clear its 

intention to be umeasonable in drafting a statute, imputations of reasonableness are clearly 

desirable. If courts must err (and, like all human institutions, they occasionally will), then it 

is far better that they err on the side of reasonableness. 

In short, the zone of interests test might well have prevented the critical issue of 

CAFE's impact on safety from ever being raised in court, even though we satisfied the 

constitutional requirements of standing. 

Conclusion 

Simple justice suggests that if a party can show injury due to actions taken under ESA, 

and if this injury meets the constitutional requirements of particularity, causation and 

redressability, then that should suffice for standing to litigate the validity of those actions. 

The elimination of the zone of interests test from the citizen suit provisions of the ESA, as 

9 
86 

proposed in H.R. 3862, would be a major step toward increasing the likelihood of obtaining 

such justice. 

Respectfully submitted, 

Sam Kazman, General Counsel 

Competitive Enterprise Institute 

September 16, 1996 

10 
87 

PREPARED STATEMENT OF JOHN CARR 

STATEMENT OF JOHN CARR, EXECUTIVE DIRECTOR, 

. DIRECT SERVICE INDUSTRIES, INC. 

BEFORE THE COMMITTEE ON RESOURCES 

September 17, 1996 

Direct Service Industries, Inc. ("DSis") represents eight large industrial 

entities that purchase electric energy directly from the bulk power market, 

buying the majority of their power from the Bonneville Power Administration 

("BPA "). For most of these companies, the price they pay for power is the 

single most important factor that determines their ability to compete successfully 

in the world-wide markets in which they operate. Traditionally, these 

companies have purchased between 25% and 30% of the power that Bonneville 

sells, and these purchases provide an equivalent share of Bonneville's total 

revenues. 

Bonneville's power rates are designed to and do recover the costs which 

Bonneville incurs. Since 1991 and 1992, when three stocks of Columbia River 

salmon were first listed under the Endangered Species Act ("ESA "), BPA's 

costs incurred to protect these listed salmon have become a significant 

percentage of Bonneville's total costs. In the years since Columbia River 

salmon were first listed under th~ ESA, Bonneville (with money from Northwest 

ratepayers) has spent $1.7 billion on fish mitigation costs, of which the DSis 

paid a total of $365 million. Presently, the average cost of fish mitigation 

included in Bonneville's rates is over $400 million per year. Every time the 

Federal government alters hydro operations for fish it increases the cost of 

power and the DSis bear a proportional amount of that increase. The DSis have 

a large economic stake in how the ESA is implemented for the listed Columbia 

River salmon. 

The DSis are here today because of court decisions denying them standing 

to challenge many Federal actions taken under the ESA, which have had and 

will continue to have adverse economic consequences for the DSis. Standing 

does not go to the issue of whether an agency decision was right or wrong or 

whether it was lawful or unlawful. When a party is denied standing, the court 

will not even hear whether the party has a valid complaint or whether the party 

was injured by a Federal agencies' violation of the law. 
88 

By creating a "zone of interest" test for standing to seek review of actions 

taken under the ESA, the Ninth Circuit has prevented parties that suffer huge 

economic injury, such as the DSis, any ability to require Federal agencies to act 

in compliance with the law. Being denied standing in Court erodes our interests 

to affect agency decisions. When standing is denied to some but not other 

economic interests, government agencies will be biased toward the interests of 

those with standing, at the expense of the interests of parties who have been 

denied the ability to seek redress in the courts. Unfortunately, the agencies take 

you more seriously if you can sue them. 

Purchasers of electric power are by no means the only economic interest 

significantly affected by government agency actions implementing salmon 

recovery efforts: the commercial harvest of listed and unlisted salmon within 

the Columbia River has been impacted; the release of hatchery juvenile salmon 

has been reduced because they compete for foOd and habitat with listed salmon; 

and stream and river side uses of property have been limited because of 

degradation of spawning and rearing habitat. 

ESA implementation activities which impact these economic sectors are 

carried out by agencies of the Federal government. Whenever these agencies 

decide how to carry out their basic mandates while attempting to meet their 

obligations under the ESA, they effectively balance the relative economic harm 

or benefit one interest will suffer or gain versus another. The Federal agencies 

routinely make explicit judgments on these economic trade-offs when they 

implement the ESA. 

Ironically, the parties whose economic interests are most directly affected 

by agency decisions are often, under the interpretation of the citizen suit 

provisions of the ESA adopted by the Ninth Circuit, denied judicial review. 

Economic interests are systematically denied any protection by the courts from 

government actions that may be arbitrary, capricious, erroneous or even illegal. 

The DSis, whose economic health may hinge on how a Federal agency decides 

to implement the ESA, have been denied standing to seek judicial review of 

whether agency actions were carried out in compliance with the law, even 

though the courts acknowledged that the action in question had direct impact and 

adversely affected the DSis' economic interests. 

The DSis were plaintiff-appellants in the lawsuit Pacific Northwest 

Generating Co-Op v, Brown, 38 F.3d 1058 (9th Cir. 1994) that established the 

guidelines for ESA standing regarding endangered salmon suits. We have been 

denied the ability to protect our economic interests based on the analysis 

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developed in PNGC y Brown. In that case, the DSis and two organizations 

representing public utilities filed citizen suits against several Federal agencies. 

In those suits, we alleged that: 

1. Federal decisions on hatchery operations, habitat management and 

commercial harvest of mixed stocks of listed and unlisted salmon 

violated the ESA, adversely affected the listed salmon and resulted 

in drastic and expensive modification of hydroelectric operations; 

and 

2. Federal agency decisions on hydro operations were based on a 

misinterpretation of the ESA, were inconsistent with available 

scientific evidence, and would increase Bonneville's customers' 

costs without any benefit to listed salmon. 

The United States District Court for the District of Oregon ruled that the 

DSis and the utility plaintiffs had no standing to bring their ESA claims because 

the economic interest of plaintiffs might be in conflict with the interests 

Congress intended to protect under the ESA -- the recovery of listed salmon 

stocks. On appeal, the Ninth Circuit ruled that, in addition to meeting the 

constitutional minimum requirements for standing, plaintiff must also be within 

the "zone of interest" .protected by the ESA. Applying this test, the Court ruled 

that plaintiffs had made claims within the "zone of interest" of the ESA in 

arguing that there should be greater restrictions placed on hatchery production, 

fish harvest and habitat degradation. The Court reasoned that the DSis could 

possibly benefit indirectly from protection of the salmon. If the DSis could 

force greater protection of salmon from improper habitat, hatchery and harvest 

activities and thereby improve their recovery, it was possible that there would 

be less pressure to protect salmon through hydro operations. 

The startling decision by the Court was that the DSis had no standing to 

raise the claim that the government had taken steps under the ESA to 

dramatically alter hydropower operations without the requisite support in law or 

fact, despite the fact that such action economically harmed the DSis. In effect, 

the Court concluded that as long as the government claimed to be protecting 

salmon, citizens harmed economically by that government action could not cause 

the government to justify or explain its actions to a reviewing court. 

This decision has prevented the DSis from challenging very expensive, 

and what we believe to be wholly insupportable, burdens placed year after year 

on the hydropower system. Based on our analysis, BPA is charging its 

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90 

~ustomers hundreds of millions of dollars annually for hydro operations 

compelled by the National Marine Fisheries Service based on an erroneous 

interpretation of the ESA and without adequate scientific information on the 

beneficial effect, if any, on salmon. Our inability to seek judicial review of 

agency actions biases the agencies to grantthe.reqilests of parties that have been 

found to have standing, even though, in some cases, these demands may be 

harmful to the salmon. After all, the Federal agencies can harm the DSis with 

impunity, whereas they may be called upon to justify actions with which other 

parties do not agree. 

The Court's "zone of interest" analysis, under which some economic 

interests are denied protection from potentially erroneous or arbitrary application 

of the ESA, is contrary to fundamental doctrines of due process upon which this 

country was founded and fails any test of fairness. The colonies declared their 

independence from Great Britain primarily because of unredressed economic 

injury. The Bill of Rights to the United States Constitution is designed to 

restrain abuse of government power; yet, the "zone of interest" test denies 

parties with economic interests protection from the abuse of government power 

if the government acts under color of the ESA. 

Congress attempted to remove artificial barriers to a citizen's ability to 

hold government agents accountable for their actions when it adopted the 

judicial review provision of the Administrative Procedures Act. Under 5 

U.S.C. § 706, the courts of the United States are directed to "compel agency 

action unlawfully withheld" and to "set aside agency action" that is "arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law. • 

Under the expanding doctrine of "zone of interest, • some courts have declined 

to carry out the APA statutory directive when, in the subjective judgment of the 

court, the interestS of the injured citizen was not within the "zone" a particular 

statute was attempting to protect. It is undoubtedly true that Congress adopted 

the ESA to protect listed species. But, it was certainly not Congress' intent to 

allow Federal officials to act with complete impunity and beyond the reach of 

judicial review if they invoke the ESA to harm a citizen's economic or property 

interests. 

In the PNGC y, Brown case, the United States District Court of Oregon 

implied that parties with purely economic interests at stake (and then only 

selected economic interests because commercial fish harvesters have been found 

to have broad standing under the ESA) might somehow subvert the ESA by 

seeking to protect their interests. This line of reasoning totally misses the point. 

Allowing a day in court to a party that has had its interests damaged, when 

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91 

those interests did not happen to be the primary focus of the law invoked to 

cause that damage, will not prevent enforcement of the law. A court can 

determine whether the law has been applied properly no matter what interests 

the citizen invoking the law is attempting to protect. 

The "zone of interest" test simply denies certain citizens any remedy for 

damage to their interests from misapplication of the law. In the cases relevant 

to the DSis, this doctrine has precluded us from requiring Federal agencies to 

establish that their determinations to require multimillion dollar changes to 

hydro operations are based on a viable interpretation of the ESA, or that these 

requirements have sufficient scientific support to meet the arbitrary and 

capricious standard in 5 U.S.C. § 706. The "zone of interest" test simply 

excuses Federal agencies from providing any rational explanation for actions 

under the ESA that cause enormous economic harm to some citizens, and 

removes from some citizens' protection from governmental abuse. When a 

party is denied standing under the "zone of interest" test, the Court has not 

concluded that the party was not injured, or that the injury was inflicted in 

compliance with the law; the Court has simply found that the party cannot seek 

redress no· matter how unjustified the government act that harmed the party may 

be. 

No citizen should be subjected to damage from misapplication of any law, 

and no citizen should be denied the right to obtain judicial review of the 

lawfulness of an agency action that subjects that citizen to harm. Arbitrary or 

unlawful action should not be insulated from review based solely on the 

particular law invoked when that action was taken. 

H.R. 3862 is a positive step toward ensuring the right of full and fair 

judicial participation and review for all interests -- including economic interests 

--under the ESA. It can be improved, however. Rather than declaring 

economic interests to be within the "zone of protected interests" of the ESA, it 

would be preferable to prohibit a Court from using the "zone of interest" test to 

impose barriers greater than the minimal showings required by the Constitution. 1 

We are also concerned that the remedy proposed in this bill may not be 

adequate to allow citizens to protect their economic interests from potentially 

1 Courts have held that the "case or controversy• language in the Constitution requires 

that a plaintiff establish that: (1) it has or will suffer a concrete injury in fact; (2) that the 

injury was or will be caused by the action at issue; and (3) that the relief sought in court will 

redress the injury. 

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arbitrary agency action. Judicial review of agency action is based on the 

adlT''.listrative record submitted by the agency to the court. If a citizen has been 

-· nied any opportuclty to raise its interests before the agency, review based on 

the record compiled by the agency may be meaningless. Citizens should be 

notified and provided an opportunity to participate in any ESA consultation that 

is likely to affect that citizen's economic or other interest. 

In one ESA case in which we were involved, the Federal agencies 

conducted their consultations on Columbia River hydroelectric operations in 

closed door meetings with some, but not' all, of the economic interests. The 

DSis and other parties with economic interests in electric power were excluded. 

Not surprisingly, the hydro operation plans that were developed, and which 

guide operations today, were extremely expensive for the disenfranchised 

electric power interests. 

Similarly, a citizen's interest may not have been harmed by an agency's 

initial action, but that interest may be threatened by actions some other citizen is 

seeking to compel through judicial action. Therefore, it is important that 

citizens have standing to intervene in lawsuits initiated by others under the ESA 

whenever the suit threatens their economic or other interests. 

Finally, since we believe standing should be more accessible under all 

parts of the ESA, we would recommend the deletion of any limitation of this 

provision to harm caused via designation of critical habitat. Economic interests 

should have standing under all sections of the ESA, provided they meet the 

minimum constitutional requirements. 

On behalf of the members of Direct Service Industries, Inc., I appreciate 

the opportunity to address this Committee regarding an issue that has and does 

effect our very significant economic interests. 

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93 

, ... PREPARED STATEMENT OF AMERJCAN FARM BUREAU F EDERATION 

AMERICAN FARM BUREAU FEDERATION® 225 TOUHYAVENUE • PARK RIDGE " ILL/NO/$ • 60068 (312)39~5700 • FAX (312)39~58 6 

600 MARYLAND AVENUE S.W. • SUITE 800 • WASHINGTON, D.C. • 20024 • (202) 484-3600 • FAX (202) 484-3604 

STATEMENT OF 

THE AMERICAN FARM BUREAU FEDERATION 

ONH.R. 3862 

THE CITIZEN'S FAIR HEARING ACT OF 1996 

THE HOUSE RESOURCES COMMITTEE 

September 17, 1996 
94 

STATEMENT OF 

THE AMERICAN FARM BUREAU FEDERATION 

ON H.R. 3862 

THE CITIZEN'S FAIR HEARING ACT OF 1996 

THE HOUSE RESOURCES COMMITTEE 

September 17, 1996 

The American Farm Bureau Federation (AFBF), the nation's largest general farm 

organization, represents the interests of farmers and ranchers nationwide. AFBF has affiliate 

state Farm Bureaus in all 50 states and Puerto Rico, representing the interests of more than 4.5 

million member families. We offer this statement for the hearing record in support of H. R. 

3862. 

AFBF has testified before this conunittee many times over the course of the last few years 

describing the adverse impacts that the Endangered Species Act (ESA) has had on our members 

and detailing the need for reform of the Act. Farmers, ranchers and small landowners across the 

country are restricted from using their private property in traditional ways because of the 

presence or alleged presence of a listed species, or because their property might someday be 

habitat for such species. The ESA was enacted on the basis that preservation of species is in the 

"public interest," yet small farmers and ranchers on whose property these species live are being 

forced to bear the entire cost for preserving these species. 

Recent federal court decisions have even deprived farmers, ranchers and small 

landowners of the ability to protect themselves and their interests from governmental excesses 

under the Endangered Species Act. Cases such as Bennett v. Plenert, 63 F.3d 915 (9th Cir. 1995) 

and currently on appeal to the U.S. Supreme Court, have shut the courthouse door to farmers, 

ranchers and small landowners who feel they have been wronged under the Endangered Species 

Act. The Ninth Circuit denied standing to farmer-plaintiffs to bring any claims for relief under 

the ESA, claiming that farmers and ranchers seeking to protect their economic interests are 

outside the "zone of interests" sought to be protected under the ESA. This holding creates the 

fundamentally unfair situation where one entire class of plaintiffs is denied access to the courts. 

H.R. 3862 would correct this gross inequity by ensuring that people on both sides of the 

Endangered Species Act --those who claim that government action under the ESA goes too far, 

as well as those who claim that such ESA actions do not go far enough --have access to the 

courts. It appropriately clarifies the intent of Congress that people who lose the use of their 

property or are prevented from earning a living, or suffer some other economic injury, as a result 

of the application of the ESA can seek judicial redress when the actions of the government 

causing the economic injury are illegal. The bill is necessary, timely, and resolves a significant 

problem under the ESA. 
95 

While the ESA imposes certain responsibilities on the federal government to protect 

listed species, it also contains certain safeguards and places certain duties on the federal 

government to make sure that the ESA is administered within scientific and procedural 

parameters. For example, section 4 of the ESA requires that any listing of a species must be 

made on the basis of "the best scientific and commercial data available." In addition, section 4 

requires that if a species proposed for listing is not listed within one year, the proposal must be 

withdrawn. (The ESA allows for a six month extension in certain circumstances, but if the 

proposal is not finalized within that period, it must also be withdrawn.) 

The ESA also contains a number of procedural safeguards to protect the rights of people 

who might be affected by an ESA action. For example, section 4 requires 60 days notice of 

proposed listings, together with a requirement that such proposal be published in a local 

newspaper. In addition, if anyone requests a hearing on the proposal, one must be held. 

Such provisions at least try to ensure that the ESA is administered fairly, that ESA actions 

are taken only on the basis that they are scientifically justified, and that affected people have 

ample opportunity to present new evidence or make their views known before action is taken. 

Thus, Congress has sought to see that rights of affected individuals are protected at the same time 

that species are protected from becoming extinct. The obligations placed on the federal 

government by these substantive and procedural provisions are no less than any other obligations 

on the government to protect species. The government should be held accountable to the people 

regulated under the ESA to the same extent that species are protected. 

The federal courts have changed all of that. After Bennett, affected people within the 

Ninth Circuit have no way to hold the federal government accountable for regulatory excesses 

under the ESA. The federal government is free to act in any manner it wants in the name of the 

ESA, including the ability to flaunt the provisions of the ESA and trample the rights of farmers 

and ranchers with unfettered impunity. Since the area encompassed within the jurisdiction of the 

Ninth Circuit contains a significant number of the listed species and related conflicts, the 

problem caused by the courts is quite significant. 

AFBF has experienced the problems caused by application of the Bennett decision firsthand. Our experience may serve to illustrate the problems faced by affected parties and the need 

for legislation like H.R. 3862 to correct them. 

Our situation involves the proposed listing of five species· of mollusks found in the 

middle reaches of the Snake River in Idaho. The stated impacts to our members were that the 

extensive farm and ranch interests in this area would be restricted in both the amount of water 

they could take from the River and also in the amount of crop protection materials they could use 

that might run off into the River. 

The scientific data supporting listing was, in our view, quite weak. There was as much 

scientific information either opposing listing or creating uncertainty about the species as was 

2 
96 

advanced to support the listing. The evidence clearly and incontrovertibly indicated that less 

than one percent of the potential habitat for these species had ever been surveyed for the species. 

Moreover, the expert hired by the Idaho Farm Bureau Federation twice conducted his own 

surveys for these species, and twice found them in areas where the government said they did not 

exist. 

The ESA requires that listings be made on the basis of .. the scientific and commercial 

data available." AFBF and the Idaho Farm Bureau Federation filed suit challenging the listings 

on the basis that there was no science to support the listings, and the listings were therefore in 

violation of the ESA. 

We were not even able to get our case to the judge. Citing the Bennett decision, he 

dismissed our case for lack of standing, based solely on the fact that we were challenging ESA 

actions as going too far, rather than trying to extend the ESA by claiming that actions did not go 

far enough. Thus farmers and ranchers who had legitimate and basic questions with the manner 

in which these mollusks were listed, and whose livelihoods may be significantly impacted by 

their listing, were denied the right to protect their interests in court. 

That is the problem that the courts have caused. People who have legitimate claims that 

government action is adversely impacting traditional personal interests of property and livelihood 

are foreclosed from the courts simply because they are on the wrong side of an issue. 

But while people are foreclosed from challenging the ESA as going too far, those who 

challenge agency action as not going far enough to protect species are still filing lawsuits. Thus 

courts are only allowing one side of the issue to be heard, a situation even worse than not 

allowing a hearing on either side at all. Only allowing one side of an issue creates an inherent 

imbalance in the administration of the law whereby the government is only accountable to one 

side and not to the other. The inevitable result is that the government leans toward the side to 

which it is accountable to and ignores the side over which it has free rein. 

Thus, the issue addressed by H. R. 3862 is one of fundamental fairness. It makes sure 

that all sides of an issue are heard, that the government is accountable for its actions to all 

affected parties, and that all parties have the right to have injuries redressed within the limits set 

by Article ill of the Constitution. 

The bill does not change the Constitutional rules of standing, nor can it. Article ill of the 

Constitution, as articulated by the U.S. Supreme Court, contains certain basic requirements that 

all litigants must meet in order to be allowed to proceed in court. Such requirements include the 

existence of an actual or imminent injury that is caused by the activity at issue which can be 

redressed by the court. The bill does not seek to change these well-established rules of standing. 

Rather, the bill seeks to clarify some of the elements of prudential or discretionary 

grounds upon which standing can be denied under the ESA. Courts like the Ninth Circuit have 

3 
97 

misconstrued these elements to produce an inherently unfair result. Other courts may. and have, 

construed the ESA citizen suit standing provision differently, producing the anomalous result 

that people adversely impacted by the ESA can seek legal redress in some partS of the country 

but not in other parts. Legislative clarification is necessary and appropriate both to correct 

current problems and to provide the "legislative intent" that courts often seek in making similar 

types of decisions. 

The fact that the Bennett case has been accepted for oral argument before the U.S. 

Supreme Court does not obviate the need for this legislation. In the first place, oral argument is 

not scheduled in this matter until November 13, and a decision is not likely for several months 

after that. Secondly, the federal respondents have argued in their brief before the Court that a 

decision can and should be made without consideration of the "zone of interest" issue that 

prompted the Court to take the case in the first place. If the Court accepts this reasoning, the 

problems that farmer and rancher ESA plaintiffs have in the area within the Ninth Circuit 

jurisdiction will remain, without having been addressed by the Supreme Court. 

AFBF fully supports H.R. 3862. It provides a reasonable, uniform and timely solution to 

a problem that prevents an entire class of plaintiffs from protecting their interests against 

overzealous and overreaching government. It does so in a manner that does not seek to expand 

or change the Constitutional definition of standing. More importantly. it restores fundamental 

fairness to the judicial system, by providing equal judicial footing to people on both sides of the 

ESA. It restores balance in the judicial administration of the ESA. And finally, it provides 

legislative clarification to an issue that has been subject to various conflicting interpretations by 

the courts, thereby bringing needed uniformity to the question of who may sue under the ESA. 

We thank the conunittee for holding a hearing on this important issue, and look forward 

to working with the conunittee to pass H.R. 3862. 

F:lstm\hr3862.917 

4 
98 

PREPARED STATEMENT OF NATIONAL A.ssociA110N OF HOME BUILDERS 

The National Association of Home Builders (NAHB) represents more than 185,000 

builders and associate member firms organized in approximately 850 affiliated state and local 

associations in all fifty states, the District of Columbia, and Puerto Rico. More than half of 

NAHB's builder members build less than 10 homes per year, and three-quarters of our builder 

members build less than 25 homes per year. NAHB is truly an association that represents small 

business. 

As small business owners, home builders are often dramatically impacted by government 

regulations. There are perhaps no regulations, however, that have more profound implications for 

home builders than those which govern the use of private property. Similarly, there is perhaps 

no other small businessperson that is affected more keenly and more immediately by the 

regulation of private property. It follows, then, that that there is no small businessperson on 

whom the Endangered Species Act (ESA) places a greater potential burden. 

It is for this reason that NAHB feels compelled to provide comments on the issue of 

judicial standing for individuals affected by critical habitat designations under the ESA, an issue 

that H.R. 3862, introduced by Rep. Helen Chenoweth (R-ID), attempts to address. 

It is clear that a primary intent of H.R. 3862 is to effectively overturn a misguided 

decision made by the U.S. Court of Appeals for the Ninth Circuit, a decision which bas dramatic 

and profound implications for landowners throughout the nation. Essentially, the Ninth Circuit 

ruled that only environmental groups, and other organizations and individuals who want to 

~the reach of the ESA, have standing to file citizen suits under the Act. This means that 

regulated parties, such as home builders, who bear the burden of the ESA, would not have the 

opportunity to challenge in a court of law the U.S. Government's listing of species and 

designation of critical habitat, and the subsequent prohibitions on land use that accompany such 

determinations. Landowners would also be precluded from challenging the results of agency 
99 

consultations under Section 7, which can have dramatic impacts on property owners. Indeed, the 

Ninth Circuit has effectively closed the courthouse doors to regulated parties. In arriving at its 

decision, the court found that: 

Given that the clear purpose of the ESA is to ensure the protection of endangered species, 

we conclude that suits by plaintiffs who are interested only in avoiding the burdens of 

that preservation effort "are more likely to frustrate than to further statutory objectives." 

With its decision, the Ninth Circuit has for practical purposes nullified the ability of 

property owners to protect themselves from unlawful ESA regulation. This is a sweeping 

decision, with the potential of having severe consequences for property owners across the 

country. To provide some perspective on this decision's potential ramifications, a 1994 General 

Accounting Office report showed that 90% of the 781 species listed at that time as endangered or 

threatened under the ESA inhabit non-federal lands. Furthermore, of those species listed, 517 

have over 60% of their total habitat on non-federal lands, covering tens of millions of acres of 

private property. Obviously, there are a lot oflandowners who could see their investments get 

swallowed up as a result of a decision made by a Fish and Wildlife Service (the Service) 

bureaucrat -- landowners who would have no legal recourse to challenge that decision. 

The burdens that the ESA places on owners of private land are by no means hypothetical. 

There are numerous examples that can be cited, sometimes tragic, of substantial losses of private 

property brought on by overzealous enforcement of the ESA. Perhaps the most well-known of 

these unfortunate occurrences is that of the 28 families in Riverside County who lost their homes 

to a wildfire. These families had the misfortune of residing in the same general area as the 

endangered Stephens Kangaroo Rat. In their efforts to protect the "K-rat," the Service prohibited 

the clearing of fire breaks around their property, as it would ostensibly have disturbed the K-rat's 

habitat, using threats of civil, and even criminal, penalites. Those homeowners who defied the 

Service saved their property. Those who did not lost virtually everything they owned. These 

homeowners deserve their day in court. The Ninth Circuit's decision would deny them that. 
100 

In another instance, in August 1993, the Service listed two cave bugs as endangered in 

the Austin, Texas area. The listing of one of these bugs, the Bone Cave Harvestman, forced 

home builder Ed Wendler, Jr. to set aside 90 acres of real property for its protection-- at a cost of 

$1,170,000. The Service listed both of these bugs without proceeding through any of the 

required notice and comment procedures -- a blatant violation of the ESA. Under the Ninth 

Circuit's decision, Mr. Wendler would not have the opportunity to fil e suit against the federal 

government. 

It is situations such as these that H.R. 3862 attempts to resolve. Without at least the 

potential for its actions to be challenged by those it regulates. the Fish and Wildlife Service will 

be under virtually no constraints not to overregulate as it makes unilateral decisions that can have 

profound impacts on the lives of citizens. Fortunately, the Supreme Court has agreed to hear an 

appeal of the Ninth Circuit's decision during its fall calendar, and NAHB, together with several 

other interests, has submitted an Amicus Curiae brief in support of overturning this decision, 

which we have attached for inclusion in the record. Of course, this is by no means a guarantee 

that the decision will be overturned, making passage ofH.R. 3862 that much more important. 

NAHB has submitted this brief for the record. 

To be sure, an equally important goal ofH.R. 3862 is to reaffirm the will of the Congress, 

as it can certainly be argued that the Ninth Circuit decision ignores Congressional intent. Indeed, 

in enacting the ESA, Congress clearly extended standing under the Act to the limits of Article Ill 

of the Constitution. 16 U .S.C. Sec. 1540 (g)( I) states that: 

The term "person" is liberally defined in the ESA to mean: 

an individual, corporation, partnership, trust, association, or any other private entity, or 

any officer, employee, agent, department or instrumentality of the Federal government, of 

any state or political subdi vision thereof, or any foreign government. 

There is nothing within this definition that attempts to qualify it in such a way as to 
101 

exclude a "person" with a "competing interest," or to restrict standing to a person who only seeks 

to further the ESA's statutory objectives, both standards referred to in the Ninth Circuit decision. 

On the contrary, the definition of standing under the ESA is quite broad and inclusive. It seems 

clear that it was Congress' intent to provide some legal recourse to those who believe they have 

been the victim of an incorrect decision on the part of the federal government. Unfortunately, the 

Ninth Circuit's extremely narrow decision eliminates that course of action. 

It is for this reason that NAHB applauds Rep. Chenoweth's efforts. This legislation, if 

enacted, will do nothing to broaden the scope or the protections under the Endangered Species 

Act. It will not lead to a flood of challenges aimed at "frustrating statutory objectives." What it 

will do is reaffirm that which Congress intended 23 years ago, and in doing so reaffirm the right 

of all citizens to have their day in court. 
102 

m NATIONALASSOCIATION L.J3 OF REALTORS® 

REALTOR® The Voice for Rea/Estate® 

The Honorable Don Young 

Chair 

House Resources Committee 

September 24, 1996 

1328 Longworth House Office Building 

Washington, D.C. 20515 

Dear Chairman Young: 

NATIONAL ASSOCIATION OF REALTORS" 

700 Eleventh Street, N.W. 

Washington, D.C. 20001·4507 

Ar1hur L. Godi, President 

Or. Almon R. Smith, CAE, Executive Vice President 

Stephen D. Oriesler, Vtee President & Chief lobbyist 

Government and Poli1ical Relations 

Jerry Giovaniello, VICe President 

Government Relations 

Telephone 202-383-1115 

Fax 202-383-7580 

On behalf of the NATIONAL ASSOCIATION OF REALTORS® (NAR),l request that this 

letter be placed in the hearing record, for the hearing, held on September 17, on H.R. 3862, the 

"Citizens Fair Hearing Act of 1996." 

NAR opposes those aspects of environmental and natural resource legislation that amount to 

uncompensated condemnation of private property through government actions. It is essential that 

the rights of private property owners be fully recognized in local, state and federal programs and 

laws. 

NAR supports a multiple use approach to the management of our nation's public lands and we 

oppose wide scale withdrawals of public lands for wilderness designation. We are particularly 

sensitive to those withdrawals and policies that reduce supplies for housing and increase costs of 

resources utilized in building construction. In addition, we oppose legislation or regulation 

which decreases access to timber resources or prohibits the export of timber from private lands. 

NAR also, believes that the way in which the Endangered Species Act (ESA) is implemented is 

of major importance. We support amendments to the Threatened and Endangered Species Act 

that recognize socioeconomic considerations and urge that compensation be required in cases 

where the value of private property has been unduly diminished or jeopardized by government 

action under the Act. 

~ely, 

~& President 

REAlTOR- is 1 regbtare<l eolecWe membt!lhip nwtt ¥INCh fMY be used onty by reai eltlte pt0t.WOMI5 

\11000 •re rnetT'IbofS 0' tiM! NATIONAl ASSOCIATION Of REAl. TORS"- aod SUbsCiibe to Ill Sl~ Code 0' Elhics. 

0 

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