Bennett v. Plenert, 94-35008

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation63 F.3d 915
Docket NumberNo. 94-35008,94-35008
Parties, 64 USLW 2139, 25 Envtl. L. Rep. 21,479, 95 Cal. Daily Op. Serv. 6699, 95 Daily Journal D.A.R. 11,470 Brad BENNETT; Mario Giordano; Langell Valley Irrigation District, a political subdivision of the state of Oregon; Horsefly Irrigation District, a political subdivision of the State of Oregon, Plaintiffs-Appellants, v. Marvin L. PLENERT, in his official capacity as Regional Director, Region One, Fish and Wildlife Service, U.S. Department of the Interior; John F. Turner, in his official capacity as Director, Fish and Wildlife Service, U.S. Department of the Interior; Bruce Babbitt, in his official capacity as Secretary, U.S. Department of the Interior, Defendants-Appellees.
Decision Date24 August 1995

William F. Schroeder, Schroeder, Hutchens & Sullivan, Vale, OR, for plaintiffs-appellants.

Ellen J. Durkee, U.S. Dept. of Justice, Washington, DC, for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before: PREGERSON *, CANBY, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

This case requires us to determine whether plaintiffs who assert no interest in preserving endangered species may sue the government for violating the procedures established in the Endangered Species Act. We conclude that they may not.

I.

The plaintiffs are two Oregon ranch operators and two irrigation districts located in that state. They challenge the government's preparation of a biological opinion which concludes that the water level in two reservoirs should be maintained at a particular minimum level in order to preserve two species of fish. The plaintiffs, who make use of the reservoir water for commercial (and recreational) purposes, bring this action under the Endangered Species Act (ESA), 16 U.S.C. Sec. 1531 et seq., the Administrative Procedure Act (APA), 5 U.S.C. Sec. 701 et seq., and the National Environmental Policy Act (NEPA), 42 U.S.C. Sec. 4332(2)(C).

The two reservoirs in question are part of the federal government's Klamath Project, which the Bureau of Reclamation administers. The Bureau concluded that the long term operation of the Klamath Project might adversely affect two species of fish: the Lost River and shortnose suckers. Pursuant to the requirements of the ESA, the Bureau consulted with the United States Fish and Wildlife Service in order to assess the impact of the Klamath Project on the fish. 16 U.S.C. Sec. 1536(a)(2).

As a result of the consultation, the Service prepared a biological opinion. 16 U.S.C. Sec. 1536(b)(3)(A). The opinion concluded that unless mitigating actions were taken the "long-term operation of the Klamath Project was likely to jeopardize the continued existence of the Lost River and shortnose suckers." The opinion "recommended a number of measures the [Bureau] could take to avoid jeopardy to the suckers ... including the recommendations regarding maintaining minimum lake level at issue in this case." The Bureau informed the Service that it accepted the opinion's recommendations and intended to comply with them.

The plaintiffs filed suit for declaratory and injunctive relief in an effort to compel the government to withdraw portions of the biological opinion. Their complaint alleges that there is no evidence to support the opinion's conclusion that the long-term operation of the Klamath project will adversely affect suckers. In fact, the complaint alleges that the evidence shows that the fish are "reproducing successfully" and are not in need of special protection. The complaint then explains that the plaintiffs' objective in seeking to prevent the government from raising the minimum reservoir levels is to ensure that more water will be available for their own commercial (and recreational) use. In short, they wish to use for their own purposes some of the water that the government maintains is needed to ensure the survival of the suckers.

The complaint alleges that in preparing the opinion, the government violated the consultation provisions set forth in 16 U.S.C. Sec. 1536(a) of the ESA. It also alleges that the government violated 16 U.S.C. Sec. 1533(b)(2) of the ESA by failing to consider the economic impact of its determination that the reservoirs constituted critical habitats for the suckers. They bring related claims pursuant to the APA and NEPA.

The government moved to dismiss the complaint for lack of standing. The district court concluded that the plaintiffs' interest in utilizing the Klamath water for commercial and recreational purposes "conflict[s] with the Lost River and shortnose suckers' interest in using water for habitat." Accordingly, it concluded that the plaintiffs lacked standing because their claims were premised on "an interest which conflicts with the interests sought to be protected by the Act."

II.

The issue before us is not whether the plaintiffs have satisfied the constitutional standing requirements but whether their action is precluded by the zone of interests test, the prudential standing limitation that the district court deemed dispositive. 1

The zone of interests test first appeared as a standing requirement in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829-30, 25 L.Ed.2d 184 (1970). There, the Court held that a plaintiff seeking judicial review under the Administrative Procedure Act (APA) must show that "the interest sought to be protected by [him was] arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Id. at 153, 90 S.Ct. at 830. In the decade that followed, the test appeared to be on the verge of being abandoned. However, in 1987, the Court resuscitated it, offering an "exegesis" regarding when the test applies and how a court should determine whether it has been met. See Clarke v. Securities Industry Ass'n, 479 U.S. 388, 410, 107 S.Ct. 750, 762-63, 93 L.Ed.2d 757 (1987) (Stevens, J. concurring in part).

In a lengthy footnote, the Clarke Court made it clear that some form of the zone test applies even in cases which are not brought under the Administrative Procedure Act. However, it cautioned that "[w]hile inquiries into reviewability or prudential standing in other contexts may bear some resemblance to a 'zone of interest' inquiry under the APA, it is not a test of universal application." Clarke, 479 U.S. at 400 n. 16, 107 S.Ct. at 757 n. 16. Perhaps because the Court did not proceed to explain how the test might differ when applied to non-APA actions, our court, like most others, has continued to apply the traditional zone of interests test to such actions, as well as to APA cases. See, e.g., Central Arizona Water Conservation District v. EPA, 990 F.2d 1531, 1538-39 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 94, 126 L.Ed.2d 61 (1993) (Clean Air Act); Self-Insurance Institute v. Korioth, 993 F.2d 479, 484 (5th Cir.1993) (preemption); ANR Pipeline v. Corporation Commission of State of Oklahoma, 860 F.2d 1571, 1579 (10th Cir.1988), cert. denied, 490 U.S. 1051, 109 S.Ct. 1967, 104 L.Ed.2d 435 (1989) (same); 13 Wright, Miller & Cooper, Federal Practice and Procedure Sec. 3531.7 (Supp.1993). We follow that practice here.

Clarke 's principal relevance to the case before us is its holding regarding when a plaintiff who is not directly subject to the regulatory action that he seeks to challenge falls within the zone of interests. 2 As to such plaintiffs, Clarke holds that "the test denies a right of review if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot be reasonably assumed that Congress intended to permit the suit." Clarke, 479 U.S. at 399, 107 S.Ct. at 757; see also Central Arizona, 990 F.2d at 1538-39 (9th Cir.1993) (quoting same).

Clarke explains that the zone of interests test simply provides a method of determining whether Congress intended to permit a particular plaintiff to bring an action. As the Clarke Court made clear, "at bottom the reviewability question turns on congressional intent, and all indicators helpful in discerning that intent must be weighed." Clarke, 479 U.S. at 400, 107 S.Ct. at 757. Thus, Clarke concludes that the statutory purposes should be divined by considering the particular statutory provision that underlies the complaint within "the overall context" of the act itself. Clarke, 479 U.S. at 401, 107 S.Ct. at 758.

III.

We have previously applied the zone of interests test to claims brought directly under the ESA. See Pacific Northwest Generating Co-Op v. Brown, 38 F.3d 1058, 1065 (9th Cir.1994); Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568, 1581 & n. 8 (9th Cir.1993). However, the plaintiffs contend that these cases do not conclusively demonstrate that the zone of interests test applies here. They argue that the question of the test's application is an open one because our past cases did not consider whether the ESA's citizen-suit provision overrides the limitation on standing that the test imposes. 16 U.S.C. Sec. 1540(g); see Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979) (holding that Congress may extend standing under a statute to the limits of Article III). 3 The provision in question authorizes "any person [to] commence a civil suit on his own behalf--a) to enjoin any person, including the United States [and its agencies], who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof...." See 16 U.S.C. Sec. 1540(g).

We need not rely on our decisions in Mt. Graham and Pacific Northwest. Rather, notwithstanding the broad language of the citizen-suit provision, we directly reject the plaintiffs' contention that it renders the zone of interests test inapplicable to claims brought under the ESA. 4 Our...

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