Bennett v. Spear

PETITIONER:Bennett
RESPONDENT:Spear
LOCATION:Attorney General Office

DOCKET NO.: 95-813
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 520 US 154 (1997)
ARGUED: Nov 13, 1996
DECIDED: Mar 19, 1997

ADVOCATES:
Edwin S. Kneedler – Argued the cause for the respondents
Gregory K. Wilkerson – Argued the cause for the petitioners
Gregory K. Wilkinson – on behalf of the Petitioners

Facts of the case

When the Fish and Wildlife Service was notified that the operation of the Klamath Irrigation Project might affect two endangered species of fish, it concluded that the proposed long-term operation of the project was likely to jeopardize the species and decided to maintain minimum levels of water in certain reservoirs. The petitioners, irrigation districts receiving project water and operators of ranches in those districts, filed suit against the Service’s director, regional directors, and the Secretary, claiming the determination and imposition of minimum water levels violated the Endangered Species Act’s requirement that the designated area’s economic impact be considered. The District Court dismissed the compliant because it lacked standing; economic interests were not enough to constitute a lawsuit in this matter. The Court of Appeals affirmed.

Question

Can private parties who claim they have suffered economic harm from enforcement of the Endangered Species Act sue to reverse regulation?

William H. Rehnquist:

We’ll hear argument first this morning in No. 95-813, Brad Bennett v. Michael Spear.

Mr. Wilkinson.

Gregory K. Wilkinson:

Mr. Chief Justice, and may it please the Court:

This case arises from the Ninth Circuit and raises the question whether farmers and irrigation districts that receive water pursuant to Federal contracts have standing to complain when their water supplies are cut, their crops threatened, and their land devalued as a consequence of Government conduct alleged to violate the provisions of the Endangered Species Act.

William H. Rehnquist:

We’re talking about the granting of a motion to dismiss here, aren’t we?

Gregory K. Wilkinson:

That’s correct.

William H. Rehnquist:

So, we’re talking about the… how you construe allegations in a complaint basically.

Gregory K. Wilkinson:

In part, that’s… yes, absolutely correct.

According to the Ninth Circuit, the answer to the question I posed is no because petitioners’ competitive, economic-based interest in the water places them outside a zone of interest protected by the ESA.

We believe this ruling goes well beyond the bounds of any standing decision of this Court, and notably, neither the Government nor any amicus attempts to defend it.

If prudential considerations apply at all to actions commenced under the citizen suit provision of the ESA, they are more than satisfied by the petitioners in this case.

Their water supply contracts and the claims they alleged in their complaint place them well within any zone of interest either protected or regulated by the ESA–

And for the same reason, petitioners also have a right to review under the Administrative Procedure Act since they are persons adversely affected or aggrieved within the meaning of the relevant statute, namely, the ESA.

Finally, unless the ruling of the Ninth circuit is reversed, we believe there will be at least three farreaching and negative effects from it.

First, there will exist a prudential standing scheme under the ESA that overtly discriminates against economically based plaintiffs.

Second, because the courthouse doors will be closed to everyone except environmental plaintiffs, there will be one-sided enforcement of the ESA.

Finally, the result of that one-sided enforcement we believe will be skewed implementation of the act that continually presses the Government forward to a position of over-regulation instead of the balance sought by Congress when it has committed the act.

Sandra Day O’Connor:

Mr. Wilkinson–

Gregory K. Wilkinson:

Yes, Your Honor.

Sandra Day O’Connor:

–the Solicitor General in response apparently chooses not to address the merits, but does raise an issue about whether the petitioners have Article III standing and an issue about whether the claims are cognizable under the statutory scheme.

Were those arguments raised below in response to the motion to dismiss?

Gregory K. Wilkinson:

Justice O’Connor, the Article III arguments were raised below.

However, they were not decided by either of the courts below.

The cognizability claims in our view were never raised below, nor were they raised in the cert op. And accordingly, in our view rule–

Sandra Day O’Connor:

You mean in response to the petition on certiorari?

Gregory K. Wilkinson:

–That’s correct, yes.

And consequently, it would be our view that those cognizability issues are not properly before you.

Sandra Day O’Connor:

And do we have before us today any issue on the APA claim?

Gregory K. Wilkinson:

The APA arguments as well were not raised below in our view by the Government, and consequently also are not properly before you today.

Antonin Scalia:

Mr. Wilkinson, jurisdictional issues are always properly before us.

Antonin Scalia:

I mean, if there is no standing, we have no jurisdiction over the case.

We can surely reach the Article III issue if we want to.

Gregory K. Wilkinson:

Oh, Justice Scalia, yes, I believe you can.

I’m not intending to say that the Article III issues were not properly raised.

I believe they were and I believe the Government preserved those issues.

There’s a question, however, that may arise as to which do you get to first: the prudential issues or the Article III issues.

Our reading of the decisions of this Court indicate that while preliminary jurisdictional questions may be approached first, certainly before merits issues are to be decided, that there’s no decision of this Court which indicates which comes first.

We think there are good reasons here for dealing with the prudential questions before you reach the Article III questions.

Those were the issues resolved by the courts below.

Those were the issues that were the subject for the… of the petition of writ of certiorari and those were the issues on which certiorari was granted.

In addition, those are the issues, the prudential issues, that have split the courts of appeal, and as I think we’ve indicated in a letter to the Court, that split has only grown since cert was granted.

Antonin Scalia:

Assuming we agree with you on the prudential issues, would you want us to resolve the Article III issue or remand to have–

Gregory K. Wilkinson:

We would prefer, if you are with us on the prudential issues, that we are still in this case, that you go forward and try and resolve the Article III issues.

I think that’s particularly appropriate, in fact, in the circumstances in this case because it does arise on motions to dismiss.

And according to Lujan v. Defenders of Wildlife, at that stage of the case, the burden for a petitioner attempting to deal with Article III is a more modest one–

Sandra Day O’Connor:

–Well, now, is the Article III standing issue… does the resolution of that depend at all on who it is the petitioners sued, what agency?

Gregory K. Wilkinson:

–We don’t believe that–

Sandra Day O’Connor:

Does that enter into the calculus of the Article III standing question?

Gregory K. Wilkinson:

–No, Your Honor, it doesn’t as far as I’m concerned.

I’m not sure that I fully understand the–

Sandra Day O’Connor:

Well, apparently the suit below was not brought against the Secretary who has the final determination.

Gregory K. Wilkinson:

–Actually the suit below was brought against the Secretary.

It was named… Bruce Babbitt was named as a defendant.

Bruce Babbitt is also, apart from being the Secretary of the Interior, the cabinet official responsible for both the Fish and Wildlife Service and the Bureau of Reclamation.

It has struck us as somewhat curious, indeed, that the United States would challenge Article III standing on the basis that we had not properly joined the Bureau.

We had sued the cabinet official responsible for the Bureau.

Stephen G. Breyer:

The problem that’s bothering me… maybe I’ll set it all out… is that suppose I think this isn’t ripe, this case.

That’s the problem.

It isn’t ripe.

There was a report that you say was not properly prepared.

Stephen G. Breyer:

The report was to go to the Secretary.

When the Secretary gets it, he might act, he might not act.

If the Secretary in fact says the levels of the lake should be higher, your clients are hurt.

If the Secretary says they shouldn’t be higher and ignores the report or whatever, your clients suffered no harm.

So, it sounds to me as if this isn’t final agency action.

Well, when it is final and your client is hurt, you have a case and you bring it.

How can I decide in the abstract whether you have standing or not have standing without knowing what the Secretary is going to do–

Gregory K. Wilkinson:

Your Honor–

Stephen G. Breyer:

–and without knowing what your basis for attacking the Secretary’s action is?

I assume it would be the Secretary said the level of the lake should be higher.

That hurts our client.

He based that on a decision of the Wildlife Service or whatever and that decision is no good for the very reasons you’re saying now.

But how can I decide the standing question abstractly without knowing what your final claim would be when your clients are really about to be hurt because the Secretary says the lake level has to stay up?

Gregory K. Wilkinson:

–Let me deal first with the situation that exists in this case, and then I’ll deal with your hypothetical.

Your hypothetical is not this case, Your Honor, because in this case it was alleged that the Bureau would comply, that the Secretary would authorize the Bureau to comply with the biological opinion.

And in its merits brief, the United States admits that the Bureau indicated that it would comply.

In fact, it has complied.

So, your hypothetical differs from this case in the sense that it assumes non-compliance when in fact there is compliance.

But let me deal with the hypothetical straight up.

Ruth Bader Ginsburg:

Mr. Wilkinson, could you just clarify what you mean by comply?

You said the Secretary has complied.

Has he made an adjustment in the water level?

Gregory K. Wilkinson:

Yes, he has, Justice Ginsburg.

He has, and as a consequence of that adjustment, we lost 80 percent of our water supply.

Lands were fallowed.

People lost their jobs.

The value of property fell from hundreds of dollars per acre to $20 per acre.

Now, we didn’t have an opportunity.

This case didn’t get far enough for us to raise those issues either on a motion for summary judgment or a trial, but we are prepared to prove every one of those allegations.

Ruth Bader Ginsburg:

So, you say the ripeness question is something that needs to be aired in a court of first instance, but that you have–

Gregory K. Wilkinson:

We believe that we have satisfied in this case already, on the basis of the pleadings before you, the issue of ripeness.

Antonin Scalia:

–It can be contested later in more detail I assume.

Gregory K. Wilkinson:

Certainly, and–

Antonin Scalia:

At the summary judgment stage and at the merits stage, even more evidence can be brought in on that.

Gregory K. Wilkinson:

–That’s correct.

Antonin Scalia:

But you’re saying that at the pleading level, you’ve done all that’s needed at that point.

Gregory K. Wilkinson:

That’s correct.

John Paul Stevens:

Yes, but you just recited some facts that are not included in your pleading.

Gregory K. Wilkinson:

We never had the opportunity to raise those issues.

John Paul Stevens:

Well, but if you want… it just seems to me if you want the issue decided on the complaint as it now stands, I don’t see how you can tell us facts that are not in those things you say should be dispositive.

Gregory K. Wilkinson:

In our complaint… it’s page 40 of the petition appendix… we alleged that the restrictions on lake levels imposed in the biological opinion adversely affect plaintiffs by substantially reducing the quantity of available irrigation water.

That’s the generalized allegation of injury.

John Paul Stevens:

Yes, but the Government points out there’s no allegation that you’re going to even lose a gallon of water.

Gregory K. Wilkinson:

Well–

John Paul Stevens:

And theoretically under your pleading, all the harm could be suffered by other water users.

Gregory K. Wilkinson:

–Well, the Government is not, I’m afraid, being straight with you in terms of how this project operates.

We don’t know because we haven’t gotten the case this far, but the fact is the project operates on a pro rata distribution basis.

The project is in fact administered by the petitioner, the irrigation districts.

And what we’ve got is a situation where it really doesn’t matter in effect how the harm or the loss of water is distributed.

What we have is a situation as a result of the biological opinion that whatever amount of water is bestowed by nature, whatever amount of water is left in carryover storage and so forth, whatever amount is there, the biological opinion takes a certain amount of that from all of us and we are left to divide up what remains.

Antonin Scalia:

Did you allege that the Secretary accepted the opinion and was proceeding in accordance with the opinion.

Gregory K. Wilkinson:

We did.

Antonin Scalia:

Is that in your complaint?

Gregory K. Wilkinson:

We alleged on… this is at petition appendix–

Where and what?

Gregory K. Wilkinson:

–page 32.

Sandra Day O’Connor:

Appendix?

Gregory K. Wilkinson:

Petition appendix, page 32.

Sandra Day O’Connor:

In the blue brief you mean?

Gregory K. Wilkinson:

No, the white one, Your Honor.

No, the white.

Gregory K. Wilkinson:

Right here.

Sandra Day O’Connor:

Okay.

At page what?

32–

Gregory K. Wilkinson:

32 of the appendix to that, the very bottom of the appendix page.

We alleged on information and belief, that the Bureau of Reclamation will abide by the restrictions imposed by the biological opinion.

And in their merits brief, United States admits that in fact the Bureau of Reclamation made the decision to comply.

William H. Rehnquist:

–Well, isn’t it a general rule too that in… at the motion to dismiss stage, you interpret the allegations of a complaint to support a cause of action, if there’s any ambiguity about it?

Gregory K. Wilkinson:

In fact, you assume that they are true I believe at the motion to dismiss.

William H. Rehnquist:

Well, yes, for purposes of deciding any legal question raised by the motion to dismiss.

Gregory K. Wilkinson:

Right.

Anthony M. Kennedy:

I was wondering if you could get back to the hypothetical Justice Breyer posed.

Gregory K. Wilkinson:

I wanted to do that, Justice Kennedy.

Anthony M. Kennedy:

You were interrupted.

Gregory K. Wilkinson:

Let me see if I can recall the hypothetical.

Stephen G. Breyer:

The basic thing would be that, look, the APA… and I say the statute is similar… says that you can sue to complain about final agency action, and the final agency action in this instance, arguably, is not the action of the Fish and Wildlife Service, but rather the action, let’s say, of the Bureau of Reclamation.

And whether you put this sentence in the complaint or didn’t put it in the complaint, you are not suing to claim that the action of the Bureau of Reclamation is unlawful.

What you are suing to complain about is that the action of the report sending is unlawful.

And therefore, I wondered if it is ripe in the sense that your complaint does not attack the final agency action, namely, the action of the Bureau of Reclamation which would lower or raise or do something with the water.

That was… and I wondered how I could go at the standing question if I believed the hypothetical because standing would depend on what your argument is in respect to the final agency action which you would attack which this complaint seems not to attack.

That was–

–Before you answer that, would you incorporate please–

Gregory K. Wilkinson:

Yes.

Sandra Day O’Connor:

–whether in fact you’re relying on the APA as the source of the action or whether you can sue separately under the Endangered Species Act without reference to the final agency action requirement of APA.

Gregory K. Wilkinson:

Let me answer your question first, Justice O’Connor.

We believe we do have independent causes of action under both the Administrative Procedure Act and the citizen suit provision of the Endangered Species Act.

In fact, 1540(g)(5) of the Endangered Species Act provides for redundancy of remedy and provides that nothing in the citizen suit provision will preclude a petitioner from using other remedies as well.

And so, the Congress intended there to be a redundancy of remedy.

Justice Breyer, in response to your question, I believe I’ve answered it on the facts of this case which are that the Bureau has already agreed to comply, but let me–

My question, remember–

Gregory K. Wilkinson:

–deal with the hypothetical as you posed it.

Antonin Scalia:

–But you haven’t sued the Bureau.

Gregory K. Wilkinson:

We sued–

Antonin Scalia:

I mean, in his question is the fact that you have sued the wrong party.

The party you have sued has not taken final agency… the final agency action which would affect you.

Gregory K. Wilkinson:

–Justice Scalia, we sued Bruce Babbitt, Secretary of Interior.

If we get a decision against Bruce Babbitt, who is the cabinet Secretary responsible for the Bureau of Reclamation, we think as a practical matter, the Bureau will not differ from a decision which binds the Secretary.

And your decisions do indicate that in resolving issues of finality, you use a doctrine of practicality.

Antonin Scalia:

What is the remedy you seek?

Do you seek to get more water which would be the remedy that pertains to the final action in question, or do you seek to get a revised report?

Gregory K. Wilkinson:

We seek to get the existing report vacated and then revised in accordance with science because–

Antonin Scalia:

But that is not a remedy that will do you any good because the Secretary can look at the revised report and say, I like the other one better.

Throw away the revised report and come out with the same decision that you’re complaining about here.

Gregory K. Wilkinson:

–Well, if the Secretary is bound by this decision, I’m not sure that that would be the case.

The Secretary would presumably have to comply with the decision of the Court.

Antonin Scalia:

Which is what?

Which is simply that he consider the report, but… that he consider the new report.

But he’s fully… he’s free to reject it, isn’t he?

Gregory K. Wilkinson:

No, I don’t believe he is in fact, because he can’t operate this project without the incidental take statement that was found in the biological opinion.

The United States raised the identical argument that they are raising here in a case called Ramsey v. Kantor.

It’s not cited in any of the briefs because it came down from the Ninth Circuit about 6 weeks ago.

Clearly the Ninth Circuit does not bind you, but we believe their reasoning is persuasive here.

What they said was that when a biological opinion is issued and the biological opinion finds there to be jeopardy, that a reasonable and prudent alternative is developed.

The opinion also then includes an incidental take statement.

They said the incidental take statement… that part of the biological opinion is the functional equivalent of a permit to operate the project.

Without it, you can’t operate the project.

The Secretary, the Bureau in this case, had no possibility of doing anything other than complying with the biological opinion if it expected to receive immunity from civil, or potentially criminal, prosecution.

So, in answer to your hypothetical, Justice Breyer, yes, we believe that the biological opinion was final as of the time that it was issued and that the Bureau in fact did not really have any opportunity as a practical matter… the test you use in determining finality… to do anything other than comply.

And the United States admits in its reply brief that it’s very rare that these agencies ever deviate.

Gregory K. Wilkinson:

In fact, they never cite a single example of deviation.

Stephen G. Breyer:

That’s a very interesting answer, and really you’re saying that these reports are like environmental impact statements because environmental impact statements are preliminary to final agency action, but they are final because of the intent of an environmental impact statement which is to stop the machinery.

The problem with that answer is that all this hasn’t been argued at all because at first blush it doesn’t appear that they’re the same as environmental impact statements since they aren’t designed to stop the machinery of the bureaucracy from gearing up.

So, I find that an interesting and important response, but I just haven’t seen it fully argued.

Gregory K. Wilkinson:

Well, we would, I guess, disagree that it’s tantamount to environmental impact statement which is essentially–

Stephen G. Breyer:

I mean in the sense that it’s final by itself.

Gregory K. Wilkinson:

–This is much more of an operative document in the sense that as a practical matter, the test again that you use, you cannot operate this project without the incidental take statement in the biological opinion.

Ruth Bader Ginsburg:

Mr. Wilkinson, may I–

–Suppose that the Bureau of Reclamation said we have had a 3-year drought in the Pacific Northwest and we’re not going to be making any releases from the Clear Lake Gerber reservoir even if we have abundant rainfall for 2 more years.

Would you then have standing?

And your injury is for the next 2 years let’s say.

Gregory K. Wilkinson:

We hold contracts with the United States for water from this project.

If the Bureau’s determination or the Secretary’s determination in that circumstance was believed to be arbitrary and capricious and we would then bring a lawsuit–

Anthony M. Kennedy:

No, no.

I’m assuming that he has good grounds not to release the water.

He doesn’t have much water.

Gregory K. Wilkinson:

–I believe that in that instance we are certainly within the zone of interest regulated by the Bureau.

We are injured by the action.

It’s traceable to the Secretary, the Bureau’s decision.

Anthony M. Kennedy:

No, no.

I… maybe my hypothetical is inept.

I’m assuming that the Secretary is acting within his proper discretion based on the drought conditions.

Gregory K. Wilkinson:

Oh, all right.

Anthony M. Kennedy:

Do you still have a cause of action against the Secretary and the Fish and Wildlife Service for the improper preparation of this report?

The Secretary in my hypothetical also has this report.

He has two reasons for not giving the water.

One is what the Fish and Wildlife Service says.

The other is he doesn’t have any water anyway.

Gregory K. Wilkinson:

I guess there’s a question that arises whether the plaintiff is injured by the action of the Fish and Wildlife Service or the action of the Secretary in that circumstance.

Anthony M. Kennedy:

There has to be… in other words, there has to be some redressability.

Anthony M. Kennedy:

Footnote 7 of Lujan I think doesn’t completely say that redressability is irrelevant, does it?

Gregory K. Wilkinson:

It doesn’t say it’s irrelevant.

It does say that procedural rights are special and that normal standards for redressability and immediacy do not apply.

Now, if we look at footnote 7, the example used in footnote 7 of the Defenders decision involved the construction of a dam next to a property owner’s land, and the issue was whether the property owner could, in that circumstance, compel production of an environmental impact statement.

We think the circumstances here are very similar in the sense that we are also raising procedural violations.

This project is in our back yard.

It is critical to the operation of our farms and our businesses, and we have we believe a right to go forward on procedural arguments and–

Anthony M. Kennedy:

Well, counsel–

–And I take it you’re saying that there’s a likelihood, a reasonable possibility, that the Fish and Wildlife report will be dispositive.

Gregory K. Wilkinson:

–In the hypothetical that you have posed, it may or may not be.

In our situation it absolutely is dispositive.

Sandra Day O’Connor:

Well, counsel–

–Well, why is it dispositive?

Why–

–Yes.

I’m concerned about your suit is brought under the Endangered Species Act.

Gregory K. Wilkinson:

And the APA as well.

Sandra Day O’Connor:

As an alternative you said.

Gregory K. Wilkinson:

Correct.

Sandra Day O’Connor:

But under the Endangered Species Act, would that have anything at all to do with a reduction of water based on drought conditions?

It wouldn’t.

That isn’t an action under the ESA.

It’s an action to save endangered species, and that’s what you’re complaining about.

How does a drought and a reduction in water by the Secretary or the Government have anything to do with that?

Gregory K. Wilkinson:

Well, it doesn’t have anything to do with our case.

That’s I suppose the problem with the hypothetical.

Our case–

Sandra Day O’Connor:

Does it have anything to do at all with the Endangered Species Act if you’re complaining about a change in water level because of absence of water due to no rain?

Gregory K. Wilkinson:

–That’s not what we are complaining about, Justice O’Connor, is not an absence or a minimum lake level established to protect against drought.

What we’re dealing with in this situation was a determination by the Fish and Wildlife Service that these fish required certain minimum lake levels in order to continue to exist.

Gregory K. Wilkinson:

We don’t believe there’s any science behind that decision.

The drought had very little to do, in fact, with this opinion.

This is not a situation where if these irrigation releases had continued, the reservoirs would simply run out of water.

That wasn’t the situation at all.

Anthony M. Kennedy:

But you think there has to be some proximity, some redressability, some causation between the injury you allege, i.e., lack of receipt of the water, and the procedural default that you’re alleging under the Endangered Species Act.

Gregory K. Wilkinson:

Justice Kennedy, we believe there is that connection in this case.

The biological opinion is the thing which becomes the operating scheme, if you will, for the project.

The biological opinion is not based on the existence of a drought.

It’s based upon a determination by the Fish and Wildlife Service that certain amounts of water are necessary for the well-being of these fish.

The problem–

Ruth Bader Ginsburg:

Mr. Wilkinson.

Gregory K. Wilkinson:

–we have with that is there’s no science behind that determination.

Ruth Bader Ginsburg:

How wedded are you to attacking the Fish and Wildlife report per se?

In other words, you were cut off at the pass essentially, and when I heard the question about why didn’t you sue the Bureau of Reclamation, well, that’s an eminently fixable lack, if it is a lack at all.

And similarly, you could amend your complaint to say, yes, we’re getting at the report through the acceptance of it by the Bureau of Reclamation.

So, I’m trying to determine whether we’re just dealing with a pleading that may not be appropriate and could be amended or whether there’s some reason why you must zero in directly on the Fish and Wildlife Service report rather than reach it through the Bureau of Reclamation acceptance of it.

Gregory K. Wilkinson:

If the decision of the Ninth Circuit were to be reversed and this case remanded to the district court for further proceedings, it would be our intention, Justice Ginsburg, to amend the complaint to name the Bureau.

There’s no reason not to I suppose in these circumstances.

We don’t believe it’s necessary, but if this Court concludes to the contrary that Article III or finality or ripeness considerations require that the Bureau be named, I can assure you the Bureau would be named.

There is not any kind of policy reason I suppose for not naming the Bureau here.

We felt we had named the people that had violated the act, the people who had determined that these minimum reservoir levels were necessary for the fish, and that was enough.

If… and I believe you’re absolutely correct that this is an eminently fixable problem, if indeed it’s a problem at all.

David H. Souter:

Mr. Wilkinson, I think I understand your probability argument.

Let me just carry the redressability point one step further.

Assume that in fact there were a determination that the report was as defective as you say and therefore would not be a proper basis for the Secretary’s action as the ultimate official responsible for BOR.

Is there any reason in law why the Secretary could not at that point say simply, not that I’m worried about unusual drought conditions?

I’m simply worried about the fish, and common sense tells me that having more water in the reservoirs is going to be better for the fish and be far less likely to lead to their extinction than less water in the reservoirs.

So, report or no report, for purposes of protecting the fish, I’m simply going to keep the water level up and do exactly what I’ve done before.

Is there any legal reason… or exactly what the BOR has done before.

Is there any legal reason that the Secretary could not do that?

Gregory K. Wilkinson:

Yes, Your Honor, there is, and the legal reason is that the Endangered Species Act requires that these determinations, including the one you’ve described, be based on science, not speculation, not conjecture.

David H. Souter:

Well, but you would have a separate action in that case I understand against the Secretary, but the… would the Secretary be violating… perhaps I should have… should rephrase my question.

Would the Secretary be violating any procedural norm other than needing a scientific basis?

Gregory K. Wilkinson:

Well, he’d be violating section 7 of the act because that act requires that biological opinions be based on science.

David H. Souter:

But does he have to have a biological opinion?

In other words, does he have to make this reference to the Fish and Wildlife Service?

Gregory K. Wilkinson:

The biological opinion is the result of the consultation and that is the document that concludes–

David H. Souter:

But is the consultation required?

Gregory K. Wilkinson:

–Yes.

David H. Souter:

Does he have an option not to consult in these circumstances?

Gregory K. Wilkinson:

If consultation is… well, what happens is that a biological assessment is developed.

A consultation is sought by the action agency, if you will.

David H. Souter:

Okay, but let’s assume he doesn’t seek it and he simply says, I don’t need the Fish and Wildlife Service to tell me that more water is better for the fish.

Would he be violating any procedural norm of the act except, as you say, for failing to have a more systematically justified basis for his action?

Gregory K. Wilkinson:

Well, Justice Souter, that of course is not this case, but I presume if there were no consultation–

David H. Souter:

No, but it goes to redressability.

Gregory K. Wilkinson:

–But it does only in the sense that we’re talking about actions under the Endangered Species Act.

The Secretary might have the option to develop recommended conservation measures.

Those measures, however, are not binding on agencies such as the Bureau of Reclamation.

And since they’re not binding, the Bureau has already told us what they would be willing to do and it didn’t involve minimum reservoir levels.

So, I think that if we vacate the biological opinion here, there would be no basis for the Bureau, given what it has already said, to impose a minimum reservoir level.

David H. Souter:

So, you’re saying that this is an Endangered Species Act suit and the fact that there has been a reference in effect sets the stage for what redressability means in this circumstance.

And given the fact that there has been a reference, there has been a report, necessarily if the report, in effect, is required to be withdrawn, you will get relief.

The Secretary may turn around tomorrow morning and do something else that you don’t like–

Gregory K. Wilkinson:

Correct.

David H. Souter:

–but you’ll get relief.

Gregory K. Wilkinson:

We will be restored to the priority that we had initially.

I think I would like to reserve whatever time I have remaining.

William H. Rehnquist:

Very well, Mr. Wilkinson.

Mr. Kneedler, we’ll hear from you.

William H. Rehnquist:

Mr. Kneedler, there are two questions presented in the petition for certiorari.

One is whether the standing under the citizen suit provision of the ESA has a zone of interest test, and if it does, is it a one-sided test.

I wasn’t able to tell from the Government’s brief what the Government’s response was to either of those questions.

I hope you’ll tell us during your argument.

Edwin S. Kneedler:

Yes.

Let me answer that from the outset.

The zone of interest test or formulation, as this Court said in the Clarke decision, is ultimately traceable as a gloss on the Administrative Procedure Act when there… for determining when there’s a cause of action under the Administrative Procedure Act.

At least that’s where it originated.

So, it’s ultimately a question of statutory interpretation.

In our view the proper approach to whether there is a cause of action under the Endangered Species Act citizen suit provision in this case is also a question of statutory interpretation, not by reference to unanchored questions of zone of interest, but by reference to the specific text of the citizen suit provision that we have at issue here.

And as to that, we say that there is… the only cognizable claims under the citizen suit provisions are things for violations of the act, and as we explain in our brief, violations of the act refer to on-the-ground activities that could be engaged in by a private person or by a Federal agency with on-the-ground responsibilities equally.

In other words, the citizen suit provision for actions against any person, including the United States, includes situations in which the United States, like any person, might be taking on-the-ground activities that would adversely affect a species.

In our view it does not provide an avenue for judicial review of ordinary administrative action of a regulatory nature.

It provides for a citizen suit against those who are regulated, not the agency that is regulating.

The APA–

Antonin Scalia:

But even if that were true, the Administrative Procedure Act would provide for a suit against Government action, action that couldn’t be taken by private individuals–

Edwin S. Kneedler:

–That… that’s–

Antonin Scalia:

–but can be taken by Government so long as the individual is within the zone of interest.

Edwin S. Kneedler:

–That’s correct.

Antonin Scalia:

And if the statute requires economic considerations to be taken into account, a person who would be favored by taking them into account is certainly within the zone of interests.

Edwin S. Kneedler:

Yes, but that would be a suit under the APA.

So–

Antonin Scalia:

Which is not eliminated by the–

Edwin S. Kneedler:

–Right.

No.

In fact, the final subsection of the Endangered Species citizen suit provision here preserves other causes of action.

So, let me be clear.

Anthony M. Kennedy:

–But in short, you under the Endangered Species Act, although without talking about zone of interest, reach really the same conclusion as the Ninth Circuit, namely, that this is an act that works only one way for those who are protecting the endangered species and not for economic interests that are injured.

Edwin S. Kneedler:

That’s… violations are categorized as things that harm the species.

That’s consistent with citizen suit provisions generally.

Antonin Scalia:

Excuse me.

You’re saying the substantive provisions of the act only operate one way, but the procedural provisions of the act, those that limit the types of action that the Government can take, those provisions are subject to the APA.

Edwin S. Kneedler:

Well, yes.

I mean, there are two… the Government when it is… if the Government is operating a reclamation project or building a dam that may harm a species, in that situation it is analogous to a private party who may also be engaged in on-the-ground activities.

If it… when the Government is operating as regulator, then we think the APA is the normal cause of–

Stephen G. Breyer:

Well, I don’t understand.

Suppose that they brought the suit the way I was suggesting it would be brought.

There is an action taken by the Bureau of Reclamation to keep the lake level up.

That deprives my clients of X million square feet of water which they have a contract for and would otherwise get.

All right?

Edwin S. Kneedler:

–Right.

Stephen G. Breyer:

The reason that it is illegal, says the plaintiff, is because they received a report that was not prepared as the statute requires; i.e., it did not use the best scientific commercial and… scientific and commercial data available.

Therefore, it violated section 706 of the ESA.

Are you saying that they would not be able to pursue such a suit?

Edwin S. Kneedler:

They would bring a suit against the action agency, not against the Fish and Wildlife Service, and they would have that–

Stephen G. Breyer:

No.

That’s right.

They would bring it against the Secretary, this time saying that the Secretary’s action in keeping up the lake level is unlawful for the reason that the report did not correspond with what the statute requires.

Now, are you saying that that suit could not be brought for some reason of standing?

Edwin S. Kneedler:

–No.

No.

In that situation the suit could be brought against the Bureau of Reclamation.

But let me just clarify–

Stephen G. Breyer:

They would name the Secretary.

Is that right?

Edwin S. Kneedler:

–They would name who was ever responsible for operating the project on the ground, not whoever gave the advice.

Anthony M. Kennedy:

Could the suit be brought under the citizen suit provision of the Endangered Species Act?

Edwin S. Kneedler:

No.

In our view in this situation it would be brought under the APA.

Anthony M. Kennedy:

What is it in the Endangered Species Act that limits the ability to bring the suit that we’re hypothesizing?

Edwin S. Kneedler:

Because again in our view the citizen suit provision of the Endangered Species Act like citizen suit… other citizen suit provisions are designed to allow private persons or the Government as the plaintiff to sue whoever might be causing pollution or harming a species.

That is the origin of the citizen suit provision.

Anthony M. Kennedy:

But it doesn’t say that.

What is in the statute that leads you to–

Edwin S. Kneedler:

It’s the word violation because the word violation in our view and enforcing the act, which is another word that the citizen suit provision uses, suggests law enforcement against people who are taking actions–

Sandra Day O’Connor:

–Could we consider the language of the statute?

1540(g)(1) says, any person may commence a civil suit on his own behalf to enjoin any person, including the United States and any other Government agency, who is alleged to be in violation of any provision of this chapter.

And section 1533(b)(2) says, the Secretary shall designate critical habitat on the basis of the best scientific data available and after taking into consideration the economic impact and so on.

And here they’ve sued the Secretary, and that’s precisely what they say wasn’t done.

And that section appears to be alleged to have been violated.

Why doesn’t it fall under that citizen suit provision?

Edwin S. Kneedler:

–Justice O’Connor, there are a number of provisions… a number of aspects of the citizen suit provision which we think cut strongly the other way.

If I may.

Subparagraphs (b) and (c) specifically… on page 2a—-

Where are you reading?

Edwin S. Kneedler:

–Beginning on page 2a of the appendix to our brief, we have the entire citizen suit provision set out.

Section 7(a)(2) which imposes duties on action agencies is on the preceding page.

Seven… the citizen suit provision on page 2a in paragraph (a) says, provides for a suit to enjoin any person, including the United States or a governmental agency.

Paragraphs (b) and (c) talk about suits against the Secretary.

(b) and (c) are both for actions against the Secretary in his administrative responsibilities under the act.

The first one were some interim provisions in paragraph (b), and in paragraph (c) the only provision of the citizen suit provision that refers to section 4 of the act does it in a very precise way against the Secretary where there’s alleged failure to perform a mandatory duty under the act.

Anthony M. Kennedy:

(c) was added 8 years later?

Edwin S. Kneedler:

It was.

Sandra Day O’Connor:

Where are you reading?

Edwin S. Kneedler:

But (b) was in the original act and referred to the–

David H. Souter:

We have an act in which redundancy clearly is not a sin, and your argument basically is a redundancy kind of argument.

And I’m not sure that we should accept the redundancy premise as appropriate.

Edwin S. Kneedler:

–Well, it’s not just a question of redundancy.

It’s a question that Congress used different–

David H. Souter:

Well, redundancy plus violation, but I mean, your… one of your arguments is that on Justice O’Connor’s suggested reading, you wouldn’t need (c) there.

David H. Souter:

And it seems to me that this is an act in which redundancy doesn’t cut much.

Edwin S. Kneedler:

–Well, it’s not just the redundancy that… let me make several other points, if I may.

It’s the fact that Congress used different terminology.

When it was referring to the person who might be committing on-the-ground violations just like the private person, it used the word agency or United States.

When it was referring to the Secretary acting in his regulatory capacity, it used the word Secretary.

And back on page 1a where… which is the operative provision that the petitioners say was violated here, it says that each Federal agency shall in consultation and with the assistance of the Secretary make sure that its actions don’t cause jeopardy.

So, even in that section as well, the Congress distinguished between agencies that take on-the-ground activities and their duty to avoid jeopardy.

And this duty is imposed on the action agency, the Bureau of Reclamation.

Anthony M. Kennedy:

Suppose that the Bureau of Reclamation said, we’re not going to be releasing any water for a couple years, and the Fish and Wildlife Service said, in reliance on that, we’re not going prepare a biological report.

Would that be a violation of the act?

And an endangered species has been identified, et cetera.

Edwin S. Kneedler:

Not in itself.

I mean, what would… if the operating agency, even in that situation, thought that some aspect of its operation might affect the species, it is supposed to trigger… it is supposed to request consultation.

Anthony M. Kennedy:

But you don’t think there would be standing for someone to at least test the Fish and Wildlife Service’s refusal to prepare a biological report?

Edwin S. Kneedler:

Well, in that situation there might well be an action under the APA, 706, paragraph 1.

Anthony M. Kennedy:

No.

Let’s talk about the Endangered Species Act.

Edwin S. Kneedler:

I think there would not be, no, again for the reason that that… first of all, that’s not final agency action, and it’s part of the–

No.

Edwin S. Kneedler:

–and the Secretary’s administration of–

Anthony M. Kennedy:

No, I’m not talking about final agency.

I’m talking about whether or not there’s a suit under the Endangered Species Act citizen suit provision–

Edwin S. Kneedler:

–Right.

Anthony M. Kennedy:

–when the Fish and Wildlife Service says, despite the fact we’ve identified an endangered species, we’re not going to file a biological report.

Edwin S. Kneedler:

I believe there would not be a cause of action under the citizen suit provision for that because, again, that goes to the administration of the act.

Anthony M. Kennedy:

There’s no violation of the act?

Edwin S. Kneedler:

There’s not a violation that’s enforceable under the citizen suit provision.

I mean, there may be a failure to perform a… an obligation that the Secretary has, but again paragraph (c) of the citizen suit provision provides for suits against the Secretary to compel him to perform mandatory duties only in specific circumstances under section 4 of the act where there are certain time limitations and listing determinations, but the sort of… we think the clear implication of that–

Anthony M. Kennedy:

I’m quite amazed that the Fish and Wildlife Service could refuse to perform its duties under the act and not have a suit.

And, of course, the reason you don’t want to admit that it does is because then you can’t distinguish that between a suit brought by the plaintiffs who are positioned as the plaintiffs here are.

Edwin S. Kneedler:

–No, well, we’re not saying there’s no suit.

Again, the APA would provide… where it’s a question of administering the act, the APA is the usual way in which a plaintiff challenges a regulatory agency’s administration of the act–

Sandra Day O’Connor:

That’s right, but it’s not exclusive.

Edwin S. Kneedler:

–No, no.

Sandra Day O’Connor:

There may be a right of action under the ESA–

Edwin S. Kneedler:

Right.

No.

Sandra Day O’Connor:

–apart from APA.

Edwin S. Kneedler:

My only point goes to the question of whether the plaintiffs would be left remedyless.

And our entire submission in this case is not to try to keep resource users out of court.

We think… we do, however, think it’s important to have an orderly process about how such suits are brought.

John Paul Stevens:

Mr. Kneedler, may I interrupt?

Because I’m still interested in the answer to the question the Chief Justice asked at the very beginning about the questions presented in the… in this case.

And as I understand your argument… I may be wrong… you would answer both of the questions presented by the petition differently than the Ninth Circuit did.

Is that correct?

Edwin S. Kneedler:

On the zone of interest, we would answer it differently in the sense that we would not use the phrase, zone of interest.

We agree with its conclusion on the ground that the citizen suit provision itself is narrowed to… is confined to situations where there… where what the defendant is doing would be harming the species.

It doesn’t answer the question by reference to generalized zone of interest.

It answers the question in terms of what’s a violation that is cognizable under the act.

And, I mean, that is our central submission in this case.

And it… one related point–

John Paul Stevens:

Do you endorse the reasoning of the Ninth Circuit then?

Edwin S. Kneedler:

–Not… we–

John Paul Stevens:

They have a one-way… it’s slightly differently articulated, but it’s also a one-way construction of the statute.

Edwin S. Kneedler:

–Well, with all respect, I think one-way is an unfair characterization.

Anthony M. Kennedy:

Well, if we can characterize it, the Ninth Circuit says one-way, then yours is also one-way, is not?

Edwin S. Kneedler:

It’s one-way in the sense that, yes, the citizen suit is designed to advance the purposes of species protection just like this Court in Gwaltney says–

John Paul Stevens:

But it also, Mr. Kneedler, has very specific protections for the resource user.

Edwin S. Kneedler:

–Yes.

John Paul Stevens:

And you just read that out of the act and remit them to their remedies under the APA where, I tend to agree with you, there may not be final action under the APA.

Edwin S. Kneedler:

Yes, but let me also say if… even if the citizen suit provision were applicable to administration of the act rather than on-the-ground activities, we think it would be extraordinary for Congress in that situation to have departed from the normal rules for judicial review of agency action and specifically the final agency action point.

And this ties–

William H. Rehnquist:

But citizen suits generally depart from the traditional rules, don’t they?

Edwin S. Kneedler:

–Well, they do in a sense, but that can be overstated.

For example, the petitioners in this case specifically endorse the proposition that this Court stated in the Seaclammers case, that the citizen suit provision of the Clean Water Act, which is the foundation for this citizen suit provision, was designed to allow a right of action where that would be true under Sierra Club v. Morton.

Well, in fact, the Sierra Club v. Morton was a suit under section 10 of the APA.

It specifically discussed the zone of interest test and said that the plaintiffs there, even though they’re environmental… even though they were environmental interests being advanced, were within that zone of interest.

It was not a repudiation of the zone of interest test but an application of it.

So, when you have this citizen suit provision building on Sierra Club v. Morton, its principal thrust was that environmental interests are a sufficient basis for bringing a suit.

But there’s no… particularly against that background, there’s no suggestion that the citizen suit provision, even if it were applicable to suits against agencies and their administration of the act, was intended to depart from–

John Paul Stevens:

But you’re saying the citizen suit… just to oversimplify a little bit, you’re saying the citizen suit provision is a narrower remedy than the remedy under the APA.

Edwin S. Kneedler:

–Yes.

It addresses… and again, it’s not designed for… it’s not… it may allow broader standing where it applies, but it has a narrow application and the application is very much consistent with–

Antonin Scalia:

Is one-way.

And Congress can write a one-way statute–

Edwin S. Kneedler:

–Yes.

Antonin Scalia:

–if it wants, I presume.

Edwin S. Kneedler:

It can.

And it was addressing a harm that any person, including the United States, might engage in not the special expertise–

Antonin Scalia:

But your position is that the citizen suit provision just changes that one aspect of the APA which deals with zone of interests and only as to certain people, namely, those who are complaining about environmental harm.

Edwin S. Kneedler:

–That’s correct.

Antonin Scalia:

And the APA contains a provision, doesn’t it, although I think it’s rarely cited, that it shall not be superseded except… unless explicitly.

Edwin S. Kneedler:

That’s correct.

Antonin Scalia:

So, all of the other provisions would certainly continue to apply, at least where there’s no direct conflict.

Edwin S. Kneedler:

That’s right.

I’d like to make one other point that ties in here.

The petitioners in their reply brief had suggested that this Court resolve the Article III standing question, and we argued in our brief that there is no causation and redressability for much the same reason we’ve talked about, that they sued the wrong agency, sued the Fish and Wildlife Service for its advice rather than the Bureau of Reclamation for what it actually did.

That ties directly into our final agency action point.

Antonin Scalia:

They claimed in their complaint that there was causality, and this was dismissed without any further investigation.

They said that there was.

Edwin S. Kneedler:

Right.

Antonin Scalia:

Upon information and belief, they said that he would follow it.

Edwin S. Kneedler:

Our point is not one of fact.

It’s one of law, and it ties directly into our final agency action point.

Antonin Scalia:

Well, excuse me.

I don’t understand that.

Causality is a question of fact, not of law.

Edwin S. Kneedler:

Well, I think it’s a mixed question.

In the opinion for the plurality in Lujan v. Defenders of Wildlife where redressability was discussed, the four-Justice plurality in that part of the opinion focused on the fact that the action taken by the Fish and Wildlife Service in interpreting the regulation or stating when consultation was necessary was not binding on the other agency, the action agency.

And for that reason, there was an absence of redressability.

And that was not a factual question in our view.

Antonin Scalia:

But there was no allegation in that complaint.

I don’t even remember whether Lujan came up at the pleading stage.

It was at the summary judgment stage rather than pleading?

Which is quite different.

And there was no allegation in Lujan that there was this causality, that the agency had determined to follow this report.

That would have made it a totally different ball game.

Edwin S. Kneedler:

But let… if I may make the other half of the argument I’m making is the problems with that, exactly how close a connection there has to be, are completely taken care of if the Court simply adheres to the normal final agency action rule.

Anthony M. Kennedy:

Well, but if… let’s assume we disagree with you with reference to your one-way interpretation of the Endangered Species Act.

And incidentally, I think we should be very cautious about receiving an argument that destroys the usual neutrality that we think underlies the rule of law in this country.

But you’re arguing for this one-way provision.

Now, let’s assume that we disagree with you upon that.

Isn’t there a likelihood… a likelihood, a very real likelihood… there of economic injury based on the Fish and Wildlife Service report?

Edwin S. Kneedler:

As a practical matter, there may well be.

That’s not our–

Anthony M. Kennedy:

But isn’t that really the core of the inquiry we make under redressability when we’re determining Article III standing?

Edwin S. Kneedler:

–Well, I think not.

I think where there is an intervening action by a third party, as there was in Simon v. Eastern Kentucky Welfare or in this Court’s decision in Franklin where there’s intervening action by the President, it’s not sufficient.

In fact, in Franklin there had never been an instance in which the President had failed to follow the recommendation–

Anthony M. Kennedy:

No, but we said there was Article III standing in Franklin.

Anthony M. Kennedy:

We found there was no final agency action, but we said there was Article III standing.

Edwin S. Kneedler:

–On the… only on the constitutional question, but–

Anthony M. Kennedy:

But that’s what we’re talking about.

You keep wanting to talk about the APA.

I’m talking about the Endangered Species Act.

As I take it, your point is that a FTC staff recommendation does not become final agency action simply because the commission itself always follows it.

Edwin S. Kneedler:

–That’s exactly correct.

For… to use another example in the internal operations of the Government, if the Secretary of another Department asks the Attorney General for a legal opinion and the Attorney General writes a legal opinion, I think it’s safe to say that almost invariably, if not invariably, the other agency would follow it.

But that doesn’t mean that the suit would lie against the Attorney General.

Antonin Scalia:

But I’m still not certain–

–Suppose the agency has taken the action, as is alleged here.

It is alleged that the agency is proceeding according to this report.

Once it has, is it not proper to question under the APA the adequacy of the factual bases on which the agency took that action, including in this case the report?

Edwin S. Kneedler:

Absolutely, in the suit against the action agency.

The advice… the recommendation becomes part of the record that the Bureau of Reclamation acts upon, but at that point it doesn’t make the recommendation final agency action.

The recommendation remains a recommendation and gets acted upon, along with whatever else the Bureau of Reclamation may have in its files that would influence the way in which–

Stephen G. Breyer:

I see that part.

The part that I’m finding difficult to follow is let’s imagine my suit.

I sue the Bureau of Reclamation.

That’s the ground agency.

Right?

Edwin S. Kneedler:

–yes.

Stephen G. Breyer:

And the reason I sue them is because they issued an order to keep the water up.

That’s a final action.

Right?

Edwin S. Kneedler:

Yes.

Stephen G. Breyer:

And I allege in my Endangered Species Act complaint as a person who is asking for an injunction or the setting aside of this final agency order by another Government person.

The judge says, why is it illegal?

And I say, the reason that it’s illegal is because it didn’t comply with section 7(a)(2) of the ESA because it did not rest upon the, quote, best scientific and commercial data available.

Now, there.

Stephen G. Breyer:

I have standing.

I’m hurt.

I’m complaining about a final action, and I have a reason that under the law was not complied with.

Now, are you saying I cannot bring that action, and if not, why not?

Edwin S. Kneedler:

Okay.

There are two situations in which you might sue the action agency.

If the action agency is… if the Bureau of Reclamation reduced the water and it might have harmed the species, there’s unquestionably a cause of action under the citizen suit provision.

Stephen G. Breyer:

Raised the water.

Edwin S. Kneedler:

If the water is raised, there’s no general proposition in the Endangered Species Act that requires the action agency to take only the minimum amount of action necessary in order to protect the endangered species.

It could, not just for endangered species concerns or because it wanted to add… have an extra layer of caution–

Stephen G. Breyer:

Why did they put in those words, best scientific and commercial data?

Because they could have said raise the water for any reason you want.

Edwin S. Kneedler:

–The background of that provision when it was enacted in ’79 indicates that that was put in there so that the agency would not feel it had to hold up doing anything at all until it had perfect information.

Antonin Scalia:

Just like the EPA.

Even though you get a wonderful environmental report, the agency isn’t bound by the conclusion of that report so long as it has been done properly.

It’s free to proceed on its best judgment.

Edwin S. Kneedler:

That’s–

Antonin Scalia:

And you’re saying that’s the same with this biological report here.

Edwin S. Kneedler:

–That’s exactly right.

The Bureau of Reclamation may have other evidence–

William H. Rehnquist:

So, you are saying it’s just like an environmental impact statement.

Edwin S. Kneedler:

–Yes.

William H. Rehnquist:

In other words, the agency must get it before it acts, but it may totally ignore it.

Edwin S. Kneedler:

Well–

William H. Rehnquist:

Does that make any sense?

[Laughter]

Edwin S. Kneedler:

–The sense of the act is that the… and experience shows that the action agency relies upon the biological opinion.

Most action–

William H. Rehnquist:

But they don’t have to.

Edwin S. Kneedler:

–They don’t, and that’s our point.

Edwin S. Kneedler:

They don’t legally have to.

And in fact, they may–

Antonin Scalia:

But they have to get one.

Edwin S. Kneedler:

–They have to get one.

Antonin Scalia:

They have to get a good one just as an agency has to get an environmental impact statement, and if it hasn’t gotten a good one, if it has gotten one that’s been done on the cheap or one that’s a sham, they’re in violation of the act.

Isn’t that right?

Edwin S. Kneedler:

No.

The action agency simply has to consult.

The duty to prepare a comprehensive biological opinion is a duty owed by the consulting agency to the action agency.

Antonin Scalia:

Yes.

That’s the Fish and Wildlife Service, and that’s the one agency you say that can’t be sued.

Edwin S. Kneedler:

Well, but that’s… when you have a question of internal deliberations between two Government agencies and a statute that tells an agency, before you take certain action, talk to the Attorney General, it would be odd to say you can sue the Attorney General because of the advice that he gave to the action agency.

John Paul Stevens:

Let me ask you this just as a proposition of administrative law, and I guess it would be under either the APA or the Endangered Species Act.

Suppose that the Bureau of Reclamation gets the biological report from the Fish and Wildlife Service.

Could it not say that we’re not sure that it took into account the best scientific evidence, but we think it’s reasonably close, and in our best judgment it’s an adequate report?

Can it say that?

Edwin S. Kneedler:

Yes.

John Paul Stevens:

If it says that, then if an aggrieved person under the APA feels that the act… feels that the report is inadequate, does he sue the Bureau of Reclamation?

Edwin S. Kneedler:

Yes, and the–

John Paul Stevens:

And what does he allege?

Edwin S. Kneedler:

–He alleges that the decision was arbitrary and capricious, and that’s the standard under the APA or the ESA.

The same substantive standard of review applies.

He would say that the decision of the Bureau of Reclamation was arbitrary and capricious because it was not adequately supported by the administrative record.

Antonin Scalia:

And there’s no way anybody can get an accurate biological report.

Nobody can compel this agency to give an adequate biological report is what you’re saying.

Nobody.

Edwin S. Kneedler:

I think no private person.

Antonin Scalia:

No private person.

Edwin S. Kneedler:

I believe that’s–

Antonin Scalia:

Just the Secretary.

Edwin S. Kneedler:

–I believe that’s correct, but what… the way… let me retreat from that just to this extent.

Antonin Scalia:

I hope you will.

[Laughter]

Edwin S. Kneedler:

What would be done is that the plaintiff would sue the Bureau of Reclamation and said… and say, you proceeded without an adequate basis.

And if the allegation was you proceeded with a report that was… that didn’t rise to the minimum necessary to be a biological opinion under section 7, you have to set aside your agency action and you, Bureau of Reclamation, can’t proceed unless you get a more complete biological opinion.

Antonin Scalia:

It’s just the way it works with an environmental impact statement.

Edwin S. Kneedler:

That’s exactly right, but the suit is not directly against the Fish and Wildlife Service.

It’s still always a suit set aside–

Antonin Scalia:

Well, this one isn’t either.

This one isn’t either.

I mean, this one is against the Secretary, which includes everybody.

Edwin S. Kneedler:

–Yes, but the Secretary was only sued in his capacity to… as the person making jeopardy determinations.

He was not sued in his capacity in running the Bureau of Reclamation.

And the relief sought was to withdraw the biological opinion, not to have the Secretary take other action with respect to the raising or lowering of water.

Antonin Scalia:

But you’re saying withdrawing the biological opinion is indeed relief that can be sought.

If you say you proceeded without an adequate biological opinion, you say you can get a judgment requiring the Secretary to get a proper biological opinion.

Edwin S. Kneedler:

No.

Technically what you would get is a judgment saying you can’t go forward with the action unless you get an adequate biological opinion.

It would be full and complete relief because the Secretary would have to proceed on the basis of something else.

But I’d like to tie our position too into something Justice Kennedy was asking about, the interrelationship of the water situation in the area to the Endangered Species Act concerns.

There can also be questions of the contract rights that these plaintiffs have.

All of that ties into the standing question.

All of that ties into the substantive right of what contract rights they have, what Bureau of Reclamation statutes–

Anthony M. Kennedy:

What about footnote 7 in Lujan which seems to indicate that standing requirements are somewhat relaxed when it’s a procedural attack?

Edwin S. Kneedler:

–Well, in that situation we think you still have to be alleging a concrete injury to yourself and you have to be alleging that the… it at least has to be true that if you… in the sort of suit I was describing to Justice Scalia, if you set aside the agency action, to have the procedural measure taken.

That would be adequate Article III standing.

We’re not suggesting to the contrary.

Our point here has been on causation and redressability.

Stephen G. Breyer:

What about the word arguably?

Do you remember the word arguably?

Edwin S. Kneedler:

In the zone of interest?

Stephen G. Breyer:

In data processing.

Right.

When we go through all this, isn’t it at least arguable that that scientific data provision and so forth covers… isn’t their claim at least arguable in that respect?

Edwin S. Kneedler:

It may be, but again we think in this situation if they’re claiming that the Bureau of Reclamation is not giving them enough water, that arises directly under the reclamation laws and their contracts.

And they can say that… when the Bureau says our defense is the biological opinion and other information we have, then they could say, well, that’s not an adequate biological report because it doesn’t have the best scientific evidence in it.

So, we’re not saying that they can’t make arguments about scientific adequacy.

Anthony M. Kennedy:

But footnote 7 of Lujan talks about redressability.

You answered my question and said, oh, well, we’re talking about redressability.

Footnote 7 says the standards are relaxed even with reference to redressability.

Edwin S. Kneedler:

But it is always I think necessary–

Anthony M. Kennedy:

So, it seems to me not a proper argument to say, well, I’m talking about redressability.

That’s what it–

Edwin S. Kneedler:

–Well, in the EIS situation, for example, the harm is redressed if the dam is going forward and your claim is there’s an inadequate–

William H. Rehnquist:

–I think you’ve answered the question, Mr. Kneedler.

Mr. Wilkinson, you have 1 minute remaining.

Gregory K. Wilkinson:

Thank you, Your Honor.

Simply put, Congress made no distinction between environmental plaintiffs and resource user plaintiffs when it provided for citizen suit review and APA review.

It simply used the term, any person.

All we are asking this Court to do is follow the plain language of the statute.

If you do that, it renders completely unnecessary this arcane, artificial review process that the Government is proposing where you have to sue an agency that didn’t propose the opinion, didn’t have the expertise, and may in fact disagree with it internally.

Antonin Scalia:

You mean the archaic procedure that’s used everywhere else in the Government.

Right?

[Laughter]

Except in this one statute.

Gregory K. Wilkinson:

Not in this statute, Your Honor, it isn’t used.

The opinion that was issued in this case was more than just a legal opinion.

It was in fact an operating plan for the project.

The Bureau–

William H. Rehnquist:

Thank you, Mr. Wilkinson.

William H. Rehnquist:

The case is submitted.