FOR IMMEDIATE RELEASE
NEWS ADVISORY
August 15, 2017
Steve Marshall
For More Information, contact:
Mike Lewis (334) 353-2199
Alabama Attorney General
Joy Patterson (334) 242-7491
Page 1 of 2
ATTORNEY GENERAL STEVE MARSHALL LEADS 18-STATE COALITION
CALLING ON U.S. SUPREME COURT TO OPPOSE NEW, OVERLY BROAD
DEFINITION OF CRITICAL HABITAT
(MONTGOMERY) – Alabama Attorney General Steve Marshall is leading 17 other attorneys
general in filing an amicus brief before the U.S. Supreme Court opposing federal efforts to
impose an overly broad definition of critical habitat for endangered species to include areas
where the species do not and cannot live.
“Under President Obama, the federal government vastly expanded the definition of what
constitutes a critical habitat, going even beyond the boundaries of what is considered habitable
for an endangered species, to include areas that may never be inhabitable by that species,” said
Attorney General Marshall. “The result is an unprecedented and costly land grab.
“If federal bureaucrats are allowed to designate land as critical habitat for a species even though
that species does not and cannot live on the land, then there is no limit to areas they can claim.
The results could be grave for Alabama’s agriculture, timber and mining industries, to name a
few.”
Attorney General Marshall and the 17 other attorneys general asked that the U.S. Supreme
Court overturn a recent decision by the U.S. Fifth Circuit Court of Appeals that upheld and
expanded the ability of the federal government to redefine critical habitat areas. They further
argued that the federal court ruling actually violates the Endangered Species Act’s own
limitations on the designation of unoccupied land as critical habitat.
“If the (Interior) Secretary finds occupied areas are insufficient for conservation, he may
designate any unoccupied areas as critical habitat regardless of whether the area is or ever will
be habitable by the species. Under the Fifth Circuit’s reasoning, although the Secretary must
show areas where the species is present have all physical and biological features essential to
conservation, no such showing is required for unoccupied lands.”
In a related case, 18 states, including Alabama, sued the National Marine Fisheries Service, the
U.S. Fish and Wildlife Service, and the Secretaries of the Interior and Commerce, to challenge
the rules in November. The Obama administration filed a motion to dismiss this lawsuit on
January 13, 2017.
(More)
501 Washington Avenue * Montgomery, AL 36104 * (334) 242-7300
www.ago.alabama.gov Page 2 of 2
Joining Alabama in filing the amicus brief before the U.S. Supreme Court are Alaska, Arkansas,
Georgia, Idaho, Kansas, Louisiana, Michigan, Nebraska, Nevada, North Dakota, Ohio,
Oklahoma, South Carolina, South Dakota, Utah, West Virginia and Wisconsin.
A copy of the 17-page filing is attached to this release.
–30–
Nos. 17-71 and 17-74
In the
Supreme Court of the United States
————-?————-
WEYERHAEUSER COMPANY,
Petitioner,
v.
UNITED STATES FISH AND WILDLIFE SERVICE, ET AL.,
Respondents.
MARKLE INTERESTS, LLC, ET AL.,
Petitioners,
v.
UNITED STATES FISH AND WILDLIFE SERVICE, ET AL.,
Respondents.
————-?————-
On Petitions for Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit
————-?————-
BRIEF OF ALABAMA AND 17 ADDITIONAL STATES
AS AMICI CURIAE IN SUPPORT OF PETITIONERS
————-?————-
STEVE MARSHALL
Ala. Attorney General
Andrew L. Brasher*
Solicitor General
OFFICE OF ALA. ATT’Y GEN.
501 Washington Avenue
Montgomery, AL 36130
(334) 242-7300
abrasher@ago.state.al.us
*Counsel of Record
August 14, 2017 Counsel for Amici Curiae
i
QUESTIONS PRESENTED
This amicus brief addresses the following two
questions presented:
- Whether the Endangered Species Act prohibits
designation of private land as unoccupied critical
habitat that is neither habitat nor essential to species
conservation. - Whether an agency decision not to exclude an
area from critical habitat because of the economic
impact of designation is subject to judicial review.
ii
TABLE OF CONTENTS
Questions Presented …………………………………………… i
Table of Contents ………………………………………………. ii
Table of Authorities …………………………………………… iii
Interest of Amici Curiae ………………………………………. 1
Introduction and Summary of the Argument ………… 2
Reasons for Granting the Petition ………………………… 3
I. The Fifth Circuit’s expansive definition of
the word “essential” ignores the plain text of
the Endangered Species Act. …………………………… 3
II. The Fifth Circuit’s holding that habitat
exclusion decisions are nonreviewable
contradicts Bennett v. Spear. ………………………….. 4
III.Critical-habitat designations have
significant financial effects on States and
private parties. ………………………………………………. 8
Conclusion ……………………………………………………….. 11
iii
TABLE OF AUTHORITIES
Cases
Alabama ex rel. Strange v. Nat’l Marine
Fisheries Serv., No. 16-cv-593 (S.D. Ala.) …………..1
Ariz. Cattle Growers’ Ass’n v. Salazar, 606
F.3d 1160 (9th Cir. 2010) ………………………………….3
Bear Valley Mut. Water Co., 790 F.3d at 989) ………..6
Bennett v. Spear, 520 U.S. 154 (1997) …………… 2, 6, 7
Cape Hatteras Access Pres. All. v. U.S. Dep’t of
Interior, 344 F. Supp. 2d 108 (D.D.C. 2004) ……….3
Dickson v. Sec’y of Def., 68 F.3d 1396 (D.C. Cir.
1995) ………………………………………………………………6
Heckler v. Chaney, 470 U.S. 821 (1985) …………………7
Michigan v. Envtl. Prot. Agency, 135 S. Ct.
2699 (2015) …………………………………………………. 8, 9
Sec. & Exch. Comm’n v. Chenery Corp., 318
U.S. 80 (1943) ………………………………………………….6
Tennessee Valley Authority v. Hill, 437 U.S.
153 (1978) ……………………………………………………….9
Statutes
5 U.S.C. ß 701 …………………………………………………….. 5
16 U.S.C. ß 1532 ………………………………………………… 3
16 U.S.C. ß 1533 …………………………………………….. 5, 6
16 U.S.C. ß 1540 …………………………………………………. 6
Other Authorities
77 Fed. Reg. at 35,140 …………………………………………2
iv
Andrew J. Turner & Kerry L. McGrath, A
Wider View of the Impacts of Critical Habitat
Designation A Comment on Critical Habitat
and the Challenge of Regulating Small
Harms, 43 ENVTL. L. REP. NEWS & ANALYSIS
10678 (2013) ……………………………………………………9
Arizona Cattle Growers’ Association v.
Salazar: Does the Endangered Species Act
Really Give A Hoot About the Public Interest
It “Claims” to Protect?, 22 VILL. ENVTL. L.J.
259 (2011) ……………………………………………………….8
Reid Wilson, Western States Worry Decision On
Bird’s Fate Could Cost Billions In
Development, WASH. POST (May 11, 2014) ……. 8, 10
Sam Batkins & Ben Gitis, The Cumulative
Impact of Regulatory Cost Burdens on
Employment, AM. ACTION FORUM (May 8,
2014) ………………………………………………………………9
Rules
S. Ct. Rule 37.2(a) ………………………………………………. 1
1
1
INTEREST OF AMICI CURIAE
The amici States are deeply concerned that the
Fifth Circuit’s expansive reading of the Endangered
Species Act strips the statute of the express
limitations that Congress imposed on the United
States Fish and Wildlife Service with regard to the
designation of “critical habitat.” Last year, eighteen
States, including these amici, challenged two new
rules that expressly authorized the unlawful method
of critical-habitat designation the Service followed in
this case. See Alabama ex rel. Strange v. Nat’l Marine
Fisheries Serv., No. 16-cv-593 (S.D. Ala.).
Even if those new rules are repealed, the Fifth
Circuit’s expansive reading of the existing rules and
statute will impose significant costs on the States.
Critical habitat determinations have serious
consequences for the economic and ecological interests
of the States. Designations of critical habitat that go
beyond what the statute allows cost jobs and tax
revenue, while the States’ efforts to comply with these
designations often require the expenditure of
taxpayer funds.
The States have a profound interest in
maintaining the delicate balance Congress struck in
the ESA between ensuring the recovery of listed
species and protecting the private property rights of
citizens and the sovereign interests of the States. The
opinion of the Fifth Circuit upsets that balance, and
this Court should grant the petition as a result.
1
Consistent with Rule 37.2(a), the amici States provided notice
to the parties’ attorneys more than ten days in advance of filing.
2
INTRODUCTION AND SUMMARY OF THE
ARGUMENT
The Fifth Circuit’s decision on review in cases No.
17-71 and No. 17-74 raises questions of exceptional
importance and is inconsistent with both the
statutory text and the Court’s precedent. Over a
strong dissent by Judge Owen, the Fifth Circuit
upheld a designation of land that was unoccupied and
uninhabitable by the dusky gopher frog as a “critical
habitat” for that frog. That circuit denied rehearing
en banc over a dissent by six judges who contended
that the panel’s decision violated the statute and that
“the ramifications of this decision for national land
use regulation and for judicial review of agency action
cannot be underestimated.” Weyerhaeuser Pet. App.
126a. The Court should grant the petition and reverse
this expansive and costly decision.
The Court should grant the petitions in these two
cases for three reasons. First, contrary to the plain
language of the Endangered Species Act, the Fifth
Circuit’s “unprecedented and sweeping” decision
would allow the Government to declare land
“essential” to the conservation of a species even if that
land is not and may never be habitable by that
species. Weyerhaeuser Pet. App. 50a. Second,
contrary to the Court’s decision in Bennett v. Spear,
520 U.S. 154 (1997), the Fifth Circuit declared certain
critical habitat findings immune from judicial review.
Third, the Service’s designation could impose up to
$34 million costs on landowners while providing only
speculative conservation benefits. Weyerhaeuser Pet.
App. 129a (citing 77 Fed. Reg. at 35,140).
3
REASONS FOR GRANTING THE PETITION
I. The Fifth Circuit’s expansive definition of
the word “essential” ignores the plain text of
the Endangered Species Act.
The Fifth Circuit’s decision gives the United
States Fish and Wildlife Service unfettered reign to
declare areas that are unsuitable for endangered
species nevertheless “essential” to their conservation.
The plain text of the Endangered Species Act
imposes more stringent requirements on the
designation of unoccupied land as critical habitat than
on the designation of occupied land. That act defines
critical habitat as areas occupied by the species “on
which are found those physical or biological features
(I) essential to the conservation of the species and (II)
which may require special management
considerations or protection.” 16 U.S.C. ß 1532
(5)(A)(i). Unoccupied areas trigger an additional
requirement – the Secretary must determine that
“such areas are essential for the conservation of the
species.” 16 U.S.C. ß 1532(5)(A)(ii). As other courts
have noted, the statute imposes “a more onerous
procedure on the designation of unoccupied areas.”
Ariz. Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160,
1163 (9th Cir. 2010); Cape Hatteras Access Pres. All.
v. U.S. Dep’t of Interior, 344 F. Supp. 2d 108, 119
(D.D.C. 2004) (“Thus, both occupied and unoccupied
areas may become critical habitat, but, with
unoccupied areas, it is not enough that the area’s
features be essential to conservation, the area itself
must be essential.”).
The Fifth Circuit’s decision flips this reasoning on
its head. Rather than reading “essential for the
conservation of the species” as an additional
4
requirement, the Fifth Circuit lowered the bar for
designating unoccupied habitat. If the Secretary finds
occupied areas are insufficient for conservation, he
may designate any unoccupied area as critical
habitat, regardless of whether the area is or ever will
be habitable by the species. Under the Fifth Circuit’s
reasoning, although the Secretary must show that
areas where the species is present have all physical and
biological features essential to conservation, no such
showing is required for unoccupied lands. See
Weyerhaeuser Pet. App. 23a.
Thus, the panel’s decision strips the word
“essential” of all meaning, declaring habitat essential
to conservation even if a species would immediately
die if moved there. A desert could be critical habitat
for a fish, a barren, rocky field critical habitat for an
alligator. As Judge Owen noted in her dissent from
the panel’s decision, this “interpretation of ‘essential’
means that virtually any part of the United States
could be designated as ‘critical habitat’ for any given
endangered species so long as the property could be
modified in a way that would support introduction
and subsequent conservation of the species on it.”
Weyerhaeuser Pet. App. 54a.
II. The Fifth Circuit’s holding that habitat
exclusion decisions are nonreviewable
contradicts Bennett v. Spear.
The Fifth Circuit also erred in declaring certain
critical habitat decisions immune from judicial
challenge. Congress, recognizing the significant
economic and environmental impacts critical habitat
designations entail, amended the Endangered Species
5
Act to include a mandatory cost-benefit analysis of
critical habitat decisions:
The Secretary shall designate critical
habitat . . . on the basis of the best
scientific data available and after
taking into consideration the economic
impact, the impact on national security,
and any other relevant impact, of
specifying any particular area as critical
habitat. The Secretary may exclude any
area from critical habitat if he
determines that the benefits of such
exclusion outweigh the benefits of
specifying such area as part of the
critical habitat, unless he determines,
based on the best scientific and
commercial data available, that the
failure to designate such area as critical
habitat will result in the extinction of
the species concerned.
16 U.S.C. ß 1533(b)(2).
The panel found these decisions nonreviewable
because the Administrative Procedure Act forbids
judicial review of choices “committed to agency
discretion by law.” 5 U.S.C. ß 701(a)(2). The panel
explained, “[Section 1533(b)(2)] establishes a
discretionary process by which the Service may
exclude areas from designation, but it does not
articulate any standard governing when the Service
must exclude an area from designation.”
6
Weyerhaeuser Pet. App. 35a (citing Bear Valley Mut.
Water Co., 790 F.3d at 989).
But the Court has rejected that argument. In
Bennett v. Spear. 520 U.S. 154 (1997), the Court held
that ß 1533(b)(2) decisions are not immune from
judicial review. Bennett involved the Endangered
Species Act’s citizen-suit provision. Like the
Administrative Procedure Act, it precludes challenges
to decisions that are “discretionary with the
Secretary.” 16 U.S.C. ß 1540(g)(1)(C). In Bennett, the
Government sought to dismiss the underlying action
on the basis that the duties of ß 1533(b)(2) are
discretionary and thus nonreviewable. 520 U.S. at
- The Court rejected that argument: “[T]he terms
of ß 1533(b)(2) are plainly those of obligation rather
than discretion . . . .” Id.
The Court found Section 1533(b)(2) decisions
reviewable, notwithstanding the discretion granted
by the “may” clause. The Court explained, “[T]he fact
that the Secretary’s ultimate decision is reviewable
only for abuse of discretion does not alter the
categorical requirement that, in arriving at his
decision, he ‘tak[e] into consideration the economic
impact, and any other relevant impact,’ and use ‘the
best scientific data available.'” Id. (quoting 16 U.S.C.
ß 1533 (b)(2)). On this point the Court was emphatic:
“It is rudimentary administrative law that discretion
as to the substance of the ultimate decision does not
confer discretion to ignore the required procedures of
decisionmaking.” Id. (citing Sec. & Exch. Comm’n v.
Chenery Corp., 318 U.S. 80, 94-95 (1943)); see also
Dickson v. Sec’y of Def., 68 F.3d 1396, 1401 (D.C. Cir.
1995) (explaining that the use of “a permissive term
such as ‘may’ rather than a mandatory term such as
7
‘shall,’ . . . suggests that Congress intends to confer
some discretion on the agency, and that courts should
accordingly show deference to the agency’s
determination” but that “such language does not
mean the matter is committed exclusively to agency
discretion.”). Thus, the Court concluded that a
“ß 1533 claim is reviewable.” Bennett, 520 U.S. at 172.
The lower court did not examine the reviewability
question in light of Bennett, mentioning the case only
once in passing. The Fifth Circuit’s failure to conduct
any kind of searching inquiry into the application of
Bennett to this case underscores the need for the
Court’s review. The decision to designate critical
habitat and the decision to exclude certain areas from
that designation have far-reaching implications. In
both instances, the Secretary is exercising the coercive
power of the government over private property. When
the Secretary abuses her discretion, the courts must
have the power to correct that overreach.
In refusing even to consider whether the
Secretary overreached, the panel relied on the Court’s
decision in Heckler v. Chaney, the leading case on
nonreviewability. 470 U.S. 821 (1985). In finding
nonreviewable an agency’s decision not to employ its
prosecutorial powers, the Heckler Court noted that an
agency “generally does not exercise its coercive
power . . . and thus does not infringe upon areas that
courts often are called upon to protect” when it refuses
to act. Id. at 832. But when the Secretary refuses to
exclude areas from a critical habitat designation, she
is not refusing to act in the sense used by the Heckler
Court. Rather, she is exercising her coercive power to
the fullest. When she does so, her action touches upon
the most basic property rights of those within the
8
critical habitat designation. Although the
Endangered Species Act is “a noble effort,” it is one
that has “the ability to ruin individuals’ lives . . .
[M]ost Americans do not realize that hundreds of
thousands of rural citizens face the potential loss of
their livelihoods stemming from FWS designations of
[critical habitat] under the ESA.” Matthew Groban,
Arizona Cattle Growers’ Association v. Salazar: Does
the Endangered Species Act Really Give A Hoot About
the Public Interest It “Claims” to Protect?, 22 VILL.
ENVTL. L.J. 259, 279 (2011). It also has costs for the
States, both in reduced tax revenue and jobs lost. See
Reid Wilson, Western States Worry Decision On Bird’s
Fate Could Cost Billions In Development, WASH. POST
2
(May 11, 2014).
The Secretary cannot ignore these costs or impose
them without a commensurate benefit. As the Court
has found, it is inherently irrational “to impose
billions of dollars in economic costs in return for a few
dollars in health or environmental benefits.”
Michigan v. Envtl. Prot. Agency, 135 S. Ct. 2699, 2701
(2015). The decision of the Fifth Circuit allows the
Secretary to do just that, with no recourse to the
courts.
III. Critical-habitat designations have
significant financial effects on States and
private parties.
Even when critical-habitat designations benefit a
species, they also come with a cost. “Consideration of
cost reflects the understanding that reasonable
2
https://www.
washingtonpost.com/blogs/govbeat/wp/2014/05/11/western-
states-worry-decision-on-birds-fate-could-cost-billions-in-
development/.
9
regulation ordinarily requires paying attention to the
advantages and the disadvantages of agency
decisions.” Michigan, 135 S. Ct. at 2707. In the
context of the Endangered Species Act, it is beyond
dispute that “[c]onsiderable regulatory burdens and
corresponding economic costs are borne by
landowners, companies, state and local governments,
and other entities as a result of critical habitat
designation.” Andrew J. Turner & Kerry L. McGrath,
A Wider View of the Impacts of Critical Habitat
Designation A Comment on Critical Habitat and the
Challenge of Regulating Small Harms, 43 ENVTL. L.
REP. NEWS & ANALYSIS 10678, 10680 (2013). For
example, the Court’s first major decision examining
that act, Tennessee Valley Authority v. Hill, resulted
in the suspension of a dam-building project that was
80 percent complete and for which Congress had spent
more than $100 million of taxpayer money. 437 U.S.
153, 172 (1978).
It was a harbinger of things to come. Critical
habitat designations, by their very nature, limit
human activity. That limitation almost always
results in a lost economic opportunity. The impact
ripples through the economy; in an average industry,
every billion dollars in regulatory costs results in a
loss of over 8,000 jobs. Sam Batkins & Ben Gitis, The
Cumulative Impact of Regulatory Cost Burdens on
3
Employment, AM. ACTION FORUM (May 8, 2014). As
a consequence, States also suffer a subsequent loss of
tax revenue, both as a result of reduced employment
as well as foreclosed industrial and recreational use of
areas designated critical habitat. For instance,
3
http://www.americanactionforum.org/research/the-cumulative-
impact-of-regulatory-cost-burdens-on-employment/.
10
proposals to conserve the sage grouse “could cost up to
31,000 jobs, up to $5.6 billion in annual economic
activity and more than $262 million in lost state and
local revenue every year . . . .” Reid Wilson, Western
States Worry Decision On Bird’s Fate Could Cost
4
Billions In Development, WASH. POST (May 11, 2014).
And, in the case below, as Judge Jones observed in her
dissent from denial of rehearing en banc, “One
shocking fact is that the landowners could suffer up to
$34 million in economic impact. Another shocking
fact is that there is virtually noting on the other side
of the economic ledger.” Weyerhaeuser Pet. App. 158a
(citation omitted). Not to mention, it is uncontested
that the dusky gopher frog could not survive in Unit
1 – its “critical habitat.” See Weyerhaeuser Pet. App.
23a. Thus, there are only – at most – speculative
conservation benefits to this designation.
While the ESA may certainly require sacrifices in
order to preserve endangered species, the decision to
impose those costs on States and the public must
conform with the requirements of the statute. That
did not happen here.
4
https://www.
washingtonpost.com/blogs/govbeat/wp/2014/05/11/western-
states-worry-decision-on-birds-fate-could-cost-billions-in-
development/.
11
CONCLUSION
The Court should grant certiorari and reverse
the court of appeals.
Respectfully submitted,
STEVEN T. MARSHALL
Ala. Attorney General
Andrew L. Brasher*
Solicitor General
OFFICE OF ALA. ATT’Y GEN.
501 Washington Avenue
Montgomery, AL 36130
(334) 242-7300
abrasher@ago.state.al.us
*Counsel of Record
12
COUNSEL FOR ADDITIONAL AMICI
Jahna Lindemuth Leslie Rutledge
Attorney General of Attorney General of
Alaska Arkansas
Christopher M. Carr Lawrence G. Wasden
Attorney General of Attorney General of
Georgia Idaho
Derek Schmidt Jeff Landrey
Attorney General of Attorney General of
Kansas Louisiana
Bill Schuette Doug Peterson
Attorney General of Attorney General of
Michigan Nebraska
Adam Paul Laxalt Wayne Stenehjem
Attorney General of Attorney General of
Nevada North Dakota
Michael DeWine Mike Hunter
Attorney General of Ohio Attorney General of
Oklahoma
Alan Wilson Marty Jackley
Attorney General of Attorney General of
South Carolina South Dakota
Sean Reyes Patrick Morrisey
Attorney General of Attorney General of West
Utah Virginia
Brad Schimel
Attorney General of
Wisconsin
