ELR Citation: ELR 21479
No(s). 94-35008 (9th Cir. Aug 24, 1995)

The court holds that plaintiffs who failed to allege an interest in the "preservation" of endangered species do not fall within the Endangered Species Act's (ESA's) zone of interests and, therefore, lack standing to sue the government for allegedly violating the Act. Plaintiff ranch operators and irrigation districts seek to challenge the government's preparation of a biological opinion that concludes that the water level in two reservoirs in the Klamath Project should be maintained at a particular minimum level in order to preserve two fish species, the Lost River and shortnose suckers. They allege that there is no evidence to support the opinion's conclusion that the long-term operation of the Klamath Project will adversely affect the suckers, that the government violated ESA §7(a)'s consultation provisions in preparing the opinion, and that the government violated ESA §4(b)(2) by failing to consider the economic impact of its determination that the reservoirs constituted critical habitat for the suckers. The court first notes that the issue before it is not whether plaintiffs have satisfied constitutional standing requirements, but whether their action is precluded by the zone-of-interests test, which is a prudential standing limitation. The court rejects plaintiffs' contention that ESA §11(g)'s citizen suit provision renders the zone-of-interests test inapplicable to claims brought under the Act. The fact that a statute contains a citizen suit provision does not necessarily establish that Congress intended that any particular plaintiff have standing to assert a violation. In light of the court's consistent use of the zone-of-interests test in determining the standing of plaintiff's who have sued under citizen suit provisions of other federal laws, the court holds that the ESA does not automatically confer standing on every plaintiff who satisfies constitutional requirements and claims a violation of the Act's procedures. A contrary ruling would permit plaintiffs to sue even though their purposes were plainly inconsistent with, or marginally related to, those of the Act.

The court next holds that only plaintiffs who allege an interest in the preservation of endangered species fall within the zone of interests protected by the ESA. The court holds that because plaintiffs have not alleged such an interest in their complaint, they lack standing. The ESA's overall purposes are singularly devoted to the goal of ensuring species preservation; they do not embrace the economic and recreational interests underlying plaintiffs' challenge. Plaintiffs make no allegation that the government's recommendations will harm the suckers; instead, they argue that the actions proposed in the biological opinion are not necessary to preserve the fish. Moreover, in their claims regarding consultation and designation of critical habitat, plaintiffs seek only to obtain a greater share of the water and do not contend that compliance with the Act will improve the fish's lot. The court holds that ESA §4(b)(2)'s directive that the government consider a variety of factors—including economic ones—in designating critical habitat for a species does not alter its analysis. The court does not believe that in setting forth the factors to be weighed in formulating a plan for protecting species, Congress intended to do more than ensure a rational decisionmaking process by providing guidance for government officials. Congress certainly did not intend impliedly to confer standing on every plaintiff who could conceivably claim that the failure to consider one of those factors adversely affected plaintiff. The court next holds that because plaintiffs have failed to assert an interest protected by the ESA, they necessarily have no standing to bring an action under the Administrative Procedure Act. The court also holds that it need not consider whether plaintiffs have standing under the National Environmental Policy Act (NEPA). Plaintiffs have failed to state a claim under NEPA because Douglas County v. Babbitt, 25 ELR 20631 (9th Cir. 1995), establishes that no NEPA claim lies for a violation of the ESA's provisions for determining critical habitat.

[Briefs in this litigation are digested at ELR PEND. LIT. 66369.]

Counsel for Plaintiffs
William F. Schroeder
Schroeder, Hutchens & Sullivan
280 A St. E., P.O. Box 220, Vale OR 97198
(503) 473-3141

Counsel for Defendants
Ellen J. Durkee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Pregerson,^* Canby and Reinhardt, JJ.