Bennett v. Plenert: the Ninth Circuit's Application of the Zone of Interests Test to Citizen Suits Under the Endangered Species Act - Alyssa Wardrup

• Publication year: 1997

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Bennett v. Plenert: The Ninth Circuit's Application of the Zone of Interests Test to Citizen Suits under the Endangered Species Act

The Ninth Circuit, in Bennett v. Plenert,¹ ruled that plaintiffs' economic injury did not satisfy the requirements for standing under the citizen-suit provision² of the Endangered Species Act ("ESA").³ The Ninth Circuit imposed the zone of interests test in addition to Article III standing requirements.⁴ Under the ESA's citizen-suit provision, the zone of interests test means that plaintiffs must assert "an interest in the preservation of endangered species" to have standing.⁵ Plaintiffs appealed the Ninth Circuit's decision, and the Supreme Court has granted certiorari.⁶ The Court will likely resolve a division among the circuits in applying or not applying the zone of interests test to ESA citizen suits.

I. Factual Background

Two Oregon ranchers and two Oregon irrigation districts opposed a biological opinion, which concluded that the water level in two reservoirs should be kept at a certain minimum level to ensure the survival of the endangered species of Lost River sucker and shortnose sucker fish.⁷ The reservoirs in question. Clear Lake and Gerber reservoirs, are part of the Klamath Project. The Bureau of Reclamation ("Bureau"), an agency within the Department of the Interior, administers the project, which lies along the Oregon-California border and provides water to farms and ranches in Oregon.⁸

In 1988, the United States Fish and Wildlife Service ("USFWS") added the Lost River and shortnose suckers to the list of endangered species of fish.⁹ The Bureau consulted with the USFWS to determine how the Klamath Project was impacting the endangered species of fish.¹⁰ This inquiry resulted in the USFWS issuing a biological opinion,¹¹ which concluded that, without intervention, the Klamath Project's long-term operation "was likely to jeopardize the continued existence of the Lost River and shortnose suckers."¹² The USFWS also suggested maintaining a minimum lake level as one of a number of possible solutions.¹³

Plaintiffs used the reservoirs for recreational and commercial purposes.¹⁴ They alleged that restrictions on the amount of water withdrawn from the reservoirs violated section 7 of the ESA,¹⁵ as well as the Administrative Procedure Act ("APA")¹⁶ because the restrictions were imposed without consideration of the impact on plaintiffs and without sound scientific data.¹⁷ Plaintiffs further alleged that the restrictions on water withdrawal from the reservoirs were "an implicit determination of critical habitat" for the suckers made without proper consideration of the economic impact on plaintiffs, in violation of section 4(b)(2) of the ESA¹⁸ and the APA.¹⁹

Plaintiffs sought declaratory and injunctive relief to force the government to remove the minimum lake level portion of the biological opinion.²⁰ Defendants moved to dismiss the complaint for lack of standing.²¹ The District Court for the District of Oregon granted the motion to dismiss, stating that plaintiffs lacked standing because their interests conflicted with the interests to be protected by the ESA.²²

Plaintiffs appealed to the Ninth Circuit, arguing that the language of section 11(g) of the ESA²³ eliminated prudential limits on standing.²⁴ section 11(g) says in part, "[A]ny person may commence a civil suit on his own behalf ... to enjoin any person . . . who is alleged to be in violation of any provision of this chapter . . . [or] against the Secretary where there is alleged a failure ... to perform any act or duty . . . which is not discretionary."²⁵

Prudential limits to standing, such as the zone of interests test, assume that standing under Article III is established, but nevertheless limit the class of potential plaintiffs to those who fall within the interests the particular statute protects.²⁶ The conventional wisdom holds that Congress can overcome prudential standing limits as it pleases.²⁷ Plaintiffs argued the "any person" language of the ESA citizen-suit provision eliminates prudential standing requirements and means what it says: that any person may bring suit, subject only to Article III standing requirements of injury in fact, a causal connection between defendant's conduct and plaintiff's harm, and redressability.²⁸ The Ninth Circuit affirmed the district court, stating that the citizen suit language of section 11(g) of the ESA did not eliminate prudential limits on standing, and that plaintiffs lacked standing because they failed to fall within the zone of interests the statute protected.²⁹ Plaintiffs appealed, and the Supreme Court granted certiorari March 25, 1996, for the October 1996 term.³⁰

II. Legal Background

The Supreme Court first used the zone of interests test in Association of Data Processing Service Organizations, Inc. v. Camp.³¹ In that case, plaintiffs sold data processing services to businesses.³² They sued under the APA to challenge the Comptroller of the Currency's ruling that national banks could offer data processing services to other banks and to bank customers as an incident to providing banking services.³³ Considering whether plaintiffs had standing, the Court asked whether they alleged an injury in fact, economic or otherwise.³⁴ The Court also stated that the prudential standing issue did not address the merits of a case, but rather "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question."³⁵ The interests of a plaintiff may center on "aesthetic, conservational, and recreational" values, as well as economic values,³⁶ if those values are sought to be protected by the statute.

According to the Court in Data Processing, in 1970 the trend in standing law was to enlarge the class of people who would be allowed to challenge administrative action.³⁷ The Court also pointed out that Congress could resolve the question of prudential limitations on standing by expanding standing to the limits of Article III.³⁸ It was clear to the Court that plaintiffs, as competitors of the banks, were aggrieved and therefore entitled to review of the Comptroller of the Currency's ruling.³⁹

In the decade after Data Processing, use of the zone of interests test declined.⁴⁰ However, the Supreme Court resurrected the test in Clarke v. Securities Industry Ass'n.⁴¹ Like Data Processing, Clarke dealt with an APA claim. The Court, relying on the Data Processing opinion, stated that the zone of interests test serves as a guide to whether Congress intended a plaintiff to have standing to complain of an agency decision.⁴² The Court also stated that the zone of interests test was not universally applicable to questions of prudential standing involving claims other than those brought under the APA.⁴³ Unfortunately, the Court in Clarke failed to articulate what test, if not the zone of interests, would apply to actions seeking review of agency decisions under a statute other than the APA.⁴⁴ In the absence of further guidance, many courts, including the Ninth Circuit, use the zone of interests test to determine prudential standing under APA and non-APA actions.⁴⁵

The circuit courts do not agree, however, on whether the zone of interests test applies to citizen suits under the ESA.⁴⁶ The D.C. Circuit applied the zone of interests test to an ESA citizen suit in Idaho v. Interstate Commerce Commission.*¹ In that 1994 case, the state of Idaho and three mining companies, citing environmental and economic provisions under the ESA, challenged an Interstate Commerce Commission order that authorized a railroad to abandon a portion of track without requiring the railroad to clean up alleged pollution.⁴⁸ The D.C. Circuit held that the petitioners had the burden of showing that they fell within the zone of interests protected by the ESA to have standing.⁴⁹ The court cited Clarke and stressed that the essential question was whether Congress intended to permit a particular class of plaintiffs to challenge agency violations of a statute.⁵⁰ Under this analysis, Idaho had standing because its proprietary interest in the land was affected by the agency action; it also had an interest in the long-term preservation of wildlife.⁵¹

In contrast, the Eighth Circuit has held that the zone of interests test does not apply to citizen suits under the ESA.⁵² In Defenders of Wildlife v. Hodel, the Eighth Circuit said that for standing to be proper, a plaintiff must satisfy only Article III standing requirements.⁵³ Under Article III, the plaintiff must show that the injury resulted from the agency's action and is likely to be redressed if the plaintiff prevails.⁵⁴ Prudential limits, such as the zone of interests test, are not required by Article III,⁵⁵ and Congress may choose by statute to eliminate them completely.⁵⁶ The ESA states that "any person"⁵⁷ may sue for an ESA violation, and the Eighth Circuit held that "any person" means any person, thereby eliminating prudential standing requirements.⁵⁸ The Supreme Court reversed because plaintiffs failed to meet the injury-in-fact and redressability requirements of Article III.⁵⁹ Thus, the Court did not address the circuit court's conclusion that the "any person" language of section 11(g) of the ESA removed prudential limitations to standing.⁶⁰

As with the cases under the APA, cases dealing with the National Environmental Policy Act ("NEPA")⁶¹ have applied the zone of interests test to plaintiffs.⁶² In Nevada Land Action Ass'n v. United States Forest Service,⁶³ for instance, the Ninth Circuit applied the zone of interests test to plaintiffs asserting a purely economic injury from the Forest Service's plan to decrease livestock grazing in Toiyabe National Forest.⁶⁴ The Ninth Circuit held that plaintiffs must have alleged an injury within the zone of interests protected by NEPA, and that a plaintiff who asserted a purely economic injury had no...