No. 17-71
`
`IN THE
`Supreme Court of the United States
`
`
`WEYERHAEUSER CO.,
`
`v.
`
`Petitioner,
`
`U.S. FISH & WILDLIFE SERVICE, et al.,
`Respondents.
`
`
`
`On Writ of Certiorari to the
`U.S. Court of Appeals
`for the Fifth Circuit
`
`
`BRIEF OF WASHINGTON LEGAL FOUNDATION
`AND ALLIED EDUCATIONAL FOUNDATION
`AS AMICI CURIAE IN SUPPORT OF PETITIONER
`
`
`Richard A. Samp
` (Counsel of Record)
`Cory L. Andrews
`Washington Legal Foundation
`2009 Massachusetts Ave., NW
`Washington, DC 20036
`202-588-0302
`rsamp@wlf.org
`
`Date: April 30, 2018
`
`
`
`IN THE
`Supreme Court of the United States
`
`
`WEYERHAEUSER CO.,
`
`v.
`
`Petitioner,
`
`U.S. FISH & WILDLIFE SERVICE, et al.,
`Respondents.
`
`
`
`On Writ of Certiorari to the
`U.S. Court of Appeals
`for the Fifth Circuit
`
`
`BRIEF OF WASHINGTON LEGAL FOUNDATION
`AND ALLIED EDUCATIONAL FOUNDATION
`AS AMICI CURIAE IN SUPPORT OF PETITIONER
`
`
`Richard A. Samp
` (Counsel of Record)
`Cory L. Andrews
`Washington Legal Foundation
`2009 Massachusetts Ave., NW
`Washington, DC 20036
`202-588-0302
`rsamp@wlf.org
`
`Date: April 30, 2018
`
`
`
`QUESTIONS PRESENTED
`
`Amici curiae address the second question only:
`
`Whether an agency decision not to exclude an
`area from critical habitat designation because of the
`economic impact of designation is subject to judicial
`review.
`
`
`
`
`
`iii
`
`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v
`
`INTERESTS OF AMICI CURIAE . . . . . . . . . . . . . . 1
`
`STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 3
`
`SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 8
`
`ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
`
`I.
`
`NOTHING IN THE ENDANGERED SPECIES
`A C T O V E R C O M E S T H E
`“S T R O N G
`PRESUMPTION” THAT AGENCY ACTION IS
`SUBJECT TO JUDICIAL REVIEW . . . . . . . . . . . 14
`
`A.
`
`B.
`
`C.
`
`The Fifth Circuit Misapplied the
`“Committed to Agency Discretion”
`Exception to Judicial Review and
`Misinterpreted
`this Court’s
`Heckler v. Cheney Decision . . . . . . . . 15
`
`The Second Sentence of Section
`1533(b)(2) Is a Limitation on FWS
`Authority, Not a Grant of
`Unlimited Discretion . . . . . . . . . . . . . 20
`
`The Structure and History of the
`ESA Demonstrate that Congress
`Did Not Intend to Bar Judicial
`Review . . . . . . . . . . . . . . . . . . . . . . . . 25
`
`
`
`D.
`
`iv
`The Fifth Circuit’s Interpretation
`of Section 1533(b)(2) Conflicts with
`this Court’s Decision in Bennett . . . . 28
`
`II.
`
`JUDICIAL REVIEW
`IS PARTICULARLY
`WARRANTED WHEN, AS HERE, FWS HAS
`FAILED TO IDENTIFY ANY BENEFITS
`DERIVED FROM A CRITICAL-HABITAT
`DESIGNATION . . . . . . . . . . . . . . . . . . . . . . . . . 30
`
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
`
`
`
`v
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases:
`
`Babbitt v. Sweet Home Chapter of Communities
` for a Great Oregon, 515 U.S. 687 (1995) . . . . . . . . 1
`Bear Valley Mut. Water Co. v. Jewell,
` 790 F.3d 977 (9th Cir. 2015)
`. . . . . . . . . . . . . . . . 22
`Bennett v. Spear,
`. . . . . . . . . . 1, 8, 10, 28, 29, 30
` 520 U.S. 154 (1997)
`Bowen v. Michigan Academy of Family Physicians,
` 476 U.S. 667 (1986)
`. . . . . . . . . . . . . . . . . . . . . 2, 14
`Citizens to Preserve Overton Park v. Volpe,
` 401 U.S. 402 (1971)
`. . . . . . . . . . . . . . . . . . . . . . . 19
`Cuozzo Speed Technologies, LLC v. Lee,
` 136 S. Ct. 2131 (2016)
`. . . . . . . . . . . . . . . . . . 14, 16
`Dickson v. Secretary of Defense,
` 68 F.3d 1396 (D.C. Cir. 1995)
`Heckler v. Cheney,
`. . . . . . . . . . . 10, 15, 17, 18, 19
` 470 U.S. 821 (1985)
`Mach Mining, LLC v. EEOC,
` 135 S. Ct. 1645 (2015)
`. . . . . . . . . . . . . 9, 14, 15, 17
`Michigan v. EPA,
`. . . . . . . . . . . . . . . 12, 22, 34
` 135 S. Ct. 2699 (2015)
`Motor Vehicle Mfrs. Ass’n of United States,
` Inc. v. State Farm Mut. Auto. Ins. Co.,
` 463 U.S. 29 (1983)
`. . . . . . . . . . . . . . . . . . . . . . . . 34
`Murray Energy Corp. v. EPA,
` No. 15-3751, pet. dism’d for lack of juris.,
` (6th Cir., Feb. 28, 2018) . . . . . . . . . . . . . . . . . . . . . 1
`Nat’l Assoc. of Home Builders v. Defs. of Wildlife,
` 551 U.S. 644 (2007)
`. . . . . . . . . . . . . . . . . . . . . . 1, 2
`SAS Institute, Inc. v. Iancu,
` __ U.S. __, 2018 WL 1913661 (April 24, 2018) . . 14
`
`. . . . . . . . . . . . . . . 24
`
`
`
`vi
`
`Page(s)
`
`TVA v. Hill,
`. . . . . . . . . . . . . . . . . . . . 25, 27
` 437 U.S. 153 (1978)
`Utility Air Reg. Group v. EPA,
` 134 S. Ct. 2427 (2014) . . . . . . . . . . . . . . . . . . . . . . 1
`Webster v. Doe,
` 486 U.S. 592 (1988)
`
`. . . . . . . . . . . . . . . . . . . . 16, 17
`
`Statutes:
`
`Administrative Procedure Act (APA) . . . . . . . 6, 8, 30
`5 U.S.C. § 701(a)(2) . . . . . . . . . . . 7, 10, 15,, 16
`18, 19, 24, 28, 30
`5 U.S.C. § 704 . . . . . . . . . . . . . . . . . . . . . . . . 14
`5 U.S.C. § 706(2)(A)
`. . . . . . . . . . . . . . 6, 13, 34
`
`Clean Air Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
`
`Clean Water Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
`
`Endangered Species Act (ESA),
` 16 U.S.C. § 1531 et seq.
`. . . . . . . . . . . . . . . . passim
`16 U.S.C. § 1532(5)(C)
`. . . . . . . . . . . . . . . . . 26
`16 U.S.C. § 1533(a)(3)(A) . . . . . . . . . . . . . . . . 3
`16 U.S.C. § 1533(b)(2) . . . . . . . . . . . . . . passim
`
`Endangered Species Act Amendments of 1978,
` Pub. L. No. 95-632, 92 Stat. 3751 (1978) . . . . . . . 25
`
`8 U.S.C. § 1158(b)(1)(A)
`
`. . . . . . . . . . . . . . . . . . . . . 23
`
`8 U.S.C. § 1226(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 23
`
`
`
`vii
`
`Page(s)
`
`35 U.S.C. § 314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 17
`
`42 U.S.C. § 1988(b) . . . . . . . . . . . . . . . . . . . . . . . . . 23
`
`50 U.S.C. § 403(c)
`
`. . . . . . . . . . . . . . . . . . . . . . . . . . 16
`
`50 C.F.R. § 424.19 . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`
`Miscellaneous:
`
`Committee on Environment & Public Works,
` 97th Congress, A Legislative History of the
` Endangered Species Act of 1973, as Amended
` in 1976, 1977, 1979, and 1980
` (Cong. Res. Service eds., 1982)
`
`. . . . . . . . . . . . . . 26
`
`Designation of Critical Habitat for Mississippi
` Gopher Frog; Revised Proposed Rule,
` 76 Fed. Reg. 59774 (Sept. 27, 2011)
`
`. . . . . . . . . 4, 5
`
`Revisions to the Regulations for Impact
` Analyses of Critical Habitat, Final Rule,
` 78 Fed. Reg. 53058 (Aug. 28, 2013) . . . . . . . . . . . 13
`
`Damien Schiff, Judicial Review Endangered:
` Decisions Not to Exclude Areas from Critical
` Habitat Should Be Reviewable under the APA,
` 47 Envtl. L. Rep. 10352 (2017)
`. . . . . . . . . . . . . . 26
`
`
`
`viii
`
`Page(s)
`
`Amy Sinden, The Economics of Endangered
` Species, Why Less is More in the Economic
` Analysis of Critical Habitat Designations,
` 28 HARV. ENVTL. L. REV. 129 (2004) . . . . . . . . . . 27
`
`Webster’s New Collegiate Dictionary,
` (G & C. Merriam Co. 1981)
`. . . . . . . . . . . . . . . . . 21
`
`124 Cong. Rec. H13579 (daily ed. Oct. 14, 1978)
` (statement of Rep. Murphy) . . . . . . . . . . . . . . . . . 27
`
`
`
`INTERESTS OF AMICI CURIAE
`
`The Washington Legal Foundation (WLF) is a
`nonprofit, public-interest law firm and policy center
`with supporters in all 50 states.1 WLF devotes a
`substantial portion of its resources to defending free
`enterprise, individual rights, a limited and accountable
`government, and the rule of law.
`
`To that end, WLF has appeared before this
`Court and other federal courts to urge adoption of
`environmental policies that strike an appropriate
`balance between environmental safety and economic
`well-being. See, e.g. Murray Energy Corp. v. EPA, No.
`15-3751, pet. dism’d for lack of jurisdiction (6th Cir.,
`Feb. 28, 2018) (defining “Waters of the United States”
`under Clean Water Act); Utility Air Reg. Group v. EPA,
`134 S. Ct. 2427 (2014) (challenge to EPA’s Clean Air
`Act “tailoring rule”).
` In particular, WLF has
`participated in virtually every major case that has
`come before this Court regarding the scope of the
`Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq.
`See, e.g., Nat’l Assoc. of Home Builders v. Defenders of
`Wildlife, 551 U.S. 644 (2007); Bennett v. Spear, 520
`U.S. 154 (1997); Babbitt v. Sweet Home Chapter of
`Communities for a Great Oregon, 515 U.S. 687 (1995).
`
`The Allied Educational Foundation (AEF) is a
`nonprofit charitable and educational foundation based
`in Tenafly, New Jersey. Founded in 1964, AEF is
`dedicated to promoting education in diverse areas of
`
`1 Pursuant to Supreme Court Rule 37.6, amici curiae state
`that no counsel for a party authored this brief in whole or in part;
`and that no person or entity, other than amici and their counsel,
`made a monetary contribution intended to fund the preparation or
`submission of this brief. All parties have consented to the filing.
`
`
`
`2
`study, such as law and public policy, and has appeared
`as amicus curiae in this Court on a number of
`occasions, including in Nat’l Assoc. of Home Builders.
`WLF and AEF also filed an amicus brief in support of
`the certiorari petition in this case.
`
`Amici agree with Petitioner that the ESA
`prohibits designation of private land as unoccupied
`critical habitat that is neither habitat nor essential to
`species conservation. Amici write separately to focus
`on the second question raised by Petitioner: whether
`Congress intended to preclude all judicial review of
`U.S. Fish and Wildlife Service (FWS) decisions not to
`exclude areas
`from an ESA “critical habitat”
`designation.
`
`As Judge Edith Jones concluded in her dissent
`from denial of rehearing en banc (joined by five other
`Fifth Circuit judges), the panel’s holding that FWS no-
`exclusion decisions are not subject to judicial review
`“play[s] havoc with administrative law.” Pet. App.
`156a. Amici are concerned that if that holding is
`allowed to stand, it will provide federal agencies with
`unilateral power to make a broad array of regulatory
`decisions, unchecked by any possibility of judicial
`review. Amici do not believe that the decision below is
`consistent with this Court’s repeated and longstanding
`application of a “strong presumption” favoring judicial
`review of administrative action. Bowen v. Michigan
`Academy of Family Physicians, 476 U.S. 667, 670
`(1986).
`
`
`
`3
`STATEMENT OF THE CASE
`
`Once a plant or animal species has been listed as
`“endangered,” the Endangered Species Act generally
`requires FWS (or, in appropriate cases, the National
`Oceanic and Atmospheric Administration) to designate
`“critical habitat”
`for the species.
` 16 U.S.C.
`§ 1533(a)(3)(A). Such designations are to be made “in
`accordance with” criteria set out in § 1533(b). Ibid.
`
`Section 1533(b)(2) states that FWS “shall
`designate critical habitat, and make revisions thereto
`... 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.” (Emphasis added.)
` Section 1533(b)(2)
`includes a second sentence that provides additional
`details regarding how FWS
`is to exercise
`its
`designation authority:
`
`The Secretary may exclude any area from
`critical habitat if he determines that the
`benefits of such exclusion outweigh the
`benefits of specifying such areas as part
`of
`the critical habitat, unless he
`determines, based on the best scientific
`and commercial data available, that the
`failure to designate such areas as critical
`habitat will result in the extinction of the
`species concerned.
`
`In 2001, FWS listed the Mississippi gopher frog
`(a species of frog currently found only in Mississippi) as
`
`
`
`4
`an endangered species.2 In 2011, FWS published a
`proposed rule that would have designated certain areas
`in Mississippi (but not elsewhere) as critical habitat for
`the species. Pet. App. 86a. In response to peer-review
`comments that the designated areas were insufficient
`for conservation of the species, FWS amended the
`proposed rule to include an area in Louisiana (referred
`to as “Unit 1”) within the designation. Id. at 87a.
`
`The amended proposed rule noted that FWS had
`prepared a draft economic analysis (DEA) of the
`economic
`impact of
`its proposed designation.
`Designation of Critical Habitat for Mississippi Gopher
`Frog; Revised Proposed Rule, 76 Fed. Reg. 59774,
`59789 (Sept. 27, 2011). The DEA concluded that the
`designation of Unit 1 as critical habitat could decrease
`the value of that property by as much as $36.3 million.
`Id. at 59790. However, the amended proposed rule did
`not suggest that FWS had taken those costs into
`account in connection with its proposal to designate
`Unit 1. To the contrary, FWS stated that it selected
`sites for designation based on its determination that
`they were “considered essential for the conservation of
`the species.” Id. at 59781. Having selected its
`proposed sites without considering economic impacts,
`FWS explained that before issuing a final rule it would
`consider all of the criteria set out in § 1533(b)(2) in
`determining whether to exclude any of the proposed
`sites:
`
`2 FWS renamed the species the “dusky gopher frog” in
`2012, soon after it first proposed the designation of areas outside
`of Mississippi as “critical habitat” for the species.
`
`
`
`5
`In considering whether to exclude a
`particular area from the designation, we
`identify the benefits of including the area
`in the designation, identify the benefits of
`excluding the area from the designation,
`and evaluate whether the benefits of
`exclusion outweigh
`the benefits of
`inclusion. If the analysis indicates that
`the benefits of exclusion outweigh the
`benefits of inclusion, the Secretary may
`exercise his discretion to exclude the area
`only if such exclusion would not result in
`extinction of the species.
`
`Id. at 59789. In other words, FWS reserved the right
`to adhere to its proposal to designate Unit 1 as critical
`habitat even if it ultimately determined that the
`benefits of non-designation outweighed the benefits of
`designation. FWS added, without further explanation,
`“We have not proposed to exclude any areas from
`critical habitat.” Ibid.3
`
`In its 2012 final rule, FWS continued to include
`Unit 1 (consisting of 1,544 acres of forested land not
`
`3 The procedure employed by FWS in making its critical
`habitat designation—a two-step process involving a preliminary
`listing of potential site designations based solely on scientific
`criteria, followed by an evaluation based on all of the selection
`criteria (including economic impact) mandated by 16 U.S.C.
`§ 1533(b)(2)—was and is consistent with FWS regulations. See 50
`C.F.R. § 424.19. However, that two-step procedure is not provided
`for in § 1533(b)(2) itself. The statute simply requires FWS to take
`all of the listed criteria into account when considering sites for
`designation, without specifying the order in which the criteria are
`to be examined.
`
`
`
`6
`currently occupied by the dusky gopher frog) in the
`area designated as critical habitat. JA99-JA199.
`Petitioner Weyerhaeuser Co. owns a portion of the land
`included in Unit 1 and leases the remainder. It (along
`with other landowners) filed suit in district court in
`2013, challenging the “critical habitat” designation.
`Among their claims: FWS’s designation was arbitrary,
`capricious, and an abuse of discretion—in violation of
`the Administrative Procedure Act (APA), 5 U.S.C.
`§ 706(2)(A)—because FWS failed to exclude Unit 1 from
`the designation, even though the costs of inclusion
`vastly exceeded the benefits (if any) of inclusion.
`
`The district court granted FWS’s motion for
`summary judgment and dismissed the complaint. Pet.
`App. 78a-122a.
` The court conceded that the
`landowners’ challenge to FWS’s economic analysis was
`their “most compelling issue,” and it labeled “most
`troubling” FWS’s “conclusion that the economic
`impacts on Unit 1 are not disproportionate.” Id. at
`113a-114a. It ultimately concluded, however, that the
`ESA required it to defer to FWS’s decision to include
`Unit 1 within the critical habitat designation. Id. at
`118a.
`
`A divided Fifth Circuit panel affirmed. Pet. App.
`1a-77a. The panel majority devoted most of its opinion
`to explaining its conclusion that FWS acted reasonably
`in determining that: (1) designating occupied habitat
`alone would be inadequate to ensure the conservation
`of the dusky gopher frog; and (2) Unit 1 is essential for
`the conservation of the frog. Id. at 15a-32a. It then
`declined to review Weyerhaeuser’s claim that Unit 1
`should have been excluded from the critical-habitat
`designation on the basis of the designation’s economic
`
`
`
`7
`costs. Id. at 32a-36a. It concluded that FWS decisions
`not to exclude areas from such designation are
`“decisions ‘committed to agency discretion by law’” and
`thus “are not reviewable in federal court.” Id. at 33a
`(quoting 5 U.S.C. § 701(a)(2)). To support its
`conclusion that Congress intended to preclude judicial
`review of FWS decisions not to exclude areas on the
`basis of economic considerations, the panel cited the
`word “may” in the second sentence of 16 U.S.C.
`§ 1533(b)(2). Ibid.4
`
`Judge Owen dissented. Pet. App. 48a-77a. She
`concluded that the ESA precluded inclusion of Unit 1
`in the critical-habitat designation because: (1) the
`area’s “biological and physical characteristics will not
`support a dusky gopher frog population”; and (2) there
`is no evidence that it will become “essential” to the
`conservation of the species because “there is no
`evidence
`that
`the substantial alterations and
`maintenance necessary to transform the area into
`habitat suitable for the endangered species will, or are
`likely to, occur.” Id. at 48a. In light of her conclusion,
`Judge Owen did not address the majority’s holding that
`FWS’s no-exclusion determination was not subject to
`judicial review.
`
`In February 2017, the Fifth Circuit voted 8-6 to
`deny Weyerhaeuser’s petition for rehearing en banc.
`Pet. App. 124a. Judge Jones issued an opinion (joined
`by five other judges) dissenting from the denial. Id. at
`
`4 The cited sentence states, in part, that FWS “may
`exclude any area from critical habitat if [it] determines that the
`benefits of such exclusion outweigh the benefits of specifying such
`area as part of the critical habitat.” § 1533(b)(2) (emphasis added).
`
`
`
`8
`
`124a-162a.
`
`Among the reasons cited by Judge Jones for
`granting rehearing was her conclusion that “[t]he panel
`majority play havoc with administrative law by
`declaring the Service’s decision not to exclude Unit 1
`non-judicially reviewable.” Id. at 156a. She faulted
`the panel for “never recognizing or applying” the
`“strong presumption favoring
`judicial review of
`administrative action,” a presumption that “is not
`easily overcome.” Id. at 160a. She argued that the
`panel decision directly conflicts with this Court’s
`decision in Bennett v. Spear, that FWS must take
`economic considerations into account in making critical
`habitat decisions, and that “its ultimate decision
`regarding designation of critical habitat is reviewable
`for abuse of discretion.” Id. at 161a (citing Bennett, 520
`U.S. at 172). She concluded, “The panel majority’s
`refusal to conduct judicial review is insupportable and
`an abdication of our responsibility to oversee, according
`to the APA, agency action.” Id. at 162a.
`
`SUMMARY OF ARGUMENT
`
`If the Court decides the first Question Presented
`in Weyerhaeuser’s favor—and holds that Unit 1 was
`not properly designated as critical habitat because it is
`neither habitat nor essential
`to species
`conservation—the Court could overturn the FWS’s
`critical-habitat rule without ever reaching the second
`Question Presented. Amici curiae nonetheless urge the
`Court to address the second question regardless how it
`rules on the first question. Whether FWS decisions not
`to exclude land from a critical-habitat designation are
`subject to judicial review is an issue that arises
`
`
`
`9
`frequently in the lower courts, and they would benefit
`greatly from this Court’s guidance.
`
`The Fifth Circuit’s determination that Congress
`intended to preclude all review of FWS no-exclusion
`decisions conflicts sharply with this Court’s case law,
`which creates a strong presumption of judicial review
`of administrative action. The Fifth Circuit held that
`Congress barred courts from reviewing an FWS
`determination to proceed with a “critical habitat”
`designation in the face of landowner objections that
`designation would impose unwarranted economic costs.
`Pet. App. 32a-36a. Any such congressional edict would
`represent an extraordinary departure from how
`Congress is normally presumed to legislate. That is so
`because “[a]bsent [judicial] review, [an agency’s]
`compliance with the law would rest in the [agency’s]
`hands alone.” Mach Mining, LLC v. EEOC, 135 S Ct.
`1645, 1652 (2015). The Court explained:
`
`We need only know—and know that
`Congress knows—that legal lapses and
`violations occur, and especially so when
`they have no consequence. That is why
`this Court has so long applied a strong
`presumption favoring judicial review of
`administrative action.
`
`Id. at 1652-53.
`
`In holding that the ESA barred judicial review
`of FWS critical-habitat designations, the Fifth Circuit
`relied on Congress’s use of the word “may” rather than
`“shall” in the second sentence of § 1533(b)(2). That
`single word cannot possibly bear the weight imposed on
`
`
`
`10
`it by FWS and the Fifth Circuit—particularly because
`the previous sentence in § 1533(b)(2) states that FWS,
`when making critical-habitat determinations, “shall”
`take into consideration “the economic impact ... of
`specifying any particular area as critical habitat.”
`There could have been only one purpose in requiring
`consideration of economic impact: to prevent an area
`from being designated as critical habitat when the
`costs of doing so significantly outweigh the benefits.
`
`FWS may be entitled to leeway in how it goes
`about weighing costs and benefits. But nothing in the
`ESA suggests that courts are precluded from reviewing
`FWS’s ultimate determination under an abuse-of-
`discretion standard. Indeed, the Court in Bennett
`explicitly held that ESA critical-habitat designations
`were subject to judicial review based on claims that
`FWS failed to properly consider the “economic impact”
`of the designations. Bennett, 520 U.S. at 172. The
`decision below cannot be squared with Bennett, and the
`United States’s brief opposing certiorari did not
`contend otherwise.
`
`that FWS no-exclusion
`concluding
`In
`determinations are “committed to agency discretion by
`law,” 5 U.S.C. § 701(a)(2), the Fifth Circuit relied on
`this Court’s decision in Heckler v. Cheney, 470 U.S. 821
`(1985). Pet. App. 33a. That reliance was misplaced.
`Heckler held that, in general, the decision by a federal
`enforcement agency not to bring an enforcement action
`is not subject to judicial review, primarily because “an
`agency decision not to enforce often involves a
`complicated balancing of a number of factors which are
`peculiarly within its expertise.” 470 U.S. at 831. The
`Fifth Circuit sought to analogize FWS’s decision not to
`
`
`
`11
`exclude a particular area from critical habitat to an
`agency’s decision not to bring an enforcement action.
`That analogy makes little sense. Any FWS decision not
`to exclude a particular area from critical habitat is, by
`definition, a decision to include the area in the
`designation—thereby subjecting
`the area
`to
`burdensome government regulation.
`
`Nor can FWS realistically argue that a reviewing
`court would have no meaningful standard against
`which to judge FWS’s exercise of discretion—many of
`those standards are set forth in the text of § 1533(b)(2).
`Indeed, the Service readily concedes that point when
`the shoe is on the other foot. When an environmental
`group objects to an FWS decision to exclude a
`particular area from a critical-habitat designation
`based on a determination that “the benefits of such
`exclusion outweigh the benefits of specifying such area
`as part of the critical habitat,” 15 U.S.C. § 1533(b)(2),
`the agency decision is subject to review under an
`abuse-of-discretion standard. If a reviewing court has
`meaningful standards against which to judge an FWS
`decision to exclude a particular area based on a cost-
`benefit analysis, then it likewise has meaningful
`standards against which to judge an FWS no-exclusion
`decision.
`
`The Fifth Circuit’s decision to bar judicial review
`is particularly troubling because the evidence
`overwhelmingly supports Petitioners’ contention that
`FWS was unable to identify any benefits of Unit 1
`critical-habitat designation that would offset the
`admittedly severe economic burdens imposed on
`
`
`
`12
`landowners by that designation.5 FWS’s April 6, 2012
`“Economic Analysis” did not identify any benefits,
`other than that land-use restrictions imposed as a
`result of the designation might preserve open space
`and thereby “increase adjacent or nearby property
`values.” JA98. That “benefit” does not, of course, do
`anything to assist the dusky gopher frog or any other
`endangered species for whose benefit Congress adopted
`the ESA.
`
`Given § 1533(b)(2)’s mandate that FWS consider
`economic impact when designating critical habitat, at
`some point the imbalance between costs and benefits
`becomes so great that the only rational decision is to
`exclude the area in question. As the Court recently
`explained, “One would not say that it is even rational,
`never mind ‘appropriate,’ to impose billions of dollars
`in economic costs in return for a few dollars in health
`or environmental benefits.” Michigan v. EPA, 135 S.
`Ct. 2699, 2707 (2015). Yet the Fifth Circuit’s ruling
`bars courts from ever reviewing FWS’s cost-benefit
`determinations, no matter how irrational.
`
`The Court should go beyond simply reversing the
`Fifth Circuit’s ruling that FWS’s no-exclusion
`determination is not subject to judicial review. It
`should also hold that FWS’s designation of Unit 1 as
`
`5 It is difficult to imagine how the designation could be of
`any benefit to the dusky gopher frog, given that the frog cannot be
`introduced into Unit 1 without the permission of landowners
`(permission they have said they will not grant) and given that (as
`FWS concedes) Unit 1 is not currently habitable for the dusky
`gopher frog and could not become habitable unless landowners
`agreed to substantial alterations of the property.
`
`
`
`13
`critical habitat was arbitrary, capricious, and an abuse
`of discretion, in violation of 5 U.S.C. § 706(2)(A). FWS
`issued its 2012 final rule while operating under the
`mistaken belief that § 1533(b)(2) merely requires it to
`investigate economic impact and that it possesses
`unreviewable discretion to designate an area as critical
`habitat no matter how much the costs of doing so
`exceed the benefits. See, e.g., Revisions to the
`Regulations for Impact Analyses of Critical Habitat,
`Final Rule, 78 Fed. Reg. 53058, 53063 (Aug. 28, 2013).
`Moreover, the final rule designating Unit 1 as critical
`habitat, after concluding that designation could cost
`landowners as much as $34 million, JA189, confined its
`analysis of costs-versus-benefits to a single sentence:
`“Our economic analysis did not
`identify any
`disproportionate costs that are likely to result from the
`designation.” JA 190. That single sentence cannot be
`deemed reasoned administrative decision-making of
`the sort demanded by the APA. The Court should
`vacate the final rule as arbitrary, capricious, and an
`abuse of discretion. Alternatively, the Court should
`remand the case to the Fifth Circuit with directions for
`the appeals court to consider in the first instance
`whether FWS’s designation of Unit 1 as critical habitat
`complied with the APA.
`
`
`
`14
`ARGUMENT
`
`I.
`
`NOTHING IN THE ENDANGERED SPECIES ACT
`OVERCOMES THE “STRONG PRESUMPTION”
`THAT AGENCY ACTION IS SUBJECT TO JUDICIAL
`REVIEW
`
`Subject to very limited exceptions, the APA
`authorizes judicial review of “final agency action for
`which there is no other adequate remedy in a court.”
`5 U.S.C. § 704. The Court has long recognized a
`“strong presumption” that the actions of federal
`agencies are subject to judicial review. Bowen, 476
`U.S. at 670. As the Court recently explained:
`
`Congress rarely intends to prevent courts
`from enforcing its directives to federal
`agencies. For that reason, this Court
`applies a “strong presumption” favoring
`judicial review of administrative action.
`
`Mach Mining, 135 S. Ct. at 1651 (citations omitted).
`
`“To overcome that presumption,” the Court
`“require[s] ‘clear and convincing indications’ that
`Congress meant to foreclose review.” SAS Institute,
`Inc. v. Iancu, ___ U.S. ___, 2018 WL 1914661 at *9
`(April 24, 2018) (quoting Cuozzo Speed Technologies,
`LLC v. Lee, 136 S. Ct. 2131, 2140 (2016)). When
`attempting to discern such indications, the Court looks
`to “specific language, specific legislative history, and
`inferences of intent drawn from the statute as a
`whole.” Cuozzo, 136 S. Ct. at 2140 (citations omitted).
`
`None of those sources contain evidence (let alone
`
`
`
`15
`“clear and convincing” evidence) that Congress
`intended to foreclose review of an FWS decision to
`designate an area as critical habitat (or, as FWS
`prefers to phrase the issue, a decision not to exclude an
`area from a critical-habitat designation). In the
`absence of such evidence, the Fifth Circuit’s decision to
`deny judicial review must be reversed.
`
`A.
`
`The Fifth Circuit Misapplied the
`“Committed to Agency Discretion”
`Exception to Judicial Review and
`Misinterpreted this Court’s Heckler
`v. Cheney Decision
`
`The Fifth Circuit did not contend that any
`provision of the ESA explicitly precludes judicial
`review of an agency decision to designate ESA critical
`habitat. Rather, the appeals court based its no-
`judicial-review determination on 5 U.S.C. § 701(a)(2),
`which bars review when “agency action is committed to
`agency discretion by law.” Pet. App. 33a. It concluded
`that Congress precluded review in this instance
`because there are “no meaningful standards against
`which to judge the agency’s exercise of discretion.” Ibid
`(quoting Heckler, 470 U.S. at 830).
`
`The appeals court premised its invocation of
`§ 701(a)(2) on a misunderstanding of that statute.
`Amici note initially that the panel neither recognized
`nor applied the strong presumption favoring judicial
`review. Proper application of the presumption requires
`a court to interpret arguably ambiguous statutes as not
`providing agencies with unreviewable discretion. An
`agency claiming that its actions are unreviewable
`“bears a heavy burden in attempting to show that
`
`
`
`16
`Congress prohibited all judicial review.” Mach Mining,
`135 S. Ct. at 1651. Yet the decision below includes no
`indication that the panel imposed any evidentiary
`burden on FWS or even considered interpreting
`statutory ambiguities in favor of permitting judicial
`review.
`
`Consideration of a government claim that
`judicial review is barred under § 701(a)(2) “requires
`careful examination of the statute on which the claim
`of agency illegality is based.” Webster v. Doe, 486 U.S.
`592, 600 (1988). In this case, the relevant statute is 16
`U.S.C. § 1533(b)(2).
` That statute includes no
`indications of review-preclusive intent of the sort
`included in statutes relied on by the Court in the very
`few instances in which it has barred judicial review
`under § 701(a)(2).
`
`For example, in Webster the Court held that
`§ 701(a)(2) barred review of an APA claim that the CIA
`terminated an employee in violation of his statutory
`rights, citing a statute that empowered the CIA
`director in his discretion to “terminate the employment
`of any officer or employee of the Agency whenever he
`shall deem such termination necessary or advisable in
`the interests of the United States.” 50 U.S.C. § 403(c)
`(1988) (emphasis added).6 In Cuozzo, the Court barred
`
`6 The Court concluded that the language of § 403(c) “fairly
`exudes deference to the Director, and appears to us to foreclose the
`application of any meaningful judicial standard of review.”
`Webster, 486 U.S. at 600. The Court nonetheless held that the
`language was insufficiently clear to demonstrate that Congress
`intended to preclude
`judicial “consideration of colorable
`constitutional claims” arising out of the discharge. Id. at 603.
`
`
`
`17
`judicial review of a Patent Office decision to initiate
`agency review of a patent, invoking 35 U.S.C. § 314(d),
`which states that “[t]he determination of the Director
`[of the Patent Office] whether to initiate an inter partes
`review under this section shall be
`final and
`nonappealable.” 136 S. Ct. at 2139-42.
`
`Section 1533(b)(2) contains no comparable
`language. That provision cannot be characterized as
`“exud[ing] deference” to FWS decisions regarding
`critical-habitat designations. To the contrary, it
`affirmatively mandates that the agency “shall” base
`such decisions on specified factors, including “the
`economic impact” of any designation. Nothing in the
`statute supports a finding that FWS has overcome the
`“strong presumption” of reviewability and has met its
`“heavy burden” of demonstrating a congressional intent
`to “prohibit[ ] all judicial review” of decisions to
`designate an area as critical habitat. Mach Mining,
`135 S. Ct. at 1651.
`
`In holding that Congress intended to preclude
`judicial review of FWS’s designation
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