[Congressional Record Volume 142, Number 134 (Wednesday, September 25, 1996)]
[Extensions of Remarks]
[Pages E1679-E1680]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[[Page E1679]]



             CLINTON ADMINISTRATION CLOSES COURTHOUSE DOOR

                                 ______
                                 

                             HON. DON YOUNG

                               of alaska

                    in the house of representatives

                      Tuesday, September 24, 1996

  Mr. YOUNG of Alaska. Mr. Speaker, I rise to bring to your attention a 
terrible injustice. The victims of this injustice are hardworking, 
taxpaying American citizens who are being deprived of basic rights 
guaranteed to each citizen under the Constitution. Those rights are the 
right to due process of law and the right to equal protection of the 
law. Due process guarantees that when the Government might cause us 
harm, we should have a right to be heard. Equal protection requires 
equal treatment before the law.
  If the Clinton administration has it's ways, our citizens will be 
gagged and denied the right to be heard when they want to complain 
about what their Government is doing to them under the guise of 
protecting endangered or threatened species.
  The Supreme Court has agreed to hear a case filed by two ranchers in 
Oregon asserting that Secretary Babbitt violated the Endangered Species 
Act [ESA] when he tried to reduce the amount of water available to 
those ranchers for their cattle and crops. They alleged that he 
disobeyed several requirements of the ESA that would have protected 
their economic interests. However, they never got their day in court. 
Mr. Babbitt's lawyers asked the judge to throw out their claim without 
a hearing. His lawyers claim that people are not protected by the 
Endangered Species Act so they have no right to complain when the 
Secretary violates the act and therefore, takes away their ability to 
support themselves.
  The lawyers argued that people's economic, social or recreational 
concerns are not within the ``zone of interest'' of the ESA and 
therefore, they cannot sue to have the Court decide if the Secretary 
had violated the law.
  The judge threw the ranchers out of court, but they appealed to the 
Ninth Circuit Court of Appeal. Once again. Secretary Babbitt's 
attorneys argued that the ranchers could not sue to have the 
Secretary's actions reviewed by the court, because they have no 
protections under the ESA. This is called the zone of interest test. 
The ninth circuit in Bennett v. Plent, 63 F. 3d 915 (1995) agreed with 
Secretary Babbitt's lawyers and once again threw these ranchers out of 
court ruling that they were not within ESA's zone of interest. The 
ranchers have now appealed to the Supreme Court. However, Secretary 
Babbitt's attorneys are now worried about the political consequences of 
having everyday people denied access to judicial review of Secretary 
Babbitt's decisions, so they have quit arguing that these ranchers are 
not protected by the ESA. Instead, they are still arguing that these 
ranchers should not be allowed to sue but are basing their arguments on 
other legal technicalities, such as claiming that the ranchers sued the 
wrong Government agency within Secretary Babbitt's vast Department. At 
the Supreme Court level the case is known as Bennett versus Spear.
  If the Supreme Court decides the case the way the lawyers have asked 
them to, it will leave the zone of interest test in place in all courts 
within the ninth circuit's jurisdiction. This means that people living 
in California, Oregon, Washington, Idaho, Alaska, Hawaii, Guam, Nevada, 
Arizona, and Montana will not be able to sue under the ESA to have a 
court review illegal actions by Secretary Babbitt. Since the courts in 
other areas of the country are not bound by the Ninth Circuit Court's 
decision, citizens in those areas will not have to pass the zone of 
interest test to have access to the courts. However, if the Supreme 
Court agrees with the ninth circuits decision, this zone of interest 
test will become the law of the land and will have broad legal 
implications, not just for the interpretation of the Endangered Species 
Act, but for a variety of other environmental statutes as well.

  Putting it in layman's language--Secretary Babbitt's lawyers have 
opened the door of the courthouse to the environmental lawyers, given 
them millions of dollars of taxpayers money to pay for their lawsuits, 
and invited them to keep coming back. This has spawned a cottage 
industry for so-called environmentalists. Although the Federal 
Government subsidizes hundreds of environmentalist's lawsuits, they 
have slammed the door of the courthouse to average citizens just trying 
to protect themselves from abuses by Secretary Babbitt's Department. I 
have attached a list of cases filed under the ESA and the attorney's 
fees received by the lawyers in each of these cases. This list was 
supplied to the Committee on Resources by the Department of Justice.
  To say this is unfair is a gross understatement. It is unfair in the 
extreme and in addition, it is resulting in unreasonable and unbalanced 
public policy. It is no secret that Federal judges are playing a key 
role in implementing the Endangered Species Act. When Secretary Babbitt 
adopts new rules, he is required by law to receive public comment from 
any member of the public. When Federal judges interpret the law, they 
can exclude the general public and allow only a limited viewpoint to be 
heard. It is no wonder that we end up with judge-made law that is so 
unbalanced and unreasonable in so many cases.
  Not all judges would turn away those citizens who wish to sue to 
protect their economic, social, or recreational interest. Judge 
Rosenbaum of the U.S. District Court in Minnesota had this to say when 
the lawyers representing the Clinton administration asked him to 
dismiss a suit filed by a group of snowmobilers. He scolded the 
Government because they could not identify a single person who would 
have been qualified to complain about the Government's overprotection 
of endangered species.
  Judge Rosenbaum said ``the Court is unwilling to adopt the view that 
the Fish and Wildlife Service is unrestrained if it cloaks any of its 
acts in the laudable robe of endangered and threatened species 
protection. This is a form of totalitarian virtue--a concept for which 
no precedent has been advanced and which is foreign to the rule of 
law.''
  He apparently does not agree with the Secretary Babbitt's view that 
under the law the Federal Government can never go too far in protecting 
endangered species. In briefs to the Supreme Court the Government says 
that no one can sue them if they go too far under the ESA.
  According to the Secretary Babbitt's lawyers, if the Government 
violates the constitutional and legal rights of citizens, if it fails 
to follow the requirements in the Endangered Species Act designed to 
protect citizens right's, there is no citizen who can sue to stop such 
Government overreaching.
  That is an incredible statement by our Justice Department lawyers 
sworn to uphold our Constitution and our Bill of Rights.
  I agree with Judge Rosenbaum that allowing only professional 
environmentalists to use the ESA to further their agenda, whatever that 
agenda may be, is foreign to the principles of fairness and due process 
that we hold so dear.
  We need to let citizens who are directly impacted by the ESA into the 
courthouse so that the courts can hear all the facts, all the evidence, 
and let the truth guide their decisions. When only one side is allowed 
to present the facts, the truth becomes the victim of injustice.

----------------------------------------------------------------------------------------------------------------
                                                    Suit                                         Attorney fees  
                   Case name                       number                District                     paid      
----------------------------------------------------------------------------------------------------------------
1. Biodiversity Legal Foundation v. Babbitt...       95-601  Colorado........................          $1,000.00
2. Biodiversity Legal Foundation v. Babbitt...       95-382  Colorado........................           8,000.00
3. Restore: The North Woods v. Babbitt........        95-37  New Hampshire...................           5,400.00
4. Biodiversity Legal Foundation v. Babbitt...      95-1815  Colorado........................           3,500.00
5. Biodiversity Legal Foundation v. Babbitt...       95-816  Colorado........................             500.00
6. The Bay Institute of San Francisco, et al.       94-0265  California, East................           5,000.00
 v. Babbitt.                                                                                                    
7. National Audubon Society v. Babbitt, et al.      94-0105  California, South...............           7,540.61
8. Friends of the Wild Swan, Inc., Alliance         94-0246  District of Columbia............           4,500.00
 for the Wild Rockies, Inc., et al. v. Babbitt.                                                                 
9. Southern Utah Wilderness Alliance v.              94-717  Colorado........................           4,200.00
 Morgenweck..                                                                                                   
10. Environmental Defense Center v. Babbitt...      94-0743  California, Central.............           4,074.75
11.. Biodiversity Legal Foundation, et al. v.       94-1086  Colorado........................           1,408.19
 Babbitt.                                                                                                       
12. Biodiversity Legal Foundation v. Babbitt..      94-0920  District of Columbia............           5,000.00
13. Biodiversity Legal Foundation v. Babbitt..      94-0920  District of Columbia............           3,815.00

[[Page E1680]]

                                                                                                                
14. Greater Gila Biodiversity Project v. USFWS      94-0288  Arizona.........................           2,048.91
15. Southwest Center for Biological Diversity,      94-0696  Arizona.........................           1,665.00
 et al. v. USFWS.                                                                                               
16. Southwest Center for Biological Diversity,      94-0739  Arizona.........................           1,000.00
 et al. v. USFWS.                                                                                               
17. Environmental Defense Center v. Babbitt...      94-0788  California, Central.............           3,815.00
18. Oregon Natural Resources Council v.              94-666  Oregon..........................           4,000.00
 Babbitt.                                                                                                       
19. Mountain Lion Fountain v. Babbitt.........      94-1165  California, East................           6,500.00
20. Dr. Robin Silver, et al. v. Babbitt.......      94-0337  Arizona.........................           4,000.00
21. Dr. Robin Silver, et al. v. Babbitt.......      94-0337  Arizona.........................         102,418.86
22. Southwest Center for Biological Diversity       94-1034  Arizona.........................           5,145.00
 v. Babbitt.                                                                                                    
23. The Biodiversity Legal Foundation v.           94-02441  District of Columbia............           4,000.00
 Babbitt.                                                                                                       
24. Idaho Conservation League v. Babbitt......      94-0351  Idaho...........................           5,000,00
25. Northwest Coalition for Alternatives to         94-6339  Oregon..........................          10,500.00
 Pesticides v. Babbitt.                                                                                         
26. Southwest Center for Biological Diversity       94-1946  Arizona.........................           1,971.01
 v. Babbitt.                                                                                                    
27. Southwest Center for Biological Diversity       94-2036  Arizona.........................          40,000.00
 v. Babbitt.                                                                                                    
28. Native Plant Society of Oregon v. U.S. DOI       93-180  Oregon..........................          13,046.19
29. National Audubon Society et al. v. Babbitt      93-1152  District of Columbia............          22,500.00
 et al...                                                                                                       
30. Idaho Dept. of Fish and Game v. National        93-1603  Oregon..........................           8,405.06
 Marine Fisheries Service.                                                                                      
31. Oregon Natural Resources Council v. Dept.        93-293  Oregon..........................          16,200.00
 of Commerce.                                                                                                   
32. Clemmys Karmorata v. USFWS................      93-6135  Oregon..........................           2,522.30
33. Environmental Defense Center v. Bruce           93-1847  California, Central.............           4,700.00
 Babbitt.                                                                                                       
34. Environmental Defense Center v. Bruce           93-1848  California, Central.............           4,700.00
 Babbitt.                                                                                                       
35. Environmental Defense Center v. Babbitt...      93-3379  California, Central.............           4,300.00
36. Desert Tortoise, et al. v. Lujan..........      93-0114  California, North...............          69,000.00
37. Southern Utah Wilderness Alliance v. Bruce      93-2376  Colorado........................           8,500.00
 Babbitt.                                                                                                       
38. Greater Yellowstone Coalition, et al. v.        93-1495  District of Columbia............          32,750.00
 F. Dale Robertson (Chief, USFWS).                                                                              
39. Natural Resources Defense Council, et al.       93-0301  California, North...............         262,096.76
 v. Bruce Babbitt, Sec. DOI.                                                                                    
40. Sierra Club, et al. v. Bruce Babbitt, et        93-1717  California, South...............          11,368.76
 al..                                                                                                           
41. Greater Gila Biodiversity Project v. USFWS      93-1913  Arizona.........................          11,000.00
42. Sierra Club, et al. v. David Garber, et          93-069  Montana.........................          55,000.00
 al..                                                                                                           
43. Bay Institute of San Francisco v. Lujan...      92-2132  California, East................          60,000.00
44. Pacific Rivers Council v. Thomas..........      92-1322  Oregon..........................         165,000.00
45. Colorado Wildlife Federation v. Turner....       92-884  Colorado........................          31,351.90
46. Colorado Wildlife Federation v. Turner....       92-884  Colorado........................           5,000.00
47. Environmental Defense Center v. Lujan.....      92-6082  California, Central.............           7,500.00
48. Idaho Conservation League v. Manuel Lujan,      92-0260  Idaho...........................          21,166.00
 et al..                                                                                                        
49. Canadian Lynx, Greater Ecosystem Alliance       21-1269  Washington, West................           2,000.00
 v. Lujan.                                                                                                      
50. Canadian Lynx, Greater Ecosystem Alliance       92-1269  Washington, West................           9,500.00
 v. Lujan.                                                                                                      
51. Friends of Walker Creek Wetlands v. Dept.       92-1626  Oregon..........................          12,000.00
 of the Interior.                                                                                               
52. Idaho Conservation League, et al. v. Lujan      92-0406  Idaho...........................           8,000.00
53. Fund for Animals v. Manuel Lujan, et al...       92-800  District of Columbia............          67,500.00
54. National Audubon Society v. Lujan.........       92-209  California, South...............           7,348.75
55. Wendell Wood, et al. v. Manuel Lujan, et        91-6496  Oregon..........................          14,547.05
 al..                                                                                                           
56. Wendell Wood, et al. v. Manuel Lujan, et        91-6496  Oregon..........................             550.00
 al..                                                                                                           
57. California Native Plant Society v. Manuel       91-0038  California, East................          16,678.25
 Lujan, Jr..                                                                                                    
58. Earth Island Institute, et al. v. Manuel        91-6015  Oregon..........................          32,338.70
 Lujan, Jr..                                                                                                    
59. The Fund for Animals ein., et al. v.            91-2201  District of Columbia............          36,000.00
 Turner.                                                                                                        
60. West Snowy Plover v. Lujan................      91-1421  Washington, West................           7,710.92
61. Edward Wilkinson Mudd Jr. v. William            91-1392  Alabama, North..................          39,000.00
 Reilly, Admin., EPA.                                                                                           
62. Hawaiian Crow v. Manuel Lujan.............     91-00191  Hawaii..........................         195,000.00
63. Sierra Club v. Lujan......................       91-069  Texas, West.....................         666,666.67
64. Sierra Club v. Lujan......................       91-069  Texas, West.....................         666,666.67
65. Sierra Club v. Lujan......................       91-069  Texas, West.....................         666,666,66
66. Sierra Club v. Lujan......................       91-069  Texas, West.....................       1,550,000,00
67. Marbled Murrelet, et al. v. Manuel Lujan..       91-522  Washington, West................          43,519.49
68. Marbled Murrelet, et al. v. Manuel Lujan..       91-522  Washington, West................          17,589.98
69. Dioxin/Organichlorine Center and Columbia       91-1442  Washington, West................          61,500.00
 River United v. Dana Rasmussen.                                                                                
70. Colorado Envtl. Coalition v. J. Turner....      91-1765  Colorado........................           5,168.40
71. Florida Key Deer, et al. v. Robert H.          90-10037  Florida, South..................         130,000.00
 Morris.                                                                                                        
72. Conservation Council for Hawaii, et al. v.     89-00953  Hawaii..........................          44,635.25
 Manuel Lujan and John F. Turner.                                                                               
73. National Wildlife Federation, et al. v.         89-2089  District of Columbia............          42,500.00
 Robert Mosbacher, Sec. of Commerce.                                                                            
74. Sierra Club Legal Defense Fund v. Manuel        89-1140  District of Columbia............           9,000.00
 Lujan, Jr., Sec. of Interior, et al..                                                                          
75. Sierra Club, et al. v. James A. Baker, et       89-3005  District of Columbia............          18,583.72
 al.                                                                                                            
76. Resources Limited Inc., et al. v. F. Dale         89-41  Montana.........................          90,000.00
 Robertson, et al..                                                                                    47,000.00
77. Environmental Defense Fund v. Lujan.......      89-2034  District of Columbia............           2,237.50
78. Silver Rice Rat, et al. v. Manuel Lujan...      89-3409  District of Columbia............          19,500.00
79. Northern Spotted Owl, et al. v. Donald           88-573  Washington, West................          56,718.00
 Hodel, et al..                                                                                                 
80. World Wildlife Fund v. Donald P. Hodel, et       88-573    ..............................          56,000.00
 al..                                                                                                           
81. Sierra Club and League for Coastal              86-1942  California, South...............          44,774.16
 Protection v. John Marsh, et al..                                                                              
82. Greenpeace v. Baldrige....................      86-0129  Hawaii..........................          88,794.01
83. Sierra Club, et al. v. Richard Lyng.......        85-69  Texas, East.....................         149,647.50
84. Natural Resources Defense Council v.            85-1214  California, East................         518.000.00
 Donald Hodel (Kesterson).                                                                                      
85. Natural Resources Defense Council v.            85-1214  California, East................          57.000.00
 Donald Hodel (Kesterson).                                                                                      
86. Natl. Wildlife Foundation, et al. v.            79-1851  District of Columbia............          20,000.00
 Endangered Species Committee, et al..                                                                          
87. Defenders of Wildlife v. Thomas...........   Strychnine  Minnesota.......................         122,500.00
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