[House Report 105-42]
[From the U.S. Government Publishing Office]



105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                     105-42
_______________________________________________________________________


 
                   CITIZEN'S FAIR HEARING ACT OF 1997
                                _______
                                

 March 21, 1997.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

_______________________________________________________________________


  Mr. Young of Alaska, from the Committee on Resources, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 752]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Resources, to whom was referred the bill 
(H.R. 752) to amend the Endangered Species Act of 1973 to 
ensure that persons that suffer or are threatened with injury 
resulting from a violation of the Act or a failure of the 
Secretary to act in accordance with the Act have standing to 
commence a civil suit on their own behalf, having considered 
the same, report favorably thereon with an amendment and 
recommend that the bill as amended do pass.
  The amendment is as follows:
  Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Citizen's Fair Hearing Act of 1997''.

SEC. 2. FINDINGS.

  The Congress finds the following:
          (1) The Endangered Species Act of 1973 grants broad 
        regulatory authority to various agencies to take actions to 
        protect, preserve, and recover species of plants and animals 
        determined to be in danger of extinction or threatened with 
        becoming so within the foreseeable future.
          (2) Recently, private property owners and other persons that 
        have been adversely impacted by Federal agency actions under 
        the Endangered Species Act of 1973 have sought to bring civil 
        actions for judicial review of those agency actions. The United 
        States Circuit Court of Appeals for the 9th Circuit has found 
        that plaintiffs in those actions do not have standing to bring 
        the suits, because they do not fall into the zone of interests 
        protected by the Endangered Species Act of 1973.

SEC. 3. GIVING PERSONS WITH AFFECTED ECONOMIC INTERESTS EQUAL STANDING 
                    TO SUE UNDER THE ENDANGERED SPECIES ACT OF 1973.

  Section 11(g)(1) of the Endangered Species Act of 1973 (16 U.S.C. 
1540(g)(1)) is amended by striking so much as precedes subparagraph (A) 
and inserting the following:
  ``(g) Citizen Suits.--(1) Except as provided in paragraph (2), any 
person that satisfies the requirements of the Constitution and 
demonstrates having suffered or being threatened with economic or other 
injury resulting from a violation of this Act or a failure of the 
Secretary to act in accordance with this Act is deemed to be within the 
zone of protected interests of this Act and shall have standing to 
commence a civil suit on his or her own behalf--''.

                          Purpose of the Bill

    The purpose of H.R. 752 is to amend the Endangered Species 
Act of 1973 (ESA, Public Law 93-205, 16 U.S.C. 1531 et seq.) to 
ensure that persons who suffer or are threatened with injury 
resulting from a violation of the ESA or failure of the 
Secretaries of Interior or Commerce to act in accordance with 
the ESA have standing to commence a civil suit on their own 
behalf.

                  Background and Need for Legislation

    H.R. 752 is intended to reverse the decision rendered in 
Bennett v. Plenert, 63 F. 3d 915, decided by the Ninth Circuit 
Court of Appeal in August, 1995. In Bennett, the Court denied 
standing to sue to a group of plaintiffs who were alleging they 
would be injured economically by an action of the Secretary of 
the Interior under the ESA. The case is on appeal to the U.S. 
Supreme Court and is now entitled Bennett v. Spear. Oral 
arguments took place in November with a decision expected in 
1997.
    In Bennett, the Fish and Wildlife Service, pursuant to its 
ESA Section 7 consultation power, recommended in a biological 
opinion to the Bureau of Reclamation that it maintain minimum 
water levels in a reservoir that is home to two endangered 
fish, the shortnose and Lost River suckers. Thereafter, two 
ranchers and two water districts sued. The basis of their 
standing was that they would suffer economic injury if the 
biological opinion was followed. They challenged the Service's 
biological opinion, alleging that there was no scientific basis 
to support the decision, and that evidence actually showed that 
the sucker populations at issue were not in need of protection. 
The complaint alleged violations of the ESA and the 
Administrative Procedure Act. Plaintiffs also raised a claim 
under the National Environmental Policy Act, but the court of 
appeals did not consider that claim. The Justice Department, 
acting on behalf of the Department of Interior, asked the court 
to dismiss the complaint for lack of standing, and the U.S. 
District Court in Oregon granted the motion, noting that 
plaintiffs' purposes conflict with those of the sucker, and 
were thus not within the ESA's zone of interest.
    The Ninth Circuit affirmed the lower court, holding that 
``plaintiffs who assert no interest in preserving endangered 
species may [not] sue the government for violating the 
procedures established in the Endangered Species Act.'' Thus, 
the Ninth Circuit in the Bennett case has passed over the large 
class of persons economically injured by ESA enforcement, 
landing on a position of one-sided public enforcement.
    Although the government challenged the plaintiffs' standing 
based on their failure to be within the ``zone of interest'' of 
the ESA at each of the lower court levels, it abandoned the 
argument at the Supreme Court. In addition, in testimony before 
the Committee and in a letter to the Committee, the 
Administration has indicated that it does support the right of 
citizens to obtain judicial review of agency decisions and that 
their policy has changed with regard to this issue.
    The doctrine of ``standing'' helps define the classes of 
persons who may sue in federal court. Article III of the United 
States Constitution limits the jurisdiction of the federal 
courts to actual ``cases'' or ``controversies.'' Congress may 
grant standing under the laws it enacts; however, the case or 
controversy requirements of Article III may not be changed by 
Congress. Courts may also impose limitations on standing 
through their interpretation of Congressional intent and 
further limit the classes of persons who may sue the federal 
government. The rise of federal environmental statutes and the 
citizen suit provisions contained therein have been the vehicle 
for these restrictions on ``standing.''
    To meet the standing test one must first meet the 
requirements of Article III of the U.S. Constitution. In Lujan 
v. Defenders of Wildlife, 112 S. Ct. 2130 (1192), the Supreme 
Court handed down its most recent statement of the Article III 
standing requirements. First, the plaintiff must suffer an 
injury-in-fact, which must be both ``concrete and 
particularized'' and ``actual or imminent.'' Second, that 
injury must be fairly traceable to the challenged action. 
Third, a favorable decision must likely redress the injury. All 
plaintiffs must meet these requirements before they may argue 
the merits of their case. Congress may not waive, by statute, 
this Constitutional requirement for standing.
    Ironically, determining ``standing'' generally requires an 
economic interest. Regulatory issues before the courts 
ordinarily involves only two parties: the regulators and the 
regulated. Citizens suit statutes have brought a third party, 
the interested private citizen, into the courtroom to enforce 
the law.
    The federal circuits are split on their interpretation of 
the standing requirement for citizen suits and for judicial 
review of federal agency action. The Ninth Circuit has been the 
most restrictive, while the Eighth Circuit in a similar case 
has allowed standing to the full extent allowed by the 
Constitution.

Judicial review under the Administrative Procedure Act

    The Administrative Procedure Act (APA), 5 U.S.C. 702, 
provides for general review of federal agency rulemaking or 
decisionmaking. Meeting the standing requirement is the first 
step in obtaining judicial review of an agency action. If you 
do not have ``standing'' you may not bring a suit under a 
particular law, notwithstanding the merits of the case.
    Certain federal appellate court circuits have further 
limited standing to seek review under the APA by devising a 
``zone of interest'' test. In these circuits, in addition to 
the requirements of Article III, plaintiffs suing under the APA 
must be within the ``zone of interest'' of the statute alleged 
to be violated by the agency action. Under this test, litigants 
must allege an interest consistent with the purpose of the 
statute or law in question.
    Section 702 of the APA states ``a person suffering legal 
wrong because of agency action, or adversely affected or 
aggrieved by agency action within the meaning of a relevant 
statute, is entitled to judicial review thereof * * *.'' 
Certain courts have interpreted ``within the meaning of the 
relevant statute'' to convey the intent of Congress to limit 
standing to those classes of plaintiffs who may be relied upon 
to challenge an agency's disregard for the law. Those classes 
have been determined to be those who allege an interest 
arguably within the ``zone of interest'' to be protected or 
regulated by the statute in question.

ESA citizen suits

    ESA Section 11(g)(1) authorizes ``any person'' to sue to 
enjoin anyone alleged to be in violation of any provision of 
the ESA or its implementing regulations, to compel the 
application of the ``take'' prohibition, or insure that the 
relevant Secretary complies with Section 4 of the ESA 
(listings, critical habitat, and recovery plans). Although this 
broad language appears to expand the classes of person who may 
sue to challenge agency actions under the ESA, certain courts 
have also examined the purposes stated in Section 2(b) of the 
ESA and have concluded that only those seeking to sue to 
further these purposes have standing. Section 2(b) states the 
purpose of the ESA is ``to provide a means whereby the 
ecosystems upon which endangered species and threatened species 
depend may be conserved, to provide a program for the 
conservation of such endangered species and threatened species, 
and to take such steps as may be appropriate to achieve the 
purposes of the treaties and conventions set forth in 
subsection (a) of this section.'' Therefore, anyone suing for 
any other purpose, such as protecting social, civil, economic, 
recreational, or legal rights or even the general well-being of 
a community, is not permitted to seek judicial review under the 
``zone of interest'' doctrine, regardless of the merits of the 
allegations of violation of the ESA.

H.R. 752 by Representative Chenoweth

    H.R. 752 is intended to clarify that Congress agrees with 
the Eighth Circuit that the courts should limit barriers to 
judicial review of ESA decisions to those prescribed by the 
Constitution. This legislation ensures that persons who suffer 
or are likely to suffer harm, whether economic or otherwise, by 
actions taken pursuant to the ESA may file a citizen suit and 
seek judicial review under the APA. The bill amends Section 
11(g)(1) to provide that any person who meets the 
constitutional standing test and demonstrates having suffered 
or being threatened with economic or other injury resulting 
from a violation of the ESA or a failure of the Secretary of 
the Interior or the Secretary or Commerce to act in accordance 
with the ESA, is deemed to be within the zone of protected 
interests of the ESA and have standing to commence a civil 
suit.

                            Committee Action

    On February 13, 1997, Congresswoman Helen Chenoweth (R-ID) 
and 45 other Members of Congress introduced the H.R. 752, the 
Citizen's Fair Hearing Act of 1996. The bill was referred to 
the Committee on Resources, and retained by the Full Committee 
which has jurisdiction over the Endangered Species Act. H.R. 
752 is virtually identical to H.R. 3862 which was introduced 
during the 104th Congress on July 22, 1996. On September 17, 
1996, the Committee on Resources held a hearing on H.R. 3862, 
the Citizen's Fair Hearing Act of 1996. The hearing focused on 
whether citizens who have suffered economic, social, or legal 
harm may sue under the citizen suit provision of the Endangered 
Species Act.
    The Administration testified in opposition to H.R. 3862 on 
September 17, 1996, and in a letter to the Committee dated 
March 11, 1997, restated its opposition to H.R. 752. The letter 
also restated the Administration's support for the right of 
citizens to obtain judicial review of agency decisions under 
the ESA. On March 12, 1997, the Committee on Resources met to 
mark up H.R. 752. Congresswoman Chenoweth made a unanimous 
consent request to make a technical correction to the short 
title of the bill, changing the year ``1996'' to ``1997''. No 
objection was heard. An amendment to expand the remedies 
available to plaintiffs, along with changes in the 60 notice of 
intent to sue requirement, was offered by Congressman Bruce 
Vento (D-MN.) but was rejected on a point of order based on a 
lack of germaneness to the bill. The bill as amended was 
approved and ordered favorably reported to the House of 
Representatives by voice vote in the presence of a quorum.
    Following the Full Committee consideration of H.R. 752, on 
March 19, 1997, the U.S. Supreme Court issued a unanimous 
decision in the case of Bennett v. Spear that citizens who 
suffer economic or other injury have standing under the Section 
11(g) to file a citizen suit and that these citizens also have 
standing to bring suit for judicial review under Section 702 of 
the Administrative Procedure Act.

                      Section-by-Section Analysis

Section 1. Short title

    Section 1 states that the Act may be cited as the 
``Citizen's Fair Hearing Act of 1997.''

Section 2. Findings

    Section 2 sets forth the findings that the ESA grants the 
federal government broad regulatory powers and that some 
citizens have been denied access to the courts to seek judicial 
review of decisions made pursuant to that regulatory authority.

Section 3. Giving persons with affected economic interests equal 
        standing to sue under the Endangered Species Act of 1973

    Section 3 amends the introductory paragraph to Section 
11(g) to clarify that any person who satisfied the 
Constitutional requirements for standing to sue and 
demonstrates having suffered or being threatened with economic 
or other injury resulting from a violation of the ESA or a 
failure of the Secretaries of Interior or Commerce to act in 
accordance with the ESA is deemed to be within the zone of 
protected interests of the ESA and shall have standing to 
commence a civil suit on his or her own behalf under Section 
11.

            Committee Oversight Findings and Recommendations

    With respect to the requirements of clause 2(l)(3) of rule 
XI of the Rules of the House of Representatives, and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee on Resources' oversight findings and 
recommendations are reflected in the body of this report.

                   Constitutional Authority Statement

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact H.R. 752.

                        Cost of the Legislation

    Clause 7(a) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs which would be incurred in carrying out 
H.R. 752. However, clause 7(d) of that rule provides that this 
requirement does not apply when the Committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 403 of the Congressional Budget Act of 1974.

                     Compliance With House Rule XI

    1. With respect to the requirement of clause 2(l)(3)(B) of 
rule XI of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, H.R. 
752 does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    2. With respect to the requirement of clause 2(l)(3)(D) of 
rule XI of the Rules of the House of Representatives, the 
Committee has received no report of oversight findings and 
recommendations from the Committee on Government Reform and 
Oversight on the subject of H.R. 752.
    3. With respect to the requirement of clause 2(l)(3)(C) of 
rule XI of the Rules of the House of Representatives and 
section 403 of the Congressional Budget Act of 1974, the 
Committee has received the following cost estimate for H.R. 752 
from the Director of the Congressional Budget Office.

               Congressional Budget Office Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 20, 1997.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 752, the Citizen's 
Fair Hearing Act of 1997.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Deborah Reis.
            Sincerely,
                                         June E. O'Neill, Director.
    Enclosure.

H.R. 752--Citizen's Fair Hearing Act of 1997

    CBO estimates that enacting H.R. 752 would have little or 
no impact on the federal budget. Because the bill would not 
affect direct spending or receipts, pay-as-you-go procedures 
would not apply. H.R. 752 contains no intergovernmental or 
private-sector mandates as defined in the Unfunded Mandates 
Reform Act of 1995 and would impose no costs on state, local, 
or tribal governments.
    H.R. 752 would amend the Endangered Species Act of 1973 
(ESA) to clarify that the citizen suit provisions of the 
statute apply to any person who can satisfy the requirements of 
the United States Constitution regarding standing to sue and 
show past or threatened economic or other injury stemming from 
a violation of the ESA (or from failure of the federal 
government to act in accordance with the statute). The bill 
would not expand existing remedies under the act.
    CBO estimates that H.R. 752 would have little or no impact 
on the activities of any federal agency or court, largely 
because a recent Supreme Court decision in Bennet et al. v. 
Spear et al., ________ S. Ct. ________ (March 19, 1997) 
resolved the issues addressed by the bill. Even in the absence 
of the Supreme Court's ruling, however, CBO estimates that H.R. 
752 would have had little budgetary impact nationally because 
the clarifications made by the bill would have affected only 
the one or two federal courts that have held that injured 
persons such as property owners lacked standing to seek 
judicial review under the ESA. (Other jurisdictions already 
hear such lawsuits, and the bill would have had no effect on 
their caseloads or budgets.)
    The CBO staff contact for this estimate is Deborah Reis. 
This estimate was approved by Paul N. Van de Water, Assistant 
Director for Budget Analysis.

                    Compliance With Public Law 104-4

    H.R. 752 contains no unfunded mandates.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3 of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

            SECTION 11 OF THE ENDANGERED SPECIES ACT OF 1973

                       penalties and enforcement

    Sec. 11. (a) * * *
          * * * * * * *
    [(g) Citizen Suits.--(1) Except as provided in paragraph 
(2) of this subsection any person may commence a civil suit on 
his own behalf--]
    (g) Citizen Suits.--(1) Except as provided in paragraph 
(2), any person that satisfies the requirements of the 
Constitution and demonstrates having suffered or being 
threatened with economic or other injury resulting from a 
violation of this Act or a failure of the Secretary to act in 
accordance with this Act is deemed to be within the zone of 
protected interests of this Act and shall have standing to 
commence a civil suit on his or her own behalf--
          (A) * * *
          * * * * * * *
                            DISSENTING VIEWS

    This bill presents a solution to a problem that no longer 
exists.
    As the Majority acknowledged at the committee markup on 
March 12, 1997, the primary intent of H.R. 752 is to override 
the Ninth Circuit decision in Bennett v. Spear, a case 
involving access to the courts by economic interests affected 
by the Endangered Species Act (ESA). Despite the protests of 
Democratic Members that a decision from the Supreme Court on 
the appeal was imminent--and that legislation was premature and 
inappropriate--the Majority chose to report this bill. In 
addition to attempting to resolve the issues in the Bennett v. 
Spear case, this bill sets forth a broad rewrite of the ESA 
section authorizing citizens suits, opening the door to further 
litigation and interpretation by the courts.
    On March 19, 1997, only one week after the committee 
markup, the Supreme Court issued its unanimous opinion in 
Bennett v. Spear (No. 95-815), expressly overturning the Ninth 
Circuit's holding that the plaintiffs lacked standing under the 
zone of interests test. Instead, the Supreme Court held that 
the plaintiffs could bring their claims under the ESA's 
citizens suit provisions.
    Now that the Supreme Court has expressly overturned the 
Ninth Circuit's decision, making it clear that economic 
interests are to be fairly considered under the ESA, this bill 
is unnecessary and should not move forward in the legislative 
process. Unfortunately, however, the Majority's premature 
decision to mark up this bill sets an ill-advised precedent of 
the Committee trying to intervene in the judicial process to 
predetermine the outcome of a pending Supreme Court case.
    In addition, we remain concerned about the potential impact 
of the language in H.R. 752. During markup, the Majority 
characterized their intent as simply to bring ESA standing law 
in the Ninth Circuit into conformity with precedent from the 
other federal circuits. It is not clear that H.R. 752's 
complete rewrite of the statute (for example, by deleting the 
existing language that ``any person may commence a civil suit 
on his own behalf'') is as benign or as limited in scope as 
portrayed by the Majority. In the wake of the Supreme Court's 
clarification of the law in Bennett v. Spear, it would make no 
sense to now amend the statute and clog the courts with further 
litigation and confusion.

                                   George Miller.
                                   Maurice D. Hinchey.
                                   Sam Farr.
                                   Bruce F. Vento.
                                   Ed Markey.
                                   William Delahunt.

                                
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