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Bennett v. Spear

Supreme Court of the United States

November 13, 1996, Argued ; March 19, 1997, Decided

No. 95-813


 [***292]  [*157]  [**1158]    JUSTICE SCALIA delivered the opinion of the Court.

 This is a challenge to a biological opinion issued by the Fish and Wildlife Service in accordance with the Endangered Species Act of 1973 (ESA), 87 Stat.  [****8]  884, as amended, 16 U.S.C. § 1531 et seq., concerning the operation of the Klamath Irrigation Project by the Bureau of Reclamation, and the project's impact on two varieties of endangered fish.  [**1159]  The question for decision is whether the petitioners, who have competing economic and other interests in Klamath Project water, have standing to seek judicial review of the biological opinion under the citizen-suit provision of the ESA, § 1540(g)(1), and the Administrative Procedure Act (APA), 80 Stat. 392, as amended, 5 U.S.C. § 701 et seq.

] The ESA requires the Secretaryof the Interior to promulgate regulations listing those species of animals that are "threatened" or "endangered" under specified criteria, and  [*158]  to designate their "critical habitat." 16 U.S.C. § 1533. The ESA further requires each federal agency to "insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary . . . to be critical." § 1536(a)(2). ] If an agency determines that action [****9]  it proposes to take may adversely affect a listed species, it must engage in formal consultation with the Fish and Wildlife Service, as delegate of the Secretary, ibid.; 50 CFR § 402.14 (1995), after which the Service must provide the agency with a written statement (the Biological Opinion) explaining how the proposed action will affect the species or its habitat, 16 U.S.C. § 1536(b)(3)(A). If the Service concludes that the proposed action will "jeopardize the continued existence [***293]  of any [listed] species or result in the destruction or adverse modification of [critical habitat]," § 1536(a)(2), the Biological Opinion must outline any "reasonable and prudent alternatives" that the Service believes will avoid that consequence, § 1536(b)(3)(A). Additionally, ] if the Biological Opinion concludes that the agency action will not result in jeopardy or adverse habitat modification, or if it offers reasonable and prudent alternatives to avoid that consequence, the Service must provide the agency with a written statement (known as the "Incidental Take Statement") specifying the "impact of such incidental taking on the species," any "reasonable and prudent measures that the [Service]  [****10]  considers necessary or appropriate to minimize such impact," and setting forth "the terms and conditions . . . that must be complied with by the Federal agency . . . to implement [those measures]." § 1536(b)(4).

The Klamath Project, one of the oldest federal reclamation schemes, is a series of lakes, rivers, dams and irrigation canals in northern California and southern Oregon. The project was undertaken by the Secretary of the Interior  [*159]  pursuant to the Reclamation Act of 1902, 32 Stat. 388, as amended, 43 U.S.C. § 371 et seq., and the Act of Feb. 9, 1905, 33 Stat. 714, and is administered by the Bureau of Reclamation, which is under the Secretary's jurisdiction. In 1992, the Bureau notified the Service that operation of the project might affect the Lost River Sucker (Deltistes luxatus) and Shortnose Sucker (Chasmistes brevirostris), species of fish that were listed as endangered in 1988, see 53 Fed. Reg. 27130-27133 (1988). After formal consultation with the Bureau in accordance with 50 CFR § 402.14 (1995), the Service issued a Biological Opinion which concluded that the "'long-term operation of the Klamath Project was likely to jeopardize the continued existence [****11]  of the Lost River and shortnose suckers.'" App. to Pet. for Cert. 3. The Biological Opinion identified "reasonable and prudent alternatives" the Service believed would avoid jeopardy, which included the maintenance of minimum water levels on Clear Lake and Gerber reservoirs. The Bureau later notified the Service that it intended to operate the project in compliance with the Biological Opinion.

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520 U.S. 154 *; 117 S. Ct. 1154 **; 137 L. Ed. 2d 281 ***; 1997 U.S. LEXIS 1921 ****; 65 U.S.L.W. 4201; 97 Cal. Daily Op. Service 2000; 97 Daily Journal DAR 3647; 27 ELR 20824; 44 ERC (BNA) 1161; 10 Fla. L. Weekly Fed. S 354


Subsequent History: On remand at, Remanded by Bennett v. Plenert, 112 F.3d 402, 1997 U.S. App. LEXIS 8068 (9th Cir., 1997)


Bennett v. Plenert, 63 F.3d 915, 1995 U.S. App. LEXIS 23979 (9th Cir. Or., 1995)

Disposition: Reversed and remanded.


Biological, species, petitioners', agency's action, habitat, zone, citizen-suit, regulated, judicial review, Lake, authorizes, endangered, Appeals, zone-of-interests, scientific, data processing, contends, suckers, environmental, Incidental, irrigation, prudential, violations, prudent, levels, adversely affect, conditions, reservoirs, traceable, proposed action

Environmental Law, Natural Resources & Public Lands, Endangered Species Act, Critical Habitats, Governments, Federal Government, Claims By & Against, International Trade Law, Trade Agreements, Environmental Provisions, Endangered Species, General Overview, Federal Agencies, Species Lists, Takings, Civil Procedure, Justiciability, Standing, Constitutional Law, Case or Controversy, Elements, Land Use & Zoning, Constitutional Limits, Preliminary Considerations, The Judiciary, Banking Law, Bank Activities, Administrative Law, Judicial Review, Reviewability, Standing, Administrative Proceedings & Litigation, Judicial Review, Judgments, Summary Judgment, Evidentiary Considerations, Responses, Defenses, Demurrers & Objections, Motions to Dismiss, Burdens of Proof