court must generally be at its most deferential."). In the same vein, "when specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Marsh v. Oregon Natural Resources Defense Council, 490 U.S. at 378.
IV. PLAINTIFFS' STANDING
Defendants and defendant-intervenors argue that plaintiffs lack Article III standing because they have failed to articulate injury in fact. Defendant-intervenors also argue that plaintiffs lack standing under the ESA and under the APA because they have asserted no interest in protecting the fairy shrimp and therefore do not fall under the "zone of interests" protected by Congress in passing the ESA. The Court concludes that plaintiffs have standing under both tests.
A. Article III Standing
In order to withstand defendants' and defendant-intervenors' suggestion that they lack standing, plaintiffs must demonstrate that they have suffered "injury in fact," that is, injury "fairly traceable" to the actions of defendants and that the injury will likely be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992); Navegar, Inc. v. United States, 322 U.S. App. D.C. 288, 103 F.3d 994, 997-98 (D.C. Cir. 1997). Plaintiffs have provided evidence that the listing of the fairy shrimp has depressed their land values and development prospects, has halted or impeded specific developments, and has already cost them thousands of dollars for sampling surveys as well as the costs of delay. See Declaration of Robert Shattuck PP 5, 7 (Jan. 27, 1996); Declaration of Larry D. Kelley PP 3-12 (Jan. 27, 1996); Declaration of Randy Schaber PP 5-9 (Jan. 26, 1996); Affidavit of Robert Ryan PP 4-6 (Dec. 15, 1995); Declaration of Lorraine Garcy PP 4-12 (Jan. 11, 1996), Pls.' Opposition to Defs.' Motions for Summary Judgment, Exs. A-E.
Defendant-intervenors argue that plaintiffs' injuries are not "fairly traceable" to the listing decision but rather that their injuries will be caused in the future, if at all, by yet-to-be-published regulations promulgated pursuant to the listing. The Supreme Court has recently made clear, however, that the "fairly traceable" requirement does not mean that plaintiffs must show that the listing was "the very last step in the chain of causation." Bennett v. Spear, 137 L. Ed. 2d 281, 117 S. Ct. 1154, 1164 (1997). Rather, plaintiffs can meet their burden by demonstrating that the listing had a "determinative or coercive effect on the action of someone else" who, in turn, caused plaintiffs injury. Id. In this case, the listing has already had significant effects on the Army Corps of Engineers and the various regulatory entities that govern land use in California, which in turn, as the affidavits and declarations demonstrate, have forced plaintiffs to incur costs and delays. Plaintiffs therefore have standing under Article III to challenge the listing.
B. Prudential Standing
Under the APA and some parts of the ESA, a plaintiff must meet both Article III standing requirements and prudential standing requirements. Prudential standing is a "judicially self-imposed limit on the exercise of federal jurisdiction," Bennett v. Spear, 117 S. Ct. at 1161, and it "applies unless it is expressly negated." Id. at 1162 (holding that the citizen-suit provision of the ESA, which permits suits by "any person," expands the zone-of-interests for certain claims); see State of Idaho v. ICC, 308 U.S. App. D.C. 268, 35 F.3d 585, 592 (D.C. Cir. 1994). One of the requirements of prudential standing is "that a plaintiff's grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit." Bennett v. Spear, 117 S. Ct. at 1161 (citing Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984)).
Plaintiffs argue that the Supreme Court's recent decision in Bennett v. Spear removes any doubt as to their prudential standing. The Court agrees. In Bennett v. Spear, the Supreme Court held that irrigation districts that used water from the Klamath Irrigation Project had prudential standing both under the ESA and the APA to challenge a Biological Opinion issued by the FWS that arguably would have reduced the amount of water available for plaintiffs' use. The Court reversed the Ninth Circuit's decision that the plaintiffs lacked standing because their admittedly economic interests did not fall within the zone of preservationist and environmental interests protected by the ESA.
The Court first held that the citizen-suit provision of the ESA, which authorizes suit by "any person," negates the zone-of-interests test altogether because it manifests a clear congressional intent to permit anyone to sue, no matter the nature of their interest. Bennett v. Spear, 117 S. Ct. at 1162. In other words, an affected interested business that thinks that the FWS has gone too far in seeking to protect and preserve the environment may be a "person" under the ESA on equal footing with a preservationist or environmentalist who challenges an FWS decision not to preserve or conserve the environment sufficiently.
The Court also recognized in Bennett v. Spear, however, that not all suits can be brought under the citizen-suit provision of the ESA; suits (such as the instant action) to compel the Secretary to perform his statutory responsibilities under the ESA, for example, are cognizable only under the APA. Bennett v. Spear, 117 S. Ct. at 1167. The Court held that such APA plaintiffs are indeed subject to the zone-of-interests test but that the Bennett plaintiffs met the test even though their interests were economic and not environmental. As a general rule, the Court held that
whether a plaintiff's interest is "arguably . . . protected . . . by the statute" within the meaning of the zone-of-interests test is to be determined not by reference to the overall purpose of the Act in question (here, species preservation), but by reference to the particular provision of law upon which the plaintiff relies.
Id. at 1167. In other words, a plaintiff's interests need not track the overarching preservationist and environmentally protective purpose of the ESA itself but need only comport with the more specific particular provision of the ESA being invoked.
The Bennett plaintiffs complained that the FWS had not used the best available science as required under 16 U.S.C. § 1536(a)(2). The Court reasoned that the "best scientific and commercial data" provision of the ESA was intended, at least in part, "to avoid needless economic dislocation produced by agency officials zealously but unintelligently pursuing their environmental objectives," and that plaintiffs' economic interests fell within that zone even though their interests did not follow the general preservationist thrust of the ESA itself. Bennett v. Spear, 117 S. Ct. at 1168. Like the plaintiffs in Bennett v. Spear, plaintiffs here have prudential standing to challenge the agency's use of the best scientific and commercial data in listing the fairy shrimp.
Even before Bennett v. Spear, the D.C. Circuit recognized that a party can meet the prudential standing test by qualifying either as a regulated interest or a protected interest. Hazardous Waste Treatment Council v. Thomas, 280 U.S. App. D.C. 296, 885 F.2d 918, 922 (D.C. Cir. 1989) ("HWTC"). The court reasoned that those who are regulated "have the incentive to guard against any administrative attempt to impose a greater burden than that contemplated by Congress," just as environmental groups may serve as watchdogs to assure that the agency fulfills its responsibilities under the law. 885 F.2d at 922. The party, however, must be "regulated by the particular regulatory action being challenged." Id. As the Supreme Court has explained:
In cases where the plaintiff is not itself the subject of the contested regulatory action, the test denies a right of review if the plaintiffs' interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit. The test is not meant to be especially demanding.