Shields v. Babbitt

Citation229 F.Supp.2d 638
Decision Date12 July 2000
Docket NumberNo. 99CV40.,99CV40.
PartiesJohn SHIELDS and Hunter Schuehle Plaintiffs v. Bruce BABBITT, Secretary, United States Department of the Interior, Jamie Rappaport Clark, Director, United States Fish and Wildlife Service, and the Sierra Club Defendants
CourtU.S. District Court — Western District of Texas
229 F.Supp.2d 638
John SHIELDS and Hunter Schuehle Plaintiffs
v.
Bruce BABBITT, Secretary, United States Department of the Interior, Jamie Rappaport Clark, Director, United States Fish and Wildlife Service, and the Sierra Club Defendants
No. 99CV40.
United States District Court, W.D. Texas, Midland-Odessa Division.
July 12, 2000.

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Richard Clayton Trotter, San Antonio, TX, Paul M. Terrill, Vincent L. Hazen, Hazen & Terrill, P.C., Austin, TX, Thomas W. Stack, Thomas W. Stack, J.D., Gilbert, AZ, Allan E. Parker, Jr., Texas Justice Foundation, San Antonio, TX, for John H. Shields. Michael D. Weiss, Lawson, Weiss & Danziger, Houston, TX, for Hunter Schuehle.

Robert Shaw-Meadow, U.S. Attorney's Office, San Antonio, TX, Paul Boudreaux, Department of Justice, Wildlife and Marine Resource Section, Benjamin Franklin Station, Washington, DC, for Bruce Babbitt, Jamie Rappaport Clark.

David O. Frederick, Frederick Law, Austin, TX, Stuart N. Henry, Henry & Levin, Austin, TX, Max Renea Hicks, Law Offices of Max Renea Hicks, Austin, TX, Kelly Haragan, Henry, Lowerre & Frederick, Austin, TX, for Sierra Club.

ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT

BUNTON, Senior District Judge.


BEFORE THE COURT are Plaintiff Hunter Schuehle's Motion for Summary Judgment1 filed March 6, 2000, Federal Defendants' Motion for Summary Judgment filed February 23, 2000 and Defendant Sierra Club's Motion for Summary Judgment filed March 8, 2000 in the above referenced case. In this action, Plaintiff Hunter Schuehle seeks a declaration that the "take" provisions of the Endangered Species Act ("ESA"), 16 U.S.C. § 1538(a)(1)(B), as applied to the endangered and threatened species living at or immediately downstream of San Marcos and Comal Springs (the "Edwards species") is unconstitutional. Schuehle contends that Congress has no authority to regulate the Edwards species pursuant to the Commerce Clause, Article 1, section 8, clause 3 of the United States Constitution, because such regulation involves purely intrastate activity. Schuehle further claims that the Sierra Club's enforcement of the ESA's take provision through the ESA citizen suit provision is an unconstitutional delegation of authority to a private entity.

Federal Defendants Bruce Babbitt and Jamie Rappaport Clark and argue that the Edwards species do affect interstate commerce, that Plaintiff's claims are not ripe for adjudication because no legal action

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has been instigated against him, and that until such time, Plaintiff has no standing to seek a court order to stop enforcement of the ESA. Defendant Sierra Club contends that the constitutionality of the ESA as applied to the Edwards species has already been established in other litigation, that the ESA may be constitutionally applied to the whole intrastate species within the reach of the interstate commerce clause and that the Edwards species both generate interstate commerce and themselves move in interstate commerce. The Sierra Club further maintains that Schuehle lacks standing to bring this suit either in his official capacity or his individual capacity and that his claim is not ripe. Finally, Sierra Club maintains that Schuehle has not demonstrated that he has been harmed by the Sierra Club's alleged threats of suit and that Schuehle's claim of improper delegation has no merit because only Congress, or possibly the Department of the Interior, has the authority to delegate rulemaking.

This Court held a hearing on the parties' respective motions on April 3, 2000. After due consideration of the pleadings and accompanying evidence, the Court is of the opinion that Federal Defendants' and Sierra Club's respective motions for summary judgment should be granted and Plaintiff's motion for summary judgment should be denied, for the reasons set forth below.

Background

Congress' overriding goal in enacting the Endangered Species Act of 1973, 16 U.S.C.A. §§ 1531-1544, is to promote the protection and, ultimately, the recovery of endangered and threatened species. Wyoming Farm Bureau Fed'n v. Babbitt, 199 F.3d 1224, 1237 (10th Cir.2000) (citing H.R. Conf. Rep. No. 97-835, 97th Cong., 2d Sess. at 30 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2871) ("In enacting the Endangered Species Act, Congress recognized that individual species should not be viewed in isolation, but must be viewed in terms of their relationship to the ecosystem of which they form a constituent element. Although the regulatory mechanisms of the Act focus on species that are formally listed as endangered or threatened, the purposes and policies of the Act are far broader than simply providing for the conservation of individual species or individual members of listed species.")); Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (noting that the plain intent of Congress in enacting the Endangered Species Act was to halt and reverse the trend toward species extinction, whatever the cost); Catron County Bd. of Com'rs, New Mexico v. United States Fish and Wildlife Serv., 75 F.3d 1429, 1437 (10th Cir.1996) (identifying ESA's core purpose as prevention of the extinction of species by preserving and protecting the habitat upon which they depend from the intrusive activities of humans); Village of Kaktovik v. Watt, 689 F.2d 222, 233 (D.C.Cir.1982) (recognizing environmental protection as the sole objective of the Endangered Species Act).

One of the purposes of the Endangered Species Act is to enforce international agreements designed "to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction." United States v. Bernal, 90 F.3d 465, 467 (11th Cir.1996) (citing 16 U.S.C. § 1531(a)(4); Tennessee Valley Auth., 437 U.S. at 184, 98 S.Ct. 2279).

The Secretaries of Commerce and the Interior jointly administer the ESA through the National Marine Fisheries Service and United States Fish and Wildlife Service ("USFWS"). The ESA instructs the Secretary of the Interior to promulgate by regulation a list of those species that are either endangered or threatened, and to define the critical habitat of these species. See 16 U.S.C. §§ 1533, 1536 (1985 & Supp.2000). Once a

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species is listed and a critical habitat is designated, specific substantive and procedural protections are accorded to that species and its habitat. See 16 U.S.C. § 1536(a)(2) (1985).

The take provision, § 9(a)(1)(B) of the ESA, 16 U.S.C. § 1538(a)(1)(B) (1985), makes it unlawful for any person to "take" any listed species without a permit or authorization. The term "take" as defined in the ESA means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19) (1985). The ESA imposes substantial civil and criminal penalties, including imprisonment, for "any person" who knowingly "takes" an endangered or threatened species, in violation of § 9(a)(1)(B). 16 U.S.C. §§ 1540(a), (b) (1985 & Supp.2000) (authorizing civil fines of up to $25,000 per violation and criminal penalties of up to $50,000 and imprisonment for one year).

The fish, amphibian and plant species which are the subject of this litigation have been listed by the USFWS as "endangered" or "threatened" pursuant to the Endangered Species Act ("ESA"). These species include the fountain darter (Etheostoma fonticola), the San Marcos salamander (Eurycea nana), the San Marcos gambusia (Gambusia georgi), the Texas blind salamander (Typhomolge athbuni), the Comal Springs dryopid beetle (Stygompamus comalensis), the Comal Springs riffle beetle (Heterelmis comalensis),2 and Texas wild-rice (Zizania texana) (collectively, "the Edwards species"). The Edwards species are located entirely within the state of Texas. The Edwards species are native to only one very small area in the South Central Texas region — at or just downstream of San Marcos and Comal Springs, the primary spring outlets for water in the Edwards aquifer.

The Edwards Aquifer is dependent on annual rainfall for recharge. During droughts, springflow from the Edwards Aquifer can become almost the sole source of flow downstream into the Guadalupe River. According to the Sierra Club and the USFWS, the natural flow of the San Marcos and Comal springs is vital to the continuing existence of the Edwards species. During dry periods, pumping from the Edwards Aquifer increases and flow from the Springs correspondingly decreases, sometimes to critical levels. This alters the aquatic habitat, causing "takes" of the Edwards species listed under the ESA, and reduces the flow of surface water downstream. Extremely low or nonexistent flow from the Springs places the Edwards species in "jeopardy."3

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Plaintiff Hunter Schuehle lives and raises livestock and exotics, such as zebra, Axis deer and Fallow deer, on the Parker Creek Ranch in Medina County, Texas south of the town of D'Hanis. Schuehle has lived in Medina County for 50 years, is a former county official and is currently serving as an elected member of the Board of Directors of the Edwards Aquifer Authority ("EAA"). Schuehle represents District 12, which comprises the western part of Medina County. Schuehle also serves as Treasurer for the EAA Board of Directors. The EAA, a political subdivision of the State of Texas, was established by the Texas Legislature in 1993 pursuant to the Edwards Aquifer Act.4 The EAA is a regional regulatory authority that has jurisdiction over groundwater withdrawals from the Edwards aquifer. Although Schuehle serves in an official capacity with respect to the EAA, the EAA itself is not a plaintiff in this suit and Schuehle does not allege that he represents the EAA in any capacity in this litigation.

Schuehle owns several parcels of property on which Edwards aquifer wells are...

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2 cases
  • League of United Latin Am. Citizens v. Edwards Aquifer Auth.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • 18 Junio 2018
    ...during drought conditions, withdrawals from the aquifer increase and thereby reduce flows from the springs. Shields v. Babbitt , 229 F.Supp.2d 638, 645 (W.D. Tex. 2000), vacated sub nom , Shields v. Norton , 289 F.3d 832 (5th Cir. 2002), cert. denied , 537 U.S. 1071, 123 S.Ct. 663, 154 L.Ed......
  • Save Our Aquifer v. City of San Antonio, CIV.A.SA-02-CA-618-F.
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    • United States District Courts. 5th Circuit. Western District of Texas
    • 16 Diciembre 2002
    ...ed. 1897). 2. See Sierra Club v. Lujan, No. MO-91-CA-069, 1993 WL 151353 (W.D.Tex. Feb. 1, 1993) (Bunton, J.); Shields v. Babbitt, 229 F.Supp.2d 638 (W.D.Tex.2000) (Bunton, J.), vacated sub nom, Shields v. Norton, 289 F.3d 832 (5th Cir.2002), cert. denied, ___ U.S. ___, 123 S.Ct. 663, ___ L......
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