Gdf Realty Investments, Ltd. v. Norton

• Decision Date: 26 March 2003
• Docket Number: No. 01-51099.,01-51099.
• Citation: 326 F.3d 622
• Parties: GDF REALTY INVESTMENTS, LTD.; Parke Properties I, L.P.; Parke Properties II, L.P., Plaintiffs-Appellants, v. Gale A. NORTON, Secretary, U.S. Department of the Interior; Marshall P. Jones, Director, U.S. Fish and Wildlife Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

326 F.3d 622

GDF REALTY INVESTMENTS, LTD.; Parke Properties I, L.P.; Parke Properties II, L.P., Plaintiffs-Appellants, v. Gale A. NORTON, Secretary, U.S. Department of the Interior; Marshall P. Jones, Director, U.S. Fish and Wildlife Service, Defendants-Appellees.

No. 01-51099.

United States Court of Appeals, Fifth Circuit.

March 26, 2003.

COPYRIGHT MATERIAL OMITTED

Paul M. Terrill (argued), Vincent Leroy Hazen, Hazen & Terrill, Austin, TX, for Plaintiffs-Appellees.

Stephanie Tai (argued), U.S. Dept. of Justice, David C. Shilton, Andrew C. Mergen, U.S. Dept. of Justice, ENR Div., Washington, DC, for Defendants-Appellees.

Sydney W. Falk, Jr., Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, Austin, TX, for Texas Farm Bureau, Amicus Curiae.

David E. Haddock, Malcolm Reed Hopper, Pacific Legal Foundation, Sacramento, CA, for Pacific Legal Foundation, Amicus Curiae.

Gregory Scott Coleman (argued), Weil, Gotshal & Manges, John Cornyn, Atty. Gen., Austin, TX, for State of Texas, Amicus Curiae.

James B. Dougherty, Washington, DC, for National Wildlife Federation, Amicus Curiae.

Melinda E. Taylor, Environmental Defense, Austin, TX, Michael P. Senatore, Defenders of Wildlife, Washingtin, DC, for Environmental Defense and Defenders of Wildlife, Amici Curiae.

Michael J. Bean, Environmental Defense, Washington, DC, for Environmental Defense, Amicus Curiae.

Appeal from the United States District Court for the Western District of Texas.

Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

The Endangered Species Act of 1973, 16 U.S.C. § 1531, et seq. (ESA), contains a "take" provision, 16 U.S.C. § 1538(a)(1)(B). For this challenge to Congress' Commerce Clause power, U.S. CONST. art. I, § 8, cl. 3, at issue is whether ESA's take provision is unconstitutional as applied to six species of subterranean invertebrates found only within two counties in Texas (Cave Species). Central to this question is whether, to demonstrate the requisite substantial effect on interstate commerce, Cave Species "takes" may be aggregated with those of all other endangered species. They can be; the judgment is AFFIRMED.

I.

In 1983, Dr. Fred Purcell and his brother purchased an interest in 216 acres in Travis County, Texas, near the City of Austin (the property). The property (lying within approximately 1,200 acres known as the Parke) consists of seven tracts in which the Purcells, as the limited partners in Parke Properties I, L.P., and Parke Properties II, L.P., hold a 70 percent interest. GDF Realty Investments, Ltd., holds the remaining interest in the property. It is located at the intersection of two major highways in what is, commercially and residentially, a rapidly growing area.

The property is part of the Jollyville Plateau and is characterized by karst topography, in which water percolating through limestone rock creates caves, sinkholes, and canyons. The property contains a number of caves, including Tooth, Kretschmarr, Root, Gallifer, and Amber, as well as a collection of caves known as the Cave Cluster.

Since acquiring the property, the Purcells and their partners (Purcells) have attempted to develop it commercially, including the installation of water and wastewater gravity lines, force mains, lift stations, and other utilities. These improvements have been dedicated to the City of Austin; a right-of-way, to Travis County.

In 1988, the United States Fish and Wildlife Service (FWS), an agency under the auspices of the Department of the Interior, issued a Rule listing five subterranean invertebrate species as endangered under § 4 of ESA, 16 U.S.C. § 1533(a)(1). 53 Fed. Reg. 36,029 (16 Sept. 1988). A sixth species was similarly listed in 1993. 58 Fed. Reg. 43,818 (18 Aug. 1993). These six species are found on the property; they are the Bee Creek Cave Harvestman, the Bone Creek Harvestman, the Tooth Cave Pseudoscorpion, the Tooth Cave Spider, the Tooth Cave Ground Beetle and the Kretschmarr Cave Mold Beetle. The Rules were issued in order to protect the Cave Species from increasing dangers, primarily new development. 16 U.S.C. § 1531(a)(1); 53 Fed.Reg. 36,029.

The Bee Creek Cave Harvestman, the Bone Creek Harvestman, and the Tooth Cave Pseudoscorpion are subterranean, eyeless arachnids (arthropods bearing four pairs of legs and no antennae); they range in size from 1.4 to 4 mm. The Tooth Cave Spider, a subterranean arachnid with eyes, measures 1.6 mm in length. The Tooth Cave Ground Beetle and the Kretschmarr Cave Mold Beetle are subterranean insects, the latter being eyeless; they vary in size from 3 to 8 mm.

The Cave Species were listed as endangered for a number of reasons. First, as noted, they were primarily being threatened with "potential loss of habitat owing to ongoing development activities". 53 Fed. Reg. 36,031. Second, no state or federal laws were in place to protect them or their habitat. Id. at 36,031-32. Finally: "[The Cave Species] require the maximum possible protection provided by [ESA] because their extremely small, vulnerable, and limited habitats are within an area that can be expected to experience continued pressures from economic and population growth". Id. at 36,032.

Pursuant to § 9(a)(1) of ESA, 16 U.S.C. § 1538(a)(1)(B), it is unlawful to "take" a member of a species listed as endangered. ESA defines "take" as to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect...." 16 U.S.C. § 1532(19). Pursuant to authority given it by § 4(d) of ESA, 16 U.S.C. § 1533(d), FWS has defined "harm" to include significant modifications or degradations of a habitat which kill or injure protected wildlife "by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering". 50 C.F.R. § 17.3.

The Cave Species are found only in underground portions of Travis and Williamson Counties, Texas. There is no commercial market for the Cave Species. At least 14 scientific articles concerning the Cave Species have been published in journals or other publications by 15 scientists. Some of them have visited Texas in order to study the Cave Species. For this research, members of the Cave Species have been transported to and from museums in New York, California, Pennsylvania, Illinois, and Kentucky.

In 1989, FWS notified the Purcells that their development plans might constitute a Cave Species take. In 1990, in an effort to alleviate FWS' concerns, the Purcells deeded approximately six acres of the property to Texas Systems of Natural Laboratories, Inc., a non-profit environmental organization. The gifted acres included various caves and sinkholes in which the Cave Species were known to live. The Purcells also constructed gates covering the most ecologically sensitive caves. These acts conformed to recommendations made by an expert on the Cave Species.

In 1991, the Purcells contracted to sell a portion of the property. Because FWS refused to state, however, that future development would not constitute a take, the agreement fell through. After clearing brush from the property in 1993, Dr. Purcell was advised by FWS that he was under federal criminal investigation for possible endangered species takes.

Subsequent to these incidents, the Parke's owners (including plaintiffs) filed in federal court for a declaratory judgment that development of the Parke would not constitute an endangered species take. Four Points Util. Joint Venture v. United States, No. 93-CA-655 (W.D.Tex.1993). The district court ordered FWS to conduct an environmental review of the Parke.

In a 1994 letter summarizing that review, FWS notified the Parke's owners that the proposed development would likely constitute a take of the Cave Species, as well as of two bird species (golden-cheeked warbler and black-capped vireo). FWS' letter also noted that the Purcells' property within the Parke "could be developed without causing a take if development, among other things, [was] scaled back from the canyons, and surface and subsurface drainage and nutrient exchange [was] provided for".

The district court dismissed the action in September 1994. It ruled that FWS had to first determine whether a take had occurred; as FWS' letter indicated, it had not made that determination.

In 1997, the Purcells attempted to obtain ESA § 10(a) incidental take permits. See 16 U.S.C. § 1539(a). These permits allow takes of endangered species under certain circumstances, as listed in 16 U.S.C. § 1539(a)(2)(B).

The Purcells first sought the permit from the Balcones Canyonlands Conservation Plan, a regional body from which landowners obtain § 10(a) permits to develop protected land by paying "mitigation fees". It refused the application, however, because the relevant land was entirely within a protected area.

The Purcells next applied to FWS for the permit. See 16 U.S.C. 1539(a)(1). Their applications stated they planned to develop a shopping center (including a Wal-Mart), a residential subdivision, and office buildings (commercial development). FWS decided that the deeded preserves were inadequate to protect the Cave Species. As a result, the Purcells were unable to contract for the purchase and development of the property.

In July 1998, FWS advised the Purcells that the permits would be denied, but did not issue the denials. This effectively prevented the Purcells from challenging FWS' action.

Therefore, the Purcells filed suit in federal court, seeking a declaration that the permits had been denied de facto. GDF Realty, Ltd. v. United States, No. 98-CV-772 (W.D.Tex.1998). FWS then issued a formal statement, denying the permits based on its conclusion that, inter alia, Cave Species takes would occur if development were allowed. The district court ruled the permits had been denied. It also admonished FWS for delaying the denials when it had never intended to grant the permits.

In 1999, plaintiffs filed two actions in federal court. In the instant Commerce Clause action, they...