657 F.2d 829 (6th Cir. 1981), 79-1451, Pacific Legal Foundation v. Andrus

Docket Nº:79-1451.
Citation:657 F.2d 829
Party Name:PACIFIC LEGAL FOUNDATION, et al., Plaintiffs-Appellants, v. Cecil B. ANDRUS, et al., Defendants-Appellees.
Case Date:August 19, 1981
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 829

657 F.2d 829 (6th Cir. 1981)

PACIFIC LEGAL FOUNDATION, et al., Plaintiffs-Appellants,

v.

Cecil B. ANDRUS, et al., Defendants-Appellees.

No. 79-1451.

United States Court of Appeals, Sixth Circuit

August 19, 1981

Argued April 1, 1981.

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Ronald A. Zumbrun, Sacramento, Cal., Raymond M. Momboisse, Sam Kazman, Washington, D. C., Lon P. MacFarland, Columbia, Tenn., for plaintiffs-appellants.

Hal D. Hardin, U. S. Atty., Nashville, Tenn., David B. Cannon, Jr., Nancy B. Firestone, Land and Natural Resources Div., Dept. of Justice, Washington, D. C., for defendants-appellees.

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Before EDWARDS, Chief Judge, KENNEDY, Circuit Judge, and NEWBLATT, District Judge. [*]

CORNELIA G. KENNEDY, Circuit Judge.

This is an appeal from a judgment of the District Court holding that the National Environmental Policy Act, 42 U.S.C.A. § 4321 et seq. (NEPA), does not require the United States Fish and Wildlife Service (FWS) to file an environmental impact statement (sometimes referred to as an EIS) before listing a species as an endangered species pursuant to the Endangered Species Act, 16 U.S.C. § 1531 et seq. (ESA). We affirm.

Contracts were signed in 1971 for construction by the Tennessee Valley Authority (TVA) of two dams in the Duck River to control the water level and flooding and to provide electricity and recreational areas. One dam has been completed and the other, the Columbia Dam, is almost finished. In 1973, the Endangered Species Act was passed which gave the Secretary of the Interior the authority to list all species which were endangered or threatened. See 16 U.S.C. § 1533. At that time, once the listing was made, all federal agencies were to consult with the Secretary and insure their actions did not jeopardize the existence of an endangered species or result in the destruction or modification of the habitat of such species. See 16 U.S.C.A. § 1536 (1974). 1 Pursuant to authority delegated to it by the Secretary of the Interior, FWS, after notice in the Federal Register and opportunity for comment, on June 14, 1976, listed 159 taxa of animals as endangered. See 41 Fed.Reg. 24062 (June 14, 1976). Among those listed were six species of mollusks found in the Duck River. 2 A seventh mussel found in the Duck River, the tan riffle shell (Epioblasma walkeri), was listed as endangered August 23, 1977. See 42 Fed.Reg. 42351 (Aug. 23, 1977). No critical habitat for any of these mussels was determined. No challenge was made to FWS' rulemaking. On February 16, 1977, FWS issued a biological opinion letter stating that completion of the Columbia Dam project would jeopardize the existence of two of the mussel species. See Defendants' Exhibit 23. Thereafter, construction on the dam was stopped.

The Pacific Legal Foundation and several residents of Tennessee sued, claiming FWS violated NEPA because it did not file an impact statement before listing the seven mussels as endangered. They prayed for an injunction to remove the seven species from the list, to prevent FWS from enforcing the ESA, and to prevent FWS from listing any other species found in the Duck or Clinch Rivers until FWS had complied with NEPA.

The District Court held that Pacific Legal Foundation had no standing to sue as none of its members lived in the area. The court held that the listing of the species was a major federal action affecting thousands of lives and many millions of dollars (if the dam could not be completed) and thus was within the scope of NEPA. However, it held that an impact statement was not required because FWS could not consider environmental factors when contemplating what species should be listed. Pacific Legal Foundation and the other plaintiffs appealed.

Appellants argue that NEPA applies to a listing of an endangered species. They claim there is no express or implied exemption from NEPA's application as there are no time pressures on the agency before it acts. ESA does not require a statement

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which would serve as a functional equivalent, and FWS did not make express findings to support a decision that NEPA did not apply. FWS did make environmental assessments and determined that impact statements were not necessary, but appellants claim these negative declarations did not specifically consider the impact of listing the mussels and were not supported by the evidence, as the evidence shows several of the species have not been sighted in the area for many years. Finally, appellants argue Pacific Legal Foundation had standing as its informational interests its function is to inform others were harmed.

The government (representing FWS and the Department of the Interior) argues that as the Secretary had no authority under ESA to consider the environmental concerns of NEPA, it could not have complied and thus was impliedly exempt. It argued that to the fullest possible extent it did comply as interested parties did have notice and an opportunity to comment before the final rulemaking. See 16 U.S.C.A. § 1533(f) (1974). It argues that requiring an impact statement would defeat the purpose of ESA as the species could not be protected while the statement was being prepared and may be destroyed in the meanwhile. It further argues that any equitable relief would not be appropriate without joining TVA as an indispensable party as compliance with ESA rests with TVA as the acting federal agency.

Appellants respond that the impact statement serves to educate Congress and the public as well as the agency and, therefore, that the agency cannot consider the environmental questions of NEPA does not excuse it from filing an impact statement. They dismiss any requirement that TVA needs to be joined as an indispensable party. If the species are not listed, it matters not who is responsible for enforcing ESA.

Several ancillary issues are raised which, if meritorious, might have prevented this Court from reaching the main issue. We conclude, however, that none of these issues precludes consideration of the main question.

Mootness

In its brief and at oral argument, the government disclosed that TVA and FWS have successfully reached an agreement whereby TVA has agreed to transplant the mussels before completing and filling the dam. If the dam was satisfactorily completed without destruction of the species, then there would be no potential violation of ESA and appellants' prayer for relief would be moot. However, the agreement reached, as described by the government, requires the successful transplantation of the mussels. Nothing in the record before this Court indicates that this has been done and that the dam has been completed. Therefore, this case cannot be considered moot.

Standing of Pacific Legal Foundation

The District Court below found Pacific Legal Foundation had no standing. However, all the plaintiffs have appealed and those with standing raised the same issues as Pacific Legal Foundation. Indeed, Pacific's brief on appeal was submitted on behalf of all the appellants. Thus, this Court need not reach the question whether or not Pacific Legal Foundation has standing to protect its informational interests.

Substantial Evidence Supporting the Environmental Assessments

FWS determined, based upon its environmental assessments, that the listings of the species were not major federal actions significantly affecting the environment and thus impact statements were not required. Appellants argue that the environmental assessments were not based on substantial evidence and were arbitrary as they did not specifically address the consequences of listing the seven mussels and because some of the mussels have not been seen for years.

This Court need not consider whether or not FWS' assessments were based on substantial evidence. The District Court held that the listings were major federal actions and this holding is not challenged on appeal. Therefore, FWS' negative declarations and

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the assessments upon which those declarations were based are irrelevant. Further, FWS determined that the species were endangered (rather than extinct) in rulemaking procedures which were subject to the Administrative Procedure Act. See 16 U.S.C. § 1533(f)(1). Such rulemaking may be reviewed to determine if it was arbitrary and capricious. See 5 U.S.C. § 706. No review of rulemaking was requested by appellants. They cannot now collaterally attack the rulemaking as unsupported by substantial evidence. Cf. Anaconda Co. v. Ruckelshaus, 482 F.2d 1301, 1306 (10th Cir. 1973) (EPA required to balance costs and environmental factors of proposed standards for emissions under the Clean Air Act; if administrative hearing is mere formality, should seek review of decision in reviewing court rather than collaterally attacking).

TVA as Indispensable Party

The government contends that equitable relief is impossible to grant because TVA is an indispensable party. Rule 19(a), Fed.R.Civ.Pro., states that a party shall be joined as a party if in his absence complete relief cannot be accorded among those already parties. However, the injunction prayed for is against FWS listing the species involved here or any other species or taking any action to use ESA to protect the seven mussels until an impact statement is filed. The court could grant all the relief requested without involving TVA. Thus, we agree with the District Court that TVA is not an indispensable party.

Requirement of Filing an Impact Statement

Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2), requires "to the fullest extent possible," that "all agencies of the Federal Government" shall

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

...

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