75 F.3d 1429 (10th Cir. 1996), 94-2280, Catron County Bd. of Com'rs, New Mexico v. United States Fish & Wildlife Service

Docket Nº:94-2280.
Citation:75 F.3d 1429
Party Name:CATRON COUNTY BOARD OF COMMISSIONERS, NEW MEXICO, Plaintiff-Appellee, v. UNITED STATES FISH AND WILDLIFE SERVICE, an agency of the U.S. Department of the Interior; Bruce Babbitt, Secretary of the Interior; Richard Smith, Acting Director of the U.S. Fish and Wildlife Service; John Rogers, Regional Director of Region 2 of the U.S. Fish and Wildlife S
Case Date:February 02, 1996
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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75 F.3d 1429 (10th Cir. 1996)

CATRON COUNTY BOARD OF COMMISSIONERS, NEW MEXICO, Plaintiff-Appellee,

v.

UNITED STATES FISH AND WILDLIFE SERVICE, an agency of the

U.S. Department of the Interior; Bruce Babbitt, Secretary

of the Interior; Richard Smith, Acting Director of the U.S.

Fish and Wildlife Service; John Rogers, Regional Director

of Region 2 of the U.S. Fish and Wildlife Service; Sam

Spiller, Field Supervisor, Region 2, U.S. Fish and Wildlife

Service, Defendants-Appellants.

No. 94-2280.

United States Court of Appeals, Tenth Circuit

February 2, 1996

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Appeal from the United States District Court for the District of New Mexico (D.C. No. CIV-93-730-HB).

Jim Kilborn, Environmental and Natural Resources Division, U.S. Dept. of Justice, Washington, D.C. (Lois J. Schiffer, Assistant Attorney General, Beverly Ohline, Office of the Solicitor, Department of the Interior, Albuquerque, New Mexico, Brian L. Ferrell, Ellen Kohler, John A. Bryson, and Albert M. Ferlo, Jr., Attorneys, Environmental and Natural Resources Division, U.S. Dept. of Justice, Washington, DC, with him on the brief), for Defendants-Appellants.

Vance E. Haug, Budd-Falen Law Offices, Cheyenne, Wyoming, and Lee E. Peters, Hubert & Hernandez, P.A., Las Cruces, New Mexico (Karen Budd-Falen, Budd-Falen Law Offices, Cheyenne, Wyoming, and James Catron, Catron County Attorney, LaJoya, New Mexico, with Mr. Peters on the brief), for Plaintiff-Appellee.

Lori Potter, Munir R. Meghjee, and Debra Asimus, Sierra Club Legal Defense Fund, Denver, Colorado, for Sierra Club, Gila Watch, Four Corners Action Coalition, and the Colorado Environmental Coalition, amici curiae.

Paul M. Seby and William Perry Pendley, Mountain States Legal Foundation, Denver, Colorado, amicus curiae.

Before KELLY and BARRETT, Circuit Judges, and O'CONNOR, District Judge.

PAUL KELLY, Jr., Circuit Judge.

The United States Fish and Wildlife Service and various governmental officials (FWS, Secretary or Appellants) appeal the district court's order granting Catron County's (County or Appellee) motion for partial summary judgment in the County's action alleging that the Secretary of Interior (Secretary or Appellants), acting on behalf of the FWS, failed to comply with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-70d, in designating certain lands within the County as critical habitat for the spikedace and loach minnow. Aplt.App. at 24-39. In addition, the district court granted the County's motion for injunctive relief but stayed its order pending appeal. We exercise jurisdiction under 28 U.S.C. § 1292(a)(1) and affirm.

I. Background

In 1985, the Secretary proposed listing the spikedace and loach minnow as threatened species and establishing a critical habitat for them. 50 Fed.Reg. 25,380 (loach minnow), 25,390 (spikedace) (1985). The Secretary's proposed designation comprised approximately 74 miles of river habitat in the County. The notice also provided for a sixty-day comment period, which was subsequently extended by an additional several weeks, and scheduled three public meetings to gather additional information and comments on the proposed actions. See 50 Fed.Reg. 37,703-704 (1985). Also in his proposal, the Secretary determined that he was not required to comply with the documentation requirements of NEPA, claiming that Secretarial actions under § 1533 of the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-44, are exempt from NEPA as a matter of law. See 50 Fed.Reg. 25,385, 25,395 (1985) (citing 48 Fed.Reg. 49,244). The Secretary received over one hundred written comments and over thirty oral comments. See 59 Fed.Reg. 10,899 (1994). In 1986, pursuant to § 1533(b)(6)(A) of the ESA, the Secretary adopted final regulations listing the species as threatened and extended the deadline for final designation of critical habitat. 51 Fed.Reg. 23,769 (spikedace), 39,468 (loach minnow) (1986). In June 1993, the County filed suit alleging that the Secretary failed to comply with the Administrative Procedure Act

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(APA), 5 U.S.C. §§ 551-76, the ESA and NEPA. In March 1994, the Secretary issued notice of final designation of critical habitat, which became effective on April 7, 1994. 59 Fed.Reg 10,898 (loach minnow), 10,906 (spikedace) (1994). In April 1994, the County filed its motion for injunctive relief claiming that the Secretary had failed to comply with NEPA and seeking to prevent the Secretary from implementing and enforcing its designation of critical habitat. The district court granted Appellants' motion to consolidate for consideration both the County's motion for injunctive relief and the parties' motions for partial summary judgment. Aplt.App. 28.

On October 13, 1994, finding that the Secretary had failed to comply with NEPA in designating critical habitat, the district court granted the County's motions for partial summary judgment and injunctive relief. Aplt.App. 24-39.

II. Discussion.

  1. Standing.

    The Secretary initially questions the County's standing to challenge his action. We review questions of standing de novo, Mountain Side Mobile Estates Partnership v. Secretary of Housing and Urban Development, 56 F.3d 1243, 1249 (10th Cir.1995), and construe the complaint in favor of the plaintiff, accepting as true all material allegations, State ex rel. Sullivan v. Lujan, 969 F.2d 877, 879 (10th Cir.1992). The party invoking federal jurisdiction bears the burden of establishing an actual or imminent injury that is concrete and particularized rather than conjectural or hypothetical; a causal connection that is "fairly traceable" to the conduct complained of; and a likelihood of redressability in the event of a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (citations omitted).

    Appellee has alleged injury in fact. In particular, the County asserts that designation of critical habitat would prevent the diversion and impoundment of water by the County, thereby causing flood damage to county-owned property, such as the fairgrounds, roads and bridges. The County's claim of flood damage to its property constitutes a threatened or imminent injury to a concrete and particularized legally protected interest. These injuries are perceptible and environmental, not merely speculative or purely economic, and fall well within the zone of interests protected by NEPA. Because we find that the County's asserted threatened injury to its property constitutes an injury in fact, we need not address whether the County's alleged injuries to its riparian, agricultural, economic or public interests would likewise satisfy the test.

    The County also adequately demonstrates a causal link between its likely injury and the conduct complained of, namely the Secretary's failure to comply with NEPA. The Supreme Court has noted that if "the plaintiff is himself an object of the [challenged] action.... there is ordinarily little question that the action or inaction has caused him injury...." Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. at 2137 (emphasis added). Here, as an owner of property that falls within the proposed critical habitat designation and will likely be adversely affected by such designation, the County is the object of the Secretary's alleged failure to act in compliance with NEPA.

    Finally, the County has shown "redressability" by demonstrating a substantial likelihood that Secretarial compliance with NEPA will redress the claimed injuries. NEPA compliance would require the Secretary to assess the environmental impact and potential alternatives to his proposed action. 42 U.S.C. § 4332(2)(C), (E). That the Secretary may ultimately make the same decision and designate critical habitat within the same geographical parameters is immaterial; the County's alleged injury results from Secretarial failure substantively to consider the environmental ramifications of its actions in accordance with NEPA. The "risk implied by a violation of NEPA is that real environmental harm will occur through inadequate foresight and deliberation" by the acting federal agency. Sierra Club v. Marsh, 872 F.2d 497, 504 (1st Cir.1989) (Breyer, J.).

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    Because NEPA does not provide a private right of action for violations of its provisions, Lujan v. National Wildlife Fed., 497 U.S. 871, 882, 110 S.Ct. 3177, 3185, 111 L.Ed.2d 695 (1990), the County claims a right to judicial review under the APA. 1 In addition to Article III standing requirements, a plaintiff seeking judicial review pursuant to the APA must (i) identify some "final agency action" and (ii) demonstrate that its claims fall within the zone of interests protected by the statute forming the basis of its claims. National Wildlife Fed., 497 U.S. at 882-83, 110 S.Ct. at 3185-86. In this case, the County satisfies the standing requirements of the APA. The Secretary's alleged failure to comply with NEPA constitutes "final agency action," see 5 U.S.C. § 551(13), and the County's claimed injuries to its proprietary and procedural interests fall within the zone of interests protected by the ESA.

  2. Statutory Framework.

    1. NEPA.

      NEPA requires any federal agency proposing a "major Federal action[s] significantly affecting the quality of the human environment" to prepare what is known as an Environmental Impact Statement (EIS), detailing the environmental impact of the action; unavoidable adverse environmental effects; alternatives to the action; relationship between the short-term uses and long-term productivity of the affected environment; and irretrievable and irreversible commitments of resources should the action be implemented. 42 U.S.C. § 4332(2)(C)(i...

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