851 F.2d 1035 (8th Cir. 1988), 87-5132, Defenders of Wildlife, Friends of Animals and Their Environment v. Hodel

Docket Nº:87-5132.
Citation:851 F.2d 1035
Party Name:DEFENDERS OF WILDLIFE, FRIENDS OF ANIMALS AND THEIR ENVIRONMENT, and The Humane Society of the United States, Appellants, v. Donald P. HODEL, as Secretary of the Interior, Appellee.
Case Date:July 08, 1988
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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851 F.2d 1035 (8th Cir. 1988)


ENVIRONMENT, and The Humane Society of the United

States, Appellants,


Donald P. HODEL, as Secretary of the Interior, Appellee.

No. 87-5132.

United States Court of Appeals, Eighth Circuit

July 8, 1988

Submitted Dec. 15, 1987.

Rehearing and Rehearing En Banc Denied Oct. 14, 1988.

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Brian B. O'Neill, Minneapolis, Mn., for appellants.

John C. Harrison, Washington, D.C., for appellee.

Before John R. GIBSON, BOWMAN, and WOLLMAN, Circuit Judges.

WOLLMAN, Circuit Judge.

Defenders of Wildlife, Friends of Animals and Their Environment, and the Humane Society of the United States (collectively Defenders) brought this action to challenge a Department of Interior final regulation that provides that United States agencies funding projects in foreign countries have no duty to consult with the Secretary about the projects' impact on endangered species of wildlife or plants. Defenders alleged that the regulation violates the section 7 consultation requirement of the Endangered Species Act, 16 U.S.C. Secs. 1531 et seq. (1982). The district court dismissed the action for lack of subject matter jurisdiction, concluding that Defenders

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failed to satisfy the standing requirement of Article III, Section 2 of the Constitution, 658 F.Supp. 43. We reverse and remand.


In the Endangered Species Act (the Act or ESA), Congress declared that "the United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction." 16 U.S.C. Sec. 1531(a)(4) (1982). The Secretary must publish in the Federal Register a list of species of wildlife or plants endangered or threatened with extinction. Id. Sec. 1533(c)(1). See also 50 C.F.R. Sec. 17.11-12 (1986). More than half of the species listed as endangered or threatened are species whose primary ranges are outside of the United States.

Under section 7(a)(2) of the Act, 16 U.S.C. Sec. 1536(a)(2), a federal agency that authorizes, funds, or carries out any action must consult with the Secretary to insure that the action is "not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species." Id. Federal agencies thus have a mandatory duty to insure that their actions will not harm endangered species. See H.Rep. No. 412, 93d Cong., 1st Sess. (1973), U.S.Code Cong. & Admin.News 1973, 2989. The legislative history of the Act "indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities." Tennessee Valley Auth. v. Hill, 437 U.S. 153, 174, 98 S.Ct. 2279, 2292, 57 L.Ed.2d 117 (1978) (enjoining completion of multimillion-dollar dam to protect snail darter from extinction).

To assist federal agencies in meeting this responsibility, section 7 outlines a process through which agencies are to consult with the Office of Endangered Species of the United States Fish and Wildlife Service or the Office of Protected Species of the National Marine Fisheries Service. The purpose of the consultation process is to supply advice and information, identifying actions that may harm listed species or their habitats. The Secretary must issue a written opinion describing the effect of the proposed agency action on endangered species. If the proposed action will harm endangered species, the Secretary must propose acceptable alternative action. See 16 U.S.C. Sec. 1536(b). After consultation, "the final decision of whether or not to proceed with the action lies with the agency itself. Section 7 does not give the Department of the Interior a veto over the actions of other federal agencies, provided that the required consultation has occurred." National Wildlife Fed'n v. Coleman, 529 F.2d 359, 371 (5th Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 489, 50 L.Ed.2d 587 (1976); see also Sierra Club v. Froehlke, 534 F.2d 1289, 1303 (8th Cir.1976).

The present controversy stems from a final rule, published on June 3, 1986, that limits the scope of consultation. The regulation provides that federal agencies have a duty to consult with the Secretary to insure that any action they authorize, fund, or carry out only "in the United States or upon the high seas" is not likely to jeopardize the continued existence of any listed species. 50 C.F.R. Sec. 402.01 (1986). Previously, consultation on federal agency actions in foreign countries was required. See 50 C.F.R. Sec. 402.04, 43 Fed.Reg. at 874 (1978). Additionally, the new rule defines an "action" as "all activities or programs of any kind authorized, funded, or carried out, in whole or in part by Federal agencies in the United States or upon the high seas." 50 C.F.R. Sec. 402.02 (1986). The Secretary's list of endangered species, however, continues to include species whose primary ranges are outside of the United States.

Defenders brought this action to challenge the new regulation. Count I alleged that the Secretary violated section 7(a) of the Act 1 by not providing listed endangered

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species the full protection guaranteed them, and that the new regulation "threatens imminently and irreparably" Defenders' interests and the interest of the public in the continued application of section 7 of the Act to agency action abroad. Count II alleged that the Secretary's action in promulgating the new regulation was arbitrary, capricious, an abuse of discretion and contrary to law in violation of the Administrative Procedure Act, 5 U.S.C. Sec. 553 and Sec. 701 et seq. Count III alleged that the Secretary violated a statutory duty to conserve endangered and threatened species whose primary ranges are in foreign lands. Defenders asked for a declaratory judgment that the rule was illegal; for injunctive relief enjoining implementation of the new rule; and "that the Court direct defendant to perform the duties owed plaintiffs, specifically to publish forthwith regulations requiring federal agencies to consult on agency actions abroad that may affect endangered or threatened species." First Amended Complaint at 11.

The Secretary moved to dismiss the complaint for lack of subject matter jurisdiction on the ground that Defenders had not alleged the existence of a case or controversy and lacked standing to bring the action. The district court agreed that Defenders had not shown a sufficient injury that was traceable to the Secretary's new regulation and thus dismissed the action for lack of jurisdiction.


Article III of the Constitution limits the power of the federal courts to actual "cases" and "controversies." U.S. Const. art. III, Sec. 2. One purpose of the "cases or controversies" requirement is to ensure that the courts will not intrude into areas committed to other branches of government. Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). The doctrines that stem from Article III, such as standing, mootness, ripeness, and political question, relate "to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government." Vander Jagt v. O'Neill, 699 F.2d 1166, 1178-79 (D.C.Cir.1982) (Bork, J., concurring), cert. denied, 464 U.S. 823, 104 S.Ct. 91, 78 L.Ed.2d 98 (1983).

Standing is an aspect of justicibility that focuses on the party seeking to bring his complaint before a federal court. "[W]hen standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable." Flast v. Cohen, 392 U.S. 83, 99-100, 88 S.Ct. 1942, 1952-53, 20 L.Ed.2d 947 (1968). To be a proper litigant, the party must have " 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues.' " Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962)). The Supreme Court summarized the constitutional requirements of standing in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982):

[A]t an irreducible minimum, Art. III requires the party who invokes the court's authority to "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66

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(1979), and that the injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision," Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976).

Id. at 472, 102 S.Ct. at 758.

In addition to the constitutional requirements, courts have imposed prudential or policy limitations on a litigant's standing to bring a claim. For example, a plaintiff cannot assert the rights or interests of third parties. Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Also, a court will not decide "abstract questions of wide public significance" most appropriately addressed by the legislature. Id. at 500, 95 S.Ct. at 2206. Furthermore, the plaintiff's complaint must fall within "the zone of interests" to be protected by the statute at issue. Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970).

Unlike the constitutional requirements, Congress may...

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