Alabama-Tombigbee Rivers Coalition v. Norton, 02-14423.

• Decision Date: 23 July 2003
• Docket Number: No. 02-14423.,02-14423.
• Citation: 338 F.3d 1244
• Parties: ALABAMA-TOMBIGBEE RIVERS COALITION, an Alabama nonprofit corporation, Parker Towing Co., Inc., an Alabama corporation, Charles A. Haun, an individual, Plaintiffs-Appellants, v. Gale NORTON, Secretary of the United States Department of the Interior, Sam Hamilton, Regional Director of the United States Fish and Wildlife Service, United States Department of the Interior, United States Fish and Wildlife Service, an agency of the United States Department of the Interior, Steve Williams, Director of Fish and Wildlife Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1244

338 F.3d 1244

ALABAMA-TOMBIGBEE RIVERS COALITION, an Alabama nonprofit corporation, Parker Towing Co., Inc., an Alabama corporation, Charles A. Haun, an individual, Plaintiffs-Appellants, v. Gale NORTON, Secretary of the United States Department of the Interior, Sam Hamilton, Regional Director of the United States Fish and Wildlife Service, United States Department of the Interior, United States Fish and Wildlife Service, an agency of the United States Department of the Interior, Steve Williams, Director of Fish and Wildlife Service, Defendants-Appellees.

No. 02-14423.

United States Court of Appeals, Eleventh Circuit.

July 23, 2003.

COPYRIGHT MATERIAL OMITTED

P. Stephen Gidiere, III, John Russell Campbell, William Hughes Satterfield, Robert P. Fowler, Balch & Bingham, LLP, Birmingham, AL, for Plaintiffs-Appellants.

Jenny Lynn Smith, Birmingham, AL, Todd Kim, U.S. Dept. of Justice, ENRD-App. Section, Washington, DC, for Defendants-Appellees.

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

Appeal from the United States District Court for the Northern District of Alabama.

Before EDMONDSON, Chief Judge, CARNES, Circuit Judge, and STORY^*, District Judge.

STORY, District Judge:

This case involves a business organization's standing to challenge a decision by the Secretary of the Interior to list the Alabama sturgeon as an endangered species pursuant to the Endangered Species Act of 1973 (ESA), 16 U.S.C. §§ 1531-44. The district court held that Appellants lacked standing and entered summary judgment for Appellees. We reverse and remand.

Appellant Alabama-Tombigbee Rivers Coalition is an Alabama non-profit corporation consisting of sixteen industries, agencies, and associations that rely upon Alabama waterways as integral components of their businesses. Appellant Parker Towing Company ("Parker Towing") is an Alabama corporation and member of the Coalition that uses the Alabama waterways in its towing and barge business. Appellant Charles A. Haun is the Vice President of Parker Towing; he also uses the waterways for recreation.¹ The Coalition filed this suit against Gale Norton, Secretary of the U.S. Department of Interior; Steve Williams, Director of the U.S. Fish and Wildlife Service ("FWS"); Sam Hamilton, Regional Director of the FWS; the U.S. Department of the Interior; and the FWS,² alleging that the Government unlawfully listed the Alabama sturgeon as an endangered species.³

I. Background

A. The Endangered Species Act

The ESA "represented the most comprehensive legislation for the preservation of endangered species ever enacted by any nation" and provided "a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 2294, 57 L.Ed.2d 117 (1978); see also 16 U.S.C. § 1531(b). The ESA requires the Secretary of the Interior to promulgate regulations listing any species that is threatened or endangered. 16 U.S.C. § 1533. Once a species is listed, various prohibitions attempt to ensure the survival and recovery of that species. See, e.g., § 1536(a)(2) (federal agencies' duty to avoid jeopardizing listed species); § 1538(a) (prohibitions against taking of listed species). The statute imposes the obligation on federal agencies to "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary ... to be critical." § 1536(a)(2); Bennett v. Spear, 520 U.S. 154, 154, 117 S.Ct. 1154, 1159, 137 L.Ed.2d 281 (1997). Thus, if an agency determines that its proposed action may adversely affect a listed species or critical habitat, it must formally consult with the FWS or the National Marine Fisheries Service ("NMFS"). § 1536(a)(2); 50 C.F.R. § 402.14 (2002). Additionally, the Regional Director of the FWS or the Assistant Administrator for the National Oceanic and Atmospheric Administration ("NOAA") may request the agency to engage in consultation. 50 C.F.R. § 402.14(a). Finally, consultation shall occur "at the request of, and in cooperation with," a prospective permit or license applicant "if the applicant has reason to believe" that a listed species "may be present in the area affected by his project and that implementation of such action will likely affect such species." 16 U.S.C. § 1536(a)(3).

An agency "action" includes "all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States." 50 C.F.R. § 402.02. This definition expressly includes the granting of permits and licenses, although the consultation requirement is limited to those actions that require "discretionary Federal involvement or control." Id.; 50 C.F.R. § 402.03; see Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073-75 (9th Cir.1996) (concluding FWS' advisory activity did not involve discretion so as to trigger consultation requirement). Applicants for federal permits may participate in the consultation process, but they are not required to do so. See 50 C.F.R. § 402.14(d) ("The Federal agency shall provide any applicant with the opportunity to submit information for consideration during the consultation.").

Following the consultation process, the FWS must provide a written statement of its opinion detailing how the proposed action will affect the species or its habitat, and suggesting alternatives if it appears the proposed action would jeopardize the species or adversely modify its habitat. 16 U.S.C. § 1536(b)(3)(A). An "incidental take" permit may be issued if the suggested alternatives will minimize injury to the species. § 1536(b)(4). These alternatives may become conditions for applicants to obtain permits or licenses. Id.; see, e.g., Loggerhead Turtle v. County Council of Volusia County, 148 F.3d 1231, 1240-41 (11th Cir.1998) (summarizing mitigation measures required as condition of incidental take permit); Envtl. Coalition of Broward County, Inc. v. Myers, 831 F.2d 984, 987 (11th Cir.1987) (upholding Corps' issuance of dredging permit following consultation and noting Corps had imposed eight additional conditions to minimize possible injury to endangered manatee).

B. Factual and Procedural Background

1. The Alabama sturgeon

The Alabama sturgeon (Scaphirhynchus suttkusi) is a small freshwater fish that was historically found only in the Mobile River system of Alabama and Mississippi. Final Rule to List the Alabama Sturgeon as Endangered, 65 Fed.Reg. 26,438 (May 5, 2000) [hereinafter, Final Rule].

This sturgeon is an elongate, slender fish growing to about 80 centimeters (cm) (31 inches (in)) in length. A mature fish weighs 1 to 2 kilograms (kg) (2 to 4 pounds (lb)). The head is broad and flattened shovel-like at the snout. The mouth is tubular and protrusive. There are four barbels (whisker-like appendages used to find prey) on the bottom of the snout, in front of the mouth. Bony plates cover the head, back, and sides. The body narrows abruptly to the rear, forming a narrow stalk between the body and tail. The upper lobe of the tail fin is elongated and ends in a long filament.

Id. Although the sturgeon was once so common that it was captured commercially, it is now very rare and thought to occur only in small portions of the Alabama River channel in south Alabama, downstream to the mouth of the Tombigbee River. Id. at 26,439-40. This decline has been attributed to "over-fishing, loss and fragmentation of habitat due to historical navigation-related development, and water quality degradation." Id. at 26,438.

The FWS initially considered whether to propose listing the sturgeon in 1980. Review of Three Southeastern Fishes, 45 Fed.Reg. 58,171 (Sept. 2, 1980). The FWS issued a proposed rule to list the Alabama sturgeon as endangered and to designate critical habitat in 1993. Proposed Endangered Status and Designation of Critical Habitat for the Alabama Sturgeon (Scaphirhynchus suttkusi), 58 Fed.Reg. 33,148 (June 15, 1993). During the public comment period on the proposed rule, businesses in Alabama became concerned about the economic impact of the listing, and the Coalition was formed to review the FWS' scientific and legal rationales for listing the sturgeon. The Coalition sued the FWS under the Federal Advisory Committee Act (FACA), 5 U.S.C.App. 2, and obtained an injunction against the FWS preventing it from using a report prepared by a scientific committee that had been improperly convened. See generally Alabama-Tombigbee Rivers Coalition v. Dep't of Interior, 26 F.3d 1103 (11th Cir.1994) (setting forth history and affirming district court's entry of permanent injunction) [hereinafter Coalition I]. The FWS withdrew the proposed rule in 1994 because there was "insufficient information to justify listing a species that may no longer exist." Withdrawal of Proposed Rule for Endangered Status and Critical Habitat for the Alabama Sturgeon, 59 Fed. Reg. 64,794 (December 15, 1994).

The Coalition remained actively involved in scientific studies and conservation efforts for the Alabama sturgeon even after the FWS withdrew its proposed listing. In 1996, the Coalition initiated discussions between the FWS, the Army Corps of Engineers (the "Corps"), the State of Alabama, and members of Alabama's congressional delegation that led to a Voluntary Conservation Plan funded by Congress and led by the state. This plan consisted of a captive breeding program that was ultimately unsuccessful. Nevertheless, the Coalition continued to participate in and fund various studies about the species.⁴ In 2000, the Coalition again worked with federal and state interests to convert the Voluntary Conservation Plan into a ten-year, eight-million-dollar, formal Conservation Agreement...