Defenders of the Wildlife v. Hodel, 3-86 CIV 757.

• Decision Date: 15 February 1989
• Docket Number: No. 3-86 CIV 757.,3-86 CIV 757.
• Parties: DEFENDERS OF THE WILDLIFE, Friends of Animals and Their Environment, and The Humane Society of the United States, Plaintiffs, v. Donald P. HODEL, as Secretary of the Interior, Defendant.
• Court: U.S. District Court — District of Minnesota

707 F. Supp. 1082

DEFENDERS OF THE WILDLIFE, Friends of Animals and Their Environment, and The Humane Society of the United States, Plaintiffs, v. Donald P. HODEL, as Secretary of the Interior, Defendant.

No. 3-86 CIV 757.

United States District Court, D. Minnesota, Third Division.

February 15, 1989.

Faegre & Benson by Brian B. O'Neill, Alan M. Anderson, and Richard A. Duncan, Minneapolis, Minn., for plaintiffs.

U.S. Dept. of Justice by Lee M. Kolker, Washington, D.C., for defendant.

ORDER

ALSOP, District Judge.

I. BACKGROUND.

Plaintiffs ("Defenders") filed this action on August 27, 1986. The complaint challenged the defendant's issuance of Regulations in 1986 which limited the "consultation provision"¹ of the Endangered Species Act² ("ESA") to those actions occurring in the United States or on the high seas. Previously, 50 C.F.R. § 402.02 had stated that consultation was required for any agency action, foreign or domestic. On February 25, 1987, this court, 658 F.Supp. 43, dismissed Defenders' action on the grounds that it had no subject matter jurisdiction because the plaintiffs lacked standing. The Eighth Circuit Court of Appeals, 851 F.2d 1035, reversed that order on July 8, 1988. The Secretary petitioned the Eighth Circuit for a rehearing and rehearing en banc, which petition was denied, and the case has been remanded to this court for further proceedings.

The parties come before the court now on cross motions for summary judgment. The court is asked to make two decisions at the present time. First, the Secretary asks the court to re-examine the issue of plaintiffs' standing. He argues that the standing determination reached by the Eighth Circuit was made in the context of a motion to dismiss, where all factual allegations were construed in a light favorable to plaintiffs. Now, a "new level" of litigation has been reached. The present motion is in the context of summary judgment. At this stage, the plaintiffs must prove their standing without the benefit of any inferences in their favor. The Secretary argues that the depositions taken of the plaintiffs prove that no member of the plaintiff groups will be injured by the new regulations, therefore, they have no standing. Plaintiffs, on the other hand, argue that they do have standing and that the opinion of the Eighth Circuit confirms that fact.

The second issue for determination is whether the 1986 regulations are invalid because they contradict the Endangered Species Act.³ The 1986 regulations define an agency "action" so that federal agency action in foreign countries is no longer subject to the consultation requirements found in section 1536. Defenders argues that the ESA is clear in that the consultation requirements found at section 1536 apply to federal agency action throughout the world. Consequently, any regulations which stray from the statute's mandate are invalid.

II. STANDARD FOR SUMMARY JUDGMENT.

The Supreme Court has stated that summary judgment is a tool to isolate and dispose of claims or defenses which are either factually unsupported or which are based on undisputed facts. Celotex Corp. v. Catrett, 477 U.S. 317, 323-324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Hegg v. United States, 817 F.2d 1328, 1331 (8th Cir.1987). Summary judgment is proper, however, only if examination of the evidence in a light most favorable to the non-moving party reveals no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The test for whether there is a genuine issue over a material fact is two-fold. First, the materiality of a fact is determined from the substantive law governing the claim. Only disputes over facts that might affect the outcome of the suit are relevant on summary judgment. Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at 2512; St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir.1987). Second, any dispute over material fact must be "genuine." A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party. Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at 2512. It is the non-moving party's burden to demonstrate that there is evidence to support each essential element of his claim. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.

Any discovery in this case pertaining to the present motions has been completed. Defenders' motion is a question of statutory interpretation and a matter of law for the court to decide. As to the facts regarding standing, although the parties have different interpretations regarding the facts, there is no dispute as to what those facts are. Summary judgment is, therefore, appropriate at this time.

III. STANDING MOTION.

As stated above, the Secretary argues that at this stage of the proceedings the plaintiffs bear a greater burden in proving standing than they did in the motion to dismiss, and have failed to carry that burden. Although the court appreciates the distinction urged by the Secretary, it feels that the Eighth Circuit has already determined the standing question in this case. The new "proof" and arguments offered by the Secretary do not vary the situation enough to merit an analysis differing from that given by the Eighth Circuit. The court will, therefore, deny the Secretary's motion for summary judgment.

IV. ENDANGERED SPECIES ACT DISCUSSION.

The consultation provision states that: Each federal agency shall, in consultation with and with the assistance of the Secretary, ensure 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 ...

16 U.S.C. § 1536(a)(2) (1982).

The Secretary argues that the 1986 regulations are perfectly consistent with this language. He also argues that the 1986 definition of "action" is supported by the presumption against the extraterritorial application of United States statutes,⁴ congressional and agency comments regarding the proper scope of the provision, and the fact that other statutes and other sections of the ESA more specifically deal with the international endangered species problem.

The Secretary's strongest argument is that statutes are presumed to have domestic scope only. This presumption of domestic application finds expression most clearly in an environmental case in United States v. Mitchell, 553 F.2d 996 (5th Cir.1977). That case stands for the proposition that if environmental legislation is to be applied outside the boundaries of the United States, Congress' intent that the legislation be applied to that extent must be clearly expressed. One of the teachings of Mitchell is that the use of all-inclusive language, by itself, is not enough to provide that specific and clear direction. Id. at 1003.

The starting point for any question of statutory interpretation must be the words of the statute itself. If the language of the statute is plain and clear, that language is ordinarily regarded as conclusive. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570, 102 S.Ct. 3245, 3249, 73 L.Ed.2d 973 (1982); Sierra Club v. Clark, 755 F.2d 608, 613 (8th Cir.1985). The other methods of statutory interpretation come into play only if the statute itself is ambiguous. They are not used to cast doubt on the meaning of a statute which is clear on its face.⁵

The court finds that the ESA plainly states that federal agencies are required to consult with the Secretary regarding projects in foreign countries. Congress' clear intent that this is so can, for the most part, be determined without resort to legislative history. Section 1536 clearly states that each federal agency must consult with the Secretary regarding any action which could jeopardize any endangered or threatened species. The language and mandate is all inclusive; it could not be more broad. Consultation must occur whenever an action endangers any endangered species. Endangered species exist outside the boundaries of the United States and high seas,⁶ therefore, consultation must occur if an action in a foreign land affects an endangered or threatened species there.⁷

The court has made this determination well aware of the Mitchell holding that congressional intent to apply a statute extraterritorially must go beyond the use of inclusive language. The court finds that additional intent in several places. First, Congress' concern with the international aspects of the endangered species problem is unmistakable and appears repeatedly throughout the statute. Section 1531 states that the United States has pledged itself to conserve, to the extent practicable, wildlife throughout the world. Section 1532(6) defines "endangered species" without regard to their presence in the United States. Section 1537 specifically deals with "international cooperation" regarding endangered species, and section 1538(a) prohibits various actions, wherever occurring, by anyone subject to the jurisdiction of the United States. Section 1538 also shows that Congress knew that not all portions of the ESA were to apply worldwide. Where they did not want the prohibitions to have effect outside the United States, inclusive language was not used. Section 1536's all-inclusive language, when contrasted with the discriminatory language of section 1538, cannot be considered sloppiness on the part of Congress but, rather, intentional language expressing a concern that the consultation provisions be given effect wherever agency action took place.

In addition to this "general" international concerns of the statute noted above, section 1533 requires the Secretary to list all species that are determined to be endangered or threatened. That section clearly states that the actions of foreign nations are to be considered in determining which species to list, and many species not native to or present in the United States appear on the list. See 50 C.F.R....