Defenders of Wildlife, Friends of Animals and Their Environment v. Lujan, s. 89-5192

Decision Date10 August 1990
Docket NumberNos. 89-5192,89-5386,s. 89-5192
Citation911 F.2d 117
Parties, 15 Fla. L. Week. D2127, 20 Envtl. L. Rep. 21,442 DEFENDERS OF WILDLIFE, FRIENDS OF ANIMALS AND THEIR ENVIRONMENT; and The Humane Society of the United States, Appellees, v. Manuel LUJAN, as Secretary of the Interior, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

David C. Shilton, Washington, D.C., for appellant.

Brian B. O'Neill, Minneapolis, Minn., for appellees.

Before JOHN R. GIBSON and FAGG, Circuit Judges, and BRIGHT, Senior Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

The court again considers a challenge to a regulation promulgated by the Secretary of the Interior, Manuel Lujan, Jr., under the Endangered Species Act, 16 U.S.C. Secs. 1531-1544 (1988), which provides that federal agencies funding projects in foreign countries have no duty to consult with the Secretary about their projects' impact on endangered species. We earlier reversed the dismissal of this action brought by Defenders of Wildlife, Friends of Animals and Their Environment, and the Humane Society (collectively Defenders), and upon remand, the district court 1 held that Defenders had standing to bring this action and granted summary judgment on the merits in their favor. On appeal, the Secretary argues that the court erred in holding both that Defenders had standing and that Congress intended for the Endangered Species Act to apply to projects in foreign countries. We affirm the order of the district court.

Congress declared in the Endangered Species Act 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). Toward this purpose, the Act requires each federal agency to consult with the Secretary 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." Id. Sec. 1536(a)(2). After consultation, the Secretary must issue a written opinion to the agency describing how the proposed agency action would affect the endangered species or critical habitat. The Secretary must also suggest reasonable alternatives if the agency action would jeopardize the existence of the species or habitat. Id. Sec. 1536(b)(3)(A).

Defenders brought this action to challenge a new regulation promulgated by the Secretary which limits the consultation obligation to agency action "in the United States or upon the high seas." 50 C.F.R. Sec. 402.01 (1986). The new regulation defines "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." Id. Sec. 402.02. This new regulation replaced a regulation which required agencies to consult with the Secretary concerning actions in foreign countries. See 50 C.F.R. Sec. 402.04 (1978).

The Secretary moved to dismiss for lack of subject-matter jurisdiction on the basis that Defenders lacked standing to bring the action. The district court granted the motion. 658 F.Supp. 43 (D.Minn.1987). On appeal, this court reversed and remanded because we held that Defenders had standing to challenge the regulation. 851 F.2d 1035 (8th Cir.1988). Upon remand, after further discovery on standing, including filing additional affidavits and deposing the affiants, the district court granted Defenders' motion for summary judgment on the issue of whether the Act requires agencies to consult with the Secretary on projects in foreign countries. 707 F.Supp. 1082 (D.Minn.1989). The court found that both the Act's plain language and its legislative history supported the court's conclusion that the consultation duty extended to foreign projects. Id. at 1084-86. The court ordered the Secretary to revoke and rescind the portion of the regulation limiting the consultation duty to agency actions in the United States or upon the high seas, and to publish proposed regulations clearly recognizing that the consultation duty applies to agency actions affecting endangered species wherever found. Id. at 1086. This appeal followed.

I.

The Secretary first argues that our earlier decision, which held that Defenders' allegations concerning standing were sufficient to withstand a motion to dismiss, did not relieve Defenders of the burden of proving standing at the summary judgment phase of the litigation. They argue that Defenders lacked standing because it could not show that the organization or its members were in fact injured by the new regulation. According to the Secretary, no member of Defenders actually used the area around any foreign projects being funded by the United States.

Our examination of the standing issue is guided by the following fundamental principle:

[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, 1608, 60 L.Ed.2d 66] (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).

Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). The standing requirement "tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action." Id.

We address only the first requirement, injury in fact, because the Secretary does not contend that the traceability and redressability requirements are not met. In the earlier appeal to this court, we extensively discussed the standing issue and concluded that Defenders had sufficiently alleged injury in fact on two grounds. First, Defenders had alleged a substantive injury because the rate of extinction of endangered species was increasing in foreign countries which its members had visited to observe wildlife and which were the site of specific agency projects. 851 F.2d at 1040. Second, Defenders had alleged a procedural injury resulting from the Secretary's refusal to carry out statutorily-mandated procedures. Id. at 1040-41. Other courts of appeals have also recognized that failure to comply with required procedures may constitute injury in fact. See, e.g., National Wildlife Fed'n v. Hodel, 839 F.2d 694, 712 (D.C.Cir.1988); Munoz-Mendoza v. Pierce, 711 F.2d 421, 428 (1st Cir.1983); South East Lake View Neighbors v. Department of Housing & Urban Dev., 685 F.2d 1027, 1038-39 (7th Cir.1982); City of Davis v. Coleman, 521 F.2d 661, 670-72 (9th Cir.1975).

Upon remand to the district court, the Secretary again raised the standing issue, this time in its motion for summary judgment. The Secretary argued that Defenders bore a greater burden in proving standing at the summary judgment stage than it did when responding to the motion to dismiss, and insisted that Defenders had failed to carry this burden. The district court dealt with this argument as follows: "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." 707 F.Supp. at 1083-84. The district court expressly denied summary judgment to the Secretary on the standing issue and, in granting summary judgment in favor of Defenders on the merits, necessarily determined, as a matter of law, the threshold issue of standing in favor of Defenders. It is, of course, "within the court's power to grant summary judgment sua sponte against the moving party, lacking a cross-motion, where the party against whom the judgment is entered has had a full and fair opportunity to contest that there are no genuine issues of material fact to be tried and the party granted judgment is entitled to it as a matter of law." Burlington N. R.R. v. Omaha Pub. Power Dist., 888 F.2d 1228, 1231 n. 3 (8th Cir.1989). We review this issue under the standard for summary judgment set forth in Rule 56 of the Federal Rules of Civil Procedure. Defenders had the burden of showing "that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). See Lujan v. National Wildlife Fed'n, --- U.S. ----, 110 S.Ct. 3177, 3186, 111 L.Ed.2d 695 (1990).

The Secretary correctly states that a court's refusal to dismiss an action for lack of standing does not relieve the plaintiff of the burden of actually proving standing where a defendant contests the factual basis for standing. See National Wildlife Fed'n, 110 S.Ct. at 3189; Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 115, 99 S.Ct. 1601, 1615, 60 L.Ed.2d 66 (1979); Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 45 n. 25, 96 S.Ct. 1917, 1927 n. 25, 48 L.Ed.2d 450 (1976); Munoz-Mendoza, 711 F.2d at 425; Glover River Org. v. United States Dep't of the Interior, 675 F.2d 251, 254 n. 3 (10th Cir.1982). We are satisfied, however, that Defenders had met its burden of proving standing at the summary judgment phase of the litigation. The district court did not merely reiterate our earlier analysis of the standing issue. It stated that it appreciated the distinction urged by the Secretary and recognized that "plaintiffs must prove their standing without the benefit of any...

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