Defenders of Wildlife v. Hodel

Decision Date25 February 1987
Docket NumberNo. 3-86 CIV 757.,3-86 CIV 757.
Citation658 F. Supp. 43
PartiesDEFENDERS OF 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.
CourtU.S. District Court — District of Minnesota

Faegre & Benson by Brian B. O'Neill, Minneapolis, Minn., for plaintiffs.

U.S. Dept. of Justice by Lee M. Kolker, and Donald A. Carr, Washington, D.C., Agency for International Development by Mark Ward, Washington, D.C., and Jerome G. Arnold, U.S. Atty. by Mary E. Carlson, Asst. U.S. Atty., Minneapolis, Minn., for defendant.

MEMORANDUM ORDER

ALSOP, Chief Judge.

This matter comes before the court on defendant Secretary of the Interior's motion to dismiss. In support of his motion, the Secretary argues that the court lacks jurisdiction because the issues raised by the plaintiffs are not justiciable. Specifically, the Secretary alleges that the plaintiffs' have not alleged the existence of a case or controversy and lack standing to bring this action.

BACKGROUND

The underlying dispute presented by this case concerns the validity of the Secretary's action in rescinding a rule that required federal agencies to consult with the defendant when agency action abroad might affect species of wildlife or plants listed by the Secretary as endangered or threatened. In 1973, Congress enacted the Endangered Species Act (ESA), 16 U.S.C. § 1531 et. seq., to facilitate conservation of endangered and threatened species. Section 4 of the Act, 16 U.S.C. § 1533, requires the Secretary to list the species of wildlife and plants endangered or threatened with extinction. The list established by the Secretary contains both domestic and international wildlife and plants. See 50 C.F.R. § 17.11 (Oct.1985). Section 7(a)(2) of the Act, 16 U.S.C. § 1536(a)(2), imposes a duty on federal agencies to consult with the Secretary to insure that action authorized, funded, or carried out by federal agencies 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...."

Initially the Secretary interpreted Section 7 as requiring consultation when federal agencies authorized, funded, or carried out projects in foreign countries.1 50 C.F.R. § 402.04 (Oct.1984). On June 3, 1986, the Secretary published a final rule that modified the scope of Section 7. The new rule rescinded the requirement for Section 7 consultation when agency action occurred in foreign countries. 51 Fed.Reg. 19930 (1986).

The plaintiffs argue that the reinterpretation of Section 7 through the 1986 rule-making is invalid on its face as contrary to the provisions of the ESA. The plaintiffs were unable to refer to any specific agency action in a foreign country initiated subsequent to the publication of the rule modifying the Secretary's interpretation of Section 7. Instead, the plaintiff directs the court's attention to several ongoing projects in foreign countries, all of which were initiated prior to the June 3, 1986, publication date.

DISCUSSION

The issue raised by the defendant's motion concerns whether the plaintiffs' claims satisfy the "case and controversy" requirement of Article III Section 2 of the Constitution.2 Article III limits the "judicial power" of federal courts to the resolution of "cases" and "controversies". Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757, 70 L.Ed.2d 700 (1982). "The power to declare the rights of individuals and to measure the authority of governments ... `is legitimate only in the last resort, and as a necessity in the determination of a real, earnest, and vital controversy.'" Id. (quoting Chicago & Grand Truck Co. v. Wellman, 143 U.S. 339, 345, 12 S.Ct. 400, 402, 36 L.Ed. 176 (1892)).

The aspect of the case and controversy requirement that is brought into focus by the instant motion is standing. The Supreme Court has recently clarified the "irreducible minimum" a plaintiff must show in order to satisfy the standing requirement of Article III in Valley Forge. A plaintiff must "show that he personally has suffered some actual or threatened injury as a result of the punitively illegal conduct of the defendant, and that the injury can be fairly traced to the challenged action and is likely to be redressed by a favorable decision."3 454 U.S. at 472, 102 S.Ct. at 758 (citations omitted). Relevant inquiries when determining standing in a particular case include:

Is the injury too abstract or otherwise not appropriate, to be considered judicially cognizable? Is the line of causation between the illegal conduct and injury too attenuated? Is the prospect for obtaining relief from the injury as a result of a favorable ruling too speculative?

Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984).

Relying on much of the above-cited authority, the Secretary argues that the plaintiff has failed to show an actual or threatened injury as the result of the Secretary's reinterpretation of Section 7. The plaintiffs proffer two arguably separate and distinct sets of injuries,4 neither of which, for reasons discussed below, is sufficient to satisfy the standing requirement of Article III.

The first of the plaintiffs' injuries is the only injury expressly stated in the plaintiffs' complaint. For purposes of ruling on this motion to dismiss, the court must accept as true all material allegations in the complaint, and must construe the complaint in favor of the complaining party. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). In their complaint, plaintiffs state that members of their organization benefit both professionally and personally from observing endangered and threatened species of wildlife and plants whose primary range are outside the United States. Therefore, they argue, they have an interest in the enforcement and administration of the ESA. (Amended Complaint ¶ 2).

Although there is no precise definition of injury in fact, comparing the allegations in this complaint to those made in prior standing cases clearly demonstrates the insufficiency of the above-mentioned "injury". See, e.g., Allen v. Wright, 468 U.S. 737, 754, 104 S.Ct. 3315, 3326, 82 L.Ed.2d 556 (1984) (Court has repeatedly held that an asserted right to have Government act in accordance with law is not sufficient to satisfy standing requirement); Valley Forge, 454 U.S. at 483-84, 102 S.Ct. at 764-65 (plaintiffs lacked standing to require that Government be administered according to law); Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972) (mere interest in the problem of environmental protection is insufficient to confer standing). Ignoring the above-cited authority, plaintiffs have merely alleged an interest in the proper enforcement of the ESA to insure that endangered species are fully protected. The amended complaint fails to allege any specific agency action in foreign countries that have adversely affected endangered species as the result of the Secretary's reinterpretation of Section 7. Accordingly, the court concludes that the plaintiffs' interest in proper enforcement of the ESA, however admirable, is not a sufficient injury for purposes of Article III standing.

Apparently realizing the standing deficiencies in their complaint, plaintiffs have attempted to establish a record of additional injuries or set of injuries.5 In the memorandum in opposition to defendants motion, plaintiffs list eight projects which they allege are ongoing projects in foreign countries that are harming endangered species. Of these eight, only three are ongoing projects that are actually being funded or carried out by federal agencies.6 A fourth project, the Lower Mekong Project, is being planned by the Bureau of Reclamation. In addition to the above-mentioned projects, the plaintiffs direct the court's attention to a Bureau of Reclamation document detailing various projects in foreign countries that the Bureau is involved in. The Bureau's involvement in most of these projects is limited to studying, planning, or technical advice.

The plaintiffs note that under the new regulation the federal agencies involved in the above-cited ongoing and planned projects no longer have a continuing duty to consult with the Secretary. Consequently, the plaintiffs argue that these projects provide a sufficient actual or threatened injury to satisfy the standing requirement of Article III, Section 2.7

Plaintiffs rely on Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978), in support of their argument that federal agencies have a continuing duty to consult with the Secretary during the pendency of foreign projects. In Tennessee Valley Authority, plaintiffs sought to enjoin the completion of the Tellico Dam claiming that such action would violate the ESA by causing the snail darters extinction. The consultation aspect of Section 7 was not the focus of the litigation. The Tennessee Valley Authority (TVA) consulted with the Secretary, and the Secretary clearly stated that completion of the dam would result in total destruction of the snail darters critical habitat. Id. at 161-62, 98 S.Ct. at 2285. It was TVA's position, however, that the ESA did not apply to the dam because the project was initiated before the ESA became effective and Congress continued to appropriate funds to the dam following the effective date of the ESA despite their knowledge that the dam would affect the snail darters existence. The Court enjoined the completion of the dam holding that TVA's Section 7 duty to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of endangered species or result in the destruction or modification of habitat of such species applied to the...

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6 cases
  • Lujan v. Defenders of Wildlife
    • United States
    • U.S. Supreme Court
    • June 12, 1992
    ...the initial interpretation. The District Court granted the Secretary's motion to dismiss for lack of standing. Defenders of Wildlife v. Hodel, 658 F.Supp. 43, 47-48 (Minn.1987). The Court of Appeals for the Eighth Circuit reversed by a divided vote. Defenders of Wildlife v. Hodel, 851 F.2d ......
  • Sierra Club v. Hawaii Tourism Authority
    • United States
    • Hawaii Supreme Court
    • December 6, 2002
    ...The Secretary filed a motion to dismiss for lack of standing, which the district court granted. Id. (citing Defenders of Wildlife v. Hodel, 658 F.Supp. 43, 47-48 (D.Minn.1987)). The Eighth Circuit, by a divided vote, reversed and remanded.29 Id. (citing Defenders of Wildlife v. Hodel, 851 F......
  • AGE CORP. v. US OFFICE OF MGT. & BUDGET
    • United States
    • U.S. District Court — District of South Dakota
    • November 29, 1990
    ...in favor of the complaining party. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). Defenders of Wildlife v. Hodel, 658 F.Supp. 43 (D.Minn.1987). . . . . Plaintiffs have sufficiently pled their cause of action to survive defendants' motion to dismiss pursuant ......
  • Defenders of Wildlife, Friends of Animals and Their Environment v. Hodel
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • October 14, 1988
    ...matter jurisdiction, concluding that Defenders failed to satisfy the standing requirement of Article III, Section 2 of the Constitution, 658 F.Supp. 43. We reverse and In the Endangered Species Act (the Act or ESA), Congress declared that "the United States has pledged itself as a sovereign......
  • Request a trial to view additional results
2 books & journal articles
  • Arbitrary and Capricious: the Dark Canon of the United States Supreme Court in Environmental Law
    • United States
    • Georgetown Environmental Law Review No. 33-1, October 2020
    • October 1, 2020
    ...the statutory and procedural 155. The District Court originally dismissed the case on standing in Defenders of Wildlife v. Hodel, 658 F. Supp. 43 (D. Minn. 1987), which was reversed on appeal and remanded for trial on the merits in Defenders of Wildlife v. Hodel, 851 F.2d 1035 (8th Cir. 198......
  • Endangered Species at Sea: Applying the ESA to Maritime Jurisdictions
    • United States
    • Environmental Law Reporter No. 51-6, June 2021
    • June 1, 2021
    ...Diversity v. Export-Import Bank of the United States, 894 F.3d 1005, 1014, 48 ELR 20108 (9th Cir. 2018); Defenders of Wildlife v. Hodel, 658 F. Supp. 43, 17 ELR 20882 (D. Minn. 1987), rev’d sub nom . Defenders of Wildlife v. Hodel, 851 F.2d 1035, 18 ELR 21343 (8th Cir. 1988). 103. 42 Fed. R......

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