Gdf Realty Investments, Ltd. v. Norton

• Decision Date: 30 August 2001
• Docket Number: No. A-00-CA-369SS.,A-00-CA-369SS.
• Citation: 169 F.Supp.2d 648
• Parties: GDF REALTY INVESTMENTS, LTD., et al. v. Gale NORTON, et al.
• Court: U.S. District Court — Southern District of Texas

169 F.Supp.2d 648

GDF REALTY INVESTMENTS, LTD., et al. v. Gale NORTON, et al.

No. A-00-CA-369SS.

United States District Court, S.D. Texas, Austin Division.

August 30, 2001.

COPYRIGHT MATERIAL OMITTED

R. James George, Jr., George Donaldson & Ford, Austin, TX, Paul M. Terrill, Hazen & Terrill, P.C., Austin, TX, for plaintiffs.

Mark A. Brown, Environment & Natural Resources, U.S. Department of Justice, Washington, DC, Janet Spaulding, U.S. Department of Interior, Albuquerque, NM, David Gayer, U.S. Department of Interior, Office of the Solicitor, Washington, DC, for defendants.

David O. Frederick, Frederick Law, Austin, TX, for National Wildlife Foundation, amicus.

David E. Haddock, M. Reed Hopper, Sacramento, CA, Pacific Legal Foundation, amicus.

Allan E. Parker, Jr., Texas Justice Foundation, San Antonio, TX, for Texas Justice Foundation, amicus.

ORDER

SPARKS, District Judge.

BE IT REMEMBERED on the 30th day of August 2001 the Court reviewed the file in the above-captioned case and specifically Plaintiffs' Summary Judgment Motion and Brief in Support [# 25] and defendants' opposition thereto [# 31]; Defendants' Summary Judgment Motion [# 30] and Memorandum of Law in Support [# 31], plaintiffs' amended response thereto [# 39], defendants' reply thereto [# 41] and plaintiffs' supplemental letter brief [# 47]. After considering the motions, responses and supplemental brief, the case file as a whole and the applicable law, the Court enters the following opinion and order.

This is a declaratory relief action and request for injunctive relief brought by plaintiffs GDF Realty Investments, Ltd., Parke Properties I, L.P. and Parke Properties II, L.P. ("plaintiffs") against defendants Gale Norton and Marhsall P. Jones, in their official capacities as Secretary of the Interior and Director of the U.S. Fish and Wildlife Service, respectively ("defendants").¹

Factual and Procedural Background

Sometime in 1983, plaintiffs bought approximately 216 acres of undeveloped land in Travis County, Texas, near the intersection of two major state highways, FM 620 and FM 2222 ("the Property"). See Complaint, ¶ 30; see also Plaintiffs' Summary Judgment Motion, Ex. C, Affidavit of Fred Purcell ("Purcell Affidavit"), ¶¶ 1-3 and Tab 1. The Property is home to six species of invertebrates that, outside of museum and research collections, are located entirely within underground caves in Travis and Williamson Counties, in central Texas. See, e.g., Plaintiffs' Summary Judgment Motion, Ex. A.² Shortly after buying the Property (which plaintiffs estimate has a fair market value of $60 million), plaintiffs sought to commercially develop it. See Purcell Affidavit, ¶¶ 3-4 ("Located at the intersection of two major highways in one of the most rapidly growing areas of Texas, the Property is an extremely valuable piece of real estate."). However, according to plaintiffs, "Defendants' land use restrictions on the Property resulting from the Endangered Species Act" have prevented plaintiffs "from making economic use of the Property." See id. ¶¶ 6 and 15.

In March 1985, James Reddell, assistant curator at the Texas Memorial Museum for the University of Texas, sought plaintiffs' permission to enter the Property to begin "a long-term study" of the Cave Species and other invertebrates living in the caves on the Property. See Purcell Affidavit, Tab 2, at FP-00234.

On September 16, 1988, the federal government, pursuant to the ESA, issued a final rule listing five of the Cave Species as endangered.³ See Plaintiffs' Summary Judgment Motion, Ex. A (reprinting 53 Fed.Reg. 36029 (Sept. 16, 1988)). The final rule stated:

Each of these species is known from only six or fewer small, shallow, dry caves near Austin in Travis and Williamson Counties, Texas. Urban, industrial and highway expansion are planned or ongoing in the area containing the cave habitat of these species. This development could result in filling or collapse of these shallow caves....

See id. at 32029-30. The rule further stated that four of the species were located only in Tooth Cave, Amber Cave, and Kretschmarr Cave, all in the Jollyville Plateau in Travis County. See id. at 36030. These caves are located on or near the Property. See Purcell Affidavit, Tab 1. The rule also stated all five species had been studied and collected by several scientists since the 1960s and 1970s, and articles regarding these species had been published in national scientific publications and at least one international journal. See Plaintiffs' Summary Judgment Motion, Ex. A, at 36030 and 36032. The rule indicated the study of these species was ongoing, stating that one reason for listing the species as endangered was "[c]ollection [of the species] for scientific or educational purposes could become a threat if [their] localities become generally known." See id. at 36031. The rule stated the main reason the species were listed as endangered was "[t]he primary threat to the five species comes from potential loss of habitat owing to ongoing development activities," and that the species' caves "are in an area for which a major residential, commercial, and industrial development has been proposed." See id. The rule concluded:

These species require the maximum possible protection provided by the Act because their extremely small, vulnerable habitats are within an area that can be expected to experience continued pressures from economic and population growth.

See id. at 36032.

On March 2, 1989, shortly after this final rule was issued, defendants began asserting jurisdiction over the Property, on the grounds that plaintiffs' proposed development and "commercial activities" could constitute a take of "the endangered Texas cave invertebrates." See Purcell Affidavit, Tab 2, at GDF 2824-30 (letter from Fish & Wildlife Service). In response, plaintiffs stated it was their intention to donate some caves on the Property to scientific research for "one year," place fences around all the caves, and commercially develop the remainder of the Property: "[A] shopping center ... will be constructed around Tooth Cave. Similar development will occur around the other caves to be donated." See id. at GDF 2906-08 (September 20, 1989 letter from plaintiffs).

Negotiations for commercial development of the Property continued between the parties for the next several years. According to plaintiffs, sometime in 1993 defendants asserted regulatory jurisdiction over plaintiffs' "clearing activities on the Property" as well as plaintiffs' "development activities on the Property," informing plaintiffs that these activities violated the ESA's take provision. See Purcell Affidavit, ¶ 18.

On June 2, 1994, defendants informed plaintiffs that their proposed development of the Property would cause "habitat destruction and degradation" and, as a result, "the development as proposed will, more likely than not, constitute an ESA Section 9 take of endangered species by `killing' or `harming' or `harassing' individuals so as to increase the likelihood, or cause, actual injury by significantly impairing essential breeding, feeding or sheltering behaviors." See Purcell Affidavit, Tab 4, at 004159 (letter from Fish & Wildlife Service). Defendants stated the five species listed in the September 16, 1988 final rule, as well as the Bone Cave harvestman, likely would be taken by the proposed development. See id. at 004164. Defendants also noted the proposed development would include "residential housing ... research and development facilities, a golf course, office facilities and commercial development." See id. at 004159.

Negotiations between the parties regarding development of the Property continued. On December 30, 1997, plaintiffs applied for several Section 10(a) incidental take permits,⁴ to develop "a shopping center, a residential subdivision, and office buildings" on the Property. See Purcell Affidavit, ¶ 27.⁵ When defendants failed to reasonably act on these applications, plaintiffs sought judicial relief. On June 7, 1999, this Court issued an order holding that defendants had, by their inaction and through a recently-filed declaration, issued a final agency action denying plaintiffs' December 1997 applications for incidental take permits under Section 10(a). The Court found defendants had acted "totally irresponsibly" in intentionally delaying a ruling on the applications, and that defendants' conduct in so doing was "simply wrong."

According to plaintiffs, at this point defendants had "established benchmarks prohibiting any development of the Property above certain elevation contour lines" because of harm to the Cave Species. See Purcell Affidavit, ¶ 33. Also according to plaintiffs, defendants' "repeated disapproval of development plans" for the Property had deprived plaintiffs of "several lucrative opportunities for the use and enjoyment of the Property," and defendants' "restrictions on our use and enjoyment of the Property has caused and continues to cause severe economic harm." See id. ¶¶ 30 and 36.

While still trying to get defendants to reconsider their denial of the Section 10(a) permits, plaintiffs tried another approach by filing this lawsuit on June 15, 2000, arguing for the first time that Section 9 of the ESA was unconstitutional as applied by defendants.

The premise for plaintiffs' constitutional claim is that defendants have "consistently asserted regulatory jurisdiction over the development activities on the Plaintiffs' property," on the basis that "Plaintiffs' proposed development plans will cause `take' of the Cave Bugs in violation of § 9(a)(1)(B) of the ESA." See Plaintiffs' Summary Judgment Motion, at 4. Plaintiffs contend this application of Section 9 exceeds the authority granted to Congress under the Commerce Clause of the United States Constitution. Plaintiffs therefore "seek a declaration that, as-applied to the six listed endangered cave invertebrates living on or in close proximity to Plaintiffs'...