Shields v. Norton

• Decision Date: 26 April 2002
• Docket Number: No. 00-50839.,00-50839.
• Citation: 289 F.3d 832
• Parties: John H. SHIELDS; Hunter Schuehle, Plaintiffs-Appellants, v. Gale NORTON, Secretary, United States Department of Interior; Jamie Rappaport Clark, Director, United States Fish & Wildlife Service; Sierra Club, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 832

289 F.3d 832

John H. SHIELDS; Hunter Schuehle, Plaintiffs-Appellants, v. Gale NORTON, Secretary, United States Department of Interior; Jamie Rappaport Clark, Director, United States Fish & Wildlife Service; Sierra Club, Defendants-Appellees.

No. 00-50839.

United States Court of Appeals, Fifth Circuit.

April 26, 2002.

Paul M. Terrill (argued), Vincent Leroy Hazen, Hazen & Terrill, Austin, TX, for Plaintiffs-Appellants.

James C. Kilbourne (argued), David C. Shilton, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for Gale and Rappaport.

David O'Brien Frederick (argued), Frederick Law, Stuart Nelson Henry, Henry, Loweree & Frederick, Renea Hicks, Austin, TX, Kelly Leigh Haragan, Public Citizen, Austin, TX, for Sierra Club.

Roger James Magnuson, Dorsey & Whitney, Minneapolis, MN, for Texas Wildlife Ass'n, Amicus Curiae.

Gregory Scott Coleman (argued), Weil, Gotshal & Manges, Austin, TX, for State of Texas, Amicus Curiae.

Sydney W. Falk, Jr., Emily Willms Rogers, Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, Austin, TX, for Texas Farm Bureau, Amicus Curiae.

Anne Miyako Hayes, Malcolm Reed Hopper, Pacific Legal Foundation, Sacramento, CA, for Pacific Legal Foundation, Amicus Curiae.

Thomas Charles Jackson, Kelley, Drye & Warren, Washington, DC, for National Ass'n of Home Builders, Amicus Curiae.

E. Lee Parsley, Locke, Liddell & Sapp, Austin, TX, for American Land Foundation Coalition, Inc. and Riverside & Landowners Protection Coalition, Inc., Amici Curiae.

Myron Joseph Hess, National Wildlife Federation, Austin, TX, James B. Dougherty, Washington, DC, for National Wildlife Federation, Amicus Curiae.

Melinda E. Taylor, Environmental Defense, Austin, TX, Michael J. Bean, Environmental Defense, Washington, DC, for Environmental Defense and Defenders of Wildlife, Amicus Curiae.

Appeal from the United States District Court for the Western District of Texas.

Before JOLLY, HIGGINBOTHAM and PARKER, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Hunter Schuehle pumps water from the Edwards Aquifer in Texas. He challenges the constitutionality of the Take Provision of the Endangered Species Act, 16 U.S.C. § 1538(a)(1)(B), as applied to the endangered and threatened species living at San Marcos and Comal Springs. Schuehle seeks a declaration that the Take Provision exceeds Congress' power under the Commerce Clause. The district court granted summary judgment to Appellees Gale Norton, Jamie Rappaport, and the Sierra Club, concluding that the Take Provision was a valid exercise of Congress' enumerated powers. These rulings followed the district court's decision that Schuehle has standing and the case is ripe. We are persuaded that this suit does not present justiciable issues and the district court was without jurisdiction to decide the case.

I

The Take Provision, Section 9(a)(1)(B) of the ESA, makes it unlawful for any person to "take" a listed species. To "take" a species is defined by the ESA as to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" a member of a listed species. To "harm" is defined by regulation to mean "an act which actually kills or injures wildlife."¹ Violation of the Take Provision can result in civil penalties of up to $25,000 for each knowing violation, criminal penalties of up to $50,000 and imprisonment for up to one year.

The Secretaries of Commerce and the Interior jointly administer the ESA through the National Marine Fisheries Service and United States Fish and Wildlife Service. The Secretary of the Interior has statutory authority to promulgate regulations listing and defining the critical habitats of species that are either endangered or threatened.² This action triggers specific protections for the listed species and their defined habitat.³ The Edwards Species at issue in this case are rare fish, amphibian, and plant species found only in the San Marcos and Comal Springs area of Texas. They are not purchased, sold, or exchanged commercially.

The Edwards Aquifer, a 175-mile long underground aquifer, is recharged from surface waters and rainfall seeping through porous earth. Water from the aquifer is used by thousands of farmers to irrigate millions of dollars worth of crops, by over two million people as their primary source of water, and by thousands engaged in business in Central Texas. The aquifer is also important to the Edwards Species.

The aquifer is regulated by the Edwards Aquifer Authority. Schuehle at relevant times was both a member of the board and a pumper of water from the aquifer.

II

This suit alleges that Appellees have threatened to sue area water pumpers for ESA violations based upon the theory that the pumping of water from the Edwards Aquifer harmed the Edwards Species and is a "take" for purposes of the ESA. On January 27, 1999 Judge Hippo Garcia dismissed Shields and transferred the case to Judge Lucious Bunton. Judge Bunton concluded that the case was ripe for review and that Schuehle had standing. On the merits he granted summary judgment, holding that in enacting the Take Provision, Congress validly exercised its Commerce Clause and treaty powers. Finally, he rejected the contention that the ESA citizen suit provision unlawfully delegated authority. Shields and Schuehle appeal.

III

Article III of the Constitution confines federal courts to the decision of "cases" and "controversies." A case or controversy must be ripe for decision, meaning that it must not be premature or speculative.⁴ That is, ripeness is a constitutional prerequisite to the exercise of jurisdiction.⁵

A suit for declaratory relief, while allowing a party to anticipate a suit and seek a judicial resolution, must nevertheless meet this keystone limitation. In hornbook form, a declaratory action must be ripe in order to be justiciable, and is ripe only where an "actual controversy" exists.⁶ An actual controversy exists where "a substantial controversy of sufficient immediacy and reality exists between parties having adverse legal interests."⁷ Ordinarily whether particular facts are sufficiently immediate to establish an actual controversy yields answers on a case-by-case basis.⁸ Whether a declaratory action is ripe, by its very structure, pushes against our insistence upon mature disputes. That is, it "contemplate[s] an ex ante determination of rights that exists in some tension with traditional notions of ripeness."⁹

The district court found that "[a]lthough the ripeness determination is a close one," Schuehle's action was ripe for review.¹⁰ The district court relied heavily upon evidence that Schuehle has curtailed his irrigation pumping to his financial detriment, in response to threats of prosecution and litigation by Appellees.¹¹ The district court found that the ESA "effectively imposes immediate obligations on Edwards pumpers" and concluded that "Schuehle should not be placed in the unenviable position that, in order to test the constitutionality of the ESA, he must expose himself to civil and criminal liability."¹² The court noted that the Sierra Club sent Schuehle notices of intent to sue, holding that the letters constituted "more than an imaginary threat to his ability to continue pumping."¹³

IV

The threat of litigation can establish a justiciable controversy if it is specific and concrete.¹⁴ We look to the practical likelihood that a controversy will become real.¹⁵ Because no action may be commenced under the citizen suit provision of the ESA until sixty days after written notice of the violation has been given to the alleged violator,¹⁶ the district court properly determined that Notices of Intent to Sue sent by the Sierra Club in 1990, 1994, and 1998 are "the first step required in the litigation process" and were sent to induce the recipient to modify his actions so to avoid violation of the ESA.¹⁷

The district court cited two letters sent from the Sierra Club to "individuals and entities ... withdrawing or diverting water from the Edwards aquifer, alleging that such actions constituted violations of the ESA."¹⁸ The first letter, sent on April 12, 1990, stated that the cumulative impact of the pumping threatened the Edwards Species, alleged violations of section 9 of the ESA, and stated its intention to file suit if necessary to correct these violations.¹⁹ The second letter, sent on April 15, 1994, stated that the actions of the pumpers "pose[d] a substantial and imminent threat of jeopardy to the continued existence of endangered and threatened species and to the public health and safety of 1.5 million people."²⁰ This letter also alleged violations of section 9 of the ESA, and stated that the Sierra Club would "take prompt legal action to obtain judicial remedies for this emergency."²¹

When he first joined this suit, Schuehle did not make it clear whether he was suing in his official capacity as a member of the Edwards Aquifer Authority Board or as an individual pumper. Schuehle conceded that he lacked authority to sue on the EAA's behalf, and the district court properly held that Schuehle lacked standing to sue in his official capacity.²² The question before us, then, is whether there is a specific and concrete threat of litigation against Schuehle in his individual capacity sufficient to render his declaratory action an actual controversy and thus ripe for judicial review.

A notice of intent to sue Schuehle individually as distinguished from the board could be a sufficiently specific and concrete threat. But Schuehle has not demonstrated that he received such a notice. We are persuaded that neither the 1990 letter nor the 1994 letter are sufficiently specific and concrete. The 1990 letter lists Schuehle's partnership but not Schuehle in his individual capacity....