Sierra Club v. Glickman
| Decision Date | 24 September 1998 |
| Docket Number | Nos. 96-50677,96-50778,s. 96-50677 |
| Citation | 156 F.3d 606 |
| Parties | 29 Envtl. L. Rep. 20,159 SIERRA CLUB: Clark Hubbs, Plaintiffs-Appellees, v. Dan GLICKMAN, Secretary, Department of Agriculture; United States Department of Agriculture, Defendants-Appellants. SIERRA CLUB; Clark Hubbs, Plaintiffs-Appellees, v. Dan GLICKMAN, Secretary of Agriculture; United States Department of Agriculture, Defendants-Appellants, and American Farm Bureau Federation, State of Texas, Intervenor/Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Pieter M. Schenkkan, John B. McFarland, Boyce C. Cabaniss, Graves, Dougherty, Hearon and Moody, Stuart Nelson Henry, Amy Ruth Johnson, Henry, Lowerre, Johnson, Hess & Frederick, Austin, TX, for Plaintiffs-Appellees.
David C. Shilton, Robert L. Klarquist, U.S. Department of Justice, Environment & Natural Resources Division, Lyn Jacobs, U.S. Department of Justice, Washington, DC, for Defendants-Appellants.
Appeals from the United States District Court for the Western District of Texas.
Before WIENER, EMILIO M. GARZA and BENAVIDES, Circuit Judges.
This is the latest in a series of cases brought by Sierra Club and others concerned about endangered species that depend on water from the Edwards Aquifer for their survival. The appellants, Dan Glickman, the Secretary of the Department of Agriculture, and the United States Department of Agriculture (hereinafter collectively referred to as the "USDA"), appeal from a judgment entered against them on all three counts of the appellees' complaint. For the reasons set forth below, we affirm in part, reverse in part, and dismiss the remainder of the appeal as moot.
The Edwards Aquifer is a 175-mile long underground aquifer that stretches through eight counties in central Texas. The Edwards Aquifer is recharged primarily from surface waters and rainfall seeping through porous earth along its path. Unless removed by human pumping, water in the Edwards Aquifer flows west to east, before turning northeast, where it is discharged through a series of springs on the eastern edge of the aquifer, the two largest of which are the San Marcos Springs in San Marcos and the Comal Springs in New Braunfels. The San Marcos and Comal Springs are the only habitat of five federally endangered and threatened species: the fountain darter, the San Marcos gambusia (which may now be extinct), the San Marcos salamander, the Texas blind salamander, and Texas wild rice (hereinafter collectively referred to as the "Edwards-dependent species"). See 50 C.F.R. §§ 17.11, 17.12.
The Edwards Aquifer is of great economic significance to the State of Texas. Water from the Edwards 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 of businesses upon which the entire central Texas economy depends.
Pumping from the Edwards Aquifer, however, can have significant ecological consequences to the Edwards-dependent species. In times of even mild drought, the springflow at both the San Marcos and Comal Springs can decrease enough to threaten the survival of the Edwards-dependent species. Not surprisingly, given these often competing interests, the Edwards Aquifer has been the focus of extensive efforts to conserve its limited water resources.
In 1993, the Texas Legislature enacted the Edwards Aquifer Act to provide for management of the Aquifer. 1993 Sessions Laws, ch. 626 (S.B.1477), as amended, 1995 Sessions Laws, ch. 261 (H.B.3189). In short, the Act imposes a cap on water withdrawals by non-exempt wells and establishes a permit system, which limits the authority of the Edwards Aquifer Authority (charged by the Act with regulating well withdrawals from the Aquifer) to grant permits to new users (defined as those users who were not beneficially using water from the Aquifer before June 1, 1993). Although implementation of the Act was delayed due to administrative and legal challenges, it is now in force. 1
In addition to these legislative efforts, Sierra Club and others concerned about the survival of the Edwards-dependent species have brought a series of lawsuits attempting to further regulate water usage from the Edwards Aquifer. See, e.g., Sierra Club v. City of San Antonio, 115 F.3d 311 (5th Cir.1997); Sierra Club v. City of San Antonio, 112 F.3d 789 (5th Cir.1997); Sierra Club v. Lujan, 1993 WL 151353 (W.D.Tex.1993). This is the latest of these lawsuits in this court.
On April 28, 1995, Sierra Club and Clark Hubbs (hereinafter collectively referred to as "Sierra Club") filed a three-count complaint against the USDA. Count I of the complaint alleged violations of the Agriculture and Water Policy Coordination Act, 7 U.S.C. §§ 5401-5405, related provisions that establish a USDA Council on Environmental Quality, 7 U.S.C. §§ 5501-5506, and the Bankhead-Jones Farm Tenant Act, 7 U.S.C. § 1010. Sierra Club asserted that these statutes required the USDA to develop and implement programs to protect waters from contamination and to prevent environmental problems that may result from agricultural production. The complaint alleged that the USDA had unlawfully withheld or unreasonably delayed compliance with these statutes "[a]s respects irrigation, agriculture, [and] pumping from the Edwards."
Count II alleged that the USDA violated § 7(a)(1) of the Endangered Species Act ("ESA"), 15 U.S.C. § 1536(a)(1), by failing to consult with FWS and failing to utilize its authorities to carry out programs for the conservation of the Edwards-dependent species.
Count III alleged that the USDA had violated § 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2), by subsidizing or otherwise encouraging agriculture dependent on irrigation from the Edwards Aquifer without either engaging in formal consultation with the United States Fish and Wildlife Service ("FWS") or otherwise insuring that its actions would not cause jeopardy to the Edwards-dependent species.
Sierra Club sought three forms of injunctive relief: first, under the Count I statutes, that the USDA use its authorities under those statutes to carry out programs to conserve the Edwards-dependent species; second, under § 7(a)(1), that the USDA consult with FWS and develop additional programs that may benefit the Edwards Aquifer and the species that depend on it by encouraging farmers to use less irrigation water; and third, under § 7(a)(2), that the USDA consult with FWS regarding conditioning or withholding payments to farmers under current farm legislation in order to encourage greater water conservation efforts.
Shortly after the complaint was filed, the State of Texas and the American Farm Bureau Federation sought to intervene as defendants. The district court denied both motions. In Sierra Club v. Glickman, 82 F.3d 106 (5th Cir.1996), however, this court reversed and instructed the district court to allow the State and Farm Bureau to intervene. The State of Texas and the American Farm Bureau Federation are both parties to this appeal.
Before the parties filed motions for summary judgment, Congress enacted the Federal Agriculture Improvement and Reform Act of 1996 ("FAIR Act"), Pub.L. No. 104-127, 110 Stat. 888, which, inter alia, replaced most crop subsidy programs under previous statutes with a new production flexibility contract ("PFC") payment program under which the USDA will pay fixed, declining amounts to eligible producers for a seven-year period. Under the FAIR Act, the USDA does not have discretion to withhold PFC payments or otherwise use those payments to control the irrigation decisions of farmers. The Act requires that the payments be made so long as the statutory prerequisites have been satisfied. See 7 U.S.C. § 7211(a). In short, so long as a farmer agrees to abide by any applicable wetlands or highly erodible lands conservation requirements and not to use the land for non-agricultural commercial or industrial purposes, the USDA must offer to enter into a PFC contract. As the USDA notes, the purpose of this legislation was to achieve a stable transition to a free market regime by providing "guaranteed payments" to all farmers who satisfy objective eligibility requirements. See H.R.Rep. No. 104-462, at 43, 1996 U.S.C.C.A.N. 611, 615.
In June 1996, after the completion of discovery, the parties filed cross motions for summary judgment. In addition, Sierra Club requested preliminary injunctive relief under Count III against disbursement of the PFC payments to eligible producers until the USDA formally consulted with the FWS. 2
By order dated July 2, 1996, the court granted Sierra Club's motion for summary judgment on Counts I and II but denied both parties' motions for summary judgment on Count III. In that order, the court ruled, without elaboration, that Sierra Club and Professor Hubbs had standing to pursue this action. With respect to Count I, the court ruled that the USDA "has unlawfully refused or unreasonably delayed developing and implementing ... plans and/or programs" under the agricultural statutes listed in the complaint. The court then ordered the USDA to: (1) "develop by November 1, 1996, and begin to carry out a program to assist in preserving natural resources and protecting fish and wildlife through land conservation and utilization" pursuant to 7 U.S.C. § 1010; (2) develop and implement a "coordinated, integrated and comprehensive intra-agency program to protect waters from contamination from ... agricultural production practices," pursuant to 7 U.S.C. § 5501 et seq.; and (3) develop and implement a "detailed plan 'to evaluate, prevent, and mitigate environmental problems that may result from agricultural production,' " pursuant to 7 U.S.C. § 5403(a)(1).
With respect to Count II, the court declared that the USDA had failed to utilize its authority, pursuant to § 7(a)(1) of the ESA, to...
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