Fifth Circuit Rejects Endangered Species
Shields v. Norton, 289 F.3d 832 (5th
Jason Dare, 3L
In April, the Fifth Circuit rejected a
landowners challenge to the Endangered Species Act by determining
that individuals cannot anticipate litigation and judicially establish
their rights under the statute unless they received specific and concrete
threats of litigation. Even though Hunter Schuehle anticipated litigation
from the Sierra Club, the court found that the Sierra Club never directly
gave him notice of a suit against him, removing the option to seek judicial
resolution and court approval of his actions in the Edwards Aquifer.
The Edwards Aquifer is a 175-mile long underground waterway that supplies
thousands of residents of Central Texas with water for irrigation and
other uses. The aquifer is also the only known habitat for many species.
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. Because of the delicate balance between the needs
of farmers and other waters users and endangered species, the Edwards
Aquifer Authority was formed to regulate pumping from the aquifer. Hunter
Schuehle was a member of both the Aquifer Authority and an Edwards Aquifer
In 1990, 1994 and 1998, the Sierra Club sent letters to various entities
associated with pumping the aquifer, threatening to bring citizen suits
against them for harming the endangered Edwards Species, pursuant to
the Endangered Species Act (ESA). Under the section known as the Take
Provision, the ESA forbids the taking of designated
species including harassment, harm, or the hunting or pursuit of a member
of a listed species.1 To harm is defined by regulation
to mean an act which actually kills or injures wildlife
and can include significant habitat modification.2 The Sierra
Club claimed that by pumping water from the aquifer, the pumpers were
harming the Edwards Species in violation of the ESA.
Schuehle brought a declaratory action before the U.S. District Court
for the Western District of Texas, which allows the court to resolve
legal rights before the beginning of a suit if a potential suit is foreseeable.
Schuehle sought to halt the potential Sierra Club suits arguing that
Congress had exceeded its powers by adopting the ESA Take Provision.3
Before the court could reach the merits of Schuehles challenge
to the ESA, he first had to show that his action was ripe
by proving he was damaged by the threat of litigation. The district
court first determined that Schuehle was adequately damaged by his self-regulation
of water pumped from the aquifer in response to the Sierra Clubs
threat of litigation.4 The district court then found in favor
of the Sierra Club, holding that the ESAs Take Provision was within
Congress power under the Commerce Clause of the Constitution.5
Schuehle appealed this ruling to the Fifth Circuit.
Actual Controversy Required For Ripeness
In order for a declaratory action to be ready for a court to hear (ripe),
an actual controversy between the parties must exist.6 Threats of litigation are sufficient fuel for an actual controversy,
but only when such threats are specific and concrete.7 In its 1990 letter providing notice of litigation, the Sierra Club listed
various entities pumping water from the Edwards Aquifer, including Schuehles
partnership, but not Schuehle individually. Similarly, neither Schuehle,
his partnership, nor the Edwards Aquifer Authority were listed in the
Sierra Clubs 1994 notice letter. Finally, the 1998 notice of litigation
listed only the Aquifer Authority and its members in their official
capacities. In order to bring this suit in his individual capacity,
Schuehle had to receive a personal threat of litigation.
According to the Fifth Circuit, the only threats that Schuehle received
in his individual capacity were from prior suits by the Sierra Club
against Edwards Aquifer pumpers and from a quote by a U.S. Fish and
Wildlife official in a 1988 newspaper that stated, Law enforcement
is always an option if the Edwards species are harmed.8 The
court noted that Schuehles self-regulation of pumping in fear
of litigation from the notice letters might have amounted to an actual
controversy, had it not been for the years that passed without litigation.
In the end, the Fifth Circuit determined that these threats, without
more, were insufficient to meet the specific and concrete
requirements for the suit and Schuehles claim failed.
The court concluded that we have some saber rattling, but nothing
more, and we are left with the unease that proceeding to the merits
is more likely than not the offering of one answer to a hypothesisa
possible but not sufficiently possible injury. This is where [we] must
1. 16 U.S.C. § 1538(a)(1)(B) (2002).
2. 50 C.F.R. § 17.3 (2002).
3. Shields v. Norton, 289 F.3d 832, 834 (5th Cir. 2002).
5. Id. at 834.
6. Id. at 835 (citing 28 U.S.C. § 2201(a) (2002)).
7. 289 F.3d at 835.
8. Id. at 837.