Sierra Club v. Glickman , 156 F.3d 606 ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________
No. 96-50677
________________
SIERRA CLUB; CLARK HUBBS,
Plaintiffs-Appellees,
v.
DAN GLICKMAN, Secretary, Department
of Agriculture; UNITED STATES
DEPARTMENT OF AGRICULTURE,
Defendants-Appellants.
* * * * * * *
________________
No. 96-50778
________________
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.
________________________
Appeals from the United States District Court
for the Western District of Texas
________________________
September 24, 1998
Before WIENER, EMILIO M. GARZA and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
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.
I. Factual Background
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
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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
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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.
II. Procedural History
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
1
For a thorough description of the Act and the role of the Edwards
Aquifer Authority, see Barshop v. Medina Underground Water Cons. Dist., 925
S.W.2d 618, 623-25 (Tex. 1996).
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“[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
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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. at 615.
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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
2
The motions for summary judgment and the Sierra Club’s motion for a
preliminary injunction focused on the payments to farmers under the FAIR Act.
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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 carry out programs for the conservation of endangered Edwards-
dependent species and had failed to consult with or obtain the
assistance of FWS concerning its duties under § 7(a)(1). The court
ordered the USDA to develop by November 1, 1996, in consultation
with FWS, “an organized program utilizing USDA’s authorities for
the conservation of the Edwards-dependent endangered and threatened
species.”
On July 23 and 24, 1996, a bench trial was held with respect
to Count III, and on August 19, 1996, the district court entered
findings of fact, conclusions of law, and an injunction. Although
the court acknowledged that the PFC payments must be made to
eligible farmers, the court nonetheless found that the “USDA
unquestionably now has authority under the 1996 Farm Bill to target
monies for designated ‘conservation priority areas.’” The court
further found that it was “not called upon to resolve the question
of whether and to what extent actions authorized, carried out, or
funded by USDA through PFC payments may adversely affect the
Edwards-dependent species,” because this was a question for the
USDA to answer in consultation with FWS. The court further stated
that the USDA had “unreasonably delayed” ESA § 7(a)(2) consultation
with respect to both pre-FAIR Act payments and PFC payments under
the FAIR Act. Despite these findings, the court did not enjoin the
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payments under the FAIR Act or order that the USDA proceed to
formal consultation. Instead, the court simply ordered the USDA to
“complete its portion of the informal consultation, including
consulting and obtaining the assistance of the USFWS by November 1,
1996.”
On September 19, 1996, the court entered judgment.
Subsequently, the USDA and the intervenors filed timely notices of
appeal and motions for a stay pending appeal. With respect to the
motions for a stay, the USDA argued that the district court’s
judgment forced it to spend a disproportionate amount of its finite
resources implementing conservation programs in the Edwards Aquifer
area under statutory authorities that do not require action in that
area, and interfered with the USDA’s efforts to deliver finite
resource conservation services in Texas. By order dated October
23, 1996, this court granted the motions for stay pending appeal.
On November 24, 1997, Sierra Club filed a motion to dismiss
the appeal as moot. According to Sierra Club, since the appeal was
filed, the USDA has taken actions complying with the district
court’s judgment with respect to its obligations under both §
7(a)(1) and § 7(a)(2). On December 4, 1997, this court heard
argument on both the merits of the appeal and Sierra Club’s motion
to dismiss.
III. Analysis
A. ESA § 7(a)(1)
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The USDA first argues that the district court erred in
granting Sierra Club relief under § 7(a)(1) of the ESA. Section
7(a)(1) provides, in relevant part:
All other federal agencies shall, in consultation with and
with the assistance of the Secretary, utilize their
authorities in furtherance of the purposes of this chapter by
carrying out programs for the conservation of endangered
species and threatened species listed pursuant to section 1533
of this title.
16 U.S.C. § 1536(a)(1). Relying on this language, the district
court held that the USDA “has not utilized its authority to carry
out programs for the conservation of previously listed Edwards-
dependent species as ESA § 7(a)(1) requires” and that it had not
consulted with FWS concerning utilizing its authorities to carry
out such programs. The court then ordered the USDA to develop, in
consultation with FWS, “an organized program for utilizing USDA’s
authorities for the conservation of the Edwards-dependent
endangered and threatened species as contemplated by the ESA.”
The USDA seeks to attack the district court’s judgment on
three grounds. First, the USDA argues that Sierra Club lacks
standing to bring this action. Second, the USDA argues that
neither the citizen suit provision of the ESA, 16 U.S.C. §
1540(g)(1)(A), nor the Administrative Procedure Act, 5 U.S.C. §
706, authorizes judicial review of Sierra Club’s claims. Finally,
the USDA argues that, to the extent that Sierra Club’s claims are
judicially reviewable, the district court erred in finding that the
USDA has not complied with its duties under § 7(a)(1).
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1. Mootness
Before addressing the merits of the USDA’s appeal, however, we
must first address whether the USDA’s appeal of Sierra Club’s §
7(a)(1) claims is now moot. In its motion to dismiss this appeal,
Sierra Club asserts that the USDA may have taken steps to satisfy
its consultation obligations under § 7(a)(1). The USDA opposes the
motion to dismiss and Sierra Club points to no particular facts
that would suggest that this appeal is moot with respect to its §
7(a)(1) claims; rather, Sierra Club argues only that “it is unclear
whether the USDA’s activities to which USFWS refers satisfy minimum
§ 7(a)(1) standards.” In order to resolve this issue, Sierra Club
moves this court to remand this issue to the district court for a
factual determination. Because the parties have not provided us
with any information suggesting that the USDA has, in fact,
complied with its obligations under § 7(a)(1),3 however, we will
address the issues regarding § 7(a)(1) raised on appeal.
2. Standing
We first address whether Sierra Club had standing to pursue
this action. See Steel Co. v. Citizens for a Better Environment,
-- U.S. --, 118 S. Ct. 1003 (1998). At an “irreducible
constitutional minimum,” to have standing, a plaintiff must
establish three elements. First, the plaintiff must show that he
3
This failure to set forth sufficient information with respect to the §
7(a)(1) claims stands in sharp contrast to the specific evidence set forth with
respect to the mootness of the USDA’s appeal of Sierra Club’s § 7(a)(2) claims,
discussed infra at Part III.B.
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has suffered “an injury in fact -- a harm suffered by the plaintiff
that is concrete and actual or imminent, not conjectural or
hypothetical.” Id. at --, 118 S. Ct. at 1016 (internal quotations
omitted). Second, the plaintiff must establish “causation -- a
fairly traceable connection between the plaintiff’s injury and the
complained-of conduct of the defendant.” Id. at --, 118 S. Ct. at
1016. Finally, “there must be redressibility -- a likelihood that
the requested relief will redress the alleged injury. Id. at --,
118 S. Ct. at 1017.
At its core, Sierra Club’s complaint seeks to have the USDA
comply with the procedural requirements of § 7(a)(1). “Although
the particular nature of a case does not -- and cannot -- eliminate
any of the ‘irreducible’ elements of standing,” Florida Audubon
Society v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996), in a
procedural rights case, such as this, the plaintiff is not held to
the normal standards for redressibility and immediacy, see Lujan v.
Defenders of Wildlife, 504 U.S. 555, 573 n.7, 112 S. Ct. 2130, 2143
n.7 (1992). This does not mean, however, that a procedural rights
plaintiff has standing merely because of the government’s failure
to comply with the relevant procedural requirements. See Id. at
573, 112 S. Ct. at 2143. Instead, the plaintiff must show an
injury that is both concrete and particular, as opposed to an
undifferentiated interest in the proper application of the law.
Likewise, the plaintiff must establish that the injury is fairly
traceable to the proposed government action or inaction. Finally,
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although a procedural rights plaintiff is not held to the normal
standards for redressibility, in the sense that the plaintiff need
not show that the procedural remedy that he is requesting will in
fact redress his injury, the plaintiff must nonetheless show that
there is a possibility that the procedural remedy will redress his
injury. In order to make this showing, the plaintiff must show
that “the procedures in question are designed to protect some
threatened concrete interest of [its] that is the ultimate basis of
[its] standing.” Id. at 573 n.8, 112 S. Ct. at 2143 n.8.
a. Injury
In this case, Sierra Club alleged and set forth uncontradicted
summary judgment evidence that the Edwards-dependent species were
at “substantial, imminent risk” of jeopardy. As the USDA itself
admits, this constitutes a judicially cognizable injury under the
ESA. See Sierra Club v. Morton, 405 U.S. 722, 734, 92 S. Ct. 1361,
1366 (1972). Although we agree that Sierra Club has suffered a
judicially cognizable injury in this case, we are compelled to note
what we are not deciding today. This case does not present the
question of whether a plaintiff could suffer a judicially
cognizable injury under § 7(a)(1) merely because the particular
species that the plaintiff is concerned about remains on the
endangered or threatened species list, as opposed to actually
suffering some further identifiable and particularized harm. Thus,
we express no opinion as to whether a plaintiff would have standing
to claim that a federal agency has not done enough to benefit a
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particular species when that species is not in risk of jeopardy or
taking or otherwise adversely affected. We likewise express no
opinion as to whether a plaintiff could have standing to challenge
a decision of a federal agency to adopt, after consultation with
FWS, one program over another solely on the grounds that the
program not adopted would do more for the recovery of the
endangered or threatened species than the program that was adopted,
when the program that was adopted would nonetheless either benefit
or not adversely affect the species in question.
b. Causation
The USDA does argue, however, that Sierra Club has not
established that its failure to consult and develop programs for
the conservation of the Edwards-dependent species has caused Sierra
Club’s injury. According to the USDA, the injury suffered by
Sierra Club is caused by the independent actions (i.e., pumping
decisions) of third party farmers, over whom the USDA has no
coercive control. Although we recognize that causation is not
proven “if the injury complained of is th[e] result [of] the
independent action of some third party not before the court,”
Bennett v. Spear, -- U.S. --, --, 117 S. Ct. 1154, 1164 (1997)
(citation and quotation omitted) (emphasis in original), this does
not mean that causation can be proven only if the governmental
agency has coercive control over those third parties. Rather, the
relevant inquiry in this case is whether the USDA has the ability
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through various programs to affect the pumping decisions of those
third party farmers to such an extent that the plaintiff’s injury
could be relieved. In this respect, the USDA argues that “the most
[that it] could do vis-a-vis farmers would be to encourage them to
use water-conservation methods by offering incentives under the
discretionary programs described . . . . However, there is no
evidence that, if additional incentives were offered, there is a
‘substantial likelihood’ that injury at the springs would be
relieved.” As Sierra Club points out, however, this claim is
directly contradicted by the summary judgment evidence.
Three pieces of evidence are significant to a finding of
causation in this case. The first document is Cooperative
Solutions, a 1995 study (updated in 1996) conducted by the USDA in
conjunction with Texas A&M University and the Texas State Soil and
Water Conservation Board. One of the programs proposed in that
study -- providing financial assistance to farmers for the
installation of water conservation measures -- would save an
estimated 38,000 acre-feet of Edwards irrigation water in an
average year. The savings would be even greater in a dry year.
Not only does the USDA have the authority to carry out such a
program, but the USDA itself has described the proposal as cost-
effective.
The second key document is the 1996 Biological Evaluation
(“BE”), submitted by USDA to FWS during a § 7(a)(2) consultation
concerning crop subsidy payments under the 1990 farm bill.
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According to the USDA’s irrigation pumping estimates in that BE,
38,000 acre-feet represent 20% of the total Edwards irrigation
pumping in dry years, when the threat to the Edwards-dependent
species is greatest, and a much greater percentage in an average
year.
The final link in this causal chain is FWS’s response to the
1996 BE. In its response, FWS concluded that the springflow
effects of a 20% reduction in Edwards irrigation pumping would have
a significant impact on the Edwards-dependent species. In fact,
FWS “categorically” disagreed with the USDA’s statement that a 20%
decrease in Edwards irrigation pumping would have no significant
effect on the Edwards-dependent species. Moreover, the USDA itself
acknowledges that “FWS’s expertise extends to essentially factual
issues regarding how particular actions affect listed species.”
Given this evidence, we find the USDA’s claim that it has no
effect on the irrigation decisions of the farmers to be
unpersuasive. To the contrary, the evidence introduced clearly
shows that the USDA’s failure to adopt any of the above programs is
fairly traceable to the injury to the Edwards-dependent species.
c. Redressibility
Finally, we turn to the question of whether “the procedures in
question are designed to protect some threatened concrete interest
of [Sierra Club’s] that is the ultimate basis of [its] standing.”
Defenders of Wildlife, 504 U.S. at 573 n.8, 112 S. Ct. at 2143 n.8.
In order to make this determination, we necessarily turn to the
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language of the statute. As noted above, § 7(a)(1) provides, in
pertinent part, that “[a]ll other federal agencies shall, in
consultation with and with the assistance of the Secretary, utilize
their authorities in furtherance of the purposes of this chapter by
carrying out programs for the conservation of endangered species
and threatened species listed pursuant to section 1533 of this
title.” 16 U.S.C. § 1536(a)(1) (emphasis added). At first blush,
this section appears to suggest that federal agencies have only a
generalized duty to confer and develop programs for the benefit of
endangered and threatened species -- i.e., not with respect to any
particular species. If this reading were correct, we would be hard
pressed to find standing in this case.4
When read in the context of the ESA as a whole, however, we
find that the agencies’ duties under § 7(a)(1) are much more
specific and particular.
As it was finally passed, the Endangered Species Act of 1973
represented the most comprehensive legislation for the
preservation of endangered species ever enacted by any nation.
Its stated purposes were "to provide a means whereby the
ecosystems upon which endangered species and threatened
species depend may be conserved," and "to provide a program
for the conservation of such . . . species . . . ." 16
4
If the statute created only a generalized duty rather than a duty with
respect to each endangered and threatened species, it would be pure speculation
that an order from this court would remedy the particularized injury alleged by
the plaintiff. Unlike other procedural rights cases in which the consultation
ordered would necessarily take into account the plaintiff’s particularized
injury, a duty to consult as to endangered and threatened species in a general
sense would not necessarily address the specific injury alleged by the plaintiff.
On the other hand, to the extent that the plaintiff alleged an interest in all
endangered and threatened species based upon a systematic failure by a federal
agency to consult as to endangered and threatened species in general, we note
that such an injury would likely constitute a generalized grievance.
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U.S.C. § 1531(b) (1976 ed.). In furtherance of these goals,
Congress expressly stated in § 2(c) that "all Federal
departments and agencies shall seek to conserve endangered
species and threatened species . . . ." 16 U.S.C. § 1531(c)
(1976 ed.). Lest there be any ambiguity as to the meaning of
this statutory directive, the Act specifically defined
"conserve" as meaning "to use and the use of all methods and
procedures which are necessary to bring any endangered species
or threatened species to the point at which the measures
provided pursuant to this chapter are no longer necessary."
§ 1532(2).
TVA v. Hill, 437 U.S. 153, 180, 98 S. Ct. 2279, 2294-95 (1978)
(emphasis supplied by Supreme Court). We find the Supreme Court’s
examination of the meaning of “conserve” to be instructive as to
the meaning of “conservation” under § 7(a)(1). By imposing a duty
on all federal agencies to use “all methods and procedures which
are necessary to bring any endangered species or threatened species
to the point at which the measures provided pursuant to this
chapter are no longer necessary,” 16 U.S.C. § 1532(2) (emphasis
added), Congress was clearly concerned with the conservation of
each endangered and threatened species. To read the command of §
7(a)(1) to mean that the agencies have only a generalized duty
would ignore the plain language of the statute.
That § 7(a)(1) imposes a duty on all federal agencies to
consult and develop programs for the conservation of each
endangered and threatened species is further supported by a
statement made by Representative Dingell, the House manager of the
bill, who stated:
[Section 7] substantially amplifie[s] the obligation of
[federal agencies] to take steps within their power to carry
out the purposes of this act. A recent article . . .
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illustrates the problem which might occur absent this new
language in the bill. . . .
Another example . . . [has] to do with the continental
population of grizzly bears which may or may not be
endangered, but which is surely threatened. . . . Once this
bill is enacted, the appropriate Secretary, whether of
Interior, Agriculture or whatever, will have to take action to
see that this situation is not permitted to worsen, and that
these bears are not driven to extinction. The purposes of the
bill included the conservation of the species and of the
ecosystems upon which they depend, and every agency of
government is committed to see that those purposes are carried
out. . . . [T]he agencies of Government can no longer plead
that they can do nothing about it. They can, and they must.
The law is clear.
TVA v. Hill, 437 U.S. at 183-84, 98 S. Ct. at 2296 (citing 119
Cong. Rec. 42913 (1973)) (emphasis added by the Supreme Court).
Surely if each federal agency is required to take whatever action
necessary to conserve the grizzly bear, then each federal agency
must also be required to take whatever actions are necessary to
ensure the survival of each endangered and threatened species. If
Congress was solely concerned with the conservation of the grizzly
bear, it could have written a statute much more narrow in scope.
Given the plain language of the statute and its legislative
history, we conclude that Congress intended to impose an
affirmative duty on each federal agency to conserve each of the
species listed pursuant to § 1533. In order to achieve this
objective, the agencies must consult with FWS as to each of the
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listed species, not just undertake a generalized consultation.5
Consequently, we conclude that the procedures in question were
designed to protect Sierra Club’s threatened concrete interest in
this case. Accordingly, we conclude that Sierra Club has standing
to pursue this action.
2. ESA Citizen Suit Provision & the APA
The USDA next argues that neither the citizen suit provision
of the EPA nor the APA supports Sierra Club’s complaint under §
7(a)(1). The citizen suit provision of the ESA provides that any
person may commence a civil suit
to enjoin any person, including the United States and any
other governmental instrumentality or agency (to the extent
permitted by the eleventh amendment to the Constitution), who
is alleged to be in violation of any provision of this chapter
or regulation issued under the authority thereof . . . .
16 U.S.C. § 1540(g)(1)(A). Relying on the Supreme Court’s recent
decision in Bennett v. Spear, -- U.S. --, 117 S. Ct. 1154 (1997),
the USDA argues that this provision cannot be used to challenge the
failure of a federal agency to follow the affirmative requirements
of § 7(a)(1). The USDA has misread the reach of Bennett. In
Bennett, the Supreme Court held only that § 1540(g)(1)(A) “is not
an alternative avenue for judicial review of the Secretary[ of the
5
Of course, this duty to consult and duty to conserve is tempered by the
actual authorities of each agency. See Platte River Whooping Crane Critical
Habitat Maintenance Trust v. FERC, 962 F.2d 27, 34 (D.C. Cir. 1992) (holding that
§ 7(a)(1) does not expand an agency’s existing authorities to conserve endangered
species). Whether a particular agency has the authority and/or ability to adopt
programs for the benefit of a particular species, however, is a question on the
merits, not relevant to a standing inquiry.
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Interior’s] implementation of the statute.” Id. at --, 117 S. Ct.
at 1166. To hold otherwise, the Supreme Court reasoned, would be
“incompatible with the existence of § 1540(g)(1)(C), which
expressly authorizes suit against the Secretary [of the Interior],
but only to compel him to perform a nondiscretionary duty under §
1533. That provision would be superfluous -- and, worse still, its
careful limitation to § 1533 would be nullified -- if §
1540(g)(1)(A) permitted suit against the Secretary [of the
Interior] for any ‘violation’ of the ESA.” Id. at --, 117 S. Ct.
at 1166. The Supreme Court did, however, agree with the government
that § 1540(g)(1)(A) “is a means by which private parties may
enforce the substantive provisions of the ESA against any regulated
party -- both private entities and Government agencies.” Id. at -,
117 S. Ct at 1166 (emphasis added). Given this reasoning and the
Court’s specific focus on the Secretary of the Interior, we find
the government’s reliance on Bennett unpersuasive. Finding no
other persuasive reasons offered in support of the government’s
position, and in light of the clear language of the statute, we
conclude that the ESA’s citizen suit provision supports Sierra
Club’s cause of action under § 7(a)(1).
Even assuming that the citizen suit provision of the ESA did
not support Sierra Club’s cause of action under § 7(a)(1),6 we
6
Given our conclusion that Sierra Club’s cause of action under § 7(a)(1)
can be brought pursuant to the citizen suit provision of the ESA, we normally
would not address whether Sierra Club could also maintain that action under the
APA. By its terms, the APA provides a right to judicial review of all “final
agency action for there is no other remedy in a court.” 5 U.S.C. § 704. We
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would nonetheless find that its cause of action could be brought
under the APA. Under the APA, any person “adversely affected or
aggrieved by agency action,” 5 U.S.C. § 702, may petition a court
to “set aside agency action, findings, and conclusions found to be
. . . arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law,” or to “compel agency action
unlawfully withheld.” 5 U.S.C. § 706. In this case, the USDA does
not dispute that Sierra Club is a person adversely affected or
aggrieved within the meaning of § 7(a)(1). The USDA does, however,
challenge the applicability of the APA on two other grounds.
First, the USDA argues that its duties under § 7(a)(1) are not
judicially reviewable because there is “no law to apply.” In
general, there is no law to apply if the statute is drawn in such
broad terms that in a given case there would be nothing against
which a court could measure agency compliance with the statute.
See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410-
11, 91 S. Ct. 814, 820 (1971). The USDA’s argument in this
respect, however, relies, in large part, on its argument that §
7(a)(1) does not impose a duty on the federal agencies to consult
with FWS and develop programs for the conservation of each of the
endangered and threatened species. As noted above in our standing
discussion, however, we find that § 7(a)(1) contains a clear
statutory directive (it uses the word “shall”) requiring the
nevertheless address the USDA’s arguments under the APA because we find those
arguments equally applicable to the citizen suit analysis.
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federal agencies to consult and develop programs for the
conservation of each of the endangered and threatened species
listed pursuant to the statute. That Congress has passed a statute
that is exceptionally broad in its effect, in the sense that it
imposes a tremendous burden on the federal agencies to comply with
its mandate, however, does not mean that it is written in such
broad terms that in a given case there is no law to apply. On the
contrary, given the specific requirements of § 7(a)(1), in any
given case there is more than enough law against which a court can
measure agency compliance.
The USDA next argues that its duties under § 7(a)(1) are not
judicially reviewable because it has a substantial amount of
discretion in developing programs for the benefit of the Edwards-
dependent species. According to the USDA, because it enjoys a
substantial amount of discretion as to ultimate program decisions,
it has unreviewable discretion to ignore § 7(a)(1) altogether.
This argument is entirely without merit. A mission agency’s
discretion to make the final substantive decision under its program
authorities does not mean that the agency has unlimited,
unreviewable discretion. See Bennett v. Spear, -- U.S. at --, 117
S. Ct. at 1166 (“It is rudimentary administrative law that
discretion as to the substance of the ultimate decision does not
confer discretion to ignore the required procedures of decision
making.”); Citizens to Preserve Overton Park, 401 U.S. at 410-11,
91 S. Ct. at 820. Instead, it means that the court conducting
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judicial review must require the agency to show that it has
considered the relevant factors and followed the required
procedures, but that, if the agency has done so, the court may not
substitute its judgment on the merits for the agency’s judgment.
See Citizens to Preserve Overton Park, 401 U.S. at 412-15, 91 S.
Ct. at 822-23.7
In sum, we find that Sierra Club’s cause of action under §
7(a)(1) is maintainable under the citizen suit provision of the
ESA, and, even assuming that the citizen suit provision of the ESA
did not support Sierra Club’s cause of action under § 7(a)(1), this
action could be maintained under the APA.
3. USDA Compliance
We turn next to the government’s argument that it has complied
with the requirements of § 7(a)(1) because the Edwards-dependent
species have experienced incidental benefits from national USDA
programs designed and carried out for other purposes. As Sierra
7
The USDA also contends that Sierra Club may not obtain judicial review
under the APA on the grounds that there is no “final agency action,” 5 U.S.C. §
706. Although the USDA does not set forth this argument in detail, it appears
that the USDA is arguing that agency inaction can constitute “final agency
action” only when there is a specific deadline for that action. The authority
cited by the USDA in support of this argument, Brock v. Pierce County, 476 U.S.
253, 260 n.7, 106 S. Ct. 1834, 1839 n.7 (1986), however, stands for no such broad
proposition. Moreover, we find the USDA’s cursory argument to be entirely
unconvincing. As noted above, under § 7(a)(1), each federal agency must consult
with FWS and develop programs for the conservation of each endangered species
that it can affect within its authorities. In this case, Sierra Club introduced
evidence indicating that the USDA had never consulted with respect to any
endangered or threatened species, let alone with respect to the Edwards-dependent
species. Sierra Club also submitted evidence indicating that the USDA had no
plans to begin such consultation in the future. Clearly the passage of over 25
years without any action whatsoever with respect to any endangered or threatened
species qualifies as “final agency action.”
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Club points out, however, the USDA’s position directly conflicts
with the plain language of § 7(a)(1), which requires each federal
agency “in consultation with and with the assistance of [FWS]” to
adopt programs “for the conservation of endangered species.” The
USDA simply cannot read out of existence § 7(a)(1)’s requirement
that the USDA’s substantive conservation programs for the Edwards-
dependent species be carried out “in consultation with and with the
assistance of [FWS].” In this case, there is no real dispute that
the USDA has never fulfilled its obligations under § 7(a)(1) with
respect to the Edwards-dependent species. Accordingly, we find the
USDA’s argument unavailing.
4. Scope of the Injunction
As a final matter, we note that the USDA has not challenged
the scope of the district court’s injunction with respect to §
7(a)(1). Thus, we need not address whether the district court
properly ordered the USDA to develop, in consultation with FWS, “an
organized program for utilizing USDA’s authorities for the
conservation of the Edwards-dependent endangered and threatened
species as contemplated by the ESA.”
B. ESA § 7(a)(2)
The USDA also appeals the district court’s judgment with
respect to Sierra Club’s claims under § 7(a)(2) of the ESA.
Section 7(a)(2) provides:
Each federal agency shall, in consultation with and with the
assistance of the Secretary, insure that any action
authorized, funded, or carried out by such agency (hereinafter
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in this section referred to as an “agency action”) 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 which is
determined by the Secretary, after consultation as appropriate
with affected States, to be critical, unless such agency has
been granted an exemption for such action by the Committee
pursuant to subsection (b) of this section. In fulfilling the
requirements of this paragraph each agency shall use the best
scientific and commercial data available.
16 U.S.C. § 1536(a)(2). Sierra Club claimed that the USDA breached
its duties under § 7(a)(2) by making payments under the 1996 FAIR
Act without engaging in formal consultation with FWS or otherwise
ensuring that these payments would not cause jeopardy to Edwards-
dependent species. The district court agreed, finding that
“payments through the 1996 farm bill to producers over the next
seven years may adversely affect Edwards-dependent species, . . .
constitute irreversible and irretrievable commitments of resources,
. . . [and] foreclose reasonable and prudent alternatives to
conservation of the Edwards Aquifer.” Based on these findings, the
court ordered the USDA to complete informal consultation by
November 1, 1996.
The USDA seeks to attack this judgment on three grounds.
First, the USDA argues that Sierra Club does not have standing to
pursue this claim under § 7(a)(2). In particular, the USDA argues
that Sierra Club’s claim that the USDA injures Edwards-dependent
species by subsidizing pumping raises issues of traceability and
redressibility, because the direct source of the alleged harm is
not the USDA’s actions, but the pumping activities of area farmers
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who are not before this court. Second, the USDA argues that §
7(a)(2) does not apply to the PFC payments in question because §
7(a)(2) does not apply to nondiscretionary federal actions. See 50
C.F.R. § 402.03 (“Section 7 and the requirements of this part apply
to all actions in which there is discretionary Federal involvement
or control.”). Finally, the USDA argues that the pumping by
farmers is not “action authorized, funded, or carried out” by a
federal agency, and, thus, not subject to § 7(a)(2) consultation.
We need not reach these issues, however, because we find the USDA’s
appeal with respect to § 7(a)(2) moot.
On November 24, 1997, Sierra Club filed a motion to dismiss
this appeal with respect to § 7(a)(2) on the grounds that, while
the appeal was pending, the USDA completed its Biological
Evaluation of the impact that the PFC payments would have on
Edwards-dependent species and submitted it to the FWS. In short,
the Biological Evaluation concludes that the PFC payments would not
adversely affect Edwards-dependent species. By letter dated
November 6, 1998, FWS concurred in the USDA’s conclusion. Sierra
Club now argues that this appeal is moot with respect to its §
7(a)(2) claims because the USDA has complied with the district
court’s order on this issue.
In general, a matter is moot for Article III purposes if the
issues presented are no longer live or the parties lack a legally
cognizable interest in the outcome. See Campanioni v. Barr, 962
F.2d 461, 464 (5th Cir. 1992). By submitting the Biological
- 27 -
Evaluation to FWS, the USDA clearly fulfilled whatever obligations
it had as a result of the district court’s order to complete
informal consultation. In addition, because FWS concurred in the
USDA’s conclusion, formal consultation is not required. See 50
C.F.R. § 402.13(a). Thus, there is no relief that can be obtained
from this court.
Nonetheless, the USDA contends that this case is not moot on
two grounds. First, the USDA argues that this case is not moot
because there is a live controversy as to whether Sierra Club has
standing to bring this action. According to the USDA, this court
“has a special obligation to ‘satisfy itself not only of its own
jurisdiction, but also that of the lower courts in a cause under
review.’” Bender v. Williamsport Area Sch. Dist., 475 U.S. 543,
541, 106 S. Ct. 1326, 1331 (1986) (quoting Mitchell v. Maurer, 293
U.S. 237, 244, 55 S. Ct. 162, 165 (1934)). Although we recognize
that the Supreme Court has recently held that federal courts must
be certain that a plaintiff has standing before addressing the
merits of a particular case, see Steel Co. v. Citizens for a Better
Environment, -- U.S. --, 118 S. Ct. 1003 (1998), we do not read
that case as making standing the threshold issue that a court must
address; rather, we read that case as making Article III
jurisdiction, of which standing, mootness, and ripeness are equally
important parts, the threshold issue that a court must address.
When two or more Article III jurisdictional grounds are presented
to the court as grounds for dismissing the action, we do not think
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that the court need address all of those arguments or address the
arguments in any particular order. Compare Marathon Oil Co. v.
Ruhrgas, 1998 WL 329842 (5th Cir. 1998) (en banc) (confirming the
primacy of deciding Article III subject matter jurisdiction issues
prior to personal jurisdiction issues, which arise out of the due
process clause of the Fourteenth Amendment). Accordingly, we
reject the USDA’s argument that there is an ongoing live
controversy before this court with respect to Sierra Club’s §
7(a)(2) claims.
Alternatively, the USDA argues that this appeal falls under
the exception to the mootness doctrine in that this controversy is
capable of repetition but evading review. See Henschen v. City of
Houston, 959 F.2d 584, 589 (5th Cir. 1992). In short, the USDA
argues that this court must determine whether plaintiffs may bring
a challenge under § 7(a)(2) to nondiscretionary payments under the
FAIR Act of 1996 so that it will not have to defend future suits by
the plaintiffs. In making this argument, the USDA turns this
exception on its head. In general, the exception is designed to
allow plaintiffs to obtain a judgment in cases where “(1) the
challenged action is in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there [is]
a reasonable expectation that the same complaining party would be
subject to the same action again.” Murphy v. Hunt, 455 U.S. 478,
482, 102 S. Ct. 1191, 1183 (1982) (quotation omitted). By its very
terms, the exception is designed to protect plaintiffs; it is not
- 29 -
designed to protect defendants from the possibility of future
lawsuits, when the sole reason that the case is moot is a direct
result of the defendant’s voluntary compliance with the district
court’s order.
As a final matter, the USDA argues, relying on United States
v. Munsinger, Inc., 340 U.S. 36, 71 S. Ct. 104 (1950), that, in the
event that we find the § 7(a)(2) issue moot, we should remand with
instructions to vacate that part of the district court’s judgment.
In U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S.
18, 115 S. Ct. 386 (1994), however, the Supreme Court held that,
where mootness results from the voluntary actions of the losing
party, such party has “forfeited his legal remedy by the ordinary
processes of appeal or certiorari, thereby surrendering his claim
to the equitable remedy of vacatur.” Id. at 24, 115 S. Ct. at 392.
Because this issue has been rendered moot by the USDA’s voluntary
compliance with the district court’s judgment, we decline to direct
the district court to vacate its judgment in this case with respect
to § 7(a)(2).8
C. Count I Statutes
We turn next to the USDA’s argument that the district court
erred in finding that the USDA had unlawfully refused or
8
In declining to vacate the district court’s judgment, however, we
express no opinion as to the propriety of the district court’s conclusion that
Sierra Club had standing to pursue its claims under § 7(a)(2). In the event that
Sierra Club subsequently moves for an award of attorney’s fees, the district
court should reexamine its conclusion that Sierra Club had standing to pursue
this claim in light of the standing analysis set forth in Part III.A.2 of this
opinion.
- 30 -
unreasonably delayed developing and implementing programs under the
following statutes: (1) the Agriculture and Water Policy
Coordination Act, 7 U.S.C. §§ 5401-5405; (2) related provisions
that establish a USDA Council on Environmental Quality, 7 U.S.C. §§
5501-5506; and (3) the Bankhead-Jones Farm Tenant Act, 7 U.S.C. §
1010 (collectively referred to as the “Count I statutes”). The
district court found 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 as it relates to Edwards-dependent species.
As before, we begin our analysis by examining whether Sierra
Club had standing to bring these claims. This inquiry is
relatively straightforward. Unlike the evidence it presented with
respect to § 7(a)(1), Sierra Club has failed to set forth any
evidence showing that its injury at the springs is fairly traceable
to the USDA’s failure to implement the Count I statutes. Likewise,
Sierra Club has failed to demonstrate in any way that an order
requiring the USDA to comply with the Count I statutes would
redress its injury at the springs. In the end, as Sierra Club
itself tacitly admits in its brief, Sierra Club has set forth
nothing more than a generalized grievance. Thus, these claims fall
squarely within the rule reiterated in Defenders of Wildlife that
“a plaintiff raising only a generally available grievance about
government -- claiming harm and relief that no more directly or
tangibly benefits him than it does the public at large -- does not
- 31 -
state an Article III case or controversy.” 504 U.S. at 573-74, 112
S. Ct. at 2143. Accordingly, we reverse the judgment of the
district court with respect to the Count I statutes and render
judgment on those claims in favor of the USDA.
IV. Conclusion
For the reasons set forth above, we AFFIRM the judgment of the
district court with respect to its finding that the USDA has not
complied with its duties under § 7(a)(1) of the ESA, REVERSE the
decision of the district court with respect to its findings as to
the Count I statutes on the grounds that Sierra Club lacked
standing to bring a cause of action under those statutes, and
DISMISS the USDA’s appeal with respect to Sierra Club’s § 7(a)(2)
claims as MOOT. Consequently, this case is REMANDED for further
proceedings not inconsistent with this opinion.
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