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Fifth Circuit Rejects Endangered Species Act Challenge
Shields v. Norton, 289 F.3d 832 (5th Cir. 2002).

Jason Dare, 3L

In April, the Fifth Circuit rejected a landowner’s 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.

Background
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 water pumper.

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 Schuehle’s 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 Club’s threat of litigation.4 The district court then found in favor of the Sierra Club, holding that the ESA’s 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 Schuehle’s partnership, but not Schuehle individually. Similarly, neither Schuehle, his partnership, nor the Edwards Aquifer Authority were listed in the Sierra Club’s 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 Schuehle’s 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 Schuehle’s 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 hypothesis—a possible but not sufficiently possible injury. This is where [we] must stop.”9

ENDNOTES
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).
4. Id.
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.
9. Id.

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