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Southwest Ctr. for Biological Diversity v. Federal Energy Regulatory Comm'n

ELR Citation: 27 ELR 21360
Nos. CIV 96-0843-PCT-SMM, 967 F. Supp. 1166/(D. Ariz., 03/28/1997)

The court holds that an environmental group that filed a citizen suit under the Endangered Species Act (ESA) has procedural standing to sue the Federal Energy Regulatory Commission (FERC), the U.S. Forest Service, and a national forest supervisor; the court, however, dismisses the group's claims concerning FERC licensing for lack of subject matter jurisdiction. The environmental group alleged that defendants violated ESA §§7 and 9 by failing to consult the U.S. Fish and Wildlife Service (FWS) about a hydroelectric facility's impact on the Little Colorado River spinedace in the Coconino National Forest, Arizona. The court first holds that the group has procedural standing, because it has a procedural right to bring the action under the ESA. Further, the group has shown sufficient direct contact with the environmental subject matter of the suit to meet the concrete interest requirement for procedural standing. Moreover, the threatened harm to the group members' scientific, educational, and aesthetic use and enjoyment of the spinedace, in the absence of a formal consultation with the FWS, is a recognizable injury. Also, legitimate interests in preserving species under the ESA clearly fall within the "zone of interests" of the ESA. And because the group has shown a procedural right to protect its concrete interests in the continued existence of the spinedace, the group need not meet all the normal standards for redressability and immediacy.

Next, the court holds that it does not have subject matter jurisdiction to hear the group's claims against FERC. The law is clear that any attempt to challenge a license issued by FERC, however artfully pleaded, will fall under the exclusive jurisdiction of the federal courts of appeal under the Federal Power Act (FPA). The court rejects the group's contention that they are not challenging an action authorized by the FPA, but instead challenging FERC's independent, affirmative duty mandated by the ESA. The court also rejects the group's argument that FPA §313, which vests review in the U.S. courts of appeal, is inapplicable. The court then holds that it does not have jurisdiction over the group's claims based on the Forest Service's failure to recommend water flow levels for the benefit of spinedace. This claim implicates FERC's authority under the license; therefore, the court of appeals has exclusive jurisdiction under the FPA. However, the court holds that it has subject matter jurisdiction over the action as it relates to the Forest Service's involvement in stocking the reservoir with non-native fish. The language in the group's notice of intent to sue is sufficiently broad to encompass the Forest Service's stocking of the reservoir with non-native fish as an element of the group's complaint under the ESA. Last, the court denies the Forest Service's motion to dismiss for failure to state a claim, because it fails to cite any legal authority supporting its position.

Counsel for Plaintiff
Grove T. Burnett
Western Environmental Law Center
P.O. Box 1507, Taos NM 87571
(505) 751-0351

Counsel for Defendants
Kelly E. Mofield
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Eric L. Christensen
Federal Energy Regulatory Commission
825 N. Capitol St. NE, Washington DC 20426
(202) 208-0200