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Sierra Club v. Glickman

ELR Citation: 29 ELR 20159
Nos. 96-50677, -50778, 156 F.3d 606/47 ERC 1566/(5th Cir., 09/24/1998) Judgment for plaintiffs on ESA claim

The court holds that the U.S. Department of Agriculture (USDA) violated Endangered Species Act (ESA) §7(a)(1) by failing to consult with the U.S. Fish and Wildlife Service (FWS) in carrying out endangered species conservation programs at the Edwards Aquifer in Texas. The court first holds that an environmental group has standing to pursue this action. The environmental group alleged and set forth uncontradicted summary judgment evidence that the Edwards-dependent species were at substantial, imminent risk of jeopardy. As USDA itself admits, this constitutes a judicially cognizable injury under the ESA. Regarding causation, USDA's claim that it has no effect on the irrigation decision of the farmers is unpersuasive. The evidence introduced clearly shows that USDA's failure to adopt various incentive programs that would affect the pumping decisions of thirdparty farmers is fairly traceable to the injury to the Edwards-dependent species. In addition, the procedures of ESA §7(a)(1) were designed to protect the environmental group's threatened concrete interest in this case.

The court next holds that ESA's citizen suit provision supports the environmental group's cause of action under §7(a)(1). The ESA's citizen suit provision can be used to challenge the failure of a federal agency to follow the affirmative requirements of §7(a)(1). The court also holds that its cause of action could be brought under the Administrative Procedure Act (APA). 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. Furthermore, USDA's duties under §7(a)(1) are judicially reviewable even though it has a substantial amount of discretion in developing programs for the benefit of the Edwards-dependent species. The court then rejects USDA'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.

The court further holds that USDA's appeal with respect to the ESA §7(a)(2) claim that it breached its duties by making payments under the 1996 Federal Agriculture Improvement and Reform Act without engaging in formal consultation with FWS or otherwise ensuring that these payments would not cause jeopardy to Edwards-dependent species is moot. By submitting a biological evaluation to FWS, 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 USDA's conclusion, formal consultation is not required. Thus, there is no relief that can be obtained from this court. Last, the court reverses the judgment of the district court with respect to the alleged violations of the Agriculture and Water Policy Coordination Act, related provisions that establish a USDA Council on Environmental Quality, and the Bankhead-Jones Farm Tenant Act and rendered judgment on those claims in favor of USDA. The environmental group does not have standing to bring these claims because it set forth nothing more than a generalized grievance.

[A decision related to this litigation is published at 26 ELR 21198. Briefs and pleadings for this litigation are digested at ELR BRIEFS AND PLEADS. 66528, 66567.]

Counsel for Plaintiffs
Stuart Henry
Henry, Lowerre, Johnson, Hess & Frederick
202 W. 17th St., Austin TX 78701
(512) 479-8125

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

Before Wiener and Garza, JJ.