32 ELR 20639 -- Shields v. Norton

Shields v. Norton

No. 00-50839 (289 F.3d 832) (UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 26, 2002)

ELR Digest

The court vacates a district court decision holding that the Endangered Species Act's (ESA's) take provision was a valid exercise of Congress' enumerated powers because the case does not present a case or controversy under Article III of the U.S. Constitution. An individual that pumps water from the Edwards Aquifer in Texas alleged that the U.S. government and an environmental organization threatened to sue area water pumpers for ESA violations based upon the theory that the pumping of water from the Edwards Aquifer harmed endangered and threatened species and was a take under the ESA. The district court concluded that the case was ripe for review and that the individual had standing. On the merits, it held that Congress validly exercised its Commerce Clause and treaty powers in enacting the ESA's take provision. The court first holds, however, that this suit does not present justiciable issues. The individual failed to demonstrate that there was a specific and concrete threat of litigation against him sufficient to render his declaratory action an actual controversy and thus ripe for judicial review. A notice of intent to sue the individual individually as distinguished from the Edwards Aquifer board could be a sufficiently specific and concrete threat, but the individual failed to demonstrate that he received such a notice. The court, therefore, holds that the district court was without jurisdiction to decide the case and vacated its decision.

The full text of this decision is available from ELR (5 pp., ELR Order No. L-504).

Counsel for Plaintiffs
Paul M. Terrill
Hazen & Terrill
810 W. 10th St., Austin TX 78701
(512) 474-9100

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

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]