Sierra Club v. Babbitt

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 93-8123
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SIERRA CLUB,

Plaintiff-Appellee,

and

GREEN VALLEY SPECIAL UTILITY DISTRICT, ET AL.,

Intervenor-Plaintiffs-
Appellees,

versus

BRUCE BABBITT, Etc., ET AL.,

Defendants-Intervenors-
Defendants-Appellants,

and

UNITED SERVICES AUTOMOBILE ASSOCIATION, ET AL.,

Intervenors-Defendants-
Appellants,

_______________________________________________________

Appeals from the United States District Court for
the Western District of Texas
_______________________________________________________
July 2, 1993

Before REAVLEY and GARWOOD, Circuit Judges, and LAKE1, District
Judge.

REAVLEY, Circuit Judge:

1
District Judge of the Southern District of Texas, sitting
by designation.
 Because the district court's judgment imposes no injury upon

the parties moving this appeal, no case or controversy remains.

Lacking jurisdiction, we dismiss.

The Sierra Club sued the United States Fish and Wildlife

Service and Interior Secretary Lujan (collectively FWS) for

violating the Endangered Species Act (ESA), 16 U.S.C. § 1531 et

seq., by failing to adopt and implement plans to protect various

endangered species that live in the San Marcos and Comal Springs

of Central Texas. The district court admitted several

governmental entities as plaintiff-intervenors, and opposing

governmental entities and private water users as defendant-

intervenors. After trial, the district court enjoined FWS to

generate and disseminate information about the springflows

necessary to protect endangered species at San Marcos and Comal

Springs. FWS appealed, but later agreed to dismiss its appeal if

the plaintiffs joined a "Motion to Clarify the Judgment and

Findings," which did not affect the relief ordered against FWS.

The plaintiffs joined the motion, the district court amended its

findings and judgment in accord with the motion, and FWS

dismissed its appeal. Several defendant-intervenors wish to

continue an appeal in the absence of FWS. We dismiss for want of

jurisdiction.

I. BACKGROUND

The Edwards Aquifer (Edwards) stores water in a natural

underground reservoir that stretches through six counties in

Central Texas. Rainfall seeps through porous earth to "recharge"

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Edwards all along its path, and the water in the aquifer flows

eastward. Many governments, corporations, and individuals,

including appellants, pump water from Edwards. Depending on the

amount that recharge exceeds pumping, water leaves Edwards

naturally at two large springs, San Marcos Springs and Comal

Springs, situated approximately fifteen miles apart at the

aquifer's eastern edge.

San Marcos Springs and dependent streams are home to four

species listed by the federal government as "endangered" (the

Fountain Darter, the Texas Blind Salamander, the San Marcos

Gambusia (which may now be extinct), and Texas Wild Rice) and one

listed as "threatened" (the San Marcos Salamander). See 50

C.F.R. §§ 17.11-12 (1992). Comal Springs and dependent streams

are the only other home worldwide to the Fountain Darter and the

San Marcos Salamander. Until June 1993, Texas placed no

restrictions on pumping from Edwards, so no guarantee existed

that water for these species would come from San Marcos or Comal

Springs although all of the species depend on water for their

survival.

In May 1991, Sierra Club sued FWS, alleging that endangered

species died when flow from the San Marcos and Comal Springs

dropped below a certain number of cubic feet per second. Sierra

Club asserted that FWS was responsible for the loss of these

creatures under the ESA because FWS failed to develop and

disseminate information about the minimum springflows necessary

to protect the endangered species, and because FWS failed to

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exercise its authority under the ESA to impose pumping

restrictions to maintain the necessary springflows. Several

governmental entities who are interested in maximizing springflow

from San Marcos and Comal Springs intervened as plaintiffs,2 and

an opposing set of governmental entities and private water users

interested in preserving the right to pump Edwards water without

limitation intervened as defendants.3 Subsequently, Sierra Club

and all plaintiff-intervenors amended their complaints to strike

their claim that the ESA required FWS to regulate pumping from

Edwards; but they continued to press their claim that the ESA

requires FWS to determine the minimum springflows necessary to

preserve the endangered species at San Marcos and Comal Springs.

Judge Bunton conducted a bench trial and issued

comprehensive findings and conclusions in February 1993. He

concluded that FWS has a nondiscretionary duty under ESA § 4(f),

16 U.S.C. § 1533(f), to "develop and implement ... recovery

plans" for endangered species, and that FWS neglected its section

4(f) duty with respect to the four endangered species at San

2
Plaintiff-intervenors include the Guadalupe-Blanco River
Authority, the City of San Marcos, the City of New Braunfels, New
Braunfels Utilities, Green Valley Special Utility District,
Atascosa Rural Water Supply Corporation, and Bexar Metropolitan
Water District.
3
Defendant-intervenors include the Texas Department of
Agriculture, the Texas Water Commission (TWC), the Texas Parks
and Wildlife Division, the City of San Antonio, the Greater San
Antonio Builders Association, United Services Automobile
Association, Redland Stone Products Company, Southwest Research
Institute, USAA Real Estate Company, Southwest Foundation for
Biomedical Research, Living Waters Artesian Springs, Ltd., Danny
McFadin, Tommy Walker, and Carl Muecke.

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Marcos and Comal Springs. He also held that FWS "took" Fountain

Darters in violation of ESA § 9, 16 U.S.C. § 1538, by failing to

promulgate springflow limits before droughts in 1989 and 1990.

Based on these conclusions, the district court enjoined FWS to

develop and disseminate information about the springflows

necessary to sustain the endangered species at San Marcos and

Comal Springs. The court did not order further relief against

FWS, nor did it order relief against anyone other than FWS.4

This judgment satisfied the plaintiffs, but FWS and several

defendant-intervenors appealed.

When Interior Secretary Babbitt replaced Interior Secretary

Lujan, FWS changed its position in this case. FWS agreed to

dismiss its appeal if the plaintiffs agreed to certain semantic

changes in the district court's findings and judgment;5 none of

the changes affect the relief ordered against FWS. The

plaintiffs joined FWS's Motion to Clarify the Judgment and

Findings, the district court amended its findings and judgment to

conform with the parties' motion, and FWS dismissed its appeal.

However, several defendant-intervenors wish to continue their

appeals.6 The appellees argue that the appellants have no

4
The court did enjoin TWC to prepare a comprehensive
Edwards management plan, but TWC asked to be assigned this task,
has already performed it, and no one complains about this part of
the district court's judgment on appeal.
5
Most significantly, the amended findings recite "that the
absence of knowledge," rather than FWS's recalcitrance, caused
takings of and jeopardy to Fountain Darters in 1989 and 1990.
6
Appellants include all parties listed in note 3, supra,
except: the Texas Parks and Wildlife Division and Living Waters

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standing absent FWS, and that we have no jurisdiction to decide

these appeals.

II. ANALYSIS

The Constitution's Article III limits the federal

judiciary's decisional authority to "cases" and "controversies."

A case or controversy does not exist unless the person who asks

the court for a decision has "standing" to do so, the elements of

which are injury, causation, and redressability. See Lujan v.

Defenders of Wildlife, ))) U.S. ))), 112 S. Ct. 2130, 2136

(1992). A party's "status as an intervenor ... does not confer

standing sufficient to keep the case alive in the absence of [the

party on whose side the intervenor intervened]." Diamond v.

Charles, 476 U.S. 54, 68, 106 S. Ct. 1697, 1706 (1986). Rather,

intervenors who wish to prosecute an appeal on their own must

separately fulfill the injury, causation, and redressability

requirements of Article III. Id.

Where standing to appeal is at issue, appellants must

demonstrate some injury from the judgment below. See 15A CHARLES

ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND

PROCEDURE § 3902, at 63 (1992). The judgment here simply requires

FWS to develop and disseminate springflow information based on

the court's finding that ESA § 4(f) places a nondiscretionary

duty on FWS to generate this information. In its judgment, the

district court also makes "interim springflow findings for all

purposes under the ESA" at which various endangered species are

Artesian Springs, Ltd.

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"taken" or "jeopardized" within the meaning of the ESA. Because

these findings are irrelevant to whether FWS has a duty to

develop and disseminate springflow information, they have no

preclusive effect in future litigation. See Hicks v. Quaker Oats

Co., 662 F.2d 1158, 1166 (5th Cir. 1981) (No issue can be

precluded unless "the determination of the issue in the prior

litigation [was] a critical and necessary part of the

judgment."). Counsel for plaintiffs agreed at oral argument that

the springflow numbers adopted by FWS are subject to challenge in

any subsequent enforcement suit under the ESA.

Moreover, because FWS has agreed to the amended judgment and

it grants relief only against FWS and merely requires it to

develop and disseminate factual information having no legal

consequence and which FWS would be free to develop and

disseminate absent the judgment, and because intervenor-

defendants, including the TWC, are not bound by such information

or its dissemination (and are as free to subsequently contest it

as if it were not made pursuant to the judgment), none of the

findings or declarations in the amended judgment (or in the

amended findings of fact and conclusions of law) are necessary to

the relief ordered against FWS. Thus none of such findings or

declarations have preclusive effect on appellants in future

litigation, and appellants otherwise lack standing to challenge

any of them here.

Our decision concerning preclusive effect controls

subsequent cases. In New York Telephone Co. v. Maltbie, 291 U.S.

7
645, 54 S. Ct. 443 (1934), a district court enjoined the

enforcement of rate orders at the telephone company's behest, and

also fixed the value of the telephone company's property and the

allowed rate of return on that property. The telephone company

appealed because it disagreed with the determinations of property

value and rate of return. The Supreme Court simply stated that

the court's findings concerning property value and rate of return

"are not to be regarded as res judicata ... in any judicial

proceeding," and dismissed the appeal. Id. at 646, 54 S. Ct. at

443. We follow the same course here to assure the appellants

that they will suffer no adverse consequences in future

litigation from the judgment and findings in this case. See also

15A WRIGHT, MILLER, & COOPER, § 3902, at 83 ("[I]t is better to deny

appeal and forbid preclusion than to permit appeal in order to

support preclusion.").

The appellants allege numerous injuries from the district

court's judgment, but we decide that the judgment and findings

are of no consequence to them. On its face, the judgment orders

nothing of the appellants. Nor will the judgment affect the

appellants in any future litigation, because the only issue

necessarily decided by the district court is that FWS has a

nondiscretionary duty to promulgate springflow information. The

appellants cannot legitimately blame the judgment for causing any

future litigation; the information ordered by the district court

is in no wise a prerequisite to ESA-enforcement litigation.

Finally, the judgment inflicts no procedural injury on the

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appellants )) no law accords the appellants a right to

participate in FWS's decisionmaking process because the

springflow information mandated by the judgment does not, of

itself, bind the appellants, and because the judgment recognizes

that FWS may change its springflow determinations at any time in

the exercise of its best professional judgment.

DISMISSED.

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