[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 02-14423 ELEVENTH CIRCUIT
________________________ JULY 23, 2003
D. C. Docket No. 01-CV-0194-S THOMAS K. KAHN
CLERK
ALABAMA-TOMBIGBEE RIVERS COALITION,
an Alabama nonprofit corporation, PARKER TOWING CO., INC.,
an Alabama corporation, CHARLES A. HAUN, an individual,
Plaintiffs-Appellants,
versus
GALE NORTON, Secretary of the
United States Department of the Interior,
SAM HAMILTON, Regional Director of
the United States Fish and Wildlife Service,
UNITED STATES DEPARTMENT OF THE INTERIOR,
UNITED STATES FISH AND WILDLIFE SERVICE,
an agency of the United States Department
of the Interior, STEVE WILLIAMS, Director of Fish
and Wildlife Service,
Defendants-Appellees.
___________________
Appeal from the United States District Court
for the Northern District of Alabama
_____________________
(July 23, 2003)
Before EDMONDSON, Chief Judge, CARNES, Circuit Judge, and STORY*,
District Judge.
*
Honorable Richard W. Story, United States District Judge for the Northern District of
Georgia, sitting by designation.
STORY, District Judge:
This case involves a business organization’s standing to challenge a
decision by the Secretary of the Interior to list the Alabama sturgeon as an
endangered species pursuant to the Endangered Species Act of 1973 (ESA), 16
U.S.C. §§ 1531-44. The district court held that Appellants lacked standing and
entered summary judgment for Appellees. We reverse and remand.
Appellant Alabama-Tombigbee Rivers Coalition is an Alabama non-profit
corporation consisting of sixteen industries, agencies, and associations that rely
upon Alabama waterways as integral components of their businesses. Appellant
Parker Towing Company (“Parker Towing”) is an Alabama corporation and
member of the Coalition that uses the Alabama waterways in its towing and barge
business. Appellant Charles A. Haun is the Vice President of Parker Towing; he
also uses the waterways for recreation.1 The Coalition filed this suit against Gale
Norton, Secretary of the U.S. Department of Interior; Steve Williams, Director of
the U.S. Fish and Wildlife Service (“FWS”); Sam Hamilton, Regional Director of
the FWS; the U.S. Department of the Interior; and the FWS,2 alleging that the
1
We refer to Plaintiffs-Appellants collectively as “the Coalition.”
2
We refer to Defendants-Appellees collectively as “the Government.”
2
Government unlawfully listed the Alabama sturgeon as an endangered species.3
I. Background
A. The Endangered Species Act
The ESA “represented the most comprehensive legislation for the
preservation of endangered species ever enacted by any nation” and provided “a
means whereby the ecosystems upon which endangered species and threatened
species depend may be conserved.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180,
98 S. Ct. 2279, 2294, 57 L. Ed. 2d 117 (1978); see also 16 U.S.C. § 1531(b). The
ESA requires the Secretary of the Interior to promulgate regulations listing any
species that is threatened or endangered. 16 U.S.C. § 1533. Once a species is
listed, various prohibitions attempt to ensure the survival and recovery of that
species. See, e.g., § 1536(a)(2) (federal agencies’ duty to avoid jeopardizing listed
species); § 1538(a) (prohibitions against taking of listed species). The statute
imposes the obligation on federal agencies to “insure that any action authorized,
funded, or carried out by such agency . . . is not likely to jeopardize the continued
existence of any endangered species or threatened species or result in the
3
Appellants originally sued Bruce Babbitt, then-Secretary of the U.S. Department of the
Interior, and Jamie Rappaport Clark, then-director of the U.S. Fish and Wildlife Service;
following a change in the U.S. Presidential administration, these parties’ successors were
automatically substituted as defendants. See Fed. R. Civ. P. 25(d)(1).
3
destruction or adverse modification of habitat of such species which is determined
by the Secretary . . . to be critical.” § 1536(a)(2); Bennett v. Spear, 520 U.S. 154,
154, 117 S. Ct. 1154, 1159, 137 L. Ed. 2d 281 (1997). Thus, if an agency
determines that its proposed action may adversely affect a listed species or critical
habitat, it must formally consult with the FWS or the National Marine Fisheries
Service (“NMFS”). § 1536(a)(2); 50 C.F.R. § 402.14 (2002). Additionally, the
Regional Director of the FWS or the Assistant Administrator for the National
Oceanic and Atmospheric Administration (“NOAA”) may request the agency to
engage in consultation. 50 C.F.R. § 402.14(a). Finally, consultation shall occur
“at the request of, and in cooperation with,” a prospective permit or license
applicant “if the applicant has reason to believe” that a listed species “may be
present in the area affected by his project and that implementation of such action
will likely affect such species.” 16 U.S.C. § 1536(a)(3).
An agency “action” includes “all activities or programs of any kind
authorized, funded, or carried out, in whole or in part, by Federal agencies in the
United States.” 50 C.F.R. § 402.02. This definition expressly includes the
granting of permits and licenses, although the consultation requirement is limited
to those actions that require “discretionary Federal involvement or control.” Id.;
50 C.F.R. § 402.03; see Marbled Murrelet v. Babbit, 83 F.3d 1068, 1073-75 (9th
4
Cir. 1996) (concluding FWS’ advisory activity did not involve discretion so as to
trigger consultation requirement). Applicants for federal permits may participate
in the consultation process, but they are not required to do so. See 50 C.F.R. §
402.14(d) (“The Federal agency shall provide any applicant with the opportunity
to submit information for consideration during the consultation.”).
Following the consultation process, the FWS must provide a written
statement of its opinion detailing how the proposed action will affect the species
or its habitat, and suggesting alternatives if it appears the proposed action would
jeopardize the species or adversely modify its habitat. 16 U.S.C. § 1536(b)(3)(A).
An “incidental take” permit may be issued if the suggested alternatives will
minimize injury to the species. § 1536(b)(4). These alternatives may become
conditions for applicants to obtain permits or licenses. Id.; see, e.g., Loggerhead
Turtle v. County Council of Volusia County, 148 F.3d 1231, 1240-41 (11th Cir.
1998) (summarizing mitigation measures required as condition of incidental take
permit); Envtl. Coalition of Broward County, Inc. v. Myers, 831 F.2d 984, 987
(11th Cir. 1987) (upholding Corps’ issuance of dredging permit following
consultation and noting Corps had imposed eight additional conditions to
minimize possible injury to endangered manatee).
B. Factual and Procedural Background
5
1. The Alabama sturgeon
The Alabama sturgeon (Scaphirhynchus suttkusi) is a small freshwater fish
that was historically found only in the Mobile River system of Alabama and
Mississippi. Final Rule to List the Alabama Sturgeon as Endangered, 65 Fed.
Reg. 26,438 (May 5, 2000) [hereinafter, Final Rule].
This sturgeon is an elongate, slender fish growing to
about 80 centimeters (cm) (31 inches (in)) in length. A
mature fish weighs 1 to 2 kilograms (kg) (2 to 4 pounds
(lb)). The head is broad and flattened shovel-like at the
snout. The mouth is tubular and protrusive. There are
four barbels (whisker-like appendages used to find prey)
on the bottom of the snout, in front of the mouth. Bony
plates cover the head, back, and sides. The body
narrows abruptly to the rear, forming a narrow stalk
between the body and tail. The upper lobe of the tail fin
is elongated and ends in a long filament.
Id. Although the sturgeon was once so common that it was captured
commercially, it is now very rare and thought to occur only in small portions of
the Alabama River channel in south Alabama, downstream to the mouth of the
Tombigbee River. Id. at 26,439-40. This decline has been attributed to “over-
fishing, loss and fragmentation of habitat due to historical navigation-related
development, and water quality degradation.” Id. at 26,438.
The FWS initially considered whether to propose listing the sturgeon in
6
1980. Review of Three Southeastern Fishes, 45 Fed. Reg. 58,171 (Sept. 2, 1980).
The FWS issued a proposed rule to list the Alabama sturgeon as endangered and to
designate critical habitat in 1993. Proposed Endangered Status and Designation of
Critical Habitat for the Alabama Sturgeon (Scaphirhynchus suttkusi), 58 Fed. Reg.
33,148 (June 15, 1993). During the public comment period on the proposed rule,
businesses in Alabama became concerned about the economic impact of the
listing, and the Coalition was formed to review the FWS’ scientific and legal
rationales for listing the sturgeon. The Coalition sued the FWS under the Federal
Advisory Committee Act (FACA), 5 U.S.C. App. 2, and obtained an injunction
against the FWS preventing it from using a report prepared by a scientific
committee that had been improperly convened. See generally Alabama-
Tombigbee Rivers Coalition v. Dep’t of Interior, 26 F.3d 1103 (11th Cir. 1994)
(setting forth history and affirming district court’s entry of permanent injunction)
[hereinafter Coalition I]. The FWS withdrew the proposed rule in 1994 because
there was “insufficient information to justify listing a species that may no longer
exist.” Withdrawal of Proposed Rule for Endangered Status and Critical Habitat
for the Alabama Sturgeon, 59 Fed. Reg. 64,794 (December 15, 1994).
The Coalition remained actively involved in scientific studies and
conservation efforts for the Alabama sturgeon even after the FWS withdrew its
7
proposed listing. In 1996, the Coalition initiated discussions between the FWS,
the Army Corps of Engineers (the “Corps”), the State of Alabama, and members of
Alabama’s congressional delegation that led to a Voluntary Conservation Plan
funded by Congress and led by the state. This plan consisted of a captive breeding
program that was ultimately unsuccessful. Nevertheless, the Coalition continued
to participate in and fund various studies about the species.4 In 2000, the
Coalition again worked with federal and state interests to convert the Voluntary
Conservation Plan into a ten-year, eight-million-dollar, formal Conservation
Agreement designed to recover the Alabama sturgeon.
Meanwhile, the capture of several Alabama sturgeon confirmed the species’
existence, and the FWS issued another proposed rule to list the fish as an
endangered species in 1999. Proposed Rule to List the Alabama Sturgeon as
Endangered, 64 Fed. Reg. 14,676 (Mar. 26, 1999). After several extensions of the
public comment period, the FWS published a final rule listing the Alabama
sturgeon as an endangered species. Final Rule, 65 Fed. Reg. 26,438.
2. District court proceedings
The Coalition filed this lawsuit under the citizen-suit provision of the ESA,
4
Much of this research was directed to determining whether the Alabama sturgeon is a
separate species from the Mississippi shovelnose sturgeon. The FWS has concluded that the two
are separate species–a conclusion challenged by the Coalition in this lawsuit.
8
§ 1540(g)(1), and the judicial-review provisions of the Administrative Procedure
Act (APA), 5 U.S.C. §§ 701-06, seeking declaratory and injunctive relief and
contending that the final rule: arose from an unlawful process; was based on the
flawed conclusion that the Alabama sturgeon is a separate species from the
Mississippi shovelnose sturgeon; failed to designate critical habitat; violated the
Coalition members’ Fifth Amendment right to due process; and was not within the
powers granted to Congress by the Constitution.
The parties filed cross-motions for summary judgment; the Government
argued that the Coalition lacked standing. In response, the Coalition submitted
four affidavits. First, John D. Grogan, the Environmental Compliance Manager of
Alabama Power Company, which is a member of the Coalition, described the
Company’s operation of hydroelectric power generating units. Subsequent to the
listing of the Alabama sturgeon, the NMFS sought to intervene in Alabama
Power’s application to amend its license for the Holt Project on the Black-Warrior
Tombigbee Waterway. In its Motion to Intervene, the NMFS stated that the
Mobile River Basin supports populations of various migrating fish species,
including the Alabama sturgeon, and noted that the Holt Project is currently a
partial barrier for fish migrations. The NMFS requested that the Federal Energy
Regulatory Commission (“FERC”) not issue a license amendment until Alabama
9
Power addressed water quality concerns and implemented mitigation measures.
Mr. Grogan averred that Alabama Power expended substantial resources in
responding to the Motion to Intervene; moreover, Alabama Power routinely needs
to amend or renew its licenses. Thus, he submitted that the company will continue
to be injured because the listing provides the NMFS and the FWS the opportunity
to seek to change Alabama Power’s operation of its hydropower generation units
and management of reservoirs. As Mr. Grogan explained, Alabama Power will
likely be required to make these changes, or will otherwise expend significant
resources opposing them.
Second, Charles Haun, a named plaintiff and the Executive Vice President
of Parker Towing, averred that Parking Towing is a full-service marine
transportation company that conducts its business in the waterways of Alabama.
As he represented, maintenance activities such as dredging are essential to Parker
Towing’s operations. However, he explained that the FWS’ decision to list the
Alabama sturgeon as a separate species has caused a “direct, substantial, specific,
and present injury” to Parker Towing and the company’s ability to timely deliver
the products it transports. Because of the consultation requirement, he submitted
that there will be delays and conditions imposed on Parker Towing with respect to
permits and authorizations for maintenance dredging, including the removal of
10
rock ledges within waterways, which will cause “significant adverse economic
consequences for Parker Towing.”5 Mr. Haun also noted that changes in the
operations of locks and dams such as those proposed in the NMFS’ Motion to
Intervene will directly interfere with Parker Towing’s operations. Finally, Mr.
Haun further averred that he is personally interested in the recovery of the
sturgeon because he spends time boating in areas of the Warrior River that are
likely habitats for the sturgeon.
The third affiant, Ralph O. Clemens, Jr., is the President of the Coalition.
He submitted that the listing of the Alabama sturgeon has created the opportunity
for the FWS and NMFS to intervene, require consultation, or otherwise participate
in various permitting and licensing issues involving members of the Coalition.
Mr. Clemens further described the history of the Coalition’s involvement in
developing the Conservation Agreement and noted that as a result of the listing,
the Coalition is forbidden from participating in sturgeon repopulation efforts
utilizing the Mississippi shovelnose sturgeon.
Richard J. Oates, the final affiant, is the Executive Director of the Alabama
5
The Final Rule noted that “consultation will be required prior to the commencement of
any rock shelf removal project within or adjacent to potential Alabama sturgeon habitat.” 65
Fed. Reg. at 26,459. However, it explained that such consultation could be conducted so as to
avoid delays in maintenance dredging activities. Id.
11
Pulp and Paper Council, which is a member of the Coalition. As he described, the
decision to list the Alabama sturgeon has caused “direct, substantial, specific, and
present injuries to the Council . . . .” Like Mr. Clemens, Mr. Oates pointed to the
possibility of intervention in permitting issues and the consultation requirement as
the impetuses for “adverse interferences with the operations of members of the
Council and the Coalition.” As an example, he noted that the FWS commented on
a member’s application for maintenance dredging in light of a threatened species’
presence and the proposed listing of the Alabama sturgeon. In its comment letter,
the FWS stated that if various management procedures were not put in place, ESA
consultation would be required. Mr. Oates further stated that because of the
listing of the Alabama sturgeon, members of the Council and Coalition are
“having to modify their facilities or alter their operations, . . . or otherwise spend
significant resources opposing such modifications or alterations.” Indeed, he
submitted that “[t]he mere fact that consultation is now required . . . causes
members of the Council and the Coalition injury in the form of planning,
expenses, costly studies, and project delays.”
The district court held that the Coalition had not met its summary judgment
burden with respect to standing. The court rejected the Coalition’s economic
standing argument, noting first that the Coalition’s brief in support of its own
12
motion for summary judgment stated that the listing decision “will not impact
economic or interstate activities.” 6 Although the Coalition submitted that the
opportunity of FWS to intervene would cause planning expenses, costly studies,
and project delays, the district court pointed out that the Coalition had provided no
evidence of actual expenses, studies, or delays. Emphasizing the Coalition’s
recognition that the findings set forth in the final rule noted there would be no
adverse economic impact, the court reasoned that a bare opportunity for FWS to
intervene was inadequate to establish injury in fact.
The district court further explained that “businesses operating along
Alabama waterways may be subject to consultation with, or ‘interference’ from,
Federal agencies under numerous environmental statutes, not just the ESA.”
Moreover, the district court recognized that the Alabama sturgeon is not the only
endangered or threatened species in these waterways. Based on these
circumstances, the district court concluded that the “conjectural threat of the
‘opportunity’ for economic injury” was insufficient to establish standing.
Addressing NMFS’ Motion to Intervene as a particular showing of injury, the
court first noted “that there is evidence that the Alabama sturgeon does not exist in
6
The Coalition made this argument in support of its contention that the listing was not
within the scope of authority granted by the Commerce Clause. For further discussion, see infra
note 9.
13
the waters surrounding the Holt Lock and Dam Project.” Second, the NMFS
sought to intervene in Alabama Power’s license amendment proceeding pursuant
to the Fish and Wildlife Coordination Act, 16 U.S.C. §§ 661-66, although it listed
numerous statutes, including the ESA, as additional authority for intervention.
Finally, the Motion to Intervene listed five species of diadromous fish, three of
which–the Alabama sturgeon, the Gulf sturgeon, and the Alabama shad–are
threatened or endangered species. Because numerous statutes and species already
enabled the Government to intervene or consult, the district court concluded that
the costs expended by Alabama Power were not fairly traceable to the listing
decision and would not be remedied by a judgment declaring the listing unlawful
and void.
Turning next to the dredging activities and FWS comment letter, the district
court emphasized that during the listing process and in the final rule, the
Government found that–contrary to the assertions in the letter–the listing of the
Alabama sturgeon would not impact navigation and channel maintenance. In light
of that finding, the court reasoned that any interference with dredging activities
prior to the listing did not support a reasonable inference that FWS would interfere
with future dredging activities. Further, the court held that any injury would not
be fairly traceable to the listing because, as the FWS letter reflected, the threatened
14
Gulf sturgeon was also found in the waters covered by the application. Thus, de-
listing the Alabama sturgeon would not necessarily remedy the injuries incurred as
a result of the Government’s interference.
The district court entered summary judgment for the Government, holding
that the Coalition, Parker Towing, and Mr. Haun lacked constitutional standing.7
On appeal, the Coalition asserts several bases for standing. First, the Coalition
argues that the district court erred by failing to apply issue preclusion stemming
from the standing decisions explicit or implicit in Coalition I. Second, the
Coalition asserts numerous grounds for constitutional standing in this case: (1)
economic standing; (2) environmental, scientific, recreational, and aesthetic
standing; and (3) procedural standing. Because we hold that the Coalition has
economic standing, we need not consider its other arguments.
II. Discussion–Article III Standing
Article III of the Constitution confines the reach of federal jurisdiction to
“Cases” and “Controversies.” U.S. Const. art. III, § 2. This limitation “defines
with respect to the Judicial Branch the idea of separation of powers on which the
7
The district court further rejected standing on the basis of the Coalition’s sturgeon
recovery efforts and Mr. Haun’s recreational activities. Because we hold that the Coalition has
economic standing, we do not consider whether the recovery efforts or recreational activities
provide independent bases for standing. See Planned Parenthood of the Atlanta Area, Inc. v.
Miller, 934 F.2d 1462, 1465-66 n.2 (11th Cir. 1991) (noting that when one plaintiff has standing
to bring all claims in an action, the court need not inquire into the standing of other plaintiffs).
15
Federal Government is founded.” Allen v. Wright, 468 U.S. 737, 750, 104 S. Ct.
3315, 3324, 82 L. Ed. 2d 556 (1984); see Lujan v. Defenders of Wildlife, 504 U.S.
555, 559-60, 112 S. Ct. 2130, 2136, 111 L. Ed. 2d 695 (1990) (describing how
standing interfaces with separation of powers and breadth of judicial power).
These values are reflected in the three required elements for constitutional
standing: (1) “an ‘injury in fact’–a harm suffered by the plaintiff that is ‘concrete’
and ‘actual or imminent, not ‘conjectural’ or ‘hypothetical;’ ” (b) “causation–a
fairly traceable connection between the plaintiff's injury and the complained-of
conduct of the defendant;” and (3) “redressability–a likelihood that the requested
relief will redress the alleged injury.” Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 102-04, 118 S. Ct. 1003, 1016-17, 140 L. Ed. 2d 210 (1998); see also Vt.
Agency of Natural Res. v. United States ex rel Stevens, 529 U.S. 765, 771, 120 S.
Ct. 1858, 1861-62, 146 L. Ed. 2d 836 (2000); 31 Foster Children v. Bush, 329
F.3d 1255, 1263 (11th Cir. 2003).8 “When the attack on standing occurs via a
8
Whether a plaintiff has standing “ ‘involves both constitutional limitations on federal
court jurisdiction and prudential limitations on its exercise.’ ” Bennett, 520 U.S. at 162, 117 S.
Ct. at 1161 (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 2205, 45 L. Ed. 2d 343
(1975)). The Government has not challenged the Coalition’s standing on prudential grounds.
See id. at 162-66, 117 S. Ct. at 1161-63 (reversing Court of Appeal’s determination that plaintiffs
seeking to prevent application of environmental restrictions and protect their business lacked
standing under the zone-of-interests test to bring claims under the ESA citizen-suit provision).
Nor has the Government challenged the Coalition’s standing as a membership organization,
which requires three additional elements: “(1) its members must otherwise have standing to sue
in their own right; (2) the interests it seeks to protect must be germane to the organization’s
16
motion for summary judgment, the plaintiffs can no longer rest on their
allegations, but must set forth by affidavit or other evidence specific facts which
for the purpose of summary judgment will be taken as true.” Region 8 Forest
Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993)
(internal quotations omitted); see also Lujan, 504 U.S. at 561, 112 S. Ct. at 2137.
Whether a plaintiff has standing to bring a suit is a legal issue that we review de
novo. Region 8, 993 F.2d at 806.
A. Injury in Fact
The parties do not dispute that harm to economic interests presents a
cognizable injury for purposes of standing. Bennett, 520 U.S. at 167-68, 117 S.
Ct. at 1163-64; see also Clinton v. City of New York, 524 U.S. 417, 433, 118 S. Ct.
2091, 2100, 141 L. Ed. 2d 393 (1998) (recognizing probable economic injury
resulting from governmental actions that alter competitive conditions as sufficient
to satisfy Article III injury-in-fact requirement); Clark v. City of Lakewood, 259
F.3d 996, 1007 (9th Cir. 2001) (holding adult entertainment business’s alleged
financial loss as result of city ordinance was sufficient to establish injury in fact);
Adams v. Watson, 10 F.3d 915, 921 (1st Cir. 1993) (“While the project is not yet
purpose; and (3) neither the claim asserted nor the relief requested must require the participation
of the association’s individual members.” Region 8 Forest Serv. Timber Purchasers v. Alcock,
993 F.2d 800, 805 n.3 (11th Cir. 1993).
17
completed, and hence specific proof of competitive injury is not possible, it could
hardly be thought that administrative action likely to cause harm cannot be
challenged until it is too late.” (internal quotations omitted)); cf. Lujan, 504 U.S. at
562-63, 112 S. Ct. at 2137 (“the desire to use or observe an animal species, even
for purely esthetic purposes, is undeniably a cognizable interest for purpose of
standing”). The Government contends, however, that the Coalition has not
produced evidence showing that the economic injuries of its members are
sufficiently concrete and imminent to confer standing here.
The “injury in fact” element of Article III standing does not require a
plaintiff to wait until an injury occurs to bring suit. 31 Foster Children, 329 F.3d
at 1265. However, the injury must be imminent–not abstract, hypothetical, or
conjectural. Lujan, 504 U.S. at 560, 112 S. Ct. at 2136. Imminence, while an
“elastic concept,” requires that “the injury proceed with a high degree of
immediacy, so as to reduce the possibility of deciding a case in which no injury
would have occurred at all.” Id. at 565 n.2, 112 S. Ct. at 2138-39 n.2. In 31
Foster Children, we elaborated on the concept of immediacy for purposes of
considering allegations of future injuries. 329 F.3d at 1266. There, foster children
sued the administrators of Florida’s foster care system, seeking prospective relief
with respect to, inter alia, their claims for the substantive due process rights to
18
safe care and prompt services and First, Ninth, and Fourteenth Amendment rights
to family associations. Id. at 1261-62. The administrators argued that most of the
plaintiffs failed to allege either a palpable risk of injury or imminent harm; instead,
the defendants contended, the plaintiffs complained mainly of past harms. Id. at
1265. We concluded that the plaintiffs in the defendants’ physical custody had
standing with respect to the substantive due process claims, as did the plaintiffs
who were in the defendants’ physical custody with siblings for the associational
claims. Id. at 1266. We reasoned that the plaintiffs were in the defendants’ care
involuntarily and could not avoid exposure to the challenged conduct. Id. The
alleged future injuries were similar to an injurious policy, rather than being
conjectural injuries whose occurrences were premised on a past random act. Id.
Indeed, we concluded that the “alleged pattern and practice in this case presents a
substantial likelihood that the alleged injury will occur.” Id.
Similarly here, the Coalition is operating against the backdrop of a
continuing policy that was triggered by the listing and is effectuated by the
machinery of the ESA. While the Coalition’s evidence of past events such as the
FWS’ intervention and the comment letter might by itself be insufficient to
establish standing for prospective relief, in this context the evidence illustrates
what is apparent from a review of the ESA: the listing has injured the Coalition’s
19
members and will continue to do so. Cf. City of Los Angeles v. Lyons, 461 U.S.
95, 105, 103 S. Ct. 1660, 1667, 75 L. Ed. 2d 675 (1983) (reasoning plaintiff lacked
standing to pursue injunctive relief stemming from one-time traffic stop and
choking incident). Messrs. Grogan, Haun, and Oates have all indicated that
Coalition members operate their businesses subject to federal licenses and permits;
the Government does not dispute that portions of the members’ licensed or
permitted activities take place in historical Alabama sturgeon habitat. It is
reasonable to infer from the Coalition’s evidence that its members have settled
expectations with respect to the viability of their businesses–expectations that the
members intend to guard not in the speculative future, but constantly. The listing
adds another layer of concrete economic considerations that may be in tension
with the members’ pre-listing assumptions. Indeed, all of the affiants averred that
Coalition members are now modifying their facilities, altering their operations, or
expending resources to oppose such modifications; further, they stated that the
consultation requirement is causing Coalition members injury in the form of
planning, studies, and delays. The Coalition need not present “detailed
descriptions” of actual expenses, as the district court would have required. Lujan,
504 U.S. at 565 n.2, 112 S. Ct. at 2138 n.2 (internal quotations omitted). Where
standing is premised on future injury, “its imminence (though not its precise
20
extent) must be established.” Id. (emphasis added).9 We therefore conclude that
the Coalition presented sufficient evidence for purposes of summary judgment to
show “injury in fact.”
B. Traceability
The Government also contends that the Coalition cannot meet the second
and third prongs of the standing test. The showing of traceability must not be too
“attenuated,” Allen v. Wright, 468 U.S. at 757, 104 S. Ct. at 3328, but “the
indirectness of the injury does not necessarily deprive the person harmed of
standing.” Warth, 422 U.S. at 505, 95 S. Ct. at 2208. Nevertheless,
[w]hen . . . a plaintiff’s asserted injury arises from the
government’s allegedly unlawful regulation (or lack
of regulation) of someone else, much more is needed.
. . . The existence of one or more of the essential
elements of standing depends on the unfettered
choices made by independent actors not before the
courts and whose exercise of broad and legitimate
discretion the courts cannot presume either to control
or predict . . . it becomes the burden of the plaintiff to
9
We further reject the notion that the Coalition’s Commerce Clause argument, which
emphasized the FWS’ conclusions that the listing would not have a significant economic impact,
constituted a judicial admission. Legal arguments are distinguishable from judicial admissions.
See Z.J. Gifts D-4, L.L.C. v. City of Littleton, 311 F.3d 1220, 1233 (10th Cir. 2002) (declining to
treat counsel’s legal interpretation of ordinance as judicial admission); see also Continental Ins.
Co. of N.Y. v. Sherman, 439 F.2d 1294, 1298 (5th Cir. 1971) (refusing to apply judicial
admission rule strictly where it conflicted with Federal Rules of Civil Procedure allowing
inconsistent pleading). Further, it is conceivable that a government action could have local
economic impacts without affecting interstate commerce.
21
adduce facts showing that those choices have been or
will be made in such a manner as to produce
causation and permit redressability of injury.
Lujan, 504 U.S. at 562, 112 S. Ct. at 2137 (internal citations and quotations
omitted); see also Tenn. Valley Auth. v. E.P.A, 278 F.3d 1184, 1205 (11th Cir.
2002), op. withdrawn in part by – F.3d –, 2003 WL 21452521 (11th Cir. June 24,
2003).
The Supreme Court has explained that the “fairly traceable” requirement
does not necessitate “injury as to which the defendant’s actions are the very last
step in the chain of causation.” Bennett, 520 U.S. at 168-69, 117 S. Ct. at 1164;
see also Tenn. Valley Auth. v. E.P.A., 278 F.3d at 1207. Indeed, economic injuries
“produced by determinative or coercive effect upon the action of someone else”
are distinguishable from those that are merely a result of independent actors not
before the court. Id.
This case is unlike those in which a plaintiff sues in an attempt to change
the behavior of a party not before the court such as Allen v. Wright. In Allen, the
plaintiffs challenged the IRS’ grant of tax exemptions to racially discriminatory
schools. 468 U.S. at 757, 104 S. Ct. at 3328. The Supreme Court reasoned that
the plaintiffs’ injury–a diminished ability to receive a desegregated education–was
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a result not of the IRS’ policies, but of decisions by independent actors such as
school officials and parents who were not before the Court. Id. at 758, 104 S. Ct.
at 3328. These points were made more apparent in the Court’s redressability
analysis: it was “entirely speculative” whether a withdrawal of the tax exemptions
would cause a private school to change its discriminatory policies. Id. It was
similarly speculative whether parents would withdraw their children from these
schools and place the children in public schools as a result of a withdrawal of tax
exemptions. Id. Further, it was not at all clear that “in a particular community, a
large enough number of the numerous relevant school officials and parents would
reach decisions that collectively would have a significant impact on the racial
composition of the public schools.” Id.
The circumstances here are more akin to those in Bennet v. Spear. There,
ranch operators and irrigation districts challenged a biological opinion issued by
the FWS because it induced the Bureau of Reclamation to limit the amount of
irrigation water available to the plaintiffs. 520 U.S. at 167, 117 S. Ct. at 1163.
Although the Bureau of Reclamation was not a party before the Court, the
Supreme Court reasoned that the FWS’ biological opinion had “a powerful
coercive effect.” Id. at 169, 1164. Given the procedural mandates of the ESA, the
biological opinion “alter[ed] the legal regime to which the agency action [was]
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subject.” Id.; see also Tenn. Valley Auth. v. E.P.A., 278 F.3d at 1207 (holding that
traceability was met for power companies’ standing where TVA’s compliance
with EPA’s orders would result in diminished energy reserves imposing greater
costs on power companies).
Here, the Coalition’s injuries are produced by the coercive effect of the ESA
as implemented by the FWS or NMFS: federal agencies and Coalition members
must at least consider whether consultation is necessary for their activities. This
point is particularly evident in light of the possibility of the Coalition’s members
running afoul of the “take” prohibition if they or acting agencies fail to consider
the Alabama sturgeon at all with respect to their activities in its historical habitat.10
For these reasons, we cannot accept the Government’s argument that consultation
is voluntary because any costs expended by the Coalition are costs it has chosen to
expend. The ESA establishes a framework that is coercive rather than voluntary.
The Coalition’s affidavits provide evidence that its members are already incurring
planning expenses as a result of the listing, illustrating the necessary causal link.
Although there are already other listed species within the waterways in
which the Coalition’s members operate, the entire framework of the ESA,
10
The Coalition does not argue that its standing arises from any likely violations of the
“take” prohibition. However, we think the Coalition’s evidenced activities in the context of the
full ESA backdrop are important considerations for this standing analysis.
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including the consultation provisions, requires species-specific conservation. See,
e.g., 16 U.S.C. § 1536(A)(2) (“[e]ach Federal agency shall . . . insure that any
action . . . is not likely to jeopardize the continued existence of any endangered or
threatened species” (emphasis added)). To hold that there is no causation because
of the presence of other species would be to ignore this central theme of the ESA.
Moreover, the four affidavits point specifically to the Alabama sturgeon as the
cause of the economic injuries; drawing all reasonable inferences in favor of the
non-moving party, as is required at the summary judgment stage, we conclude that
the Coalition has provided sufficient evidence of traceability.
C. Redressability
Similarly, the Coalition has submitted sufficient evidence showing
redressability. As an initial matter, we note that “[w]hile redressability must not
be speculative, it need only be ‘likely,’ not certain.” Tenn. Valley Auth. v. E.P.A.,
278 F.3d at 1207. The Coalition seeks a declaration that the Government violated
the ESA and APA, which would invalidate the listing. Even though other listed
species could trigger the consultation requirement and other statutes could
authorize the Government to intervene in permitting matters, these arguments are
“insufficient to justify a conclusion that this Court could not redress the injury.”
Id. The traceability of the injury is focused on the marginal impact of the unique
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species Scaphirhynchus suttkusi; so too is the injury redressable because delisting
the sturgeon will eliminate the additional considerations of which the Coalition
complains. Accordingly, we hold that the Coalition does not lack standing in this
case.
III. Conclusion
For the foregoing reasons, we REVERSE the judgment of the district court
and REMAND the case for proceedings consistent with this opinion.
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