IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50839
JOHN H. SHIELDS; HUNTER SCHUEHLE,
Plaintiffs-Appellants,
versus
GALE NORTON, Secretary, United States Department of Interior;
JAMIE RAPPAPORT CLARK, Director, United States Fish &
Wildlife Service; SIERRA CLUB,
Defendants-Appellees.
_______________________
Appeal from the United States District Court
For the Western District of Texas
April 26, 2002
Before JOLLY, HIGGINBOTHAM, and PARKER, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Hunter Schuehle pumps water from the Edwards Aquifer in Texas.
He challenges the constitutionality of the Take Provision of the
Endangered Species Act, 16 U.S.C. § 1538(a)(1)(B), as applied to
the endangered and threatened species living at San Marcos and
Comal Springs. Schuehle seeks a declaration that the Take Provision
exceeds Congress’ power under the Commerce Clause. The district
court granted summary judgment to Appellees Gale Norton, Jamie
Rappaport, and the Sierra Club, concluding that the Take Provision
was a valid exercise of Congress’ enumerated powers. These rulings
1
followed the district court’s decision that Schuehle has standing
and the case is ripe. We are persuaded that this suit does not
present justiciable issues and the district court was without
jurisdiction to decide the case.
I
The Take Provision, Section 9(a)(1)(B) of the ESA, makes it
unlawful for any person to “take” a listed species. To “take” a
species is defined by the ESA as to “harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect” a member of a listed
species. To “harm” is defined by regulation to mean “an act which
actually kills or injures wildlife.”1 Violation of the Take
Provision can result in civil penalties of up to $25,000 for each
knowing violation, criminal penalties of up to $50,000 and
imprisonment for up to one year.
The Secretaries of Commerce and the Interior jointly
administer the ESA through the National Marine Fisheries Service
and United States Fish and Wildlife Service. The Secretary of the
Interior has statutory authority to promulgate regulations listing
and defining the critical habitats of species that are either
endangered or threatened.2 This action triggers specific
protections for the listed species and their defined habitat.3 The
1
50 C.F.R. § 17.3.
2
16 U.S.C. §§ 1533, 1536.
3
16 U.S.C. § 1536(a)(2).
2
Edwards Species at issue in this case are rare fish, amphibian, and
plant species found only in the San Marcos and Comal Springs area
of Texas. They are not purchased, sold, or exchanged commercially.
The Edwards Aquifer, a 175-mile long underground aquifer, is
recharged from surface waters and rainfall seeping through porous
earth. Water from the aquifer is used by thousands of farmers to
irrigate millions of dollars worth of crops, by over two million
people as their primary source of water, and by thousands engaged
in business in Central Texas. The aquifer is also important to the
Edwards Species.
The aquifer is regulated by the Edwards Aquifer Authority.
Schuehle at relevant times was both a member of the board and a
pumper of water from the aquifer.
II
This suit alleges that Appellees have threatened to sue area
water pumpers for ESA violations based upon the theory that the
pumping of water from the Edwards Aquifer harmed the Edwards
Species and is a “take” for purposes of the ESA. On January 27,
1999 Judge Hippo Garcia dismissed Shields and transferred the case
to Judge Lucious Bunton. Judge Bunton concluded that the case was
ripe for review and that Schuehle had standing. On the merits he
granted summary judgment, holding that in enacting the Take
Provision, Congress validly exercised its Commerce Clause and
treaty powers. Finally, he rejected the contention that the ESA
citizen suit provision unlawfully delegated authority. Shields and
3
Schuehle appeal.
III
Article III of the Constitution confines federal courts to the
decision of "cases" and "controversies." A case or controversy must
be ripe for decision, meaning that it must not be premature or
speculative.4 That is, ripeness is a constitutional prerequisite to
the exercise of jurisdiction.5
A suit for declaratory relief, while allowing a party to
anticipate a suit and seek a judicial resolution, must nevertheless
meet this keystone limitation. In hornbook form, a declaratory
action must be ripe in order to be justiciable, and is ripe only
where an “actual controversy” exists.6 An actual controversy exists
where “a substantial controversy of sufficient immediacy and
reality exists between parties having adverse legal interests.”7
Ordinarily whether particular facts are sufficiently immediate to
establish an actual controversy yields answers on a case-by-case
basis.8 Whether a declaratory action is ripe, by its very
structure, pushes against our insistence upon mature disputes. That
4
United Transportation Union v. Foster, 205 F.3d 851, 857
(5th Cir. 2000).
5
Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967).
6
28 U.S.C. § 2201 (a) (“In a case of actual controversy
within its jurisdiction . . . .”)
7
Orix Credit Alliance, Inc. v. Wolfe, 212 F.3d 891, 896 (5th
Cir. 2000).
8
Id.
4
is, it “contemplate[s] an ex ante determination of rights that
exists in some tension with traditional notions of ripeness.”9
The district court found that “[a]lthough the ripeness
determination is a close one,” Schuehle’s action was ripe for
review.10 The district court relied heavily upon evidence that
Schuehle has curtailed his irrigation pumping to his financial
detriment, in response to threats of prosecution and litigation by
Appellees.11 The district court found that the ESA “effectively
imposes immediate obligations on Edwards pumpers” and concluded
that “Schuehle should not be placed in the unenviable position
that, in order to test the constitutionality of the ESA, he must
expose himself to civil and criminal liability.”12 The court noted
that the Sierra Club sent Schuehle notices of intent to sue,
holding that the letters constituted “more than an imaginary threat
to his ability to continue pumping.”13
IV
The threat of litigation can establish a justiciable
9
Orix, 212 F.3d at 896 (quoting Rhode Island v. Narragansett
Indian Tribe, 19 F.3d 685, 692 (1st. Cir. 1994)).
10
Op. at 15.
11
Id. at 14.
12
Id. at 15.
13
Id.
5
controversy if it is specific and concrete.14 We look to the
practical likelihood that a controversy will become real.15 Because
no action may be commenced under the citizen suit provision of the
ESA until sixty days after written notice of the violation has been
given to the alleged violator,16 the district court properly
determined that Notices of Intent to Sue sent by the Sierra Club in
1990, 1994, and 1998 are “the first step required in the litigation
process” and were sent to induce the recipient to modify his
actions so to avoid violation of the ESA.17
The district court cited two letters sent from the Sierra Club
to “individuals and entities . . . withdrawing or diverting water
from the Edwards aquifer, alleging that such actions constituted
violations of the ESA.”18 The first letter, sent on April 12, 1990,
stated that the cumulative impact of the pumping threatened the
Edwards Species, alleged violations of section 9 of the ESA, and
stated its intention to file suit if necessary to correct these
violations.19 The second letter, sent on April 15, 1994, stated
that the actions of the pumpers “pose[d] a substantial and imminent
14
Orix, 212 F.3d at 897.
15
Id.
16
16 U.S.C. § 1540(g)(2)(A).
17
Op. at 14.
18
Op. at 5-6.
19
Op. at 6.
6
threat of jeopardy to the continued existence of endangered and
threatened species and to the public health and safety of 1.5
million people.”20 This letter also alleged violations of section
9 of the ESA, and stated that the Sierra Club would “take prompt
legal action to obtain judicial remedies for this emergency.”21
When he first joined this suit, Schuehle did not make it clear
whether he was suing in his official capacity as a member of the
Edwards Aquifer Authority Board or as an individual pumper.
Schuehle conceded that he lacked authority to sue on the EAA’s
behalf, and the district court properly held that Schuehle lacked
standing to sue in his official capacity.22 The question before us,
then, is whether there is a specific and concrete threat of
litigation against Schuehle in his individual capacity sufficient
to render his declaratory action an actual controversy and thus
ripe for judicial review.
A notice of intent to sue Schuehle individually as
distinguished from the board could be a sufficiently specific and
concrete threat. But Schuehle has not demonstrated that he received
such a notice. We are persuaded that neither the 1990 letter nor
the 1994 letter are sufficiently specific and concrete. The 1990
letter lists Schuehle’s partnership but not Schuehle in his
20
Id.
21
Id.
22
Op. at 16.
7
individual capacity. Schuehle does not claim that the letter was
directed to him. Rather he suggests that he may have received the
letter from a third party. The 1994 letter does not list Schuehle,
his partnership, or the EAA. Schuehle says only that he received it
“directly or indirectly.” Attributing the letter to the
partnership as effective to Schuehle individually is of no moment.
Significantly, more than four years lapsed before Shields filed
this suit that Schuehle later joined. Moreover the Sierra Club by
letter disclaimed any plan to sue Schuehle individually. While
alone it is also of little import, such a disclaimer reenforced by
these years of inaction hollows any “threat,” and pulls it short of
immediate.
The Sierra Club also sent a letter in 1998 but it was
addressed solely to the EAA and its board members in their official
capacities and Schuehle has no legal right to sue on behalf of the
EAA. Pursuant to the ESA, the Sierra Club would be required to send
Schuehle a notice letter at least sixty days before it could bring
a suit against him.23
V
We are constrained to conclude that the Sierra Club’s actions
directed toward Schuehle were not a sufficient threat of
litigation. If it is to be found, the requisite threat must be
inferred from past litigation by the Sierra Club against other
23
16 U.S.C. § 1540(g)(2)(A).
8
pumpers and from a 1988 newspaper article that quotes a United
States Fish and Wildlife Service employee stating that “law
enforcement is always an option” if the Edwards Species are harmed.
But this is not enough.
It does not establish a specific, concrete threat of immediate
litigation sufficient to establish the controversy requisite to
declaratory judgment. Whether the Sierra Club will sue Schuehle
hinges upon contingencies not easily anticipated, given that it is
unclear from the record whether Schuehle pumps a significant amount
of water from the aquifer, whether he has a permit from the EAA to
do so, or specifically how he responded to any of the “threats.”
Schuehle’s claim that he stopped pumping water from the aquifer in
response to these “threats” in itself might establish a
controversy, if not for their emptiness exposed by years of
inactivity since the alleged “threats” were made and the lack of
evidence that a threat was in fact made against Schuehle but not
carried out because of his conforming conduct.
In short, we have some saber rattling, but nothing more, and
we are left with the unease that proceeding to the merits is more
likely than not the offering of one answer to a hypothesis—a
possible but not sufficiently possible injury. This is where a
court of limited jurisdiction must stop. We must decide the
difficult questions when deciding a case or controversy requires us
to do so. At the same time, we must not proceed until the issue is
ripe – until we have that case or controversy.
9
It follows that the district court erred in finding the
requisite actual controversy. We VACATE its judgment and REMAND
with instruction to dismiss the amended complaint for lack of
jurisdiction.
10