Project v. Shaw

835 F.Supp.2d 251

The ARANSAS PROJECT, Plaintiff,

v.Bryan SHAW, et al., Defendants.

Civil Action No. C–10–75.

United States District Court,

S.D. Texas,

Corpus Christi Division.

Dec. 5, 2011.

James B. Blackburn, Jr., Charles William Irvine, Mary B. Conner, Blackburn Carter PC, David Alfred Kahne, Attorney at Law, Houston, TX, Patrick Waites, Law Office of Patrick Waites, Bellaire, TX, John Jeffery Mundy, Mundy Singley LLP, Austin, TX, for Plaintiff.

John R. Hulme, Bryan Dwayne Snoddy, David Marshall Coover, III, Office of the Attorney General of Texas, Kenneth R. Ramirez, Law Offices of Ken Ramirez, Rachel L. Noffke, Brown McCarroll LLP, Austin, TX, for Defendants.

ORDER

JANIS GRAHAM JACK, Senior District Judge.

Pending before the Court are Plaintiff The Aransas Project's Motion for Partial Summary Judgment on Standing, (D.E. 213), State Official Defendants' Motion for Summary Judgment, (D.E. 214), and Defendant-Intervenor Guadalupe–Blanco River Authority's Motion for Summary Judgment,(D.E. 215). For the reasons stated herein, the Court concludes that these motions should be and are DENIED.

I. Jurisdiction

The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question), 16 U.S.C. §§ 1540(c) & (g) (the Endangered Species Act),¹ and 28 U.S.C. § 2201 (the Declaratory Judgment Act).

II. Factual and Procedural Background

The Aransas Project (a non-profit corporation) (“Plaintiff” or “TAP”) brought this action on March 10, 2010 pursuant to the Endangered Species Act, 16 U.S.C. §§ 1540(c) & (g), against several Texas Commission on Environmental Quality (“TCEQ”) officials (Bryan Shaw, Buddy Garcia, Carlos Rubinstein, and Mark Vickery) and the South Texas Watermaster (Al Segovia) (collectively “Defendants”). In essence, Plaintiff alleges that Defendants' failure to adequately manage the flow of fresh water into the San Antonio Bay ecosystem during the 2008–2009 winter resulted in a “tak[ing]” of Whooping Cranes, an endangered species, in violation of Section 9 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1538(a)(1)(B). Plaintiff argues that the reduced flow of fresh water into the ecosystem increased salinity, reducing the food and water supply for the Whooping Cranes, thus weakening and ultimately resulting in the death of twenty-three Whooping Cranes. (D.E. 1 at 2, 8–24.) ²

Plaintiff requests declaratory and injunctive relief to ensure that the Whooping Cranes have sufficient water resources to prevent future “takings.” (D.E. 1 at 32–33.) In essence, Plaintiff seeks a declaration that Defendants' actions resulted in a “taking” of Whooping Cranes in violation of Section 9 of the ESA, an injunction impacting current and future water diversions that result in takings of Whooping Cranes, and a court order requiring Defendants to develop a process to ensure that Whooping Cranes are protected. (D.E. 1 at 32–33.) ³

The TCEQ Defendants filed a Motion to Dismiss on May 14, 2010 (D.E. 40), and a Burford Abstention Motion on May 28, 2010. (D.E. 57.) Guadalupe–Blanco River Authority (“GBRA”) (granted intervention on April 23, 2010, 2010 WL 1644645 (D.E. 35)), filed a Motion to Dismiss on May 17, 2010. (D.E. 43.) Plaintiff filed a Response to TCEQ Defendants' and GBRA's Motions on June 17, 2010. (D.E. 90.) GBRA filed a Reply on June 23, 2010. (D.E. 115.) The TCEQ Defendants filed a Reply on July 26, 2010. (D.E. 173.) ⁴ On July 28, 2010 the Court heard oral arguments on these motions and denied all of them. ( See D.E. 176.)

On September 15, 2011 Plaintiff filed its Motion for Partial Summary Judgment on Standing. (D.E. 213.) Defendants TCEQ and GBRA also filed their respective Motions for Summary Judgment on September 15, 2011. (D.E. 214; D.E. 215.) Together, Defendants' and GBRA's motions raise four broad arguments: (1) Plaintiff lacks standing and there is no case or controversy between the parties, (D.E. 215 at 11–16; D.E. 231), (2) Eleventh Amendment immunity bars Plaintiff's claim, (D.E. 214 at 23–25), (3) Plaintiff has failed to establish a right to recovery under the ESA, (D.E. 214 at 5–21; D.E. 215 at 8–15), and (4) the Complaint should be dismissed under the Burford abstention doctrine. (D.E. 215 at 24–29.) The Court addresses each argument separately.

III. DiscussionA. Applicable Standard

Plaintiff, TCEQ Defendants, and GBRA have all moved for summary judgment. Under Federal Rule of Civil Procedure 56, summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The substantive law identifies which facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ellison v. Software Spectrum, Inc., 85 F.3d 187, 189 (5th Cir.1996). A dispute about a material fact is genuine only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505;Judwin Props., Inc. v. U.S. Fire Ins. Co., 973 F.2d 432, 435 (5th Cir.1992).

On summary judgment, “[t]he moving party has the burden of proving there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law.” Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 246 (5th Cir.2003); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets this burden, “the non-moving party must show that summary judgment is inappropriate by setting forth specific facts showing the existence of a genuine issue concerning every essential component of its case.” Rivera, 349 F.3d at 247. The nonmovant's burden “is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Willis v. Roche Biomedical Labs., Inc., 61 F.3d 313, 315 (5th Cir.1995); see also Brown v. Houston, 337 F.3d 539, 541 (5th Cir.2003) (stating that “improbable inferences and unsupported speculation are not sufficient to [avoid] summary judgment”). It is well established that “[t]he moving party need not produce evidence negating the existence of a material fact, but need only point out the absence of evidence supporting the nonmoving party's case.” Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir.1991).

Summary judgment is not appropriate unless, viewing the evidence in the light most favorable to the non-moving party, no reasonable jury could return a verdict for that party. Rubinstein v. Adm'rs of the Tulane Educ. Fund, 218 F.3d 392, 399 (5th Cir.2000). In considering a motion for summary judgment, the court cannot make credibility determinations, weigh the evidence, or draw inferences for the movant. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The court must draw all justifiable inferences from the summary-judgment evidence in the light most favorable to the nonmovant. Id.

B. Standing

1. Elements

Under Article III of the U.S. Constitution, the federal judicial power is restricted to “Cases” and “Controversies.” U.S. Const. Art. III, § 2. Under Article III, “the irreducible constitutional minimum of standing contains three elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). These elements are “(1) an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between the injury and the conduct complained of; and (3) the likelihood that a favorable decision will redress the injury.” Croft v. Governor of Texas, 562 F.3d 735, 745 (5th Cir.2009) (citing Lujan, 504 U.S. at 560, 112 S.Ct. 2130). As “the party invoking federal jurisdiction,” the plaintiff “bears the burden of establishing these elements.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130. The plaintiff must meet this burden “ ‘with the manner and degree of evidence required at the successive stages of the litigation’ ....” Id. In response to a motion for summary judgment on standing, a party may not rest on its allegations but must “ ‘set forth’ by affidavit or other evidence ‘specific facts' ... which for the purposes of the summary judgment motion will be taken as true.” Id. (internal quotations and citations omitted).

2. Application

In this case, GBRA and TCEQ Defendants dispute the three central elements of standing, namely (1) injury in fact, (2) redressability, and (3) causation. (D.E. 215 at 11–16; D.E. 231.) Defendants also argue that Plaintiff has not established associational standing requirements. (D.E. 229 at 30–31; D.E. 231.)

a. Injury in Fact

GBRA argues that TAP has not met its continuing obligation to demonstrate an actual or imminent injury, and that TAP cannot merely rely on speculation that its members may someday be injured in their ability to see Whooping Cranes. (D.E. 215 at 12.) Further, while Plaintiff broadly asserts damages to its members' economic and personal interests, Plaintiff provides no specific facts showing how a “purported take has prevented its members' pursuit or otherwise injured their economic or other interests.” ( Id. at 13, n. 5.) Plaintiff does not allege, for example, that any of its members witnessed a taking of a Whooping Crane, or suffered a decline in business as a result of a take. ( Id.)

GBRA further contends that TAP's alleged injury is “belied by the fact that estimated crane counts ... suggest that the whooping crane population is currently at an all-time record high.” ( Id.) Finally, GBRA contends that there is no evidence before the Court establishing a future take of cranes, and that the cases Plaintiff cites to show such future takes are inapposite from the case at bar. (D.E. 229 at 14.) GBRA therefore concludes that Plaintiff fails to meet its summary-judgment burden with respect to the injury-in-fact element of standing. ( Id. at 9.)

For its part, Plaintiff argues that the injury requirement may be satisfied by a...