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Environmental Law

: ESA Blawg

It ain't over 'til it's over, but Federal Judge in Texas says "it's over," calls San Antonio transmission line challenge moot.

By Keith Rizzardi

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Aquifer Guardians v. U.S. Fish & Wildlife Service, Civil Action Nos. SA-06-CA-1121-XR, SA-07-CA-0582-XR. 2008 WL 972661 (W.D.Tex. April 8, 2008).

INTRODUCTION (Excerpt from opinion)

This case arises from the issuance of a June 23, 2006 Biological Opinion (BiOp) by the United States Fish and Wildlife Service (FWS) for the San Antonio City Public Service Electric (CPSE) Cagnon-Kendall transmission line. Plaintiffs allege that the FWS violated § 7(a)(2) of the Endangered Species Act (ESA) and § 706(2)(A) of the Administrative Procedures Act (APA) by concluding that the transmission line project was not likely to jeopardize the continued existence of the Golden-cheeked warbler, an endangered bird indigenous to Texas. Plaintiffs further allege that the United States Army Corps of Engineers (Corps) violated the ESA and APA when it issued a biological assessment of the transmission line on July 19, 2006 that purportedly failed to ensure against jeopardy to the Golden-cheeked warbler.

KEY HOLDING (Excerpt from opinion)

Although Plaintiffs filed suit in December 2006 before the line was complete, they did not file a motion for a temporary restraining order or preliminary injunction. The transmission line is now complete, and Plaintiffs do not seek its dismantlement. Thus, Defendants and Amicus argue the relief Plaintiffs seek can neither be granted nor would it provide the relief they purportedly request... As a result, they assert "the Corps no longer has jurisdiction over the CPSE's activities, and no federal action remains for FWS to review in a new biological opinion." Accordingly, "a remand of the Biological Opinion to FWS would not provide any effective relief." [Relying heavily upon binding circuit court precedent, Bayou Liberty Association, Inc. v. U.S. Army Corps of Engineers, 217 F.3d 393, 396 (5th Cir.2000), the court agreed with the Federal Defendants, and held that the case was moot.]

The court further noted that the suit was ill-timed: "In the future, should these Plaintiffs or any others wish to challenge a project that might affect the Golden-cheeked warbler, they have the ability to bring suit and obtain appropriate relief from the court prior to the substantial completion of the project. "