ELR Citation: ELR 20808
No(s). 94-2280 (10th Cir. Feb 2, 1996)

The court holds that the U.S. Department of the Interior (DOI) must comply with the National Environmental Policy Act (NEPA) in designating critical habitat under the Endangered Species Act (ESA). The court first holds that a New Mexico county has standing to challenge DOI's failure to comply with NEPA in designating critical habitat for the threatened loach minnow and spikedace. Flood damage to county property that the designation will allegedly cause by preventing the county from diverting and impounding water constitutes a threatened or imminent injury to a concrete and particularized legally protected interest. This injury is perceptible and environmental, not merely speculative or purely economic, and falls within the zone of interests NEPA protects. Also, the county has adequately demonstrated a causal link between its likely injury and the conduct complained of, namely DOI's failure to comply with NEPA. Furthermore, the county has demonstrated a substantial likelihood that DOI compliance with NEPA will redress its claimed injury. And the county satisfied the Administrative Procedure Act's standing requirements, because DOI's alleged failure to comply with NEPA constitutes final agency action, and the claimed injuries to the county's proprietary and procedural interests fall within the zone of interests the ESA protects.

The court next holds that DOI must comply with NEPA in designating critical habitat under the ESA, because the two statutes are not mutually exclusive and the ESA procedures have not displaced NEPA requirements. Also, compliance with NEPA will further the ESA's goals. That DOI believes the effects of a particular designation will be beneficial is immaterial to its responsibility to comply with NEPA. Furthermore, the court finds unpersuasive Congress' silence on this issue when it enacted amendments to the ESA after the Sixth Circuit excused DOI from complying with NEPA in listing species as threatened or endangered, the Council on Environmental Quality issued a letter indicating that DOI may cease preparing environmental impact statements (EISs) when listing species, and the DOI announced it would not prepare EISs in connection with listing regulations. The county has not demonstrated congressional awareness of the Sixth Circuit's opinion or DOI's announcement. Also, the congressional acquiescence theory applies only when Congress has revisited the language subject to the administrative interpretation, which Congress did not do when it amended the ESA. Furthermore, statements senators made during the debate over the amendments indicate that Congress intended DOI compliance with NEPA when designating habitat under the ESA, and the conference report for the amendments indicates congressional acknowledgement and expectation that EISs were to be prepared for those designations satisfying the requisite criteria under NEPA. Finally, the court holds that the district court did not abuse its discretion in finding that the county's alleged injuries, supported by substantial evidence, constituted an imminent, irreparable injury warranting a preliminary injunction preventing implementation of the critical habitat designation for the loach minnow and spikedace.

[Briefs and pleadings in this litigation are digested at ELR BRIEFS & PLEADS. 66402.]

Counsel for Plaintiff
Lee E. Peters
Hubert & Hernandez
2100 N. Main St., Ste. 1, Las Cruces NM 88004
(505) 526-2101

Counsel for Defendant
Jim Kilborn
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Barrett and O'Connor,¹ JJ.