ELR Citation: ELR 20891
No(s). 93-8123 (5th Cir. Jul 2, 1993)

The court holds that several defendant-intervenors lack standing to appeal a district court judgment ordering the U.S. Fish and Wildlife Service (FWS) to develop and disseminate information about the springflows necessary to sustain various endangered and threatened species in San Marcos and Comal Springs in central Texas. An environmental group sued FWS, alleging that it violated Endangered Species Act (ESA) §4(f) by failing to adopt and implement plans to protect the endangered species. The district court admitted as defendant-intervenors several governmental and private entities that pump water out of the Edwards Aquifer, which feeds the springs. FWS initially appealed the judgment, but dismissed its appeal when the environmental groups agreed to minor changes in the judgment that did not affect the relief granted.

The court first holds that absent FWS, the defendant-intervenors lack standing to appeal under Article III of the U.S. Constitution, because they did not show injury from the district court's judgment that ESA §4(f) places a nondiscretionary duty on FWS to generate certain information. The mandated information has no legal consequence and FWS would be free to generate it absent the judgment. The defendant-intervenors are not bound by the information or its dissemination and may challenge FWS springflow numbers in any subsequent enforcement suit. The court holds that the district court's findings and declarations regarding necessary springflows do not have a preclusive effect on the defendant-intervenors in future litigation or any other adverse effect on them. The judgment orders nothing of the defendant-intervenors, and the information ordered is not a prerequisite to ESA enforcement. Finally, the court holds that the defendant-intervenors have not suffered any procedural injury because they do not have a right to participate in FWS' decisionmaking process.

Counsel for Plaintiff
Stewart N. Henry
202 W. 17th St., Austin TX 78701
(512) 479-8125

Counsel for Defendants
Peter A. Winn, Ass't Attorney General
Attorney General's Office
714 Jackson St., Ste. 800, Dallas TX 75202
(214) 742-9698

Before REAVLEY and GARWOOD, Circuit Judges, and LAKE,¹ District Judge.