1 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 challe nges 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 rulings1 50 C.F.R. § 17.3.

2 16 U.S.C. §§ 1533, 1536.

3 16 U.S.C. § 1536(a)(2).

2 followed the district court’s decision that Schuehle has standing

a nd 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 ES A, makes it

unlawful for an y 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 Interio r jointly

administer the ESA through the National Marine Fisher ies 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 The3

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 fromthe 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 re gulated 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 fo r review and that Schuehle had standing. On the merits he

granted summary judgment, holding that in enacting the Take

Provision, Congress validly exercised its C o mmerce Clause and

treaty powers. Finally, he rejected the contention th at the ESA

citizen suit provision unlawfully delegated authority. Shields and4 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 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 f or 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 imme diacy 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 c ase-by-case

basis. 8 Whether a declaratory action is ripe, by its very

structure, pushes against our insistence upon mature disputes. That9 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 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 r ipeness

determination is a close one,” Schuehle’s action was ripe for

review. 10 The d istrict court relied heavily upon evidence that

Schuehle has curtailed his irrigation pumping to his financ ial

detriment, in response to threats of prosecution and litigation by

A ppellees. 1 1 The district court found that the ESA “effectively

imposes immediate obligations on Edwards pum pers” and concluded

that “Schuehle should not be placed in the unenviable position

that, in order to test the constitutional ity 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

T he threat of litigation can establish a justiciable14 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 controversy if it is specific and concr ete. 1 4 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 distri ct 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 Edwa rds aquifer, alleging that such actions constituted

violations of the ESA.” 18 The first letter, sent on April 12, 1990,

s tated 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 imminent20 Id

.

21 Id

.

22 Op. at 16.

7 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 Authorit y 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

t o render his declaratory action an actual controversy and thus

ripe for judicial review.

A notice of intent to sue Sch uehle 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 19 90 letter nor

the 1994 letter are sufficien tly specific and concrete. The 1990

letter lists Schuehle’s partnership but not S chuehle in his23 16 U.S.C. § 1540(g)(2)(A).

8 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

l etter disclaimed any plan to sue Schuehle individually. Whil e

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. I f it is to be found, the requisite threat must be

inferred from past litigation by the Sierra Club against other9

pumpers and from a 1988 newspaper article that quotes a United

States Fish and Wildlife Service empl oyee 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 jud gment. 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 respo nded to any of the “threats.”

Schuehle’s claim that he stopped pumping water from the aquifer in

response to these “threats” in itself mig ht 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 Schue hle 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.10

It follows that the district court erred in finding the

requisite actual controversy. We VACATE its judgment and REMAND

w ith instruction to dismiss the amended complaint for lack of

jurisdiction.