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Shields v. Norton

The threat of litigation can establish a justiciable controversy if it is specific and concrete; the court looks to the practical likelihood that a controversy will become real.

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Hunter Schuehle pumps water from the Edwards Aquifer in Texas. He challenges 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 rulings followed the district court’s decision that Schuehle has standing and 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 ESA, makes it unlawful for any 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.”*fn1 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.

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