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Case 5:12-cv-00164 Document 39 Filed in TXSD on 09/27/13 Page 1 of 10
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION
BECKETT VENTURES, INC., et aL, §
§Plaintiffs, §
VS. § CIVIL ACTION NO. L-12-164
§EAGLE FORD MIDSTREAM, LP, et aL, §
§Defendants. §
MEMORANDUM & ORDER
Plaintiffs Beckett Ventures, Inc. and Hall of Fame Land Ventures, LP, owners and
operators of the Herradura Ranch in La Salle County, Texas, seek injunctive and declaratory
relief under the Endangered Species Act ("ESA") and the Declaratory Judgment Act against
Defendants Eagle Ford Midstream, LP and NET Midstream, LLC, who have obtained a natural
gas pipeline right-of-way through the Ranch under eminent domain. (Dkt. 1 3; Dkt. 7
3.) Plaintiffs' complaint alleges that the Ranch contains suitable habitat for the endangered
ocelot and that there is evidence of the ocelot's presence in the form of tracks and eyewitness
reports. (Dkt. 1 at 9.) According to Plaintiffs, Defendants' pipeline-related activities will
require the clearing away of ocelot habitat, resulting in ''takes" proscribed by the ESA. (Id. at mf1, 14; Dkt. 32 at pg. 1.) Invoking the ESA, Plaintiffs seek injunctive relief in the form of a
revised right-of-way that is less destructive to ocelot habitat but will still achieve Defendants'
objectives. (Dkt. 1 17.) Pursuant to 28 U.S.C. § 2201, Plaintiffs also seek a declaration that
Defendants violated Section 9 of the ESA, the ''take" provision, by harming and harassing the
ocelot. (ld. 94.)
Pending is Defendants' Motion to Dismiss pursuant to Federal Ru1e of Civil Procedure
12(b)(l) for lack of subject matter jurisdiction, Rule 12(b)(6) for failure to state a claim, and
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Rule 12(b)(7) for failure to join a required party. (Dkt. 30.) Upon an initial review of the
motion, the Court ordered additional briefing on a standing issue left unaddressedby the parties.1
(Dkt. 35.) Plaintiffs filed responsive briefing (Dkt. 36), as well as an unopposed motion for
leave to amend their complaint (Dkt. 37), which is also pending. For the reasons discussed
below, Defendants' Motion to Dismiss (Dkt. 30) is hereby DENIED in its entirety. Moreover,
Plaintiffs' motion for leave to amend the complaint (Dkt. 37) is hereby GRANTED.
Background
In the spring of2012, Defendants entered into negotiations with Plaintiffs to obtain their
right-of-way through the Ranch. (Dkt. I atmf
4-6; Dkt. 7 atmf
6-10.) During these negotiations,
Plaintiffs attempted to persuade Defendants to adopt a route around the Ranch that would be less
destructive of the claimed ocelot habitat. (Dkt. 1 at mf 4-5.) Apparently, however, negotiations
fell through. On May 24, 2012, Defendants filed the eminent domain proceeding. (!d. 3;
Dkt. 7 a t ~ 13; Attach. 6 at pg. 26.) On August 16, 2012, seeking recourse under the ESA,
Plaintiffs sent Defendants a Notice of Intent to Sue letter for violations ofSection 9. (Dkt. 1
8.) Nonetheless, on August 27, 2012, Defendants obtained their right-of-way across the Ranch
via a state court order. (Id. 3; Dkt. 7, Attach. 6 at pg. 26.)
To proceed with installation of the pipeline, federal law and regulation required that
Defendants obtain a permit from the United States Army Corps ofEngineers ("the Corps"), in
consultation with the United States Fish and Wildlife Service ("FWS"), regarding the effect on
any ESA-listed species or their designated habitat. See 16 U.S.C. § 1536(a)(2); see also 77 Fed.
1Plaintiffs originally alleged that they suffered injury to their environmental, aesthetic,
and recreational interests. (Dkt. I at mf 102-103.) However, the Court noted in its prior orderthat corporate entities like Plaintiffs cannot have such interests. See Citizens Coordinating
Comm. on Friendship Heights, Inc. v. Wash. Metro. Area Transit Auth., 765 F.2d 1169, 1173(D.C. Cir. 1985).
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Case 5:12-cv-00164 Document 39 Filed in TXSD on 09/27/13 Page 3 of 10
Reg. 10184 (Feb. 21, 2012). Thus, in attempting to fulfill these requirements, Defendants hired
Zephyr Environmental Corporation to draft an environmental assessment report on the Ranch.
(Dkt. 1 60; Dk:t. 7 at mf 19-21.) Zephyr examined the potential effect of the pipeline on the
ocelot and concluded that no ocelot habitat existed within the right-of-way. (Dkt. 1 at 60-61;
Dkt. 7 at mf 21-26.) Defendants furnished their findings to the FWS. Their formal letter reads in
part that ''the general lack ofhabitat for any of the federally-listed species should negate the need
for any further measures or consultation in regards to the federally-listed species." (Dk:t. 4,
Attach. 5.) On September 6, 2012, the FWS affixed a stamp to the letter, which reads in its
entirety as follows:
Your letter indicates you have determined that the proposed action would have no
effect on federally listed species. Therefore, the Service believes your agency has
complied with section 7(a)(2) of the Endangered Species Act by making a
determination. No further action is required from this office.
(Dkt. 4, Attach. 5 at pg. 1.) Defendants also furnished their findings to the Corps, which granted
approval for the pipeline. (Dkt. 1 a t ~ 62; Dkt. 7 a t ~ 25.) On October 1, 2012, Defendants
began clearing the right-of-way for installation of he pipeline. (Dkt. 1 t ~ 11; Dk:t. 7 t ~ 17.)
Plaintiffs filed suit in this Court on October 16, 2012 (Dkt. 1), sixty days after filing their
notice of intent to sue letter, see 16 U.S.C. § 1540(g)(2)(A)(i). According to the complaint,
Plaintiffs' experts believe that ocelot habitat exists on the Ranch, based in part on the eyewitness
report of Mr. John Beckett. (Dkt. 1 at mf 9, 12, 59, 63.) The following day, Plaintiffs filed a
motion for a temporary restraining order and preliminary injunction to prevent Defendants from
laying the pipeline. (Dkt. 4 at pgs. 6-7.) Before the Court could issue a ruling, Defendants
completed installation, and Plaintiffs withdrew the motion. (Dk:t. 26.) Nonetheless, Plaintiffs
continue to seek a right-of-way that charts a course along the perimeter of the Ranch and
circumvents the supposed ocelot habitat. (Dkt. 32 at pg. 6.) According to Plaintiffs, abandoning
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the current right-of-way would allow the native ocelot habitat to re-grow. (Id.)
Discussion
Defendants now move to dismiss the complaint pursuant to Rule 12(b)(1) for lack of
subject matter jurisdiction, Rule 12(b)(6) for failure to state a claim, and Rule 12(b)(7) for failure
to join a required party. (Dkt. 30.) Each ground for dismissal will be discussed in turn.
I. Lack of subject matter jurisdiction
For purposes of Rule 12(b)(1), Defendants argue that the Court is without jurisdiction
based on Plaintiffs' lack of standing. (Dkt. 30, Attach. 1 at pg. 3.) According to Defendants, the
complaint is "facially defective as Plaintiffs merely recite that they have sustained an injury in
fact which is fairly traceable and fairly redressable, but the [c ]omplaint provides insufficient
supporting factual allegations of the elements pled.'' (Id.) Defendants also argue that Plaintiffs'
amended complaint fails to cure the injury-related pleading deficiencies previously raised by the
Court. (Dkt. 38 at pgs. 1-2.)
On a Rule 12(b)(1) motion to dismiss, the party asserting jurisdiction, generally the
plaintiff, bears the burden of proof Ramming v. United States, 281 F.3d 158, 161 (5th Cir.
2001). Where standing is at issue, the burden corresponds "with the manner and degree of
evidence required at successive stages of the litigation." Croft v. Governor of Tex., 562 F.3d
735, 746 (5th Cir. 2009) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). At
the pleading stage, as here, the plaintiff is only required to make "a short and plain statement of
the grounds for the court's jurisdiction" and "a short and plain statement of the claim showing
that [he] is entitled to relief." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Put
another way, all that is required is an allegation of facts giving rise to a plausible claim of
standing. Cornerstone Christian Sch. v. Univ. Interscholastic League, 563 F.3d 127, 134 (5th
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Cir. 2009). In determining whether this burden has been met, a court must assume that all of the
allegations in the complaint are true even if doubtful. Twombly, 550 U.S. at 555. Moreover, a
plaintiff must demonstrate standing separately for each form of relief sought. Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000).
There are three elements to standing: (1) the plaintiff must have suffered an injury in fact,
which is an invasion of a legally protected interest that is concrete and particularized, and actual
or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the
injury and the conduct complained of, which means that the injury has to be fairly traceable to
the challenged action of the defendant, and not the result of the independent action of some third
party not before the court; and (3) it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560-61. Here, Plaintiffs
have satisfied their burden with respect to each of these elements.
A. Injury in fact
In their amended complaint, Plaintiffs allege an injury to their economic interests (Dkt.
37, Attach. 1 at 103 ), which is a type of injury that can be alleged by corporate entities in
support ofstanding.2
See Tex. Democratic Party v. Benkiser, 459 F.3d 582, 586 (5th Cir. 2006);
Citizens Coordinating Comm. on Friendship Heights, Inc. v. Wash. Metro. Area Transit Auth.,
765 F.2d 1169, 1172 (D.C. Cir. 1985). Here, Plaintiffs claim that the Ranch sees ecotourism
profits from guests who come to view wildlife, particularly the ocelot. (Dkt. 36, Attach. 1 a t ~ ~
4-5; Dkt. 37, Attach. 1 at 103.) According to Plaintiffs, destroying the ocelot habitat will
negatively affect the amount of wildlife and drive away the ocelots. (Dkt. 1 at W 58-59, 74.)
2 To the extent Defendants argue that economic interests fall outside the scope of nterests
protected by the ESA (see Dkt. 38 at pgs. 4-5), such has been foreclosed by the Supreme Court.
See Bennett v. Spear, 520 U.S. 154, 163-166 (1997).
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Supposedly then, over time, fewer guests will come to the Ranch for ecotourism, thus hurting
profits. (Dkt. 36, Attach. I a t ~ 4-5; Dkt. 37, Attach. I at -,r I03).
B. Traceability
Plaintiffs also allege the second element of standing-a causal connection between the
injury and the complained of conduct. To establish a causal connection, a plaintiff must plead
that the asserted injury is "fairly traceable" to the defendant's challenged action and not the
result of he independent action of some third party not before the court. Lujan, 504 U.S. at 560.
In meeting this requirement, Plaintiffs allege that Defendants' pipeline-related activities have
destroyed ocelot habitat, which will drive away the ocelots and lead to reduced profits from
ecotourism. (Dkt. 1 t ~ 50-59, 64-76, 77-82, 95-97; Dkt. 37, Attach. 1 at -,r 103.) Accordingly,
Plaintiffs' injury in fact is fairly traceable to Defendants' conduct.
C. Redressability
Finally, redressability exists for both types of actions brought by Plaintiffs, injunctive
relief and declaratory relief. A plaintiff meets the redressability prong of standing when "i t is
likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision." Friends of he Earth, Inc., 528 U.S. at 181; Lujan, 504 U.S. at 561. Here, the Court
can grant injunctive relief such as re-routing of the pipeline to minimize disturbance of the
endangered ocelot and restoring of the habitat. See Loggerhead Turtle v. Cnty. Council of
Volusia Cnty., Fla., 148 F.3d 1231, 1254-55 (11th Cir. 1998). Moreover, a declaratory judgment
can redress Plaintiffs' injury by providing the impetus necessary for persons to conform their
actions to avoid a violation of the law. Seattle Audubon v. Sutherland, 2007 WL 1300964, at *6
(E.D. Wash. May 1, 2007) ("Because it is likely that state officials would conform their actions
to avoid a violation of [the ESA], a declaratory judgment would likely redress Plaintiffs' alleged
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injury."); see also Franklin v. Mass., 505 U.S. 788, 801-03 (1992); Alaska Fish & Wildlife Fed'n
& Outdoor Council v. Dunkle, 829 F.2d 933, 937 (9th Cir. 1987).
II. Fallure to state a claim upon which relief can be granted
Defendants argue, for purposes of Rule 12(b)(6), that Plaintiffs fail to state a claim
because the relief they seek is now moot; specifically, Defendants contend that relief is no longer
available because the pipeline has been completed. 3 (Dkt. 30, Attach. I at pg. 5.) A case
becomes moot only when it is impossible for a court to grant any effectual relief whatsoever to
the prevailing party. Erie v. Pap's A.M., 529 U.S. 277, 287 (2000) (quoting Church of
Scientology of Cal.v.
United States, 506 U.S.9, 12
(1992)). Here, relief is still possible for
Plaintiffs. For example, the Court could order a re-route of the pipeline and restoration of the
habitat. See Ctr. fo r Biological Diversity v. U.S. Bureau ofLand Mgmt., 698 F.3d 1101, 1106
n.2 (9th Cir. 2012) ("That the pipeline was completed and put into service during the pendency
of this lawsuit does not render the petitioners' challenges moot. It is still possible to mitigate the
project's adverse effects on listed species and critical habitat.'')
Defendants also argue that the Court cannot grant any relief for past takes by a private
party. (Dkt. 30, Attach. I at pg. 6.) Nonetheless, the Court need not address this issue.
Plaintiffs request injunctive relief to prevent, not just past takes, but ongoing and future takes as
well, either of which is sufficient to state a claim.
m. Joinder of parties
Defendants move to dismiss under Rule 12(b)(7) for failure to join parties required by
Rule 19, namely, the Corps and the FWS. (Dkt. 30, Attach. I at pg. 6.) Rule 19 requires a
3 A motion to dismiss under Rule 12(b (6) is analyzed under the same standard as amotion to dismiss under Rule 12(b)(l). Dooley v. Principi, 250 F. App'x, 114, 115 (5th Cir.
2007).
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person to be joined if either subsection 19(a)(1)(A) or 19(a)(1)(B) is satisfied. Rule 19(a)(1)(A)
provides that a person must be joined if the court cannot grant complete relief to existing parties
in the absence of hat person from the action. Fed. R. Civ. P. 19(a)(l)(A); see Huber v. Taylor,
532 F.3d 237, 248 (3rd Cir. 2008). Rule 19(a)(1)(B) requires the joinder of a person who claims
an interest in the action and is so situated that disposing of the action may impair that person's
ability to protect their interest or cause a substantial risk to existing parties of facing inconsistent
obligations. Fed. R. Civ. P. 19(a)(1)(B); see Image Masters, Inc. v. Chase Home Fin., 489 B.R.
375, 396 (E.D. Pa. 2013). The party advocating joinder has the initial burden of demonstrating
that a personis
a necessary party. Pulitzer-Polsterv.
Pulitzer, 784F.2d
1305, 1309 (5th Cir.
1986); JRG Capital Investors I, LLC v. Doppelt, 2012 WL 2529256, at *1 (S.D. Tex. June 28,
2012).
Here, Defendants claim that they relied upon the approval of the Corps and the FWS to
proceed with the pipeline project. (Dkt. 30, Attach. 1 at pg. 6-7.) They argue that under Rule
19(a)(I)(A), the Court cannot grant the complete relief sought by Plaintiffs because the Court
cannot compel these agencies to take any action unless they are joined in the lawsuit. (/d.)
Under Rule 19(a)(1)(B), Defendants assert that the Corps and the FWS have an interest in
protecting the implementation and administration of the ESA in these circumstances. (Id. at pg.
7.) According to Defendants, the Corps has an interest in protecting its implementation of the
Nationwide Permit Program, 77 Fed. Reg. 10184 (Feb. 21, 2012), and its conclusion that the
pipeline will have "no effect" upon endangered species, while the FWS has an interest in
protecting its concurrence with the Corps that the pipeline will have ''no effect," as well as its
own determination that "no further action is required." (Dkt. 30, Attach. 1 at pg. 7.)
However, Defendants' arguments are not supported by the case law. In fact, federal
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courts in several circuits have held that as a general rule federal agenctes charged with
administering the various federal environmental laws-such as the Clean Air Act, 42 U.S.C. §
7604, the Clean Water Act, 33 U.S.C. § 1365, and the Surface Mining Control and Reclamation
Act, 30 U.S.C. § 1270---are not necessary parties to citizen suit actions.4
To hold otherwise
would negate one of the primary purposes of environmental citizen suit provisions-to provide a
means by which citizens can seek enforcement or relief where the regulatory authority has failed
to properly enforce the law. See McCracken v. Black Diamond Co., 2012 WL 5439857, at *5
(W.D. Va. May 6, 2012); see also Bennett v. Spear, 520 U.S. 154, 170 (1997). Here, the citizen
suit provision of the ESA,16
U.S.C. § 1540(g), has nearly identical language and purpose to the
citizen suit provisions of he three environmental acts above.
Furthermore, Defendants have failed to discharge their burden of showing that the Corps
and the FWS claim interests that need to be protected.5
Here, Defendants provide only
unsubstantiated assertions as to the interests held by the Corps and the FWS. (See Dkt. 30,
4See e.g., Ass'n to Protect Hammersley, Eld, & Totten Inlets v. Taylor Res., Inc., 299
F.3d 1007, 1014 (9th Cir. 2002) (Clean Water Act); Hawai'i Wildlife Fund v. Cnty. ofMaui,
2012 WL 3263093, at *6 (D. Haw. Aug. 8, 2012) (Clean Water Act); McCracken v. Black
Diamond Co., 2012 WL 5439857, at *5-6 (W.D. Va. May 6, 2012) (Surface Mining Act); Wis.
Res. Prot. Council, Ctr. for Biological Diversity v. Flambeau Min. Co., 2012 WL 5191992, at
*17-18 (W.D. Wis. Apr. 13, 2012) (Clean Water Act); Or. State Pub. Interest Research Grp.,
Inc. v. Pacific Coast Seafoods Co., 341 F. Supp. 2d 1170, 1179 (D. Or. 2004) (Clean Water Act);
Sierra Club v. Young Life Campaign, Inc., 176 F. Supp. 2d 1070, 1078-80 {D. Colo. 2001)
(Clean Water Act); Student Pub. Interest Research Grp. ofNJ., Inc. v. Monsanto Co., 600 F.
Supp. 1479, 1484 (D.N.J. 1985) (Clean Water Act); Friends ofEarth v. Carey, 535 F.2d 165,
173 (2d Cir. 1976) (Clean Air Act); Metro. Wash. Coal. for Clean Air v. D.C., 511 F.2d 809,
814-15 (D.C. Cir. 1975) (Clean Air Act).
5See Indian Harbor Ins. Co. v. K.B Lone Star, Inc., 2012 WL 1038658, at *1-2 (S.D. Tex.
Mar. 27, 2012); see also 5C, Federal Practice and Procedure, § 1359 (3d ed. 2013) ("The cases
make it clear that the burden is on the party moving . . . to show the nature of the unprotected
interests of he absent individuals or organizations and the possibility of injury to them or that the
parties before the court will be disadvantaged by their absence[, and t ]o discharge this burden, it
may be necessary to present affidavits of persons having knowledge of these interests as well as
other relevant extra-pleading evidence.").
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Attach. 1 at pg. 7; Dkt. 33 at pgs. 4-10.) Indeed, should these agencies' interests be prejudiced in
their absence, they are free to intervene. Accordingly, Defendants have failed to satisfy their
initial burden ofdemonstrating that the Corps and the FWS are necessary parties.
Conclusion
For the reasons discussed above, Defendants' Motion to Dismiss (Dkt. 30) is hereby
DENIED in its entirety. Moreover, Plaintiffs' unopposed motion for leave to amend the
complaint (Dkt. 37) is hereby GRANTED. The Clerk of Court is hereby DIRECTED to docket
Plaintiffs' amended complaint (Dkt. 37, Attach. 1). This case is now referred to the Magistrate
Judge for pre-trial handling.
IT IS SOORDERED.
SIGNED this 27th day ofSeptember, 2013.
Diana Saldaiia
United States District Judge
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