Amicus Curiae Brief — Babbitt v. Sweet Home Chapter, Communities for Great Ore.

Supreme Court brief1995

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BRUCE BABBITT, Secretary of the —

United States Department of the bitecior, et al., Petitioners,

SWEET HOME CHAPTER OF COMMUNITIES

FOR A GREAT OREGON, ef al., Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF AMICUS CURIAE STATE OF TEXAS

IN SUPPORT OF AFFIRMANCE

DAN MORALES

ATTORNEY GENERAL OF TEXAS

JORGE VEGA

FIRST ASSISTANT ATTORNEY GENERAL

JAVIER AGUILAR*

SPECIAL ASSISTANT ATTORNEY GENERAL

*COUNSEL OF RECORD

P.O. BOX 12548, CAPITOL STATION

AUSTIN, TEXAS 78711-2548

(512) 463-2191

COUNSEL FOR AMICUS CURIAE

SAM GOODHOPE

SPECIAL ASSISTANT ATTORNEY GENERAL;

BEST AVAILABLE COPY;

PAUL TERRILL

ASSISTANT ATTORNEY GENERAL

EUGENE MONTES a

ASSISTANT ATTORNEY GENERAL

“BEST AVAILABLE COPY) "=

TABLE OF CONTENTS

TABLE OF AUTHORITIES, .1xccccscscssscscssecorsccscssscesoscssossssoosees iv

INTERESTS OF AMICUS CURIAE .u.......ccscssssscssssscsessscseees 1

PETAR SI BIRR cccrvsvessecinsengocenerccenseenecintogenesenesnnancosoonecsonsoene 1

APIS SP ANG UNNI E cccsercevccncensverecovenseceesansoncsnccsooeons 1

FETE atesntviteseintnninscctetnesanbnnnieneenerimencessnenaneesinnasooeneoneneone 3

I. Step Two of the Chevron Standard--

“Deference to Administrative Interpretation”--is

an Inadequate Standard of Review Because the

Challenged FWS Regulation Substantially Alters

the Traditional State/Federal Balance. .................000sss00e 5

A. THE PLAIN STATEMENT RULE..........cccccccccccsccssccceees 6

B. CONSTITUTIONAL ISSUES SHOULD BE

PY BE 7

C. THE CONSTITUTIONAL ISSUES: STATE

SOVEREIGNTY AND SELF-GOVERNMENT. ......ccccceeseeeees 8

D. THE LANGUAGE AND LEGISLATIVE

HISTORY OF THE ESA CLEARLY INDICATE

THAT CONGRESS DEFERRED TO STATE LAW IN

AREAS CONSTITUTIONALLY RESERVED TO THE

ahead elialiehibdenieiacilindallanncieditiniabibaceantiinneneeanavsweeees 11

II. The FWS’s “Harm” Regulation Intrudes into

Two Principal Areas of Traditional State

Authority: the Control, Allocation, and Use of

Water Resources, and Land Use Planning. .................... 12

A. THE FWS “HARM” REGULATION UPSETS

THE STATE/FEDERAL BALANCE BY INTRUDING

ET Be Fe te By ccetdctdtincccncctsesscecenctsoccnsccescvess 14

1. THE EDWARDS AQUIFER: FEDERAL

REGULATION OF STATE WATER LAW

THROUGH THE “HARM” DEFINITION............. 15

2. PROPOSED LISTING OF THE BARTON

SPRINGS SALAMANDER’ AND THE

ARKANSAS RIVER SHINER: FURTHER

FWS PLANS TO MANAGE STATE

We Ri cntactintecans eidbetniainlins a

C. THE FWS OVEREXPANSIVE DEFINITION OF

“HARM” RESULTS IN FEDERAL LAND USE

REGULATION THAT EFFECTIVELY PREEMPTS

STATE AND LOCAL LAND USE PLANNING, ......<0000000-

CONCLUSION

THE FWS LAND USE REGULATION

SYSTEM APPLIES To LAND

THROUGHOUT TEXAS AND, FOR THE

Most PART, ITS BOUNDARIES ARE

UNDEFINED. .....cccccccccceees iadialitdigiieiahiiieaiaiabsnbmmeniodl

THE FWS LAND REGULATION SYSTEM

DOES NOT MAKE CLEAR WHAT USES

OF LAND’ ARE _ PROHIBITED; _ IN

PARTICULAR, USES MAY BE

PROHIBITED WITHOUT ANY EVIDENCE

THAT THEY RESULT IN’ PHYSICAL

INJURY TO AN INDIVIDUAL MEMBER OF

A BI cicicessnictncieniaitiainatiiiaiinaiies a

THE PERMIT PROCESS IS LENGTHY AND

EXPENSIVE, AND IN EFFECT REVERSES

THE LAND ACQUISITION PROGRAM

CREATED IN THE ESA. .........200.000000 hliaiieeniion

ecove 27

ill

APPENDICES

Private Groups Endorsing this Brief ..............-.00ssssesrersersees la

Letter to Ann Richards from Bruce Babbitt

(September 22, 1994) .......scsssssssssssssersrereerensersasensenssssrserenees 6a

Letters to Central Texas landowmets ..........ssscscecsessseeereesees 9a

1. Mr. & Mrs. Mike Igua (February 20,

1991) ...sccssccsssesccessccsscseessensessssnsssssssssssecessssssonense 9a

2. Marge Krueger (Undated)..........-0+sesscssseees lla

3. Phil Frazier (June 24, 1993) ........ccccereveseeres 13a

4. Keith E. Young (December 3, 1993)............ 15a

5. Patrick Noack (January 13, 1994)..........0++ 17a

6. Jerri Garner (January 13, 1994).........00+0 19a

7. Austin Americana Enterprises

(January 13, 1994).......csrceeeerrrserreersserseeees 21a

8. Lee Sherrod (January 25, 1994) .........esssse0 23a

9. Unnamed (April 7, 1994) .......scsecsssserreeeees 25a

10. Lee Sherrod (April 14, 1994)........scssesserseees 27a

11. Fran & Larry Collmann (September

23, 1994) ...ccccccscrccssscccscsccsscccescccsssssssssscsoosssones 30a

12.Glenn Williams and Terry Wynn,

Partners (January 13, 1994).......csesssssseees 33a

13. Stan & Donna Buck (June 9, 1994) .........0++ 35a

14. Lee Sherrod (September 22, 1994) ..........++. 37a

Letter to Chairman John Hall (August 19, 1992) ..........++. 40a

Letter from Sierra Club (April 5, 1994).........cssssssssssesees 45a

TABLE OF AUTHORITIES

CASES

Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985) .......cccccccceeseeeseees 7

Blatchford v. Native Village of Noatak, 111 S.Ct. 2578 (1991) ..0..... eee. 12

California Coastal Commission v. Granite Rock Company, 107 S.Ct. 1419

PRI Pi cioissssssisveshasninecoesnine atts eheienisoaninhalieehubaleasisesnniamaiabaneadoaataksaaiaasanaslina 13

California v. United States, 438 U.S. 645 (1978).......:cccceseeceeseeeeeeeeseeeeneeens 14

City of Sherman v. Public Utility Commission, 643 S.W.2d 681

SIs NID << :<acesstnscschiniiisnechuhieisasselknadetaniaanhpilleiitenpensmaantahiaimapiaMaiimiaibannad 14, 16

Ceimmare v. New York, 113 F. Ct. USSU CTI G a Pa asicccsccecssarssesssnrcrssencenssncvssentes 13

eae v. DEM: BF8 Te Zit OOD ceiincatctchinkicneviibttinintinisanicnnpaieanincsiaaiss 12

Dolan v. City of Tigard, 114 S.Ct. 2309 (1994) o.oo eccceeeeeeetteeeeeeeeeeee 13

Federal Energy Regulatory Commission v. Mississippi,

I Sas PR Pe iicteaeitnninensuccchesescbaahitaatbiiiiahihatiaatiahdiviin shigtmeapisnietiele linden 9

Fidelity Federal Savings. & Loan Association v. de la Cuesta,

Ee Re Pe I sta tcocesnctesccossondisensaaistneemniiemsnicienentinentindetabsonnaeniaes 13

Compory v. Aamcrah;: FO1 U.S. 452 CES) vevicccccerssccccnccnsesscnverssannasssessneosusves 6,8

Hess v. Port Authority Trans Hudson Corp., 115 S.Ct. 394 (1994) ............. 12

Houston & T.C. Railway Co. v. East, 81 S.W. 279 (Tex. 1904)............. Rene)

SY O:: FE, HOE SEA. SE EOI O OD ctkivesnenicseustiscninvennnsnninnsesianteinietenie 8

New York v. United States, 112 S.Ct. 2408 (1992) uu... ceeereeeeeeeeee 9,10

Pecos County WCID v. Williams, 271 S.W.2d 503

(Tex. Civ. App.--E] Paso 1954, writ ref'd n.7.€.). ...cccccescessereersereeneees 14, 16

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) .......cccceccceeeeeseeeeeees 6,7

Sierra Club v. Babbitt, 995 F.2d 571 (Sth Cir. 1993) ........cccececcceeeereeeeeeeeeeees 15

Sierra Club v. Babbitt, No. MO-91-CA 069 (W.D. Tex. 1993)...........:cceeeeeee 15

Sporhouse v. Nebraska ex rel. Douglas, 458 U.S. 963 (1982) .........:.:1ce 13

Taxcaas'v. White, 7 Wall. TOO (1869)).......cncceecesecosssessseccecssonesessssresesscsesecsenssonsens 8

Toomer v. Witsell, 334 U.S. 385 (1948) ...........ccccssccsccesccersoscssersccesesensseseenees 13

Ware, Malin GIB ATS STI) sce snsecvinscnennaseeciniveinnsnsdaeenscoeiniiinnrnitionns 13

CONSTITUTIONAL PROVISIONS

a I ca aera disaiaiccdnintedesscncnnniciriaseinnvnnnaiosahinintees 8

Fe GI, PINE, Fa ori ceeeitctcnectsccsinccsnntnenuecnscnciceceessscanscse TNMs 8

STATUTES

Endangered Species Act, 16 U.S.C. §§ 1531-1544 «0.0.0... passim

Federal Land Policy and Management Act of 1976, 43 U.S.C.

ee Fer ni 6 FD sewnciehncncincsosicanttnnsnnsntinentadeiiiiissnnisiniweiae 14

Federal Urban Land Utilization Act, 40 U.S.C. §§ 531, 533....14

REGULATIONS

0 Prasanna ncadonigadicadoless onaanenadiorieieaeeaae 20

A i sad sietssconsanstiniernacnncicsastidbeeniatolareanaaaadh ee ed

Pe FE cictn ad ncictitdiccinssntimanmnninceunninaaiennaaads 23

IIE Siciiincriinescntnnivanasibinannnmnidiiieiiebddaiiamenameiben anid 28

Be ee I I oc dec via\inscacnaiessedailanpansé absniesssatanucanmpunaienaiennine 24

Fe Setitiekvitesttntninhetonexindagscidishciquiceleteelananaaaan 24

IE oi icon nsrsatconsablssnisorciearcaueen ie 26

ee III hai vsiiistciciicnainacvssmtasinasanteeaveuusanormumeentonen 18, 20

BI Bidcvikcsssetasctes ccaanieteseassexettniinasineahiieaaaaia 18, 20

eR I IIE sickest escsnsalenecieiaahisan toradiiansebeelanniadasighaitieiaaalats 20

ee II Schiceas kinds chisnicetincae nndeianiaiioeseiecenaeciaaatina 20

I SE: IEEE hxcinsxsnisesicheincticnsasshainseicaonabaninaeaaianeianiaenmeiiaia 20

Fe I, RE dati tticnitessecccasssassoessesnuecccmanesneviiaasuntehunnananin 20

OTHER AUTHORITIES

“Phase Three of the ESA: Using Endangered Species

Protection as a Natural Resource Management Tool,”

NATURAL RESOURCES & ENVIRONMENT JOURNAL, Winter

Deborah Jones Merritt, The Guarantee Clause and State

Autonomy: Federalism for a Third Century, 88 COLUM. L.

I 6 Bi irisnniticsinshavesnceirececounciacibnsedtabeaibadincaninicasiaaieane 10, 11

Endangered Species Act--Incentives to Encourage Conservation

by Private Land-Owners: Hearings Before Subcomm. on

Environment and Natural Resources of the Committee on

Merchant Marine and Fisheries House of Representatives,

SURI Se... FOR TI, GF Cts i nicecdnssceccnscasncndcetesionens 12, 24

F WS, Threatened and Endangered Species of Texas (1992)23, 24

General Accounting Office, Species Protection on Nonfederal

Ais eilidetoncicitaccnletabanadincclnlachcesdcacaboacatcacen: 21,27

House Committee on Natural Resources Subcommittee on

Mitigation of Property Rights (August 9, 1994).................. 23

Vii

San Antonio Express News, July 27, 1994, at 1 ....ccccccceseeeeeees 14

San Antonio Express News, March 21, 1995, at 1 ......:cscceseseeeee 4

Senate Report No. 307, 93d Cong., Ist Sess. 14 (1973)........... 12

TREATISES

Laurence Tribe, AMERICAN CONSTITUTIONAL LAW (2d. ed.

FID wiicetitecctecnsnnseninssneidanenndsitinnnedenstillienivianiaanabaanbitaseansonatinnsents 10

INTERESTS OF AMICUS CURIAE

STATE OF TEXAS

This brief is submitted by amicus curiae State of Texas

(“Texas”) on behalf of the state, its local governments, and the

private groups that have endorsed this brief.’ It is also

submitted by Texas in its capacity as parens patriae in order to

protect the self-governing and private property rights of Texas

citizens. Texas and the members of the private groups

endorsing this brief are affected by the de facto comprehensive

resource management scheme contrived by the Petitioners on

the basis of their overexpansive interpretation of the term

“harm” (and therefore , take”) as contained in the Endangered

Species Act (“ESA”). This scheme will convert substantial

amounts of private property and state property into de facto

“federal wildlife preserves,” the onus of which may be avoided

only by securing an ESA § 10(a) “incidental take” permit.

Texas and its political subdivisions seek to vindicate and

protect fundamental, historical attributes of state sovereignty and

self-government, including their police power to make and

enforce laws to protect their citizens’ health, safety, and property

against the intrusion of the United States Fish and Wildlife

Service (“FWS”).°

SUMMARY OF ARGUMENT

I. Deference to FWS’s “harm” regulation pursuant to the step 2

analysis of Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 842-43 (1984) is inappropriate

because the challenged agency regulation intrudes into areas of

constitutionally-protected state authority without a_ plain

statement from Congress. The intrusion results in derogation of

Texas’ and its citizens’ self-governing and property rights.

' The list of the private groups who have endorsed this brief is included in

the Appendix at la.

? 16 U.S.C. §§ 1531-1544.

Because Petitioner Secretary of the Interior has delegated his ESA

authority to the FWS, Texas will refer to Petitioners collectively as

“Petitioners” or “FWS.”

When Congress desires to intrude into areas of state

sovereignty or authority, it must do so plainly, with

unmistakably clear language in the text of a statute. Agency

regulations which intrude on a state’s and its citizens’ self-

governing and property rights must be measured against that

stringent standard. Any less stringent standard (such as the

application of the step two analysis of Chevron) would allow

Congress and federal agencies to circumvent the protections

afforded the states by the “plain statement rule.” Furthermore, it

is a fundamental principle of statutory construction that

constitutional questions should be avoided when possible.

The Tenth Amendment, the Guarantee Clause, and the

inherent structure of the Constitution protect the self-governing

rights and sovereignty of states. These rights ultimately devolve

to the citizens of the state in order to protect them from

overreaching by the federal government. Pursuant to their self-

governing rights, Texas and its citizens have established a legal

framework defining property rights and the powers of state and

local governments to regulate and manage resources. The ESA’s

language and legislative history do not indicate that Congress

intended to interfere (to the extent sought by FWS) with states’

land use planning and water rights.

I]. The FWS “harm” regulation intrudes into two deeply-rooted

areas reserved to the states and protected by the Constitution: the

control, allocation, and use of water resources and land use

management (including protection of private property). FWS’s

overexpansive interpretation of the word “harm” results in a de

facto comprehensive resource management scheme in Texas that

is extensive, undefined, unpredictable, and expensive. As a

result, landowners use their land at the risk of civil and criminal

sanctions.

Using the overexpansive “harm” regulation, the FWS has not

only run roughshod over long-established Texas water law and

property law, it has seized control over land use planning

throughout large sections of the state from Texas and its local

governments.

Conclusion

FWS’s definition of “harm” is ultra vires because it fails the

step one analysis of Chevron. It is furthermore ultra vires

because Congress did not plainly state that FWS was authorized

to infringe upon important areas of state governmental and

sovereignty rights and because the interpretation needlessly raises

constitutional issues by infringing on the rights and powers of

Texas and its citizens protected and reserved by the Tenth

Amendment, the Guarantee Clause, and the inherent structure of

the Constitution. The Court of Appeals’ decision should be

affirmed.

ARGUMENT

The Endangered Species Act (“ESA”) makes it unlawful for

any person to “take” an endangered species. 16 U.S.C. §

1538(ay(1). A “take” is defined by statute to include “harm.”

There is no statutory definition of “harm.” By regulation,

however, FWS has defined “harm” as follows:

“Harm” in the definition of “take” in the Act means an

act which actually kills or injures wildlife. Such an act

may include significant habitat modification or

degradation where it actually kills or injures wildlife by

significantly impairing essential behavioral patterns,

including breeding, feeding, or sheltering.

50 C.F.R. § 17.3 (1994).

On the basis of this overexpansive interpretation of “harm,”

FWS has contrived a de facto comprehensive resource

management scheme in Texas that prevents Texas and its

landowners from using their land, property, and resources in

ordinary, customary ways (such as building homes and pumping

groundwater) in accordance with state and local law.

As a result of the FWS’s “harm” regulation, Danny McFadin,

a Uvalde County farmer, must decide either to stop pumping

Edwards Aquifer water necessary to irrigate his crops or to

continue to pump the water and risk fines and jail for “takes” of

endangered species. Remarkably, the endangered species at issue

are not on his land. Rather, the protected species live in springs

16 U.S.C. § 1531 et seq.

over 100 miles away. Hundreds of other farmers and dozens of

cities in Central Texas face the same dilemma. San Antonio, for

example, pumps all of its water from the Edwards Aquifer. San

Antonio is now challenged with ensuring the long term delivery

of water to its residents for residential, business, economic

development, and other essential uses.

A federal district court adopting the FWS’s view of “harm”

has threatened to impose pumping limits on San Antonio and the

irrigators unless they or Texas does so first.” Despite Texas’s

legislative efforts, including the creation of a new “Edwards

Aquifer Authority” (“EAA”), the court remains unsatisfied and is

apparently ready to federalize the Edwards Aquifer or eviscerate

Texas’ groundwater law in order to impose pumping limitations.

According to the mayor of San Antonio, the effect of such

limitations would “stick a dagger in the economic heart of the

community.”°

Not even national security or the readiness of the nation’s

armed forces stationed in Central Texas are immune from the

reach of the ESA theory embraced in the Edwards Aquifer case.

The Department of Air Force is confronted at Kelly Air Force

Base (located in San Antonio) with the same problem facing Mr.

McFadin. Whether the base is closed or whether activities can be

expanded depends now on whether there will be sufficient water

in the event pumping is limited from the aquifer.’

Sierra Club v. Babbitt, No. MO-91-CA 069 (W.D. Tex. May 26, 1993)

(amended order) (“Sierra Club [’). The court relied heavily upon testimony

by a FWS official to the effect (1) there were “takes” as a matter of fact and

as a matter of administrative interpretation of the ESA, and (2) the Texas

legislative session ending May 1993 represented the “last chance” for the

legislature to solve the supposed “take” problem before the “blunt axes” of

the ESA would have to be dropped on Texas. /d. Amended Findings of Fact

and Conclusions of Law ¥ 161(May 26, 1993).

° “Fed hearing on species act brings out anger in Boerne [Texas],” San

Antonio Express News, March 21, 1995, at 1 (statement of Nelson Wolff,

Mayor of San Antonio).

” Texas is concerned about the growing interpenetration between ESA §§ 7

and 9 as applied by the FWS. If the FWS cannot use its overexpansive

interpretation of “harm” pursuant to ESA § 9 to directly reach activity on

private land (such as the pumping of groundwater or the clearing of cedar

trees) that it believes is “harming” a listed species, then it will attempt to

Margaret Rodgers, who owns land in Travis County, has

received letters from the FWS informing her that clearing her

land to build a fence may “take” an endangered species--the

golden-cheeked warbler. The letters stated that she could be

subject to a fine of up to $50,000 and imprisonment up to one

year. Understandably, she stopped trying to build the fence. The

letters did not accuse her of killing or injuring a warbler; in fact,

they did not even say that any warblers live, or have ever been

seen, on her property--the mere clearing of her land was sufficient

reason to prompt the FWS to send its letters. Hundreds of other

landowners in Texas are in Mrs. Rodgers’ predicament.

Mr. McFadin and Mrs. Rodgers at least have notice that they

risk civil and criminal penalties in using their land. But because

FWS does not make clear the extent of its resource management

program, other Texas landowners and governmental entities are

unaware that they are also subject to penalties for making

ordinary use of their land.

I. STEP TWO OF THE CHEVRON STANDARD--“DEFERENCE TO

ADMINISTRATIVE INTERPRETATION”--IS AN INADEQUATE

STANDARD OF REVIEW BECAUSE THE CHALLENGED FWS

REGULATION SUBSTANTIALLY ALTERS THE TRADITIONAL

STATE/FEDERAL BALANCE.

Petitioners argue that the Court should review the FWS

“harm” regulation under the two-step analysis set forth in

Chevron US.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 842-43 (1984). Petitioners’ Brief at 20.

Step one of the Chevron analysis determines whether “Congress

has directly spoken to the precise question at issue. If the intent

of Congress is clear, that is the end of the matter; for the Court,

as well as the agency, must give effect to unambiguously

expressed intent of Congress.” 467 U.S. at 842-843. Texas

agrees with the Court of Appeals and Respondents that the FWS

increase its efforts to control those supposed harmful activities indirectly

through forced consultation with a federal agency (pursuant to ESA § 7)

having some federal program delivery nexus with the landowner. For

example, in the Edwards Aquifer situation, the FWS could pressure the

Farmers Home Administration through the ESA § 7 consultation process to

refrain from making or guaranteeing loans to farmers seeking financing for

farming activities which depend on the pumping of aquifer water.

“harm” regulation fails step one of the Chevron test and is ultra

vires.

Petitioners argue, nonetheless, that if the Court finds the

ESA silent or ambiguous regarding the issue of whether habitat

modification by itself constitutes a “take,” then it should apply

step two of the Chevron analysis and give “substantial

deference” to FWS’s interpretation. Petitioners’ Brief at 16.

Texas disagrees. While Chevron’s “deference to agency

interpretation” of an ambiguous statutory term may provide a

proper standard for conventional review of a regulation, it is

inadequate for reviewing a regulation which deeply intrudes

into traditional state authority and upsets the appropriate

balance between federal and state governments.

The prudential presumption of judicial “deference to the

administrative agency” must yield to giving greater weight to

constitutional concerns regarding federalism and _ dual

sovereignty when a federal agency intrudes into areas reserved

to the states. In such cases, the Court should more closely

scrutinize the agency regulation to ensure that Congress clearly

and unambiguously intended the intrusion. Thus, a heightened

standard of review--“Chevron Step Two-Plus”--for the FWS

“harm” regulation should be adopted by the Court because

fundamental doctrines of federalism and the self-governing

rights, powers, and duties of states and local governments are at

stake.

A. THE PLAIN STATEMENT RULE.

In Gregory v. Ashcroft, 501 U.S. 452 (1991), the Court

articulated the “plain statement rule” with respect to

determining whether Congress intended to override state self-

governing rights and powers. “Congress should make its

intention ‘clear and manifest’ if it intends to pre-empt the

historic powers of the States.” Gregory, 501 U.S. at 461 (citing

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). To

make its intention clear and manifest, Congress must be

“unmistakably clear in the language of the statute.” Jd. at 460-

* Texas supports the Court of Appeals’ ruling and the Respondents’ position

in this regard. Texas will limit its brief to federalism-based issues because

the conventional Chevron analysis issues are being briefed by the parties to

this case.

461 (citing Atascadero State Hospital v. Scanlon, 473 U.S. 234,

242 (1985)). “This plain statement rule is nothing more than an

acknowledgment that the States retain substantial sovereign

powers under our constitutional scheme, powers with which

Congress does not readily interfere.” Jd. at 461.

The plain statement rule, furthermore, ensures that when

an interpretation of a statute would “upset the usual constitutional

balance of federal and state powers, . . . it is incumbent upon the

federal courts to be certain of Congress’ intent before finding that

federal law overrides this balance.” Jd. at 460 (citation and

quotation marks omitted). This rule rests on the understanding

that while “Congress may legislate in areas traditionally regulated

by the States,” the power to do so is “an extraordinary power in a

federalist system,” which courts “must assume that Congress does

not exercise lightly.” /d. at 460."

B. CONSTITUTIONAL ISSUES SHOULD BE AVOIDED WHERE

POSSIBLE.

It is axiomatic, when reviewing whether a regulation is ultra

vires, that constitutional issues--including the preservation and

maintenance of the constitutionally appropriate state/federal

balance--should be avoided when an otherwise acceptable

construction of a statutory provision 1s possible.” The FWS’s

overexpansive interpretation of “harm” raises serious

constitutional issues which can be avoided through a narrower

and more appropriate construction of the word “harm’’--such as

that construction adopted by the court of appeals in this case.

* See Rice v. Santa Fe Elevator Corp., 33\ U.S. 218, 230 (1947): “{ T]he

historic police powers of the States were not to be superseded by [a] Federal

Act unless that was the clear and manifest purpose of Congress.”

‘0 “[W)here an otherwise acceptable construction of a statute would raise

serious constitutional problems, the Court will construe the statute to avoid

such problems unless such construction is plainly contrary to the intent of

Congress.” New York v. United States, 112 S.Ct. 2408, 2408 (1992).

C. THE CONSTITUTIONAL ISSUES: STATE SOVEREIGNTY AND

SELF-GOVERNMENT.

The proper balance between the federal government and the

States is preserved textually by the Tenth Amendment'’ and the

Guarantee Clause,'? and is embedded in the inherent structure of

the Constitution.’ As declared in Texas v. White, 7 Wall. 700,

725 (1869):

[T]he preservation of the States, and the maintenance of

their governments, are as much within the design and care

of the Constitution as the preservation of the Union and

the maintenance of the National government. The

Constitution, in all its provisions, looks to an

indestructible Union, composed of indestructible States.

By constituting a federal government of limited powers,

while reserving “the powers not delegated to the United States,

nor prohibited by it” to the states and the people, the

Constitution established a framework in which the states

retained “substantial sovereign authority.” Gregory v. Ashcroft,

501 U.S. 452, 457 (1991).'* If the states or the people have not

conferred a power upon Congress, then a fortiori a federal

agency cannot assume that power in derogation of the Tenth

Amendment.

The Guarantee Clause is predicated on the proposition that

state governments are accountable to their citizens with respect

'' U.S. CONST. amend. X (the “Tenth Amendment”): “The powers not

delegated to the United States by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or to the people.”

'? U.S. CONST. art. IV, § 4 (the “Guarantee Clause”): “The United States

shall guarantee to every State in this Union a Republican Form of

Government... .”

"See, Nevada v. Hall, 440 U.S. 410, 433 (1979) (Rehnquist, J., joined by

Burger, C.J., dissenting).

* In New York, 112 S.Ct. at 2417 (1992), the Court stated:

If a power is delegated to Congress in the Constitution, the Tenth

Amendment expressly disclaims any reservation of that power to the

States; if a power is an attribute of state sovereignty reserved by the

Tenth Amendment, it is necessarily a power the Constitution has not

conferred on Congress.

eae

to fundamental decisions about how to allocate, control, and use

resources and define property rights.’ A state’s “republican

form” of government is diminished when its ability to make

decisions is fettered, constrained, or overridden by a federal

agency acting ultra vires.'® The vitality of the Guarantee Clause

was renewed in New York v. United States, 112 S.Ct 2408,

2432-2433 (1992) in which the Court acknowledged the

suitability of the Guarantee Clause to protect states from an

over-intrusive federal government.’

The control of elected officials by the electorate and their

accountability to the citizens who entrust them to office is the

sine qua non of a republican form of government. ' “Since at

least the eighteenth century, political thinkers have stressed that

a republican government is one in which the people control their

'S See Federal Energy Regulatory Commission v. Mississipp1, 456 U.S. 742,

762 (1982) (“FERC”).

'© Of course, pursuant to the Supremacy Clause and assuming a basis for

exercising a power (e.g., the Commerce Clause or the Spending Clause),

Congress can intrude into state sovereignty and override state law. The

requirement, however, is that Congress must plainly state that it intends to

do so.

'7 In New York, the Court ruled that the Low-Level Radioactive Waste

Policy Act did not violate the Guarantee Clause because under the Act “[t}he

States . . . retain the ability to set their legislative agendas; state government

officials remain accountable to the local electorate.” New York, 112 S.Ct. at

2433.

'8 Professor Tribe has strongly urged the revitalization of the Guarantee

Clause’s protection of state governments:

[The Guarantee Clause] might plausibly be invoked in support of the

proposition that the Constitution recognizes in the National Government

a duty, running directly “to every State in this Union” rather than to

individuals, to respect the state's most fundamental structural choices as

to how its people are to participate in their own governance . . . When

Justice O’Connor observed, in her powerful dissent in [FERC], that

“federalism enhances the opportunity of all citizens to participate in

representative government,” [456 U.S. at 789.] . . . she may have hit

upon an important link between the tacit postulate of state sovereignty

and the textual guarantee of republican government.

Laurence Tribe, AMERICAN CONSTITUTIONAL LAW 397-398 (2d. ed. 1988)

(emphasis added).

rulers [citing J. Locke, Second Treatise of Government, §

149].”

Preserving state sovereignty and federalism is not, however,

an abstract “‘states’ right” goal. Rather the Court has recognized

that such preservation is critical to protecting the rights and

powers of citizens. As the Court stated in New York, 112 S.Ct.

at 2431 (citations and quotation marks omitted):

The Constitution does not protect the sovereignty of the

States . . . as abstract political entities, or even for the

benefit of the public officials governing the States. To the

contrary, the Constitution divides authority between federal

and state governments for the protection of individuals.

State sovereignty is not just an end in itself. Rather,

federalism secures to citizens the liberties that derive from

the diffusion of sovereign power . . . [A] healthy balance of

power between the States and the federal government will

reduce the risk of tyranny and abuse from either front.

Reflective of the citizens’ rights, values, desires, and

concerns, Texas and its local governments have erected a

system of laws which defines and protects the property of their

citizens and have established a comprehensive resource

management system, including land using planning, zoning,

environmental protection, resource protection, and water rights

protection, control, and allocation. This system has been

diminished by the FWS and its overexpansive interpretation of

“harm.”

The hobbling of a state government’s abilities to protect the

property and self-governing rights of its citizens results in a

diminishment of the state’s republican form of government.

if . .

’ Deborah Jones Merritt, The Guarantee Clause and State Autonomy:

Federalism for a Third Century, 88 COLUM. L. REv. 1, 23 (1988)

(hereinafter “Guarantee Clause and State Autonomy’’), citing The Federalist

No. 39 (James Madison). In New York, the Court relied on Professor

Merritt’s article for the following proposition: “Accountability [of state

officials to the public] is . . . diminished when, due to federal coercion,

elected state officials cannot regulate in accordance with the views of the

local electorate in matters not pre-empted by federal regulation.” 112 S.Ct. at

2424.

Federal abrogation, furthermore, of a state’s property protection

and regulatory framework constitutes a violation of the

Guarantee Clause--unless Congress clearly intended to

supersede the state’s laws.” Without clear and manifest

intention by Congress, a federal agency cannot convert a

sovereign state into a mere subordinate “field office” of the

federal government. See New York 112 S.Ct at 2434.

D. THE LANGUAGE AND LEGISLATIVE HISTORY OF THE ESA

CLEARLY INDICATE THAT CONGRESS DEFERRED TO STATE

LAW IN AREAS CONSTITUTIONALLY RESERVED TO THE

STATES.

As originally passed, the ESA was very deferential to the

states, apparently due to the constitutional concerns identified

above and the historic pre-eminence of state law in regulating

wildlife, natural resource management, and private land use.

Congressional deference is manifested in ESA §§ 4(d),

6(c)(1)(E)(ii), and 6(g)(2)(B), which make state law controlling

in many instances in determining when a “take” of a listed

wildlife species has occurred. The FWS’s view that the ESA,

through the simple inclusion of the word “harm,” allows FWS

to regulate land use and displace state authority is incompatible

with this Congressional deference to state law.

Moreover, there are strong indications in the legislative

history of the ESA that Congress chose not to displace state

authority in the area of regulating private land use. Senator

Williams’ bill, as introduced, defined “take” to include the

“destruction, modification, or curtailment of [a listed species’ |

2° Professor Merritt explained:

(T]he words of the guarantee clause suggest a limit on the power of the

federal government to infringe state autonomy: the citizens of a state

cannot operate a republican government, “choos[ing] their own officials”

and “enact{ing] their own laws,” if their government is beholden to

Washington. [The Guarantee Clause], therefore, may be read as a

promise to preserve the state autonomy necessary to foster republican

government.

Guarantee Clause and State Autonomy at 25.

habitat or range.” The Senate Committee (when it reported S.

1983) deleted the “habitat modification” language entirely.”

The Senate Report accompanying S. 1983 stressed that the

states have the lead “in protecting domestically endangered

species,” with the federal roles largely being to_appropriate

funds “to acquire lands” and support the states.”’ Thus, it

appears that the Senate deleted the “habitat modification”

language out of respect for state regulatory authority over

private land uses. More particularly, Congress’ intent with

respect to deferring to states with respect to water issues is

abundantly clear:

It is further declared to be the policy of Congress that

Federal Agencies shall cooperate with State and Local

Agencies to resolve water issues in concert with

conservation of endangered species.

16 U.S.C. § 1531(c)(2).4

II. THE FWS’s “HARM” REGULATION INTRUDES INTO TWO

PRINCIPAL AREAS OF TRADITIONAL STATE AUTHORITY: THE

CONTROL, ALLOCATION, AND USE OF WATER RESOURCES,

AND LAND USE PLANNING.

Under the federal system established by the Constitution, state

and local governments enact, maintain, and enforce laws

Endangered Species Act of 1973: Hearings on S. 1592 and S. 1983

Before the Subcomm. on Environment of the Senate Comm. on Commerce,

93d Cong., Ist Sess. 27 (1973) (“1973 Senate Hearings”).

The reported version defined “take” as “harass, pursue, hunt, shoot,

wound, kill, trap, capture, or collect, or to attempt to engage in any such

conduct,” much as the ESA does today. S. Rep. No. 307, 93d Cong., Ist

Sess. 14 (1973). “Harm” was added as part of a package of undebated

Senate floor amendments.

3 §. Rep. No. 307 at 2-5, reprinted in 1973 U.S.C.C.A.N. 2991-93.

- Congressional concern for states is further exemplified in ESA §

11(g)(1 (A), 16 U.S.C. § 1540(g)(1)(A). This provision does not allow a

citizen suit to be brought against a state in violation of the Eleventh

Amendment. See Blatchford v. Native Village of Noatak, S.Ct. 2578, 2584-

2585 (1991); Dellmuth v. Muth, 491 U.S. 223, 227-228 (1989). In Hess v.

Port Authority Trans Hudson Corporation, 115 S.Ct. 394, 400 (1994), the

Court recognized that “current Eleventh Amendment jurisprudence

emphasizes the integrity retained by each state in our federal system ... .”

—E————E OO

protecting private property. “*Property interests, of course, are not

created by the Constitution, but rather by existing rules or

understandings that stem from an independent source such as

state law.” Delaware v. New York, 113 S. Ct. 1550, 1557 (1993)

(citation and quotation marks omitted). Real property law,

furthermore, has been recognized by the Court as a matter of

special concern to the states. Fidelity Federal Savings. & Loan

Association v. de la Cuesta, 458 U.S. 141, 153 (1982).

Certain police powers are reserved to the states and protected

by the Constitution. State and local governments are particularly

responsible and entitled to enact, maintain, and enforce laws

governing the use of land and water, such as laws regarding

zoning,” land use planning, and natural resource

management.”

The “harm” regulation substantially intrudes into two areas

in which Congress and the courts have consistently and

pointedly deferred to state law: resource management

(including the definition, protection, use, and control of private

property), and the use, control, and allocation of water.

Paradoxically, the result of FWS’s overexpansive interpretation

of “harm” is that the mere listing of species results in a resource

management system controlled by a cadre of federal bureaucrats,

: scientists, and technicians--without any necessity to designate

: critical habitat as the ESA requires.”

25 « : . 0.8 ‘ ee ,

[Zoning laws and their provisions . . . are peculiarly within the province

of state and local legislative authorities.” Warth v. Seldin, 422 U.S. 490, 509

n. 18 (1975).

26 Soe Dolan v. City of Tigard, 114 S.Ct. 2309, 2317 (1994). See also,

California Coastal Commission v. Granite Rock Company, 107 S.Ct. 1419,

1431 (1987) (state land use planning law applicable to federal land).

27 With respect to state authority over resources in general, see Sporhouse v.

Nebraska ex rel. Douglas, 458 U.S. 963, 964 (1982) (Rehnquist, J., joined

by O’Conner, J. dissenting) (states have traditional authority over resources

within their respective boundaries which are essential to the lives and well-

being of their respective citizens). With respect to deference to state water

law, see Section II.A. infra. With respect to wildlife protection, see Section

1.D. supra. See also, Toomer v. Witsell, 334 U.S. 385, 402 (1948).

FWS Director Molly Beattie publicly stated, with respect to the

designation of critical habitat for a protected species, the protected golden-

cheeked warbler, “(t]he critical-habitat designation doesn’t add anything to

aa iii

14 ;

A. THE FWS “HARM” REGULATION UPSETS THE

STATE/FEDERAL BALANCE BY INTRUDING INTO STATE

WATER LAW.

Water law--the determination of allocation, ownership,

and control of water resources--has long been established as an

area of traditional state authority and has long received

extraordinary deference from both Congress and the courts.

California v. United States, 438 U.S. 645, 653 (1978).

Congress has oftentimes preserved the states’ right to determine

which systems of law to follow. Jd. at 658.

Texas follows the “rule of capture” for groundwater.

Houston & T.C. Railway Co. v. East, 81 S.W. 279 (Tex. 1904).

The rule of capture has several important implications

pertaining to this case. First, it means groundwater is the

private property of the surface owner subject to the surface

owner’s “capture” of the resource. Second, it is a rule of no

liability.”’ Third, the rule of no liability extends to groundwater

pumping that affects springflow relied upon by surface

appropriators.

The case for federal deference to state water law is even

stronger in Texas than in other western states. Federal lands do

not comprise a large percentage of property owned in Texas.

More than 96 percent of the land in Texas is privately owned.

Furthermore, Texas has few of the massive federal water

projects that have been the source of so much of the Supreme

Court’s jurisprudence in the area of water.

The following are examples of how the FWS “harm”

regulation is being applied to displace long-standing Texas water

law. These applications unavoidably infringe upon private

property rights protected by Texas’ property law framework, and

cheeked warbler, “[t]he critical-habitat designation doesn’t add anything to

the constraints on the average landowner.” “Agency defends plan for

songbird habitat,” San Antonio Express News, July 27, 1994, at 1.

”° That is, adjoining landowners do not have a cause of action for damages

or injunction resulting from the pumping of underground water. See e.g.,

City of Sherman v. Public Utility Commission, 643 S.W.2d 681 (Tex. 1983).

Paso 1954, writ ref'd n-r.e.).

also infringe on Texas’ self-governmental rights to determine

how its water resources will be allocated, controlled, and used.

1. THE EDWARDS AQUIFER: FEDERAL REGULATION OF

STATE WATER LAW THROUGH THE “HARM” DEFINITION.

Sierra Club v. Babbitt! currently before the federal court in

the Western District of Texas represents an effort to impose

federal regulation pursuant to the ESA over pumping in the entire

Edwards Aquifer region of Central Texas. > The district court

held that when springflows at the Comal and San Marcos Springs

fed by the Aquifer drop below a specific rate, endangered

fountain darters are “taken” in violation of ESA § 933

The court has threatened several times to impose pumping

limits on the Edwards Aquifer unless Texas develops a regulatory

system to limit pumping to whatever extent is necessary to avoid

“takes,” even in a repeat of the drought of record.’ Most

recently, on March 6, 1995, the court stated that it “has no

alternative under the law {the ESA] but to do whatever is

necessary to keep the Comal and San Marcos springs flowing.”

The court further indicated that it believes that it has the authority

to order Texas to implement a pumping reduction plan adopted

by the court, and that it will do so, should Texas fail to do so on

its own.

3! Sierra Club v. Babbitt, No. MO-91-CA 069 (W.D. Tex. May 26, 1993)

(amended order) (“Sierra Club I’).

32 The Edwards Aquifer, which extends over 3600 square miles in six counties

in Central Texas, feeds the San Marcos and Comal Springs (“Springs”), where

the fountain darter and four other listed species are found. Sierra Club v

Babbitt, 995 F.2d 571, 573 (Sth Cir. 1993) (“Sierra Club IT’), Sierra Club 1,

Amended Findings of Fact and Conclusions of Law $f 5, 24, 25.

33° Sierra Club I, Amended Findings of Fact and Conclusions of Law § 81.

According to the Fifth Circuit, the FWS was found guilty of the “takes.”

Sierra Club II, 995 F.2d at 574.

** The plan must also limit pumping to whatever extent is necessary to avoid

any appreciable reduction in the likelihood of the species’ survival and -

recovery and any appreciable diminution of the value of critical habitat for the

survival and recovery of any listed species. Sierra Club I, at 6 (W.D. Tex.

May 26, 1993) (amended order).

5 Sioera Club I, Order on the Sierra Club's Second Motion for Additional

Relief, at 2, 8 (W.D. Tex. March 16, 1995).

—————————————

In response to the court’s 1993 “urgings” and in order to avoid

the FWS “blunt axes,” the Texas legislature created the Edwards

Aquifer Authority (“EAA”) in 1993 to manage the Edwards

Aquifer. Because the implementation of the act creating the EAA

was objected to under Section 5 of the Voting Rights Act, the

- federal court appointed a monitor in February 1994°° to gather

and evaluate “information necessary to allow the court to take

appropriate action to prevent violations of the [ESA].”

This application of the “harm” regulation in the Edwards

Aquifer litigation has sweeping ramifications. It has the potential

to negate an entire body of Texas groundwater law, to eviscerate

the authority of several local groundwater conservation and

regulatory bodies, and erode the vested property rights of those

individuals who must rely on the Edwards Aquifer for water to

drink, irrigate crops, or run businesses. As noted above, Texas

follows the rule of capture with respect to groundwater. By

holding that groundwater pumping causes a “take” under ESA §

9, the Sierra Club court possibly subjects the pumpers (in

addition to the FWS) to civil and criminal liability for the very

same act that, under Texas law, is not only legal, but falls under

a private property rule of no liability. See City of Sherman v.

Public Utility Commission, 643 S.W.2d 681 (Tex. 1983); Pecos

County WCID vy. Williams, 271 S.W.2d 503 (Tex. Civ. App. - El

Paso 1954, writ ref‘d n.r.e.) (no liability for landowners whose

pumping of underground water affected flow of spring relied on

by adjacent landowner).

The potential reach of the “harm” regulation over water use

and land regulation in this case is truly astonishing. The

Tex. Feb. 25, 1994).

” The American Bar Association’s Section of Natural Resources, Energy,

and Environmental Law Journal stated moreover:

[T]he Sierra Club suit presents a situation in which the connection

between the activity and the taking [under the ESA] is extremely

remote. The suit literally would have FWS regulate groundwater

withdrawal by an irrigator based on conditions at a spring located almost

one hundred miles away from that irrigator’s activity. Moreover, the

irrigator’s activity alone is not what is causing those conditions at the

spring to occur, but rather it is the cumulative effect of a regionwide

activity. That activity is not associated with direct destruction of habitat;

Edwards Aquifer is the major source of water for over one

million people: It supplies water to San Antonio and other cities,

as well as. jo farmers, ranchers, businesses, and military

installations.”* These individuals, businesses, and cities must

either decide to stop pumping water, at great cost and political

detriment to themselves, or face civil and criminal sanctions in

the future.””

The threat of a court-run regulatory system is increasing.

Under the FWS interpretation of “harm,” FWS and the court have

the authority to impose restrictions on private and public property

immediately, rather than continuing to press Texas to do it for

them. In addition, the FWS could bring a civil or criminal action,

rather, it is the result of the general sheltering and welfare of a regional

population (1.¢., the supply of water to residences and businesses).

If the ESA was intended to cover natural resource management issues

such as those raised in the Sierra Club lawsuit, one has to question what

situations the ESA could not cover. For example, if it could be shown

that acid rain in northeastern forests resulting from midwest power plant

production is resulting in the depletion of endangered species habitat,

could FWS regulate power plant practices? . . . Another scenario might

involve an interstate water dispute in which one state argues that an

upstream state is diverting so much water that an endangered species’

habitat is threatened. One’s mind does not have to wander far to come

up with similar examples of how FWS could use the ESA as a resource

management tool on a regional or even national scale.

“Phase Three of the ESA: Using Endangered Species Protection as a

Natural Resource Management Tool,’ NATURAL RESOURCES &

ENVIRONMENT JOURNAL, Winter 1992, at 39 (emphasis added).

* Sierra Club I, Findings of Fact and Conclusions of Law §§ 16, 17.

Texas agrees with the arguments made by the State of Arizona in its

amicus brief that the FWS “harm” regulation is constitutionally suspect as an

overbroad construction of a criminal statute in that it criminalizes lawful

land uses on nonfederal lands. Therefore, Texas supports Arizona in its

analysis that traditional insistence on clear statutory statements by Congress

iS @ prerequisite to criminalization of ordinary activities. The Edward

Aquifer case indicates the problems of an overly broad interpretation of

“harm”: it is unclear which of the thousands of pumpers of the Edwards

Aquifer would be criminally culpable for the purported- “takes” of the

fountain darter, or upon what principled basis a court could convict, or the

federal government could prosecute pumpers throughout the entire Edwards

Aquifer region

or the Sierra Club could bring a citizen suit, against those who are

pumping water from the Aquifer.

: a PROPOSED LISTING OF THE BARTON’ SPRINGS

SALAMANDER AND THE ARKANSAS RIVER SHINER: FURTHER

FWS PLANS TO MANAGE STATE WATERS.

A 1994 FWS proposal to list the Barton Springs salamander as

endangered stated that designating Barton Springs (the only place

the salamander is found) as critical habitat “would actually be

detrimental to conservation efforts . . . because it would promote

the misconception that the Barton Springs are the only areas

important to the conservation of the species.’ —_ Th springs are

fed by an aquifer, and the FWS believes that it has, the authority

to regulate activities--primarily urban development’ '_-that might

affect the quality and amount of the water in the aquifer. The area

of land that provides water. to the aquifer that feeds the Barton

Springs is 354 square miles."

On August 3, 1994, the FWS proposed to, list the Arkansas

River shiner (a fish) as an endangered species.” > In that proposal,

the FWS implied that groundwater uses in three states would

have to be modified to preserve the species. "The FWS

recognized that groundwater is an extremely important source of

water in Texas, Kansas, and Oklahoma. FWS noted that

withdrawals of groundwater in the Canadian River Basin in Texas

were as much as thirty- three times higher than the annual natural

recharge in 1980.*° The FWS concluded that under current

conditions of groundwater usage, suitable habitat to support

Arkansas River shiner populations is nonexistent. In other words,

the FWS declared that those three states would have to reform

current water usage. Drastic changes to surface water uses would

also be demanded by the FWS.

59 Fed. Reg. 7968, 7977 (Feb. 17, 1994).

Id. at 7971, 7977.

Id. at 7969.

59 Fed. Reg. 39532.

Id at 39535.

* Id.

C. THE FWS OVEREXPANSIVE DEFINITION OF “HARM”

RESULTS IN FEDERAL LAND USE REGULATION THAT

EFFECTIVELY PREEMPTS STATE AND LOCAL LAND USE

PLANNING.

The FWS’s overexpansive interpretation of the word “harm”

is producing an unprecedented shift in resource management

power from the states and local governments to an unelected and

unresponsive federal bureaucracy. FWS rests its resource

management scheme on the word “harm.” This term was added

by a technical amendment to the ESA in 1982, without debate. It

is inconceivable that so innocuous an addition could justify the

pervasive resource management scheme spawned by FWS’s

“harm” definition.

Pursuant to its interpretation of “harm,” FWS has acted to

regulate state and private land in Texas. In particular, it prohibits

landowners from undertaking ordinary, otherwise legal activities

not directed against endangered or threatened species. This

prohibition is extensive--it affects land in almost all of Texas’ 254

counties.

It is impossible for landowners to know the full geographical

extent of the prohibition, however, because FWS rarely delineates

the habitat of listed species. Moreover, FWS does not limit its

oversight to land that contains habitat, delineated or not: it relies

on its regulatory definition to restrict land use hundreds of miles

away from habitat, on occasion, if it feels that use of that land

might--however indirectly--affect protected habitat.

Nor is it possible to predict what kinds of uses of land are

prohibited. Under its interpretation of “harm,” FWS need not

show that a land use actually results in physical injury to an

individual member of a species; to the FWS, the modification of

habitat is itself enough to demonstrate that a “take” has occurred.

The regulatory definition of “harm” presumes that proscribed

injury to wildlife may occur by any activity that “significantly

impair[s] essential behavioral patterns.” 50 C.F.R. § 17.3. Only

FWS, however, knows what habitat modifications are

“significant” enough to come under that prohibition. It is clear,

moreover, that FWS’s interpretation of “harm” does not require

any showing of actual death or injury to an individual of a listed

species, despite protestations on brief by FWS that it does.

As a result, landowners use their land at the risk of possible

civil and criminal sanctions under the ESA. Their only recourse

is to seek an “incidental take” permit from FWS under ESA §

10(a). Such permits are rare, seldom available to individuals, and

often very expensive.

This system of prohibitions and permits amounts to a

pervasive land regulation program not contemplated by Congress

in passing the ESA. Congress has provided for a system--ESA §

5 federal land purchases--that would pay landowners for their

land if necessary to protect listed species. FWS has reversed that

system, by requiring landowners to pay for the use of their own

land. The FWS potentially unbounded regulation of land use

based on the word “harm” is contrary to the intent of Congress

and raises serious constitutional and federalism issues.

1. THE FWS LAND USE REGULATION SYSTEM APPLIES TO

LAND THROUGHOUT TEXAS AND, FOR THE MOST PART, ITS

BOUNDARIES ARE UNDEFINED.

FWS has listed 42 species of fish and wildlife as endangered

or threatened whose habitat is at least in part within Texas. e

FWS has proposed listing another four species of fish and

wildlife in Texas,”’ and it has identified another eleven for which

it believes it has sufficient information to support such a

proposal.” * FWS has many more listings under consideration: It

i$ considering another 155 species in Texas for which it has

See FWS, Threatened and Endangered Species of Texas (1992). FWS

regulations list another four species in Texas: the Louisiana black bear, the

Mexican spotted owl, the Coffin Cave mold beetle, and the Bone Cave

harvestman. 50 C.F.R. § 17.11, at 93,105,120,121 (1994). FWS added the

southwestern willow flycatcher to the list of endangered species on February

27, 1995. 60 Fed. Reg. 10693.

*” See 59 Fed. Reg. 7968 (Feb. 17, 1994) (proposal to list Barton Springs

salamander as endangered); 59 Fed. Reg. 35674 (July 13, 1994) (proposal to

list jaguar, which does not currently live in Texas but may cross border from

Mexico, as endangered); 59 Fed. Reg. 39532 (Aug. 3, 1994) (proposal to list

Arkansas River shiner as endangered); 59 Fed. Reg. 39532 (Aug. 3, 1994)

(proposal to list cactus ferruginous pygmy-owl as threatened in Texas).

59 Fed. Reg. 58982 (Nov. 15, 1994) (list of animals FWS is reviewing for

possible addition to its list of endangered and threatened species).

information indicating that a proposal to list is “possibly

appropriate.”

The species already listed as endangered and threatened are

found in most of the counties in Texas. Taking into account the

migratory route of the whooping crane adds considerably more

counties. In all, 210 of the 254 counties in Texas are already

covered to some extent.’ The vast majority of these species are

on private and state land, since the vast majority of land in Texas

is private or state-owned.’ The federal government owns less

than two percent of Texas land--a far lower percentage than

elsewhere in the West.

While it is possible to know in general where these species

are found in Texas, it is usually impossible for a landowner to

know whether his or her land is regulated by FWS, for two

reasons. First, FWS does not delineate the habitat of most listed

species. Although the ESA requires a species’ “critical habitat”

to be designated to the maximum gxtent determinable and

prudent at the same time it is listed,” FWS usually does not

designate critical habitat when the species is listed or afterwards.

For example, FWS has designated critical habitat for only 10

species found in Texas.”°

” Id. FWS states that “persuasive data on biological vulnerability and threat

are not currently available to support proposed rules.” /d., at 58983.

° The August 1992 FWS study provides, for each species, a map highlighting

the counties that include range of the species, including the migratory path of

the whooping crane.

*! Indeed, the majority of all listed species in the United States are on

nonfederal land. In a December 1994 report, the General Accounting Office

stated, "Over 90 percent (712 of 781) of the listed species [including plant

species] in the United States for which the Service had responsibility as of May

10, 1993, have some or all of their habitat on nonfederal lands." General

Accounting Office, Species Protection on Nonfederal Lands 4 (1995). Of the

359 listed animal species, 247 (about 69 percent) have over 60 percent of their

total habitat on nonfederal lands. /d., at 5.

* 16 U.S.C. § 1533(a)(3).

The FWS’s reluctance to designate critical habitat is understandable in

light of the public outrage ignited by the leaked proposal to designate about

800,00 acres throughout Central Texas as critical habitat this past summer.

The use of its overexpansive “harm” definition (as determined by biologists

For the other listed species in Texas, which do not have

designated critical habitat, FWS gives only general information

on the species’ location, such as merely listing the counties in

which the species is found. *4 Such information is of little or no

use to landowners who need to know whether their land may be

affected by the FWS prohibition on habitat modification. Nor is

it usually possible for landowners to make such a determination

themselves. In effect, FWS puts the burden on landowners to

prove that their land does not contain habitat.

The second reason why the geographical boundaries of the

FWS regulation as to a listed species are unclear is that FWS’s

application is not limited to habitat, whether or not it is

delineated. FWS believes that it may regulate any activity that

might affect habitat, even if the activities and the habitat are

hundreds of miles apart. Regulation is not therefore limited to

actual habitat, but has been applied by FWS to also reach a vast

amount of additional land in Texas.”

2. THE FWS LAND REGULATION SYSTEM DOES NOT MAKE

CLEAR WHAT USES OF LAND ARE PROHIBITED; IN

PARTICULAR, USES MAY BE PROHIBITED WITHOUT ANY

EVIDENCE THAT THEY RESULT IN PHYSICAL INJURY TO AN

INDIVIDUAL MEMBER OF A SPECIES.

The reach of the FWS’s regulation of land is extended further

because the FWS “harm” interpretation does not require that the

purportedly prohibited activities cause physical injury in fact to

an individual member of a listed species. Under the FWS

interpretation of “harm,” habitat modification, without more,

equals a prohibited take.

and technicians) against landowners is easier than engaging in the public

process for designating critical habitat.

** See FWS, Threatened and Endangered Species of Texas (1992).

Examples of this broad regulation have already been given: The proposed

listing of the Barton Springs salamander would affect 354 square miles of

watershed for the aquifer that feeds Barton Springs. The judge in the Sierra

Club case pending in the Western District of Texas has repeatedly threatened

to impose aquifer-wide pumping regulations on the basis of alleged

modifications to spring-fed habitat literally a hundred or more miles away from

pumpers who would be affected by such an order.

In its brief, Petitioners dispute this. They repeatedly state that

the definition of “harm” prohibits only habitat modification that

“actually kills or injures wildlife.” Petitioners admit, however,

that this language does not limit the regulatory definition to

actions that cause physical injury to an individual member of a

listed species.° The language Petitioners emphasize does not,

however, narrow the scope of the definition in any way.

The substance of the FWS regulatory definition is in the

second sentence, which states, in effect, that “harm” equals

“habitat modification.” The second sentence makes clear that

habitat modification may “injure[{] wildlife by significantly

impairing essential behavioral patterns, including breeding,

feeding, or sheltering.” 50 C.F.R. § 17.3. Therefore, to

establish “harm”--and thus a “take”--F WS need only show that

essential behavioral patterns may be “significantly impair[ed]”

by habitat modification.

This language is remarkably vague. In reality, it is clear that

F WS generally ignores the vague and redundant terms and simply

interprets the definition as equating “harm” with “habitat

modification.” Thus, for example, the clearing of cedar trees by a

landowner has been bootstrapped into a “take” of a golden-

cheeked warbler whether or not one is actually killed or injured

and the pumping of Edwards Aquifer groundwater by a farmer or

rancher is bootstrapped into a “take” of a fountain darter located

one hundred or more miles away.

Statements of the FWS in Texas, and actions taken by it in

Texas, confirm this assertion. For instance, in a presentation to a

committee of the Texas legislature, Mr. Sam Hamilton, State

Director for FWS in Texas, stated: “When the golden-cheeked

warbler was listed in 1990, it received the full protection of the

ESA and that included protecting the habitat it depends on.””’

° Petitioners Brief, at 6-7. “Nothing in the regulation indicates that the injury

of whatever type, is to an individual, as opposed to some indefinite injury to

the species in general.”

” House Committee on Natural Resources Subcommittee on Mitigation of

Property Rights (August 9, 1994) (statement of Sam Hamilton) (copy on file

with Texas House of Representatives Archives, Tape |, Side A) (emphasis

added).

Mr. Hamilton admitted that available uses of property decreased

because of the mere listing of the warbler.

Mr. Hamilton’s statements are based on FWS’s expansive

interpretation of “harm” definition. Once a species is listed, the

use of property--public or private--within the species’ range, or

potential range, is immediately and presumptively affected.

There is nothing in the ESA to suggest that this was intended by

Congress, especially where it results in so pervasive a

displacement of property rights and traditional state police

powers.

a. The Golden-Cheeked Warbler: Federal Land Use

Restrictions Imposed on Private Property by Application of

the “Harm” Regulation.

FWS’s treatment of the habitat of the golden-cheeked

warbler, which it designated as endangered | in 1990, presents an

example of the FWS overexpansive interpretation.” ” The golden-

cheeked warbler is found in 33 Texas counties in Central Texas.°

Since 1990, FWS has sent dozens of letters to landowners in

Central Texas (the “bird letters”) informing them that using their

property in various ways would be a “take” of the warbler.

Secretary Babbitt stated to a United States Senate subcommittee

investigating the National Biological Survey Act of 1993 that property in the

range or potential range is “under a cloud that cannot be lifted” until accurate

scientific data is available: “Good data will remove uncertainty and in the vast

majority of cases, increase property values by showing conclusively there is no

problem.” Testimony before Senate Subcommittee, Endangered Species Act--

Incentives to Encourage Conservation by Private Land-Owners: Hearings

Before Subcomm. on Environment and Natural Resources of the Committee on

Merchant Marine and Fisheries House of Representatives, at 25, 103rd Cong.,

Ist Sess. 65 (1993).

” 55 Fed. Reg. 18844 (May 4, 1990) (emergency listing); 55 Fed. Reg. 53153

(Dec. 27, 1990) (final listing).

°° FWS, Threatened and Endangered Species of Texas B7 (1992).

*! These letters have been issued and not rescinded despite the statement by

Secretary Babbitt to then-Governor Ann Richards in a September 22, 1994

letter that "[m]ost warblers live on rocky slopes. Since most agricultural and

building activity does not occur on rocky slopes, those activities should not

affect warbler conservation.” The letter is attached in the Appendix at 6a.

Several of the bird letters are attached at Appendix 9a-39a. The

usual pattern of the letters is as follows:

--they state that the property would” or could” provide

suitable habitat for the golden-cheeked warbler;”

--they sometimes state that the property is part of a larger area

that contains habitat occupied by the warbler” or that warblers

have been sighted nearby,”’ but almost never that warblers

have actually been sighted on the property itself or are known

to occupy habitat on the property;

--they state that clearing or development-related activities

would” or could” constitute a “take” of the warbler; and

--they state that the activities would require FWS authorization

through an ESA Section 10(a) permit’ or they ‘ recommend”

that clearing or other similar activity be discontinued.”

The bird letters thus equate modifying habitat per se with a

“take.” They do not state that the land use will result in death or

injury to warblers, or even that it will “significantly impair

essential behavioral patterns.” On the contrary, when the letters

*? Ten of the fourteen attached letters are from 1994, three are from 1993, and

one is from 1991.

* Letters Appendix, | la, 13a, 15a, 27a, 35a.

* Letters Appendix 21a, 23a.

°° Other formulations include "prime habitat" for the warbler (Letter 9a);

habitat likely to be occupied by the warbler (Letter 33a); and vegetation that is

possibly occupied by the warbler (Letters 19a, 25a).

°° Letters 35a, 37a.

*” Letters 13a, 19a, 30a, 37a.

Letters 13a, 15a, 23a, 27a, 35a.

Letters 30a, 37a.

” Letters 13a, 15a, 23a, 27a.

"Letters 17a, 19a, 25a, 33a. Another form is to recommend that

authorization under the ESA be secured before any development. Letters 30a,

35a, 37a. Letter 9a "respectfully urges" that clearing be discontinued, but only

after describing the ESA's civil and criminal sanctions and informing the

landowner that the matter is under investigation by the FWS Law Enforcement

Office.

add to the above structure, they usually state only that

“disturbing” habitat constitutes “harm,””” or that “disrupting” the

breeding and/or foraging activities of the warbler constitutes a

take.’ FWS thus ignores its own statement, at the time it

promulgated the “harm” definition, that it chose the word

“impair” rather than “disrupt” “to limit harm to situations where a

behavioral pattern was adversely affected and not merely

disturbed on a temporary basis with no consequent injury to the

protected species.” :

b. The Piping Plover: Federal Land Use Restrictions

Imposed on State Property by Application of the “Harm”

Regulation.

The piping plover was listed as an endangered species on

December 11, 1985.” Its listing has impacted the value of land

legal title to which is held by the Texas for the benefit of school :

children supported by the Texas Permanent School Fund (“PSF”).

The PSF is managed by the Texas General Land Office

(“GLO”), a state agency.

In 1984, after consultations with the Texas Parks and Wildlife

Department and FWS, the GLO issued a seismic exploration

permit for land in the Lower Laguna Madre (a bay) in Kenedy

County, Texas. FWS required the state to investigate whether the

piping plover occupied the area. Despite the fact that no piping

plovers were found in the area, FWS insisted that additional

measures be undertaken, to avoid impacts to potential habitat.

The added requirements proved so burdensome and potentially

expensive that all exploration efforts were abandoned. The result

is a potentially large loss of revenue, present and future, to the

PSF for the benefit of Texas schoolchildren, and a denial of a

state agency’s ability to meet its statutory obligations.

” Letters 17a, 21a.

” Letters 19a, 25a, 33a. Other letters state only that the warbier is "sensitive"

to factors associated with residential development. Letters 13a, 15a, 27a, 30a,

35a, 37a.

™ 46 Fed. Reg. 54748, 54750 (Nov. 4, 1981).

”* 50 Fed. Reg. 50733 (Dec. 11, 1985).

3. THE PERMIT PROCESS IS LENGTHY AND EXPENSIVE, AND

IN EFFECT REVERSES THE LAND ACQUISITION PROGRAM

CREATED IN THE ESA.

Landowners subject to the FWS resource management

scheme have only one recourse: seek a ESA § 10(a) “incidental

take” permit.’ ° The applicant must submit a habitat conservation

plan for the species. This process is necessarily expensive,

since it requires hiring legal and technical consultants and

preparing lengthy applications. 8 The process is also lengthy and

has only resulted in 31 permits as of June 1994.” The FWS’s

“harm” regulation expands the “incidental take” permit program

in a fundamental way not contemplated by the ESA: the permit

process is triggered in situations where there has been no actual

physical harming of a protected species, and it has not been

determined that the activities would actually “kill” or “injure’ a

listed species.

In addition, the permit process imposes requirements not

contemplated by the ESA. Although ESA § 9 does not prevent

private landowners from takes of listed plants, the conservation

plan must, inter alia, ensure that any listed plants located on the

tract in question are not jeopardized.

The most striking aspect of the permit process is how FWS

uses it to overturn the land acquisition program created by the

ESA § 5. ESA §5 provides that landowners be paid for the use of

their land if its acquisition by the federal government is necessary

to protect listed species. In implementing its “habitat

modification is harm” regulation, on the other hand, FWS often

“extorts” substantial concessions from the applicant before it

approves the ESA § 10(a) permit. FWS has in effect reversed the

program actually created by Congress.

° In order to secure an ESA § 10(a) permit, the landowner must submit a

“habitat conservation plan” (“HCP”). 16 U.S.C. § 1539(a)(20(A).

” ESA § 10(a)(2)(A), 16 U.S.C. § 1539(a)(2)(A).

® See 50 C.F.R. § 17.22(b)(1) (application requirements).

General Accounting Office, Species Protection on Nonfederal Lands 8

(1995).

CONCLUSION

Under Chevron step two analysis, review of a challenged

agency regulation falls under the prudential “deference to the

administrative agency” standard. Because, however, the “harm”

regulation adopted by FWS results in federal intrusion into

areas of traditional state authority, the plain statement rule

supersedes this deference. ESA § 9 contains no authority

supporting the notion that Congress intended to include habitat -

modification within the prohibition entailed in ESA § 9 or that

Congress intended deep intrusions into the sovereign power of

the states. In sum, the ESA provides no indication that

Congress intended to shift vast resource management powers

and rights (such as water resource management and land use

planning) from the states to a federal bureaucracy.

The “harm” regulation should, furthermore, be measured

against the language of the ESA and Congressional intent in a

manner to avoid constitutional issues such as the federalism and

state sovereignty issues raised by Texas. The FWS’s

interpretation of “harm” places the weight of an enormous de

facto federal resource management scheme on a single word,

“harm,” added without debate through a technical amendment

to a ten-word definition. Congress did not intend this single

word to authorize such a scheme.

For these reasons, FWS interpretation of the term “harm”

should be held invalid and the Court of Appeals decision should

be affirmed.

DAN MORALES

ATTORNEY GENERAL OF TEXAS

JORGE VEGA

FIRST ASSISTANT ATTORNEY GENERAL

JAVIER AGUILAR*

SPECIAL ASSISTANT ATTORNEY GENERAL

*COUNSEL OF RECORD

COUNSEL FOR AMICUS CURIAE

SAM GOODHOPE

SPECIAL ASSISTANT ATTORNEY GENERAL;

PAUL TERRILL

ASSISTANT ATTORNEY GENERAL

EUGENE MONTES

ASSISTANT ATTORNEY GENERAL

APPENDICES

PRIVATE GROUPS ENDORSING THIS BRIEF

Associated Milk Producers

The Association is the nation’s largest dairy farmer

cooperative. Its members produce twelve percent of the

nation’s milk supply.

Association of Texas Soil and Water Conservation

Districts

The Association is a nonprofit organization organized

for the purpose of conducting educational, scientific,

charitable, and religious work concerning the conservation,

maintenance, improvement, development and use of land,

soil, water, trees, vegetation, fish and wildlife, open spaces,

and other renewable natural resources.

Exotic Wildlife Association

The Association is comprised of businessmen and

ranchers joining to protect and promote the rights of private

ownership as well as develop and expand non-native

breeding throughout the United States.

Independent Cattlemen’s Association of Texas

The Association is made up of ranchers, cattlemen,

feed dealers, equipment suppliers and others involved in

Texas agriculture. Its members are working to help rural

Texas grow and to protect the rights of Texas agriculture.

Livestock Marketing Association of Texas

The Association represents the interests of livestock

auctions, order buyers and livestock dealers throughout

Texas.

Lumbermen’s Association of Texas

Lumbermen’s is a trade association for retail lumber

dealers.

National Land Rights Association

The organization represents landowners, scientists,

and natural resource professionals dedicated to the

conservation of our natural resources through the protection

of private property rights.

Rio Grande Valley Sugar Grower’s

The organization is a cooperative of various sugar

cane growers within the Rio Grande Valley dedicated to

improving the overall efficiency of their industry

Riverside and Landowners Protection Coalition

The Coalition is a non-profit corporation whose

members own and operate rural land throughout Texas. The

group is committed to educating the general public on

private property issues and working state and federal

agencies in preserving the privacy of private property in

Texas.

South Texas Cotton And Grain Association

The Association represents farm growers in the

Coastal Bend, Upper Coast and Winter Garden regions of

Texas.

Southern Rolling Plains Cotton Growers Association

The Association represents various cotton producers

in the Southern Rolling Plains of Texas.

Southwest Association

The Association represents various hardware retail

stores and farm equipment retail dealers throughout Texas.

Southwestern Public Service Company

Southwestern is an investor-owned electric utility

serving approximately one million persons in parts of

southwestern Kansas, the Oklahoma Panhandle, the

Panhandle and South Plains of Texas, and eastern New

Mexico.

CED Be OK LG, BRP fe

Take Back Texas

The association is a grassroots organization dedicated

to protecting the private property rights and freedoms of

landowners throughout Texas.

Texas and Southwestern Cattle Raisers Association

The Association represents the interests of various

cattle raisers throughout Texas and the Southwest.

Texas Agriculture Industries Association

The Association is a non-profit entity representing the

plant food and crop protection industries in Texas.

Texas Agricultural Aviation Association

The Association is a small business trade group of

individuals and families engaged in the aerial application

profession.

Texas Agricultural Cooperative Council

The Council is a trade association representing the

cooperatively-organized agribusiness firms operating in

Texas.

Texas Agri-Women

The association is a _ non-profit, non-partisan

organization primarily composed of farm and ranch women,

agri-business women and consumers working together to

develop and promote agriculture.

Texas Association of Dairymen

The Association represents the interests of various

dairy families throughout Texas for the purpose of providing

the best possible environment for the dairy industry.

Texas Association of Nurserymen

The organization is a trade association representing

the wholesale production, retail garden center, landscape

professional and allied supplier segments of the nursery

industry in Texas.

Texas Cattle Feeders Association

The Association represents the interests of individuals

and business entities involved in the cattle feeding industry

in Texas, Oklahoma, and New Mexico.

Texas Cotton Ginners’ Association

The Association is composed of active cotton ginners

throughout Texas and is dedicated to assisting the industry in

addressing mutual challenges

Texas Cotton Producers

The organization represents the interests of various

cotton and grain producers throughout Texas.

Texas Farm Bureau

The Bureau is an independent, non-governmental,

voluntary organization of farm and ranch families united for

the purpose promoting and protecting the interests of the

agricultural community.

Texas Farmer’s Union

The Union is a non-profit organization composed of

family farmers and ranchers promoting agriculture.

Texas Food Processors Association

The organization is a non-profit trade association

representing companies engaged in the processing of food

products in Texas. It is dedicated to support, promote, and

encourage education in all aspects of the food industry in

Texas.

Texas Forestry Association

Texas Forestry Association is a non-profit trade

association of landowners, logging contractors, professional

foresters, and processing mills dedicated to the conservation

and wise utilization of our forest resources in East Texas.

‘

Texas Grain Sorghum Association

The Association represents the interests of sorghum

producers and agribusiness representative who are working

to protect the viability of American agriculture.

Texas Justice Foundation

The Foundation is a non-profit corporation that

provides free legal representation in cases involving the

protection of individual rights and/or cases that seek to limit

government to its proper role.

Texas Poultry Federation

The association represents the interests of several

segments of the poultry industry in Texas including the

Texas Broiler Council, Texas Egg Council, Texas Poultry

Improvement Association, Texas Allied Poultry Association,

and the Texas Turkey Federation.

Texas Rice Producers Legislative Group

The organization represents rice producers in the state

of Texas who have joined together to work for the betterment

of the Texas rice industry.

Texas Wheat Producers Association

The Association represents various farmers that

produce wheat on the land they own, rent or lease in 220 of

Texas’ 254 counties.

Texas Wildlife Association

The Association in a non-profit entity which serves as

an advocate for the rights of wildlife, wildlife managers,

landowners, and hunters. It is dedicated to the maintenance,

management, and enhancement of wildlife habitat on private

land.

LETTER TO ANN RICHARDS FROM BRUCE

BABBITT

THE SECRETARY OF THE INTERIOR

WASHINGTON

September 22, 1994

Honorable Ann W. Richards

Governor of Texas

Austin, Texas 78711

Dear Governor Richards:

I appreciated receiving your recent letter suggesting ways in

which the Department could work more effectively with the

State of Texas and its citizens to meet the goals of the

Endangered Species Act.

Like yourself, I recognize the success the Act has had in

Texas as well as in the rest of the country.

I am also convinced that effective implementation of the act

is consistent with the traditional rights and responsibilities of

property owners. I believe, however, that the built-in

flexibility of the Act has not been routinely used in a way

that gives private landowners the security and certainty they

need when making important land-use decisions. Too often,

the Federal Government has failed to pursue creative

conservatism solutions with landowners, making the listing

of species a first and last resort.

Your persuasive advocacy of the concerns of ranchers and

farmers in Texas has been a valuable contribution to us as we

seek ways to meet the goals of the Act. Your letter

contained several constructive proposals that I instructed my

staff to analyze immediately. Some of those points need

further review. However, I believe that several of your ideas

exemplify the new flexibility we need in enforcing the Act.

As you are aware, I have personal knowledge of the State

and local government efforts to create conservatism

initiatives protecting the warbler. The Fish and Wildlife

Service’s work thus far clearly indicates that , if the

appropriate habitat conservation plans are implemented

within a-reasonable period of time, the designation of critical

habitat for the warbler will be neither necessary nor prudent

because it will provide no net benefit to the species. I have

therefore instructed the U.S. Fish and Wildlife Service to

cease work on warbler critical habitat designation. Instead,

Service personnel will direct their energies towards working

with the State, local governments, property owners and other

interested citizens to establish habitat conservation plans that

protect both our natural heritage and our economic potential.

I agree with you that normal agricultural and ranching

activities in Texas have little impact on golden cheeked

warbler habitat.

Assertions that protection of the warbler in Texas would

have a significant negative impact on such practices are

wrong. The Department testified recently before a joint

hearing of the State Legislature’s Natural Resources

Committee and said unequivocally that if land has been

plowed or farmed for years, it is not warbler habitat. While

the Act does not give us the authority to exempt specific

land-use practices, as a practical matter traditional ranching

and farming activities will not hinder warbler conservation.

Regrowth cedar that has invaded cleared fields is also not

habitat, and can be cleared without concern. Most warblers

live on rocky slopes. Since most agricultural and building

activity does not occur on rocky slopes. those activities

should not affect warbler conservation.

I believe the Department has been remiss in failing to give

adequate guidance on this matter, which has led to an

abundance of misinformation on the topic. | have asked U.S.

Fish and Wildlife Service Director Mollie Beattie to work

closely with the State to issue such guidance as soon as

possible before the end of the year. You should know that

in July, the Service changed its policy to ensure that when a

listing occurs, the listing package will include a document

specifying activities that will not be affected by the listing.

I also agree with your proposal to examine and recommend

ideas for changes to the implementation of the Act in Texas.

I have asked Director Beattie to work with your office and

affected constituents to develop a process designed to

achieve this goal.

Making the flexibility in the Act work will require input

from affected citizens, State and local governments. The

State of Texas has continually offered constructive advice

and input into our process. In fact, Texas has become a

national leader in establishing a working relationship with

the Federal Government on specific endangered species

issues. I will continue to welcome any information from

Texas concerning listed or candidate species, including

evidence to support a petition that would delist a species.

Be assured that future information provided by Texas on any

species will receive serious consideration.

Your personal involvement has been key to developing

solutions for these natural resources issues. I look forward

to a continued working relationship with both you and the

Texas Legislature.

Sincerely,

s/ Bruce Babbitt

LETTERS TO CENTRAL TEXAS LANDOWNERS

UNITED STATES

DEPARTMENT OF THE INTERIOR

FISH AND WILDLIFE SERVICE

Ecological Services

Stadium Centre Building

711 Stadium Drive East, Suite 252

Arlington, Texas 76011

February 20, 1991

Mr. & Mrs. Mike Igua

P.O: Box 4748

Lago Vista, TX 78645

Dear Mr. & Mrs. Igua:

It has come to our attention that clearing of a strip of

woodland has recently occurred on a tract of land located

south of FM 1431 in the vicinity of Lago Vista, Texas. We

understand that you are one of the joint owners of the

property. Information available to us indicates that this

property supports prime habitat for the federally-listed

endangered golden-cheeked warbler. Destruction of habitat

of an endangered species may constitute a “take” of that

species as defined by the Endangered Species Act, which

prohibits “take” of a federally-listed species unless the

“take” is incidental to otherwise lawful activity and a permit

in compliance with the Act has been obtained. In this case, a

permit under Section 10(a) of the Act would apply.

Information on the Section 10(a) permit process is enclosed.

Destruction of endangered species habitat, without a permit,

that results in “take” of a federally-listed endangered species

could be held to be a violation of the act and could expose a

violator to the criminal penalties provided for under Section

11(b)(1) of the Act or to the civil penalties provided for

under Section 11{a)(1) of the Act. Section 11(b)(1) provides

for a fine of not more that $50,000 or imprisonment up to

one year, or both. Section 11(a)(1) permits assessment of up

to $25,000 as a civil penalty for each violation.

10a

This matter is currently under investigation by Special Agent

Alex Hasychak of the Fish and Wildlife Service Law

Enforcement Office in San Antonio and by personnel of this

office. If you are indeed an owner of the property in

question, we respectfully urge that you cease any further land

clearing activities and contact Alex Hasychak at (512) 229-

5412 or Joe Johnston of this office at (817) 885-7830 for

additional information on compliance of such activities with

the Endangered Species Act.

Sincerely,

Robert M. Short

Field Supervisor

Enclosure

cc: Law Enforcement, FWS, San Antonio, TX

Regional Director, FWS, Albuquerque, NM (F WE/HC)

Regional Solicitor, USDI, Tulsa, OK

lla

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 78701

Marge Krueger

6208 Shadow Mountain Drive

Austin, Texas 78731

Dear Ms. Krueger:

This responds to our telephone conversation of June 7, 1993,

requesting that this office reevaluate the following property

for its suitability as habitat for federally listed threatened or

endangered species:

Lot in Jester Point, Phase I, or 7101 Foxtree Cove,

Austin, Travis County, Texas

We have reviewed the information you provided as well as

other available information concerning the potential of the

above property to provide suitable habitat for the federally

listed endangered golden-cheeked warbler, black-capped

vireo and cave invertebrates.

We believe this property would be suitable habitat for the

federally listed endangered golden-cheeked warbler and/or

the cave invertebrates. We believe that clearing or

development-related activities of this acreage would

constitute a “take” as defined by Endangered Species Act

(Act). The Act prohibits the “take” of a federally listed

species unless the “take” is incidental to an otherwise lawful

activity and a section 10 (a)(1)(B) permit under the Act has

been obtained. Therefore, our biological evaluation of

12a

development on the subject lot and compliance with the Act

remains unchanged.

We appreciate your concern for endangered species and your

desire to comply with the Endangered Species Act. This

response is intended to assist you in such compliance. You

are ultimately responsible for compliance with all laws, and

this letter does not exempt you from complying with current

or future federal, state, regional, or local development

requirements. If you wish to discuss this further, please

contact Alma Barrera at 512-482-5436.

Sincerely,

Sam D. Hamilton

State Administrator

13a

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 78701

June 24, 1993

Phil Frazier

Horizon Environmental Services, Inc.

P.O. Box 162017

Austin, Texas 78746

Dear Mr. Frazier:

This responds to your letter, dated May 24, 1993, requesting

this office review the following property for its suitability as

habitat for federally listed threatened or endangered species:

0.321 acres located on Lakeview Drive in Comanche

Trail Subdivision, Travis County, Texas.

We have reviewed the information you provided as well as

other available information concerning the potential for the

above property to provide suitable habitat for the federally

listed endangered golden-cheeked warbler, black-capped

vireo and cave invertebrates. We believe this property would

not provide suitable habitat for the black-capped vireo and

the cave invertebrates, but would provide suitable habitat for

the golden-cheeked warbler.

Our records indicate that golden-cheeked warblers have been

observed on the periphery of this property. Current

biological information indicates the warbler is sensitive to

several factors associated with residential development,

including increases in noise levels, predators, human activity

l4a

in nesting areas, and other disturbance factors. We believe

that clearing or development-related activities of this area,

would constitute a "take" as defined by the Endangered

Species Act (Act). The Act prohibits "take" unless it is

incidental to an otherwise lawful activity and been

authorized under section 7 or section 10(a)(1)(B) of the Act.

Therefore, construction in this area would require

authorization under the Act.

We appreciate your concern for endangered species and your

desire to comply with the endangered Species Act. This

response is intended to assist you in such compliance. You

are ultimately responsible for compliance with all laws, and

this letter does not exempt you from complying with current

or future federal, state, regional, or local development

requirements. If you wish to discuss this further, please

contact Alma Barrera at (512) 482-5436.

Sincerely,

Sam D. Hamilton

State Administrator

iD A

15a

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 78701

December 3, 1993

Keith E. Young

KEY Group Engineering

3701 Bee Caves Road, Suite 102

Austin, Texas 78746

Dear Mr. Young:

This responds to your letter, dated August 31, 1993,

requesting this office review the following property for its

suitability as habitat for federally listed threatened or

endangered species:

Part of 25.4 area tract located 4.1 miles from 1431 off

Lime Creek Road, Travis County, Texas

We have reviewed the information you provided as well as

other available information concerning the potential for the

above property to provide suitable habitat for the federally

listed endangered golden-cheeked warbler, black-capped

vireo and cave invertebrates. We believe this property would

provide suitable habitat for the golden-cheeked warbler, the

black-capped vireo and/or the cave invertebrates.

The subject tract is part of a large tract occupied by golden-

cheeked warbler, black-capped vireo and/or the cave

invertebrates. Additionally, areas that are biologically

necessary for the continued existence of a species may not be

continuously occupied by that species. Current biological

l6a

information indicates the warbler and vireo are sensitive to

several factors associated with residential development,

including increases in noise levels, predators, human activity

in nesting areas, and other disturbance factors. We believe

that clearing or development-related activities of this area,

would constitute a "take" as defined by the Endangered

Species Act (Act). The Act prohibits "take" unless it is

incidental to an otherwise lawful activity and been

authorized under section 7 or section 10(a)(1)(B) of the Act.

Therefore, construction in this area would require

authorization under the Act.

We appreciate your concern for endangered species and your

desire to comply with the Endangered Species Act. This

response is intended to assist you in such compliance. You

are ultimately responsible for compliance with all laws, and

this letter does not exempt you from complying with current

or future federal, state, regional, or local development

requirements. If you wish to discuss this further, please

contact Alma Barrera at (512) 482-5436.

Sincerely,

/s/ Jana Grote

Sam D. Hamilton

State Administrator

Enclosure

17a

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 78701

January 13, 1994

Patrick Noack

2000 Yaupon Valley Road

Austin, Texas 78746

Dear Mr. Noack:

It has come to our attention that clearing and construction

activities associated with residential development are

occurring on a 23-acre tract located off Yaupon Valley Road

in Westlake Hills, Travis County, Texas. Information

received from the Travis County Tax Appraisal District

indicates that you are the owner of this property.

The Fish and Wildlife Service (Service) has reviewed this

property for endangered species concerns in a letter, dated

June 10, 1992, (see enclosed copy). In this letter, based on

biological surveys provided by Horizon Environmental

Services and other information available at that time, our

agency advised that development of this tract would require

a permit for "incidental taking" under section 10(a)(1)(B) of

the Endangered Species Act (Act). Further development of

this property would be prohibited under section 9 of the Act.

We are providing information on this section 10(a)(1)(B)

permitting process for your information.

Provisions of the Act prohibit unauthorized take of

endangered species listed under the Act. "Take" is defined as

activities that harass, harm, pursue, hunt, shoot, wound, kill,

aaa ia

18a

trap, capture, or collect, or attempt to engage in such a

conduct. "Harm" in this definition includes the disturbance

or destruction of habitat occupied by the species or necessary

for its recovery. Activities that could affect the warbler

include clearing, construction, or change in flora or fauna of

areas in or adjacent to habitat.

The Service recommends no further development activities

his | it r

ari . Failure to stop these activities

immediately could result in a violation of the Act and

possible criminal or civil actions that could result in fines

and/or imprisonment.

Should you have any questions regarding the determination

on this property, or would like to have a meeting concerning

this property and tne section 10(a)(1)(B) permitting process,

please contact Bob Simpson at 512/482-5436.

Sincerely,

/s/ Joseph E. Johnston

Sam D. Hamilton

State Administrator

19a

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 78701

January 13, 1994

Jerri Garner

25613 River Fern Court

Leander, Texas 78641

Dear Ms. Garner:

# eT ee ere

This letter is in reference to recent clearing activities on the

property across River Fern Court from your horse stable

operations near Leander, in Williamson County , Texas.

This property supports vegetation that is possibly occupied

by the federally listed endangered golden-cheeked warbler.

According to our files, golden-cheeked warblers have been

sighted on adjacent properties in similar habitat, and are very

likely present on your property close to the area that has been

cleared.

If the activities taking place on the subject site are in any

way disrupting the breeding and/or foraging activities of the

federally protected golden-cheeked warbler, these activities

would constitute a “take” of listed species. Take of listed

species is prohibited under section 9 of the Endangered

Species Act (Act) and must be avoided or authorized under

section 7 or section 10 of the Act.

The term “take” means to harass, pursue, hunt, shoot, wound,

kill, trap, capture, or collect, or attempt to engage in such

conduct. “Harm” in this definition of “take” in the Act

means an act which actually kills or injures wildlife. Such

20a

act may include significant habitat modification or

degradation where it actually kills or injures wildlife by

significantly impairing essential behavioral patterns,

including breeding, feeding, or sheltering. “Incidental

taking,” authorized under section 7 or 10 of the Act, means

any taking otherwise prohibited, if such taking is incidental

to, and not the purpose of, the carrying out of an otherwise

lawful activity.

Based on aerial photographs, and other information available

to this office, we recommend that clearing activities on the

property be discontinued and a biological survey be

performed by qualified biologists to determine if this habitat

is currently being utilized by golden-cheeked warblers. This

would help you, and our office, determine if further

development of this site would require authorization under

the Act. Please see the appropriate enclosures for minimal

survey requirements for the golden-cheeked warbler.

If you have further questions regarding the ecology of the

golden-cheeked warbler, of the Act, please contact Bob

Simpson of my staff at (512) 482-5436.

Sincerely,

/s/ Jana Grote

/s/_ Joseph E.

Johnston

Sam D. Hamilton

State

Administrator

cc: Jean Nance

2la

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 78701

January 13, 1994

Austin Americana Enterprises

Rex Bohls

1301 S IH-35

Austin, Texas 78741

Dear Mr. Bohls:

It has come to our attention that clearing and construction

activities associated with residential development are

occurring on a 473 acre tract of land known as the Friendship

Ranch in Hays County, Texas. Information received from

the Hays County Tax Appraisal District indicates that you

are the owner of this property.

Bc 2+ impelled Sh AANA IN Bet he

The Fish and Wildlife Service reviewed this property in a

letter to the Doug Hodge Company on October 16, 1991, for

endangered species concerns (see enclosure). In that letter

we stated that, based on aerial photographs and other data

available to this office, the property could provide suitable

habitat for the federally listed and protected golden-cheeked

warbler (Dendroica chrysoparia). We also included

information regarding minimal survey (warblers) using the

property.

Provisions of the Act prohibit unauthorized take of

endangered species listed under the Act. “Take” is defined

as activities that harass, barm, pursue, hunt, shoot, wound,

kill, trap, capture, or collect, or attempt to engage in such a

conduct. “Harm” in this definition includes the disturbance

or destruction of habitat occupied by the species or necessary

I dene

22a

for its recovery. Activities that could affect the warbler:

include clearing, construction, or change in flora or fauna of

areas in or adjacent to habitat.

We have not received any information, since that

correspondence, to change our determination that the subject

property could provide suitable habitat for the warbler. If

there are warbters present on this property, development

could require a permit for “incidental taking” under section

10(a)(1)(B) of the Endangered Species Act (Act). We are

providing information on the section 10(a)(1)(B) permitting

process for your consideration and urge you to contact this

office for further assistance on how to comply with the Act.

Should you have any questions regarding this property, or

would like to schedule a meeting concerning this property

and the section 10(a)(1)(B) permitting process, please

contact Bob Simpson at 512/482-5436.

Sincerely,

/s/ Joseph E.

Johnston

Sam D. Hamilton

State

Administrator

Enclosure

cc: Alex Hasychak, FWS, Special Agent, Law Enforcement

23a

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 78701

January 25, 1994

Lee Sherrod

Horizon Environmental Services, Inc.

P.O. Box 162017

Austin, Texas 78716

Dear Mr. Sherrod:

This responds to your fax, dated September 17, 1993,

requesting that this office evaluate the following property for

its suitability as habitat for federally listed threatened or

endangered species:

Two tracts on River Hills Road off FM 2244 (Bee

Caves Road), Austin, Travis County, Texas

We have reviewed the information on the 1991 and 1993

surveys you provided as well as other available information

concerning the potential for the above property to provide

suitable habitat for the federally listed endangered golden-

cheeked warbler, black-capped vireo and cave invertebrates.

We believe that this property would not provide suitable

habitat for the black-capped vireo or the cave invertebrates,

but could provide suitable habitat for the golden-cheeked

warbler.

Because of sightings on or adjacent to these tracts, we

believe that clearing or development related activities on this

acreage would constitute a “take” as defined by Endangered

Species Act (Act). The Act prohibits the “take” of a

federally listed species unless the “take” is incidental to an

24a

otherwise lawful activity and section 7 or section 10(a)(1)(B)

permit under the Act has been obtained. Therefore,

development of this acreage would require authorization

under the Act.

Thank you for providing pertinent information regarding this

evaluation. This response is intended to assist you in such

compliance. You are ultimately responsible for compliance

with all laws, and this letter does not exempt you from

complying with current or future federal, state, regional or

local development requirements. If you wish to discuss this

further, please contact Alma Barrera at (512) 482-5436.

Sincerely,

/s/ Jana Grote

Sam D. Hamilton

State Administrator

Enclosure

on: City of Austin, Conservation & Environmental

Department

City of Austin, Electric Department

Jim Nuckles, Travis County Tax Appraisal District

25a

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 78701

April 7, 1994

This letter is in reference to recent clearing activities on your

property on FM 1340 near Hunt, in Kerr County, Texas.

This property supports vegetation that is possibly occupied

by the federally listed endangered golden-cheeked warbler.

According to our files, golden-cheeked warblers have been

sighted on adjacent properties in similar habitat, and are

possibly present on your property close to the area that has

been bulldozed.

If the activities taking place on the subject site disrupt the

breeding and/or foraging activities of the federally protected

golden-cheeked warbler, these activities would constitute a

“take” of listed species. Take of listed species is prohibited

under section 9 of the Endangered Species Act (Act) and

must be avoided or authorized under section 7 or section 10

of the Act.

The term “take” means to harass, pursue, hunt, shoot, wound,

kill, trap, capture, or collect, or attempt to engage in such

conduct. “Incidental taking”, authorized under section 7 or

10 of the Act, means any taking otherwise prohibited, if such

taking is incidental to, and not the purpose of, the carrying

out of an otherwise lawful activity.

Based on aerial photographs, and other information available

to this office, we recommend that clearing activities on the

property be discontinued and a biological survey be

performed by qualified biologists to determine if this habitat

26a

is currently being utilized by golden-cheeked warblers. This

would help you, and our office, determine if further

development of this site would require authorization under

the Act. Please see the enclosure for minimal survey

requirements for the golden-cheeked warbler.

If you have further questions regarding the ecology of the

golden-cheeked warbler, or the Act, please contact Bob

Simpson of my staff at (512) 482-5436.

Sincerely,

/s/ Joseph E. Johnston

Field Supervisor

27a

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 78701

April 14, 1994

Lee Sherrod

Horizon Environmental Services, Inc.

P.O. Box 162017

Austin, Texas 78716

Dear Mr. Sherrod:

This responds to your letter dated March 4, 1994, requesting

this office review the following property for its suitability as

habitat for federally listed threatened or endangered species:

Painted Bunting Subdivision, Austin, Travis County,

Texas

We have reviewed the information you provided as well as

other available information concerning the potential of the

above property to provide suitable habitat for the federally

listed endangered golden-cheeked warbler, black-capped

vireo and cave invertebrates. Based on current biological

information, we do not believe that this property would

provide suitable habitat fo: the black-capped vireo or the

cave invertebrates, but would provide habitat for the golden-

cheeked warbler.

Your bird survey indicates that two golden-cheeked warblers

were observed in the canyon. Current information indicates

the warbler is sensitive to several factors associated with

residential development, including increases in noise levels,

28a

predators, human activity in nesting areas, and other

disturbance factors. Therefore, we believe that clearing or

development-related activities on Lots 6-13, would constitute

a “take” as defined by the Endangered Species Act. The Act

prohibits the “take” unless it is incidental to an otherwise

lawful activity and section 10(a)(1)(B) permit under the Act

has been obtained. Therefore, construction of residences on

these lots would require authorization under the Act.

However, construction on Lots 1-4 and 14-15 (drawing

enclosed) would not require authorization under the Act if

the following conservation measures are incorporated in the

construction.

l. Remove only those trees and shrubs necessary for

construction of driveway, septic tank and house.

YF Confine the development activities on the front 200

feet of the lot.

3. Use only native plant species for landscaping.

4. Confine exterior construction activities so that it

occurs outside the breeding season for the golden-

cheeked warbler (breeding period is from March |

through August 1), so as to avoid disruption of

breeding behavior.

We believe that destruction of the habitat located beyond the

front 200 feet of the lot could result in a “take” of the

endangered golden-cheeked warbler and thus, require

authorization under the Act.

We appreciate your concern for endangered species and your

desire to comply with the Act. This response is intended to

assist you in such compliance. However, you are ultimately

responsible for compliance with all laws, and this letter

cannot assure you complete protection from any future

liability or exempt you from any current or future federal,

29a

state, regional or local development requirements. If you

wish to discuss this matter further, please contact Alma

Barrera at (512) 482-5436.

Sincerely,

Field Supervisor

Enclosure

cc: City of Austin, Conservation & Environmental

Department

City of Austin, Electric Department

Jim Nuckles, Travis County Tax Appraisal District

30a

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 78701

September 23, 1994

Fran & Larry Collmann

9911 Anderson Mill Road

Austin, Texas 78750

Dear Mr. & Mrs. Collmann:

This responds to your letter, dated September 19, 1994,

requesting this office re-evaluate the 13.942 acres located

near Spicewood Springs Road and Loop 360 off White Cliff

Dr., Austin, Travis County, Texas property. We have re-

evaluated the new information you provided.

As stated in our letter June 1, 1994, our records indicate that

golden-cheeked warblers have been sighted on the westem,

southern and eastern boundaries of this property. Mr. Lee

Sherrod’s letter to you of June 13, 1994, indicated the

possibility of black-capped vireos in the area. Current

information indicates the warbler and vireo are sensitive to

several factors associated with residential development,

including increases in noise levels, predators, human activity

in nesting areas, and other disturbance factors. Therefore,

we believe that clearing or development-related activities on

the majority of this tract, could constitute a “take” as defined

by the Endangered Species Act. The Act prohibits “take”

unless it is incidental to an otherwise lawful activity and has

been authorized under section 10(a)(1)(B) of the Act. We

recommend that authorization under the Act be secured prior

to any development.

3la

However, we also said, there may be a possibility of building

a single house on the 13.942 acres without constituting

“take” if the following conditions are observed. We wish to

reiterate that this property is very close to habitat that is

occupied by the golden-cheeked warbler and/or black-capped

vireo. To avoid harassment (a possible “take” violation) of

the species that may occur in the area, we wish to

recommend the following conservation measures:

- Construction of only one single family home on the

northeast portion of the property, the area which is

already cleared.

2. The driveway be constructed in the already cleared

roadway.

3. Exterior construction activities on this property not

occur between March 1 and August 1.

4. Remove only the trees that are needed for

construction of the house and septic field.

3 Use only native plants and grasses for landscaping.

6. Ensure that all clearing and construction operations

are consistent with current practices of the Texas

Forest Service to prevent the spread of oak wilt.

7. Prohibit the use of pesticides, herbicides and

fertilizers.

| If these conservation recommendations are not followed,

then we believe a take could occur and recommend obtaining

authorization under section 10(a)(1)(B) or section 7 of the

Endangered Species Act. Section 10(a)(1)(B) permit

procedures are enclosed.

32a

Thank you for providing pertinent information to help re-

evaluate this property. If you wish to discuss this matter

further, please contact Alma Barrera at (512) 482-5436.

Sincerely,

/s/ Jana Grote

Field Supervisor

Enclosure

ce: City of Austin, Conservation & Environmental

‘Department

City of Austin, Electric Department

Jim Nuckles, Travis County Tax Appraisal District

33a

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 78701

January 13, 1994

Glenn Williams and Terry Wynn, Partners

P.O. Box 64138

Lubbock, Texas 79464

Gentlemen:

This letter is in reference to recent vegetation clearing

activities on 611.208 acres of your property located near

Spanish Pass Road and Tower Road in Kendall County,

Texas. This property supports vegetation that is likely to be

occupied by the federally listed endangered golden-cheeked

and/or black-capped vireo.

If the development activities on the subject site are in any

way disrupting the breeding and/or foraging activities of the

federally protected golden-cheeked warbler and/or black-

capped vireo, these activities could constitute a “take” of

listed species.

The Endangered Species Act (Act) prohibits the “take” of

federally-listed species unless the “take” is incidental to

otherwise lawful activity and a section 10(a)(1)(B) permit

under the Act has been obtained. “Take” is defined as

harass, harm, pursue, hunt, shot, wound, kill, trap, capture, or

collect, or to attempt to engage in any such conduct.

We recommend that clearing activities on the property be

discontinued and you contact Alma Barrera for additional

34a

information on compliance of such activities with the Act at

(512) 482-5436. |

Sincerely,

/s/ Joseph E. Johnston

Field Supervisor

cc: Regional Director, Region 2

Solicitor, Department of the Interior, Tulsa, OK

Fish and Wildlife Service, Law Enforcement, San

Antonio, TX

35a

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 7870]

June 9, 1994

Stan & Donna Buck |

305 Golden Oaks Drive

Georgetown, Texas 78628

Dear Mr. & Mrs. Buck:

This responds to your letter, dated March 23, 1994,

requesting this office to review the following property for its

Suitability as habitat for federally listed threatened or

endangered species:

Lot 8, Lake Georgetown Estates II, located on

County Road 262, Georgetown, Williamson

County, Texas

We have reviewed the information you provided as well as

other available information concerning the potential of the

above property to Provide suitable habitat for the federally

listed endangered golden-cheeked warbler, black-capped

vireo and cave invertebrates. We believe that this property

would not provide suitable habitat for the black-capped vireo

or the cave invertebrates, but would provide habitat for the

golden-cheeked warbler.

The subject lot is part of a block of habitat occupied by the

golden-cheeked warbler. Areas that are biologically

necessary for the continued existence of a species may not be

continuously occupied by that species. Current biological

36a

information indicate the warbler is sensitive to several

factors associated with residential development, including

increases in noise levels, predators, human activity in nesting

areas, and other disturbance factors. We believe that

clearing or development-related activities in this area, would

constitute a “take” as defined by the Endangered Species Act

(Act). The Act prohibits the “take” unless it is incidental to

an otherwise lawful activity and has been authorized under

section 10(a)(1)(B) of the Act. We recommend that

authorization under the Act be secured prior to any

development. Procedures for the section 10(a)(1)(B) permit

process are enclosed. |

We appreciate your concern for endangered species and your

desire to comply with the Endangered Species Act. This

response is intended to assist you in such compliance. You

are ultimately responsible for compliance with all laws, and

this letter does not exempt you from complying with current

or future federal, state, regional or local development

requirements. If you wish to discuss this matter further,

please contact Alma Barrera at (512) 482-5436.

Sincerely,

Field Supervisor

37a

United States Department of the Interior

FISH AND WILDLIFE SERVICE

611 E. Sixth Street

Grant Bldg., Suite 407

Austin, Texas 78701

September 22, 1994

Lee Sherrod

Horizon Environmental Services, Inc.

P.O. Box 162017

Austin, Texas 78716

Dear Mr. Sherrod:

This responds to your letter, dated June 28, 1994, regarding

the re-evaluation of the HE Brodie tract, located Barton

Creek Loop 360, Lamar and Ben White Blvd., Austin, Travis

County, Texas.

Our records indicate that golden-cheeked warblers have been

observed along the Barton Creek greenbelt adjacent to this

property and some observations along the property line. The

Subject tract is part of a large tract occupied by golden-

cheeked warblers. Additionally, areas that are biologically

necessary for the continued existence of a species may not be

continuously occupied by that species. Current biological

information indicates the warbler is sensitive to several

factors associated with development, including increases in

noise levels, predators, human activity in nesting areas, and

other disturbance factors.

We believe that clearing or development-related activities on

Rart of this property (the water quality buffer and transition

zones), could constitute a “take” as defined by the

Endangered Species Act (Act). The Act prohibits “take”

acr —r ee |

38a

unless it is incidental to an otherwise lawful activity and has

been authorized under section 10(a)(1)(B) of the Act.

As discussed during our meeting of July 12, we believe some

development can occur outside the City of Austin water

quality buffer and transition zones, 800 feet from the middle

of Barton Creek, without constituting “take” if the following

conditions are observed.

:. Exterior construction activities within 1000 feet from

the middle of the creek not occur between March 1

and August 1.

2. Remove only trees that are needed for construction.

3. Use only native plants and grasses for landscaping.

4. Ensure that all clearing and construction operations

are consistent with current practices of the Texas

Forest Service to prevent the spread of oak wilt.

If these conservation recommendations are not followed,

then we believe a take could likely occur and we recommend

obtaining authorization under section 10(a)(1)(B) or section

7 of the Endangered Species Act.

We appreciate your concern for endangered species and your

desire to comply with the Act. If you wish to discuss this

matter further, please contact Alma Barrera at (512) 482-

5436.

Sincerely,

/s/ Jana Grote

Field Supervisor

Enclosure

ae ead ss

Kasstht Sete AAT ih DA SS

cc: City of Austin,

Services Dept.

39a

Environmental

City of Austin, Power & Light

Jim Nuckles, Travis County Tax Appraisal District

& Conservation

40a

UNITED STATES DEPARTMENT OF THE INTERIOR

FISH AND WILDLIFE SERVICE

POST OFFICE BOX 1306

Albuquerque, N.M. 87103

August 19, 1992

In Reply Refer To:

Region 2/RD

Chairman John Hall

Texas Water Commission

1700 North Congress Avenue

Austin, Texas 78711

Dear Chairman Hall:

The United States Fish and Wildlife Service (Service)

commends the efforts of the Texas Water Commission

(TWC) to protect and ensure proper management of the

limited water resources of the Edwards Aquifer (Aquifer).

The TWC’s proposed Water Management Plan (Plan) is a

major and positive step forward by the State of Texas to

resolve a long-standing water crisis that threatens public

health and safety, an entire region’s economy, and various

ecological resources.

The Service has completed a careful review and evaluation

of the TWC’s proposed plan. We have determined that if the

modifications outlined below are made, your plan could

increase protection and assurances of flows at San Marcos

and Comal Springs, and therefore could provide a sound

basis for resolving endangered species issues.

You have asked the Service to provide a careful review of

the TWC plan. Taking into consideration the amount of

4la

water now present in the Aquifer, the TWC’s hydrologic

simulations, as well as our hydrologist’s evaluation of

droughts in the region, we believe that for the next 20+ years

there is a high probability of uninterrupted flow at San

Marcos and Comal Springs if your proposed Plan, subject to

our recommended changes below, is implemented. Based on

this review and incorporation of the recommended changes,

the Service supports the proposed TWC Comprehensive

Water Management Plan for the Edwards Aquifer.

However, our analysis indicates that even with full

implementation of the Plan, there is still the possibility that

some “taking” of endangered species may occur. To ensure

compliance with the Endangered Species Act and address the

possibility for “takings” of endangered species, we

recommend that the State of Texas, or an appropriate

regional management agency, apply for an incidental take

permit from the Service. The Habitat Conservation Plan

(HCP) that would accompany such an application should be

designed to address the potential for lawful “incidental

takings” of endangered species. Based on current data, the

following provisions would be required as part of the HCP:

° Initially, direct pumpage from the

Aquifer is to be limited, in the aggregate, to no

more than 450,000 acre-feet per calendar year.

° Within 10 years, direct pumpage from

the Aquifer shall be reduced by 50,000 acre-

feet to 400,000 acre-feet per calendar year.

. In order to protect flows at San Marcos

and Comal Springs, a_ special drought

management plan must be developed and

implemented during extreme drought.

Specifically, the drought management plan

must reduce direct pumpage from the Aquifer

to a rate of 350,000 acre-feet per year at any

42a

time the water level in the J-17 index well in

Bexar County falls below 625 feet msl.

“ TWC may allow additional withdrawals

of “interruptible or (surplus) water supplies

when levels at the J-17 index well are above

665 feet msl. However, such withdrawals

should be limited to 88,000 acre-feet to assure

that spring flows are not adversely affected

during critical drought conditions. Also,

allocations of such interruptible water supply

should provide for the diversion of at least

one-half of the water downstream of the

springs and associated critical habitat areas,

rather than directly from the aquifer.

* All wells used for domestic and

livestock purposes should be registered with

TWC, or an appropriate regional management

agency, to enable the monitoring of their

cumulative impact on the Aquifer.

* Maintain moratorium on new wells

until the State or local rules go into effect.

* The section 10(a) permit length would

be 20 years or less.

Also, from the review we’ve conducted, it is clear that there

is a relationship between pumpage from the Aquifer and

flows at San Marcos and Comal Springs. Maintenance of

springflows are clearly enhanced as direct pumpage from the

Aquifer is reduced. Consequently, the Service recommends

a study be conducted over the next 5 years to determine the

feasibility of various water users diverting 50,000 to 75,000

acre-feet of their Aquifer water withdrawals from some point

downstream of the springs and critical habitat areas.

BO DR a Ta aa

43a

We also encourage other Federal agencies to demonstrate a

leadership role in water conservation and the protection of

endangered species. The Endangered Species Act (ESA)

states “. . . that all Federal departments and agencies shall

seek to conserve endangered species and threatened species

and shall utilize their authorities in furtherance of the

purposes of this Act.” This requirement applies to all

Federal agencies which contribute, directly or indirectly, to

the withdrawal of water from the Edwards Aquifer. The

Department of Defense, Department of Agriculture,

Department of Transportation, Environmental Protection

Agency, and Department of Housing and Urban

Development are examples of Federal entities that must play

a vital role in the protection of endangered species that are

dependent upon the Edwards Aquifer.

Again, the Service supports your efforts and believes that the

sensitive springs systems will be afforded a significantly

higher degree of protection than they now have. We are very

excited and encouraged by the progress that you and your

colleagues have made toward developing a much needed and

long overdue management plan for the Edwards Aquifer. |

particularly appreciate your efforts to look at the “big

picture” and provide a plan that considers invaluable natural

resources such as springflows, instream flows, and flows to

the bays and estuaries, as well as consideration for human

well-being. We look forward to continuing our work with

you in this endeavor to protect the unique ecosystems that

depend on the waters of the Edwards Aquifer.

Sincerely,

s/ Michael Spear

Regional Director

Enclosures

CC:

44a

U.S. Senator Lloyd Bentsen

U.S. Senator Phil Gramm

Honorable Henry B. Gonzalez

Honorable Lamar S. Smith

Honorable Albert G. Bustamante

Governor Ann Richards

Sam Hamilton, State Administrator, FWS, Austin, TX

Andrew Sansom, Executive Director, Texas Parks & Wildlife

Dept., Austin, TX

STERRA CLUB LONE STAR CHAPTER

April 15, 1994

CERTIFIED MAIL

RETURN RECEIPT REQUESTED

TO: The Honorable Bruce Babbitt, Secretary

United States Department of the Interior

Office of the Secretary

18th and C Streets, N.W.

Mail Slot #MS6217

Washington, D.C. 20240

All Federal agencies listed on Exhibit A attached to

this notice

The City of San Antonio and other individuals and

entities that withdraw water from the Edwards Aquifer, some

of whom are listed on Exhibit B

The Texas Natural Resource Conservation

Commission (TNRCC)

All other Violators (Defined Below)

Re: Notice of Endangered Species Act Violations

Dear Secretary Babbitt, all Federal agencies listed on Exhibit

A attached to this notice, the City of San Antonio and other

individuals and entities that withdraw water from the

Edwards Aquifer including, without limitation, those listed

on Exhibit B, the TNRCC, and all other violators:

We am writing on behalf of the Sierra Club and Clark

Hubbs to notify each of you, pursuant to Section

11(g)(2)(A)(i) of the Endangered Species Act of 1973 (ESA),

16 U.S.C. 1540(g)(2)(A)(i), of violations of the ESA, 16

46a

U.S.C. 1531 et seq., by each of you, and of the Sierra Clubs

and Clark Hubbs intent to sue concerning these violations.

Unlawful actions and failures or refusals to act by all

of you cause severe overdrafting of the Edwards

Underground River, also known as the Edwards (Balcones

Fault Zone) Aquifer, San Antonio Region, hereinafter, the

Edwards. Overdrafting of the Edwards poses a substantial

and imminent threat of jeopardy to the continued existence

of endangered and threatened species and to the public health

and safety of 1.5 million people. Both the species and the

people are dependent on clear, clean natural Edwards water.

Overdrafting of the Edwards moves hydrogen sulfide, a

hazardous substance, into the fresh water in the Edwards.

Overdrafting of the Edwards threatens to poison the Edwards

for everyone.

This threat is urgent. Overdrafting has already

resulted in takings of endangered species in 1989 and 1990,

and according to the largest pumper, San Antonio, threatens

to do so again this summer and in 1995 and 1996.

Overdrafting has already resulted in jeopardy to endangered

species at Comal Springs in 1989 and 1990, and according to

San Antonio threatens to do so again in mid-1995 and mid-

1996. Overdrafting has already resulted in some movement

of bad water, contaminated by hydrogen sulfide, a hazardous

substance, in 1956. It threatens to do so again in a repeat of

the drought of record, or in a drought less serious than the

drought of record but slightly more serious than the droughts

of 1984, 1989 and 1990.

This threat requires a vigorous coordinated federal-

state-local response, beginning immediately. Michael Spear,

Assistant Director of the U.S. Fish & Wildlife Service

(USFWS), lead agency in charge of the Edwards species,

testified in November 1992 that the Texas legislative session

ending May 1993 represented the last chance for a state

solution, before the blunt axes of ESA 7 and 9 have to be

dropped. That legislative session produced a statute, S.B.

47a

1477 which, according to the State of Texas, is frozen. No

federal, state or local entity has a plan adequate to protect

endangered species and human water supplies against

overdrafting of the Edwards. The States last plan does not

come close to protecting these waters, according to an

independent mid-1993 review by the University of Texas.

The background facts are set forth in the Findings of

Fact and Conclusions of Law entered on February 1, 1993,

by the Honorable Lucius Bunton, Senior United States

District Judge, in Sierra Club v. Lujan, 1993 WL 151353

(W.D. Tex.), as amended May 26, 1993, appeal dismissed

sub. nom. Sierra Club v. Babbitt, 995 F.2d 571 (Sth Cir.

1993). A copy is attached as Exhibit C and incorporated by

reference in this notice of violation.

The Sierra Club and Clark Hubbs hereby give notice

of the following violations:

(1) The Secretary of the Interior and the U.S. Fish

& Wildlife Service have violated and are violating ESA 4,

16 U.S.C. 1533, by (a) failure to act on the listing petitions

for certain Comal Springs species; (b) failure to designate

critical habitat for those species and for the Texas blind

salamander; (c) failure to develop recovery plans for the

Comal Springs species and/or population and for the Texas

blind salamander; (d) failure to implement key provisions of

the San Marcos Recovery Plan; and (e) failure to promulgate

regulations to protect threatened species against reduction in

springflows due to excessive pumping of the Edwards.

(2) The Secretary of the Interior and all Federal

Agencies listed on Exhibit A (together, the Federal

Violators), including but not limited to the U.S. Fish and

Wildlife Service, the U.S. Departments of the Interior,

Transportation, Agriculture, Defense, Army and Air Force,

the U.S. Defense Base Closure and _ Realignment

Commission, and the Agency for Toxic Substances and

Disease Registry, have violated and are violating ESA 7, 16

48a

U.S.C. 1536, by failing to review and utilize their

authorities to plan and carry out programs for the

conservation of the Edwards, Comal and San Marcos species

against reduced springflows due to excessive pumping and

by failing to engage in coordinated multi-agency

consultation to insure that no actions or activities authorized,

funded or carried out by them or by other federal agencies

are likely to jeopardize the continued existence of any of the

Edwards, Comal and San Marcos species.

(3) The Federal Violators, the TNRCC, and the

City of San Antonio and other individuals and entities who

withdraw water from the Edwards Aquifer, some of whom

are listed on Exhibit B, have violated and are violating ESA

9 by authorizing, funding or carrying out pumping, or by

authorizing, funding or carrying out activities that allow,

maintain, encourage or increase pumping, from the Edwards

to an extent that reduces Edwards levels and Comal and San

Marcos springflow rates to below the points at which

endangered wildlife are actually killed or injured.

The Sierra Club and Clark Hubbs intend to amend and

supplement the Sierra Clubs complaint in Sierra Club v.

Babbitt, seeking leave from Judge Bunton for this purpose.

The Sierra Club and Clark Hubbs intend to allege violations

of ESA Sections 4, 7 and 9 and of other federal statutes,

against specific defendants, as set forth in the proposed

amended and supplemental complaint, a copy of which is

attached as Exhibit D, and incorporated by reference in this

notice of violation. The Sierra Club and Clark Hubbs

reserve the right to sue others to whom this notice of

violation is sent for the violations covered by this notice, in

the proposed amended and supplemental complaint or in a

future amended and supplemental complaint. In particular,

the Sierra Club and Clark Hubbs give notice that they intend,

as necessary, to sue pumpers for violations of ESA Section 9

and seek injunctive relief restricting pumping to prevent

violations of Section 9. Such relief may be requested as

early as this summer.

49a

Excessive pumping jeopardizes both endangered

species and San Antonio’s and others water supply. In

summary, federal, state and local authorities have the power

and duty to protect the Edwards against excessive pumping.

They have failed and are failing or refusing to carry out their

responsibilities. As a result, excessive pumping by San

Antonio, the San Antonio military bases, agribusinesses and

others imperils the Edwards ecosystem.

The Sierra Club and Clark Hubbs plan to take prompt

legal action to obtain judicial remedies for this emergency.

Sincerely,

Ken Kramer, Director

Lone Star Chapter of the

Sierra Club

Stuart Henry

SBN 09484000

202 West 17th Street

Austin, Texas 78701

($12) 479-8125

(512) 479-8269 (fax)

P.M. Schenkkan

SBN 17741500

727 E 26th Street

Austin, Texas 78705

(512) 471-3280

(512) 471-6988 (fax)

50a

Attachments

cc: Governor Ann Richards

TO: Bruce Babbitt. et al.

April 15, 1994

Page PAGE 4

Sla

U.S. Agency for Toxic

Substances and

Disease Registry

By serving David

Satcher, Administrator

1600 Clifton Road,

N.E.

Atlanta, GA 30333

U.S. Defense Base

Closure and

Realignment

Commission

By serving James A.

Courter, Chairman

Rosslyn Metro Center

Bldg.

1700 North Moore

Street

Arlington, VA 22209

U.S. Department of

Agriculture

By serving Mike

Espey, Secretary

14th and Independence

Avenue, S.W.

Washington, D.C.

20250

U.S. Department of

Commerce

By serving Ronald H.

Brown, Sr., Secretary

14th St. and

Constitution Avenue,

N.W.

Washington, D.C.

20230

. U.S. Department of

Defense

By serving William J.

Perry, Secretary

The Pentagon

Washington, D.C.

20301

U.S. Department of the

Air Force

By serving Sheila E.

Widnall, Secretary of

the Air Force

The Pentagon

Washington, D.C.

20330

U.S. Department of the

Army

By serving Togo D.

West, Jr., Secretary of

the Army

The Pentagon

Washington, D.C.

20310

U.S. Department of the

Navy

By serving John H.

Dalton, Secretary of

the Navy

The Pentagon

Washington, D.C.

20350

10.

‘4.

U.S. Department of

Education

By serving Richard W.

Riley, Secretary

400 Maryland Avenue,

S.W.

Washington, D.C.

20202

U.S. Department of

Energy

By serving Hazel R.

O’ Leary, Secretary

Forrestal Building

1000 Independence

Avenue, S.W.

Washington, D.C.

20585

U.S. Department of

Health and Human

Services

By serving Donna E.

Shalala, Secretary

200 Independence

Avenue, S.W.

Washington, D.C.

20201

.U.S. Department of

Housing and Urban

Development

By serving Henry G.

Cisneros, Secretary

451 Seventh Street,

S.W.

Washington, D.C.

20410

13.

15.

16.

17.

U.S. Department of the

Interior

By serving Bruce

Babbitt, Secretary

18th and C Street,

N.W.

Mail Slot # MS6217

Washington, D.C.

20240

. U.S. Department of

Justice

By serving Janet Reno,

Attorney General

Tenth Street and

Constitution Avenue,

N.W.

Washington, D.C.

20530

U.S. Department of

Labor

By serving Robert B.

Reich, Secretary

200 Constitution

Avenue, N.W.

Washington, D.C.

20210

U.S. Department of

State

By serving Warren

Christopher, Secretary

2201 C Street, N.W.

Washington, D.C.

20520

U.S. Department of

Transportation

18.

19,

20.

By serving Federico F.

Pena, Secretary

400 Seventh Street,

S.W.

Washington, D.C.

20590

U.S. Department of the

Treasury

By serving Lloyd M.

Bentsen, Secretary

1500 Pennsylvania

Avenue, N.W.

Washington, D.C.

20220

U.S. Department of

Veteran Affairs

By serving Jesse

Brown, Secretary

810 Vermont Avenue,

N.W.

Washington, D.C.

20420

Environmental

Protection Agency

By serving Carol M.

Browner,

Administrator

401 M Street, S.W.

Washington, D.C.

20460

. Farm Credit

Administration

By serving Billy R.

Brown, Chairman

1501 Farm Credit

22.

rx J

Drive

McLean, VA 22102

Farmers Home

Administration

By serving Michael V.

Dunn, Administrator

14th Street and

Independence Avenue,

S.W.

Washington, D.C.

20250

Federal

Communications

Commission

By serving Reed E.

Hundt, Chairman

1919 M Street, N.W.

Washington, D.C.

20554

. Federal Deposit

Insurance Corporation

By serving Andrew

Hove, Chairman

550 Seventeenth

Street, N.W.

Washington, D.C.

20429

. Federal Emergency

Management Agency

By serving James Lee

Witt, Director

Federal Center Plaza

500 C Street, S.W.

Washington, D.C.

20472

30.

. Federal Home Loan

Mortgage Corporation

By serving Leland C.

Brendsel, Chairman

8200 Jones Branch

Drive

McLean, VA 22102

. Federal Housing

Finance Board

By serving the

Chairman

1777 F Street, N.W.

Washington, D.C.

20006

. Federal Labor

Relations Authority

By serving Jean

McKee, Chairman

607 Fourteenth Street,

N.W.

Washington, D.C.

20424-0001

. Federal Trade

Commission

By serving Janet D.

Steiger, Chairman

Sixth Street and

Pennsylvania Avenue,

N.W.

Washington, D.C.

20580

General Services

Administration

By serving Roger W.

54a

31.

33.

34.

Johnson, Acting

Administrator

18th and F Streets,

N.W.

Washington, D.C.

20405

International

Development

Cooperation Agency of

the United States

By serving J. Brian

Atwood, Director

Department of State

Building

320 Twenty-first

Street, N.W.

Washington, D.C.

20523

International Trade

Commission

By serving Don E.

Newquist, Chairman

500 E Street, S.W.

Washington, D.C.

20436

Interstate Commerce

Commission

By serving Gail C.

MacDonald, Chairman

Twelfth Street and

Constitution, N.W.

Washington, D.C.

20423

National Labor

Relations Board

36.

37.

By serving James M.

Stephens, Chairman

1099 14th Street, N.W.

Washington, D.C.

20570

. Office of Thrift

Supervision

By serving Jonathon L.

Fiechter, Acting

Director

1700 G Street, N.W.

Washington, D.C.

20552

U.S. Postal Service

By serving Marvin

Runyon, Postmaster

General

475 L’Efant Plaza

West, S.W.

Washington, D.C.

20260

Resolution Trust

Corporation Oversight

Board

By serving Jack Ryan,

Chief Executive

Officer

801 17th Street, N.W.

Washington, D.C.

20434

. Securities and

Exchange Commission

By serving Arthur

Levitt, Jr., Chairman

450 Fifth Street, N.W.

Washington, D.C.

20549

. Selective Service

System

By serving Robert W.

Gambino, Director

1515 Wilson

Boulevard

Arlington, VA 22209-

2425

. Small Business

Administration

By serving Erskine

Bawles, Administrator

409 Third Street, S.W.

Washington, D.C.

20416

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.