<br />002~28
<br />
<br />Ala. 1992). On September 28, 1992, the fed-
<br />eral district court in Mobile, Alabama, denied
<br />Morrill's request for an injunction.
<br />In declining to enjoin the proposed devel-
<br />opment, DistrictJudge Charles Butler found the
<br />causal link between the development of the
<br />propeny and harm to the mouse to be far toO
<br />speculative. He also noted that any decision
<br />about whether to include the DeWeese prop-
<br />erty within the designation of critical habitat,
<br />which had not been done, was discretionary on
<br />the part of FWS. Consequently, the court ruled
<br />that Morrill had not met her burden of estab.
<br />Iishing a substantial likelihood of success on the
<br />merits, a prerequisite for injunctive relief. Judge
<br />Butler's satirical, but well-reasoned opinion
<br />concluded:
<br />
<br />The Perdido Key beach mouse has proven itself
<br />a survivor in the limited remaining habitat thai
<br />is available to it on this earch. It has lived, ex-
<br />panded, been trapped and transponed to other
<br />areas, subject to predation by foxes, cats and
<br />snakes, competition by house mice. tcomping
<br />of beach goers, and survived hurricanes for years
<br />without ever having set foot on DeWeese's
<br />property. It has survived all this, without ever
<br />having to move north [to DeWeese's property].
<br />It should cominue to survive in the future.
<br />The plaintiff and Dr. Holler would lik.e lO
<br />preserve every square inch and grain of sand of
<br />the potemial beach mouse habitat, and SlOp any
<br />possibility of outside human or predator intru-
<br />sion wlth the truly laudable goal of affording a
<br />tiny creature every conceivable possibility of
<br />survival. But to paraphrase Stuart Little [a fic-
<br />lional mouse from a book by E. B. White], their
<br />wlshes and the law are not the same, and the
<br />Perdido Key Beach mouse's lravels to the nonh
<br />do not spell the end of its days.
<br />Id. at 433-34.
<br />The second citizen suit, brought by the Al-
<br />abama Conservancy, was dismissed on June IS,
<br />1993, pursuant to a joint request of the parties.
<br />Perdido Key Beach Mouse v. Lujan, CY-0076-
<br />CB-S(S.D.Ala.,June IS, 1993) (order granting
<br />request for dismissal in parties' joint stipula-
<br />tion). The joint stipultion does not include the
<br />terms of any settlement reached by the panies.
<br />However, recent newspaper repons indicate
<br />DeWeese has entered into an agreement with
<br />Morrill and the plaintiff environmental group
<br />to spend $3,000 annually for fifteen years to
<br />protect the mice and for educational programs.
<br />Developer Agrees to Protect Beach Mice, THE
<br />BIR.\ltNGHAM NEWS, Jan. 19, 1993. The article
<br />also noted that DeWeese agreed to prohibit cats
<br />at his development and to exterminate any house
<br />mice so daring as to take up residence in or near
<br />the development. Id.
<br />Mudd(ylng) Up the Water Law. On June
<br />19, 1991, Ned Mudd, an attorney and self-de-
<br />
<br />scribed' 'pantheist/deep ecologist," filed a cit-
<br />izen suit in federal district coun in Birmingham,
<br />Alabama, against the administrator of EPA and
<br />the Alabama Department of Environmental Man-
<br />agement (ADEM). Mudd v. Reil~y, No. CY.91.
<br />P-I392.S (N.D. Ala. filed June 19, 1991). The
<br />suit alleged that EPA and ADEM violated ESA S; 7
<br />by failing to initiate formal consultation with
<br />FWS regarding Alabama's water quality stan.
<br />dards program and ADEM's issuance of National
<br />Pollutant Discharge Elimination System (NPDES)
<br />permits.
<br />The Clean Water Act (CWA) provides for
<br />each state to issue its own NPDES permits once
<br />EPA has approved that state's NPDES program.
<br />33 U.S.c. S; 1342(b) (1988 & Supp. (990).
<br />When the state issues a specific permit after a
<br />state program is approved, EPA has the option
<br />to exercise its discretionary veto over the state-
<br />issuedpermit.ld. S; I342(d). EPA can examine
<br />each permit on a casc-by-case basis, or it may
<br />inform the state that whole classes of permits
<br />will not be vetoed. Id. S; 1342(d)(3).
<br />In Mudd, the plaintiff alleged that EPA vi-
<br />olated ESA S; 7 by not consulting with FWS on
<br />the effect the issuance of an individual NPDES
<br />permit would have on listed species. This claim
<br />is contrar}' to the fundamental policies under-
<br />lying the CWA. Section 101 of the CWA states:
<br />"It is the policy of Congress that the States .
<br />implement the (NPDESj permit programs under
<br />sections 1342 and 1344 of this title." Id.
<br />S; 1251(b).
<br />In an attempt to invoke the ESA's consul-
<br />tation requirement, Mudd alleged that ADEM
<br />(the state agency) is a department, agency, or
<br />instrumentality of the United States. However,
<br />the state of Alabama and ADEM are obviously
<br />not arms of the federal government, and Ala-
<br />bama has primacy over its own water program.
<br />33 U.s.e. S; 1342(b). Furthermore, the formal
<br />consultation requirement contained in ESA ~ 7
<br />applies only to federal agency actions, and fed-
<br />eral couns are virtually unanimous in holding
<br />that 3 state's issuance of an NPDES permit is not
<br />a federal action. E.g., District of Columbia v.
<br />Schram, 631 F.2d 854 (D.C. Cir. 1980).
<br />EPA filed a motion to dismiss Mudd's com-
<br />plaint based on both lack of standing and moot-
<br />ness. EPA asserted that because Mudd's claims
<br />are general and "sweep broadly across EPA's
<br />statewide practices" he does not have standing
<br />to sue. EPA argued that the plaintiff alleged only
<br />general injuries common to all citizens, and un-
<br />der the standards established by the Supreme
<br />Court in Llljan v. Defenders of Wildlife, 112
<br />S. Ct. 2130 (1992), Mudd failed to show the
<br />"distinct and palpable" individualized harm that
<br />is necessary to prove standing.
<br />In support of its argument that the issues
<br />
<br />NR&EISUMMER 1993
<br />
<br />When the state
<br />issues a specific
<br />permit after a stare
<br />program is
<br />approved EPA has
<br />the option to
<br />exercise its
<br />discretionary veto
<br />over the state-issued
<br />permit.
<br />
<br />15
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