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<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 <br />