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NATIONAL ASS'N OF HOME BUILDERS OF THE UNITED STAT

October 31, 1997

NATIONAL ASSOCIATION OF HOME BUILDERS OF THE UNITED STATES, ET. AL., Plaintiffs,
v.
BRUCE BABBITT, SECRETARY UNITED STATES DEPARTMENT OF INTERIOR, ET. AL., Defendants.



The opinion of the court was delivered by: URBINA

 Granting Defendants' Motion for Summary Judgment, and Denying Plaintiffs' Motion for Partial Summary Judgment

 I. INTRODUCTION

 Plaintiffs, National Association of Home Builders ("NAHB") *fn1" and the Texas Capitol Area Builders Association ("TCBA"), *fn2" bring this action for declaratory and injunctive relief under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 553, 701-706 (1995), and the Endangered Species Act ("ESA") citizen-suit provision, 16 U.S.C. §§ 1540(g) (1995). Plaintiffs challenge defendant United States Department of the Interior ("DOI") and defendant United States Fish and Wildlife Service's ("FWS") issuance of a technical correction to a final rule promulgated pursuant to the ESA without using the required APA notice and comment procedures. The present matter comes before the court on cross-motions for summary judgment raising two issues for the court's resolution. First, the court must decide whether the plaintiffs have standing to seek judicial review of the defendants' actions. Second, if the court concludes in the affirmative, the court then must determine whether the defendants erred in not using the notice and comment rulemaking procedures when issuing the technical correction.

 Upon consideration of the parties' submissions, the applicable law, and the record herein, the court concludes that the plaintiffs lack sufficient standing to bring suit against the defendants. Therefore, the court declines to reach the merits of the second issue. As a result, the court grants the defendants' Motion for Summary Judgment and denies plaintiffs' Motion for Partial Summary Judgment.

 II. BACKGROUND

 On September 16, 1988, the FWS promulgated a final rule ("1988 Final Rule") *fn3" pursuant to the ESA, 16 U.S.C. § 1533, which listed five cave-dwelling ("karst") invertebrate species as endangered. This list included: Bee Creek Cave Harvestman (Texella reddelli). Kretschmarr Cave Mold Beetle (Texamaurops redelli), Tooth Cave pseudo scorpion (Microcreagris texana), Tooth Cave spider (Neoleptoneta myopica), and Tooth Cave ground beetle (Rhadine persephone). On August 18, 1993, the FWS published a final rule in the form of a technical correction ("1993 technical correction") to the 1988 Final Rule. *fn4" The 1993 technical correction was published because two species, which were listed as endangered in the 1988 Final Rule, were later determined by scientific experts to actually be four distinct species of karst dwellers instead of two. The Kretschmarr Cave mold beetle was discovered to include another separate species called the Coffin Cave mold beetle (Batriodes texanus), and the Bee Creek Cave harvestman included a separate species called the Bone Cave harvestman (Texella reyesi). The FWS then listed all four species as endangered in order to "ensure that recognition and protection under the ESA . . . [was] provided . . ." for all four species, the Kretschmarr Cave mold beetle and the Bee Creek Cave harvestman, and the two newly identified species, the Coffin Cave mold beetle and the Bone Cave harvestman.

 III. DISCUSSION

 A. Legal Standard for Summary Judgment

 The court may enter summary judgment if the moving party demonstrates that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). When more than one party moves for summary judgment, each party must carry its own burden of proof. United States Dep't. of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989). On cross-motions for summary judgment, the court may not grant summary judgment unless one of the parties is entitled to judgment as a matter of law. 325-343 E. 56th Street Corp. v. Mobil Oil Corp., 906 F. Supp. 669, 674 (D.D.C. 1995) (citing Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir. 1975)). Although summary judgment motions can be employed to challenge standing, the usual burden of proof does not apply. Colo. Manufactured Housing v. Bd. of County Comm'rs, 946 F. Supp. 1539 (D. Colo. 1996). The plaintiff retains the ultimate burden of demonstrating standing, no matter how or when the issues are raised. Id. Therefore, "the burden is on the plaintiff, on a motion for summary judgment, to demonstrate that standing exists." Id. (citing Glover River Org. v. Dep't of Interior, 675 F.2d 251, 254 n.3 (10th Cir. 1982). In this case, the plaintiffs fail to carry their burden of showing that standing exists. Accordingly, the court dismisses plaintiffs' complaint for lack of standing.

 B. Standing

 In a lawsuit brought pursuant to the APA, a plaintiff must satisfy both prudential *fn5" and constitutional *fn6" requirements of standing. A plaintiff bringing a case pursuant to the ESA's citizen-suit provision *fn7" need not satisfy the prudential zone of interests test because " any person may commence a civil suit" under the ESA. Bennett v. Spear, 520 U.S. 154, 137 L. Ed. 2d 281, 117 S. Ct.1154, 1161-62 (1997) (emphasis added). However, in addition to the prudential zone of interests test, a plaintiff must also satisfy the elements of constitutional standing to sue under the ESA's citizen-suit provision. Lujan v. Defenders of Wildlife, 504 U.S. 555 at 560-61, 119 L. Ed. 2d 351, 112 S. Ct. 2130. This "irreducible constitutional minimum" of standing imposed by the "case" or "controversy" provision of Article III requires a plaintiff to establish three elements. Id. First, the plaintiff must have suffered an "injury in fact," namely an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Id. at 560. Second, the plaintiff must show a causal connection between the injury and the defendant's conduct. Specifically, the injury must be "fairly traceable" to the challenged action of the defendant and not to an independent third party. Id. Finally, the plaintiff must also prove that it is "likely," as opposed to "merely speculative," that the court can provide redress for plaintiff's injury with a favorable decision of the court. Id. at 561. The party invoking federal jurisdiction has the burden of establishing these elements. Id. As such, the party cannot rely on "mere allegations" but must set forth by affidavit or other evidence of "specific facts" that the party has standing. ...


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