Endangered Species Act

TxDOT filed a motion to dismiss the plaintiff’s claim that TxDOT did not ensure the project would not jeopardize federally protected salamander species. The court denied the motion.

The court rejected TxDOT’s argument that the claim was duplicative of the plaintiff’s other claims alleging violations of the ESA. The court explained that the plaintiff’s ESA claims were not duplicative because they alleged distinct violations of ESA’s procedural and substantive requirements:

“The ESA’s procedural requirements call for a systematic determination of the effects of a federal project on endangered species, while ESA § 7’s substantive requirement obliges federal agencies to ‘insure that any action authorized, funded, or carried out by [the] agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.’ . . . [B]ecause claims alleging procedural violations of the ESA and claims alleging substantive violations address distinct agency obligations, plaintiffs may assert simultaneous, parallel claims alleging procedural and substantive violations. . . . [The] separate procedural and substantive claims depend on different facts and involve the application of different tests to resolve their merits.”

The court also rejected TxDOT’s argument that the plaintiffs did not allege that actual jeopardy to the salamanders had occurred. The court held that the plaintiff’s allegations were adequate. “[T]he ESA contemplates proactive rather than reactive protection of endangered species. Instead, SOS need only plead facts alleging that the agency did not take certain information into account when it should have to allege a separate substantive violation. Alternatively, an assertion that TxDOT violated its substantive obligation by relying on a legally flawed concurrence may constitute a sufficient allegation of a substantive violation.”