## Facts

- The fountain darter is listed as an endangered species under the Endangered Species Act (ESA).
- The species existed only in two spring systems in central Texas: San Marcos Springs and Comal Springs, both fed by outflows connected to the Edwards Aquifer near San Antonio.
- Upstream pumping from the Edwards Aquifer reduced spring outflows at both San Marcos Springs and Comal Springs, raising the risk of habitat degradation for the fountain darter.
- The Secretary of the Interior, through the U.S. Fish and Wildlife Service, developed a recovery plan addressing the fountain darter at San Marcos Springs but did not carry out the plan’s measures.
- The Secretary did not develop or carry out a recovery plan for the fountain darter at Comal Springs.
- Sierra Club sued the Secretary under the ESA citizen-suit provision, alleging that ESA § 4(f) imposed nondiscretionary duties to develop and implement recovery plans and that failure to implement a recovery plan amounted to an unlawful “take” under ESA § 9.
- The Secretary argued that recovery-plan development and implementation should be treated as discretionary where budget and resource limits make planning and execution difficult.
- The Secretary did not contend that a recovery plan would fail to advance conservation of the fountain darter.

## Issues

1. Whether ESA § 4(f) imposes a nondiscretionary, judicially enforceable duty (actionable under the citizen-suit provision) to develop and/or implement recovery plans for the fountain darter.
2. Whether budget and resource constraints render recovery-plan development or implementation discretionary and therefore outside citizen-suit enforcement for “nondiscretionary” duties.
3. Whether the Secretary’s failure to implement a recovery plan, without more, constitutes a prohibited ESA § 9 “take.”

## Decision

- The court treated the ESA as imposing a duty on the Secretary to prepare a recovery plan for a listed species (absent a statutory determination that a plan would not advance conservation), making recovery-plan preparation subject to judicial compulsion to that extent.
- The court rejected Sierra Club’s argument that ESA § 4(f) creates a nondiscretionary duty to implement particular recovery-plan measures; decisions about the manner, timing, and extent of implementation were committed to agency discretion.
- The court rejected the theory that nonimplementation of a recovery plan, standing alone, constitutes an unlawful “take” under ESA § 9.
- Because implementation decisions were discretionary, the court declined to order the Secretary to carry out specific recovery actions as requested by Sierra Club.

## Legal Principles

- ESA § 4(f) can require the Secretary to prepare a recovery plan for a listed species unless the statute permits and the agency makes a determination that a plan would not aid conservation.
- The ESA citizen-suit provision authorizes suits to compel only those duties under ESA § 4 that are “not discretionary” with the Secretary.
- Recovery plans generally function as planning and guidance documents; the ESA does not, through § 4(f) alone, make plan implementation measures judicially enforceable as mandatory tasks.
- Resource and budget constraints support treating the details of implementation (what steps, when, and to what extent) as matters for agency judgment rather than court-ordered performance.
- A § 9 “take” requires more than a bare failure to carry out a recovery plan; nonimplementation by itself is not a per se “take” without a showing of conduct that causes prohibited injury to the species.

## Conclusion

*Sierra Club v. Lujan* limited ESA citizen-suit enforcement in the recovery-planning context: the court recognized a duty to prepare a recovery plan where the statute calls for one, but held that the ESA does not impose a nondiscretionary duty to implement specific recovery measures, and that failure to implement a recovery plan—without additional causation showing—does not itself establish an unlawful ESA § 9 take.


Sierra Club v. Lujan, 36 Envt. Rep. Cas. (BNA) 1533 (1993)