Case 5:12-cv-00164 Document 39 Filed in TXSD on 09/27/13 Page 1 of 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS LAREDO DIVISION BECKETT VENTURES, INC., t aL § § Plaintiffs, § VS. § CIVIL ACTION NO. L-12-164 § EAGLE FORD MIDSTREAM, LP et aL § § Defendants. § MEMORANDUM ORDER Plaintiffs Beckett Ventures, Inc. and Hall o f Fame Land Ventures, LP, owners and operators o f the Herradura Ranch in La Salle County, Texas, seek injunctive and declaratory relief under the Endangered Species Act ( ESA ) and the Declaratory Judgment Act against Defendants Eagle Ford Midstream, LP and NET Midstre am, LLC, who have obtained a natural gas pipeline right-of-way through the Ranch under eminent domain. (Dkt. 1 t ~ 3; Dkt. 7 t ~ 3.) Plaintiffs' complaint alleges that the Ranch contains su itable habitat for the endangered ocelot and that there is evidence o f the ocelot's presence in the form of tracks and eyewitness reports. (Dkt. 1 at ~ 9.) According to Plai ntiffs, Defendants' pipeline-related activiti es will require the clearing away o f ocelot habitat, resulting in ''takes proscribed by the ESA. Id. at m 1, 14; Dkt. 32 at pg. 1.) Invoking the ESA, Plaintiffs seek injunctiv e re li ef in the form o f a revised right-of-way that is less destructive to ocelot habitat but will still achieve Defendants' objectives. (Dkt. 1 t ~ 17.) Pursuant to 28 U.S.C. § 2201, Plaintiffs also seek a declaration that Defendan ts violated Section 9 of the ESA, the ''take provision, by harming and harassing the ocelot. ld. t ~ 94.) Pending is Defendants' Motion to Dismiss pursuant to Federal Ru1e of Civil Procedure 12(b)(l) for lack o f subject matter jurisdiction, Rule 12(b)(6) for failure to state a claim, and 1 I 1
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Case 5:12-cv-00164 Document 39 Filed in TXSD on 09/27/13 Page 1 of 10
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION
BECKETT VENTURES, INC., et aL, §
§Plaintiffs, §
VS. § CIVIL ACTION NO. L-12-164
§EAGLE FORD MIDSTREAM, LP, et aL, §
§Defendants. §
MEMORANDUM & ORDER
Plaintiffs Beckett Ventures, Inc. and Hall of Fame Land Ventures, LP, owners and
operators of the Herradura Ranch in La Salle County, Texas, seek injunctive and declaratory
relief under the Endangered Species Act ("ESA") and the Declaratory Judgment Act against
Defendants Eagle Ford Midstream, LP and NET Midstream, LLC, who have obtained a natural
gas pipeline right-of-way through the Ranch under eminent domain. (Dkt. 1 3; Dkt. 7
3.) Plaintiffs' complaint alleges that the Ranch contains suitable habitat for the endangered
ocelot and that there is evidence of the ocelot's presence in the form of tracks and eyewitness
reports. (Dkt. 1 at 9.) According to Plaintiffs, Defendants' pipeline-related activities will
require the clearing away of ocelot habitat, resulting in ''takes" proscribed by the ESA. (Id. at mf1, 14; Dkt. 32 at pg. 1.) Invoking the ESA, Plaintiffs seek injunctive relief in the form of a
revised right-of-way that is less destructive to ocelot habitat but will still achieve Defendants'
objectives. (Dkt. 1 17.) Pursuant to 28 U.S.C. § 2201, Plaintiffs also seek a declaration that
Defendants violated Section 9 of the ESA, the ''take" provision, by harming and harassing the
ocelot. (ld. 94.)
Pending is Defendants' Motion to Dismiss pursuant to Federal Ru1e of Civil Procedure
12(b)(l) for lack of subject matter jurisdiction, Rule 12(b)(6) for failure to state a claim, and
Case 5:12-cv-00164 Document 39 Filed in TXSD on 09/27/13 Page 2 of 10
Rule 12(b)(7) for failure to join a required party. (Dkt. 30.) Upon an initial review of the
motion, the Court ordered additional briefing on a standing issue left unaddressedby the parties.1
(Dkt. 35.) Plaintiffs filed responsive briefing (Dkt. 36), as well as an unopposed motion for
leave to amend their complaint (Dkt. 37), which is also pending. For the reasons discussed
below, Defendants' Motion to Dismiss (Dkt. 30) is hereby DENIED in its entirety. Moreover,
Plaintiffs' motion for leave to amend the complaint (Dkt. 37) is hereby GRANTED.
Background
In the spring of2012, Defendants entered into negotiations with Plaintiffs to obtain their
right-of-way through the Ranch. (Dkt. I atmf
4-6; Dkt. 7 atmf
6-10.) During these negotiations,
Plaintiffs attempted to persuade Defendants to adopt a route around the Ranch that would be less
destructive of the claimed ocelot habitat. (Dkt. 1 at mf 4-5.) Apparently, however, negotiations
fell through. On May 24, 2012, Defendants filed the eminent domain proceeding. (!d. 3;
Dkt. 7 a t ~ 13; Attach. 6 at pg. 26.) On August 16, 2012, seeking recourse under the ESA,
Plaintiffs sent Defendants a Notice of Intent to Sue letter for violations ofSection 9. (Dkt. 1
8.) Nonetheless, on August 27, 2012, Defendants obtained their right-of-way across the Ranch
via a state court order. (Id. 3; Dkt. 7, Attach. 6 at pg. 26.)
To proceed with installation of the pipeline, federal law and regulation required that
Defendants obtain a permit from the United States Army Corps ofEngineers ("the Corps"), in
consultation with the United States Fish and Wildlife Service ("FWS"), regarding the effect on
any ESA-listed species or their designated habitat. See 16 U.S.C. § 1536(a)(2); see also 77 Fed.
1Plaintiffs originally alleged that they suffered injury to their environmental, aesthetic,
and recreational interests. (Dkt. I at mf 102-103.) However, the Court noted in its prior orderthat corporate entities like Plaintiffs cannot have such interests. See Citizens Coordinating
Comm. on Friendship Heights, Inc. v. Wash. Metro. Area Transit Auth., 765 F.2d 1169, 1173(D.C. Cir. 1985).
Case 5:12-cv-00164 Document 39 Filed in TXSD on 09/27/13 Page 7 of 10
injury."); see also Franklin v. Mass., 505 U.S. 788, 801-03 (1992); Alaska Fish & Wildlife Fed'n
& Outdoor Council v. Dunkle, 829 F.2d 933, 937 (9th Cir. 1987).
II. Fallure to state a claim upon which relief can be granted
Defendants argue, for purposes of Rule 12(b)(6), that Plaintiffs fail to state a claim
because the relief they seek is now moot; specifically, Defendants contend that relief is no longer
available because the pipeline has been completed. 3 (Dkt. 30, Attach. I at pg. 5.) A case
becomes moot only when it is impossible for a court to grant any effectual relief whatsoever to
the prevailing party. Erie v. Pap's A.M., 529 U.S. 277, 287 (2000) (quoting Church of
Scientology of Cal.v.
United States, 506 U.S.9, 12
(1992)). Here, relief is still possible for
Plaintiffs. For example, the Court could order a re-route of the pipeline and restoration of the
habitat. See Ctr. fo r Biological Diversity v. U.S. Bureau ofLand Mgmt., 698 F.3d 1101, 1106
n.2 (9th Cir. 2012) ("That the pipeline was completed and put into service during the pendency
of this lawsuit does not render the petitioners' challenges moot. It is still possible to mitigate the
project's adverse effects on listed species and critical habitat.'')
Defendants also argue that the Court cannot grant any relief for past takes by a private
party. (Dkt. 30, Attach. I at pg. 6.) Nonetheless, the Court need not address this issue.
Plaintiffs request injunctive relief to prevent, not just past takes, but ongoing and future takes as
well, either of which is sufficient to state a claim.
m. Joinder of parties
Defendants move to dismiss under Rule 12(b)(7) for failure to join parties required by
Rule 19, namely, the Corps and the FWS. (Dkt. 30, Attach. I at pg. 6.) Rule 19 requires a
3 A motion to dismiss under Rule 12(b (6) is analyzed under the same standard as amotion to dismiss under Rule 12(b)(l). Dooley v. Principi, 250 F. App'x, 114, 115 (5th Cir.