126 F.3d 461 (3rd Cir. 1997), 96-7661, Hawksbill Sea Turtle v. Federal Emergency Management Agency

Docket Nº:96-7661.
Citation:126 F.3d 461
Party Name:HAWKSBILL SEA TURTLE; Green Sea Turtle (Chelonia Mydas); Virgin Islands Tree Boa (Epicrates Monensis Granti); Jeffrey Weiss; David A. Brener; Alain M. Brin; Gary E. Brin; Robert Cockayne; Sally Cockayne; Robin Cockayne; Frank Daly; Annette Daly; Joan E. Delugo; Dorothy Drummey; Eastwind Association; Janet Egbert; W. Houston Evan, II; Walter Fedders
Case Date:September 22, 1997
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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126 F.3d 461 (3rd Cir. 1997)

HAWKSBILL SEA TURTLE; Green Sea Turtle (Chelonia Mydas);

Virgin Islands Tree Boa (Epicrates Monensis Granti);

Jeffrey Weiss; David A. Brener; Alain M. Brin; Gary E.

Brin; Robert Cockayne; Sally Cockayne; Robin Cockayne;

Frank Daly; Annette Daly; Joan E. Delugo; Dorothy

Drummey; Eastwind Association; Janet Egbert; W. Houston

Evan, II; Walter Feddersen; Deborah Foster; Richard

Foster; John Freeman; Patricia Freeman; Bonnie Gray;

Sanford Grishman; Lisa Gaye Hall; Iverine Hedrington;

Harry Illingworth; Kimberly Jones; Gregory Joseph; Susan

Kardys; Nelson Keller; Andrea King; Craig Lucas; Andrew

Maron; Cathy Maron; Paul William Moss; Jo Norton; Larry

Norton; Dr. Maxine A. Nunez; Edmond G. Rawson, III; Susan

Rawson; Robert M. Petersen; Paige Santiago Passano;

Maxine Lavitt; Joseph Selfridge; Eric Soldiew; Ellen

Stewart; Clare Tyson; John T. Wagner; Delores Wagner; Russell White

v.

FEDERAL EMERGENCY MANAGEMENT AGENCY, An Agency of the United

States of America; Witt, James Lee; Department of

Interior, an Agency of the United States of America;

Babbit, Bruce, Secretary Of the Interior the Hawksbill Sea

Turtle (Eretmochelys Imbricata); The Green Sea Turtle

(Chelonia Mydas); The Virgin Islands Tree Boa (Epicrates

Monensis Granti); A. Jeffrey Weiss; David A. Brener;

Alain M. Brin; Gary E. Brin; Robert Cockayne; Sally

Cockayne; Robin Cockayne; Frank Daly; Annette Daly; Joan

E. Delugo; Dorothy Drummey; Eastwind Association; Janet

Egbert; W. Houston Evans, II; Jane Feddersen; Walter

Feddersen; Deborah Foster; Richard Foster; John Freeman;

Patricia Freeman; Bonnie Gray; Sanford Grishman; Lisa

Gaye Hall; Iverine Hedrington; Harry Illingworth;

Kimberly Jones; Gregory Joseph; Susan Kardys; Nelson

Keeler; Andrea King; Craig Lucas; Andrew Maron; Cathy

Maron; Paul V. Maynard, M.D.; Rosalyn Moss; William

Moss; Jo Norton; Larry Norton; Dr. Maxine A. Nunez;

Edmond G. Rawson, III; Susan Rawson; Sharon J. Petersen;

Robert M. Petersen; Robert M. Petersen; Paige

Santiago-Passano; Maxine Lavitt-Sawyer; Joseph Selfridge;

Eric Soldiew; Ellen Stewart; Clare Tyson; John T. Wagner;

Delores Wagner; Russell White, Appellants

No. 96-7661.

United States Court of Appeals, Third Circuit

September 22, 1997

Argued April 8, 1997.

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[Copyrighted Material Omitted]

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A. Jeffrey Weiss (argued), A.J. Weiss & Associates, Charlotte Amalie, St. Thomas, U.S. Virgin Islands, James Dougherty, Washington, DC, for Appellants.

Lois J. Schiffer, Assistant Attorney General, James A. Hurd, Jr., United States Attorney, Stanley L. de Jonagh, Assistant United States Attorney, St. Thomas, Virgin Islands, J. Carol Williams, Mark A. Brown, M. Alice Thurston, Peter A. Appel (argued), Martin W. Matzen, Department of Justice, Washington, DC, Lois E. Pilgrim (argued), Housing Authority of the Virgin Islands, Charlotte Amalie, St. Thomas, U.S. Virgin Islands, Jordan S. Fried, David A. Trissell, Office of General Counsel, FEMA, Washington, DC, Sean Skaggs, Department of the Interior, Office of the Regional Solicitor, Southeast Region, Atlanta, GA, for Appellees.

Before: BECKER, ROTH, and WEIS, Circuit Judges.

BECKER, Circuit Judge.

OPINION OF THE COURT

This appeal from an order of the district court denying injunctive relief under the Endangered Species Act ("ESA"), 16 U.S.C. § 1536 et seq., presents a number of interesting questions under the ESA and under the law of collateral estoppel. The plaintiffs, who include (by their popular names) the Hawksbill Sea Turtle, the Green Sea Turtle, and the Virgin Islands Tree Boa, which are endangered or threatened species, and also a number of individuals who own real property and reside in the vicinity of Vessup Bay in the east end of St. Thomas (the habitat of these species), filed suit to enjoin the construction of a temporary housing project in nearby Estate Nazareth. The project was a hurried response to the devastation wrought by Hurricane Marilyn, which struck St. Thomas in December 1995 and displaced many people from their homes. The gravamen of the complaint is that the project would cause harm to the turtles and the Tree Boa species in violation of the ESA.

This is the plaintiffs' second lawsuit. In their first action, see Virgin Islands Tree Boa v. Witt, 918 F.Supp. 879 (D.V.I.1996), plaintiffs alleged that the Federal Emergency Management Agency ("FEMA"), the United States Fish and Wildlife Service ("FWS"), and instrumentalities of the Virgin Islands Territorial Government had violated the ESA as well as the National Environmental Policy Act ("NEPA") because they had failed to follow specific procedures which

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are designed to ensure that the relevant governmental actors had adequately considered the risks that the housing project threatened to inflict on the Tree Boa and the marine environment of Vessup Bay during the planning and construction phase.

The case was assigned to Judge Finch, who held an evidentiary hearing held in late January 1996. In a written opinion, Judge Finch found that there was no clear evidence that Tree Boas actually inhabited the project site or that the project site was the source of sedimentation run-off into Vessup Bay. Also satisfying himself as to the adequacy of FEMA's proposed mitigation measures, he concluded that defendants had satisfied their duties under the ESA and NEPA, and denied plaintiffs' request for preliminary injunctive relief. With respect to plaintiff's ESA claims, Judge Finch did not address the substantive requirements of § 9 of the Act, holding only that with respect to the procedural requirements of § 7, the defendants had engaged in the requisite consultation process so as to "fulfill their duty to safeguard the future of the Tree Boa." Judge Finch alternatively found that he felt compelled to dismiss the ESA claims for failure to satisfy the statute's notice requirements, and we affirmed. See Virgin Islands Tree Boa v. Witt, 82 F.3d 408 (3d Cir.1996) (table).

Plaintiffs then discontinued that action and instituted the present action, which is against the federal defendants only, still seeking to enjoin the construction and occupation of the housing project. See Hawksbill Sea Turtle v. FEMA, 939 F.Supp. 1195 (D.V.I.1996). In the new action, plaintiffs sought injunctive relief only under the ESA, alleging that, in providing the temporary housing shelters, defendants had violated the procedural requirements of § 7 and the substantive requirements of § 9, thereby causing irreparable harm not only to the endangered Tree Boa but also to the endangered Hawksbill Sea Turtle and the threatened Green Sea Turtle. Judge Brotman, to whom the matter was reassigned following Judge Finch's recusal, held a hearing in early August 1996 and received substantial evidence in addition to that taken by Judge Finch, including new and qualitatively different evidence that was favorable to plaintiffs.

At the threshold, Judge Brotman decided that, with regard to the turtles, plaintiffs had not satisfied the requirements of the ESA that notice be given to the appropriate cabinet officer, which is a prerequisite to their right to sue. Additionally, Judge Brotman gave preclusive effect to the factual findings made by Judge Finch in the previous action, relying extensively on Judge Finch's finding that FEMA's mitigation measures were adequate to protect the Tree Boa and the marine environment of Vessup Bay. Then, basing his decision almost entirely on Judge Finch's findings and not on the significant new evidence that he had received, Judge Brotman concluded that plaintiffs had not shown a likelihood of success on the merits of their ESA claims or irreparable harm to the species they sought to protect because "[w]ith the mitigation measures in place, the temporary housing project at Estate Nazareth will not affect adversely the Tree Boa, the Hawksbill Turtle, the Green Sea Turtle, or these animals' habitats." Id. at 1210. He denied preliminary injunctive relief, and plaintiffs now appeal.

As an initial matter, this appeal requires us to determine whether satisfaction of § 11 of the ESA, 16 U.S.C. § 1540(g), is a prerequisite to plaintiffs' suit with respect to the turtles because the plaintiffs failed to notify the Secretary of Commerce of their intent to sue sixty days before filing this action. Under the ESA and the regulations promulgated thereunder, the Secretary of Commerce must be notified of claims concerning endangered sea turtles in a marine habitat. The plaintiffs had given notice of their suit only to the Secretary of the Interior, whom the ESA and its regulations requires to be notified of claims concerning harm to sea turtles in a terrestrial habitat. Plaintiffs submit that the duplicitous notice requirements are not only fatuous, particularly with respect to the Hawksbill Sea Turtle which occupies both habitats and surely does not know when it crosses from the jurisdiction of the Secretary of Commerce to that of the Secretary of the Interior, but also extraordinarily difficult to

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decipher given the complexity of the regulatory scheme.

We acknowledge the difficulty that the public must have in understanding the highly technical nature of the statutory scheme, quite forcefully elucidated in Judge Roth's dissent. However, § 11 and its accompanying regulations still must be given effect, and as we read them, they mandate that, with respect to the turtles, notice to the Secretary of Commerce was required before filing suit. Plaintiffs, who were represented by counsel at all times, failed to comply with this requirement. On this basis, the district court noted that, even if plaintiffs could...

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