Water Keeper Alliance v. U.S. Dept of Defense

Citation271 F.3d 21
Decision Date04 October 2001
Docket NumberNo. 01-2057,01-2057
Parties(1st Cir. 2001) WATER KEEPER ALLIANCE; NATURAL RESOURCES DEFENSE COUNCIL; ALIANZA DE MUJERES VIEQUENSES; MARTA I. MELENDEZ; SANDRA I. MELENDEZ; MIRIAM SOBA; CARMEN O. VALENCIA; CABALLISTAS POR LA PAZ; JOSE M. EMERIC; COMITE PRO RESCATE Y DESARROLLO DE VIEQUES; ROBERT RABIN; ANTONIO CORCINO; MARIA O. NAVARRO; GRUPO DE APOYO TECNICO PROFESSIONAL AL DESARROLLO SUSTENTABLE DE VIEQUES; JOSE RIVERA SANTANA; REINALDO CAMACHO; CARLOS J. ASENCIO RIVERA; RADAMES TIRADO; LUIS ACEVEDO, Plaintiffs, Appellants, 1199-SEIU NEW YORK'S HEALTH AND HUMAN SERVICES UNION; JUAN R. FERNANDEZ; VIEQUES WATER KEEPER; VICTOR EMERIC; Plaintiffs, v. UNITED STATES DEPARTMENT OF DEFENSE; DONALD H. RUMSFELD, SECRETARY OF DEFENSE; THE DEPARTMENT OF NAVY; ROBERT B. PIRIE, SECRETARY OF THE NAVY; THE SECRETARY OF THE INTERIOR GAIL NORTON, Defendants, Appellees. Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

[Copyrighted Material Omitted] Robert F. Kennedy, Jr., with whom Scott A. Edwards, Maria Jimenez Colon, Celina Romany, and Foster Maer, were on brief, for appellants.

Kathryn E. Kovacs, Attorney, U.S. Department of Justice, with whom David C. Shilton, Attorney, U.S. Department of Justice, Wayne Hettenbach, Attorney, U.S. Department of Justice, Stephen G. Bartell, Attorney, U.S. Department of Justice, Eileen T. McDonough, Attorney, U.S. Department of Justice, John C. Cruden, Acting Assistant Attorney General, U.S. Department of Justice, Guillermo Gil, United States Attorney, Isabel Munoz Acosta, Assistant United States Attorney, Marc Swartz, U.S. Department of the Navy, Office of General Counsel, and Cathleen Reynolds, U.S. Department of the Navy, Office of General Counsel, were on brief, for appellees.

Before Lynch, Circuit Judge, Stahl, Senior Circuit Judge, and Lipez, Circuit Judge.

STAHL, Senior Circuit Judge.

Plaintiffs-appellants, Water Keeper Alliance et al. ("Water Keeper"), appeal the denial of their motion for preliminary injunction to stay Department of Navy (the "Navy," one of several defendants-appellees) military exercises on the island of Vieques off Puerto Rico. Water Keeper alleges violations by the Navy of certain procedural requirements under section 7 of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536. The district court found that Water Keeper had failed to show a strong likelihood of success on its ESA theory, that its showing of potential irreparable harm had not been strong, and that the balance of harms, as well as the interest of the public, weighed in favor of denying the motion. Since the denial of Water Keeper's motion for a preliminary injunction, the district court has additionally determined that it lacked jurisdiction over the ESA claims because Water Keeper, prior to bringing suit, failed to provide adequate 60-day notice as required by the citizen suit provisions of the ESA. See ESA § 11(g)(2)(A), 16 U.S.C § 1540(g)(2)(A). We hold that notice was adequate for the purposes of the particular ESA claim on appeal here, but affirm on the merits the district court's denial of Water Keeper's motion for a preliminary injunction.

I. Statutory Framework

The current appeal takes place against the background of a complex statutory framework that we examine at the outset of our opinion. The ESA directs federal agencies to insure that agency action "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." ESA § 7(a)(2), 16 U.S.C. § 1536(a)(2). This substantive requirement is backed up by a scheme of procedural requirements that set up a consultation process between the agency (in this case the Navy) and the National Marine Fisheries Service ("NMFS") and the U.S. Fish and Wildlife Service ("FWS") (jointly, the "Services")1 to determine whether endangered species or critical habitat are jeopardized by proposed agency action and whether this adverse impact may be avoided or minimized. See ESA § 7, 16 U.S.C. 1536.

Under the ESA, "[e]ach Federal agency shall review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitat." 50 C.F.R. § 402.14(a). Although the determination of possible effects is ultimately the agency's responsibility, see 51 Fed. Reg. 19949, in making this determination, the agency may consult with the Services through "informal consultation." The term simply describes discussions and correspondence between the Services and the agency designed to assist the agency in determining whether its proposed action is likely to impact listed species or critical habitat. Id. § 402.13. If, at the conclusion of the informal consultation, the Services issue written concurrences that a "proposed action is not likely to adversely affect any listed species or critical habitat," the agency may proceed with the action without further consultation between the parties. Id. § 402.14(b)(1).

However, where the proposed agency action rises to the level of a "major construction activity" the determination as to whether agency action may affect listed species or critical habitat cannot be made through informal consultation alone, but must be based on a "biological assessment." Id. § 402.12(b)(1); see also 51 Fed. Reg. 19948 (noting that the biological assessment may be conducted simultaneously with informal consultation or without any informal consultation). A "major construction activity" is "a construction project (or other undertaking having similar physical impacts) which is a major Federal action significantly affecting the quality of the human environment as referred to in the National Environmental Policy Act [NEPA, 42 U.S.C. 4332(2)(C)].2 50 C.F.R. § 402.02. The biological assessment is a study that "evaluate[s] the potential effects of the action on listed and proposed species . . . and determine[s] whether any such species or habitat are likely to be adversely affected by the action . . . ." 50 C.F.R. § 402.12(a). If, following completion of the biological assessment, the Services issue written concurrences that the "proposed action is not likely to adversely affect any listed species or critical habitat," the consultation is terminated. Id. at § 402.14(b).

If, on the other hand, based on either informal consultation or a biological assessment, the Services are unwilling to concur that the agency action is unlikely to impact protected species and habitat, or if the agency independently concludes that its actions may affect listed species or critical habitat, the agency is required to initiate "formal consultation." See id., § 402.14(a)&(b)(1). Formal consultation is initiated by the written request of the agency describing the action and the manner in which it may affect listed species and critical habitat. Id. § 402.14(c). Significantly, "formal consultation shall not be initiated by the Federal agency until any required biological assessment has been completed and submitted to the [Services] in accordance with § 402.12." Id. § 402.14(c). Nonetheless, formal consultation may take place without a biological assessment if the action is not a major construction activity.

After a period of review and discussion, formal consultation culminates in the Services' issuance of biological opinions advising the agency "whether the action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat," and, if so, whether "reasonable and prudent alternatives" exist to allow the agency to comply with the ESA. 50 C.F.R. § 402.14(h); see also ESA § 7(b)(3)(A), 16 U.S.C. § 1536(b)(3)(A). If the Services conclude that the action, or the implementation of any reasonable and prudent alternatives, comply with the ESA, the Services must also issue an "incidental take statement" that specifies the amount or extent of the authorized taking of the species. ESA § 7(b)(4), 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i).

With the basics of the statutory framework in place, we next consider the application of the ESA to the Navy in relation to its training exercises on Vieques.

II. Background

The Navy has used the island for military exercises since 1941, including ship-to-shore and aerial bombing with live ammunition. Thirteen endangered and threatened species live on the island of Vieques and in surrounding water, and, as a result, in 1980 and 1981 respectively, pursuant to the ESA and after formal consultation, the NMFS and the FWS issued biological opinions regarding the effects of Navy exercises on the listed species and critical habitat. Both Services found no jeopardy to any listed species or critical habitat from naval exercises on Vieques.

Beginning in 1995, the NMFS and the FWS asked the Navy to reinitiate "formal consultations" with the Services to reexamine the effect of the military exercises on the endangered and threatened species of the island. The Services explained that new information regarding the listed species had been obtained since 1981, that dead or injured species had been found after training exercises (the original biological opinion did not authorize any takings pursuant to ESA section 7(b)(4), 16 U.S.C. § 1536(b)(4)), and that reinitiation was typical after five years. In January 2000, after a period of informal consultation, the Navy agreed to initiate formal consultation with FWS and NMFS. The Navy further indicated its willingness to prepare a biological assessment in anticipation of formal consultation, despite the fact that, in its own determination, it was not required to do so under the regulations. (See 50 C.F.R. § 402.12(b)(1); 51 Fed. Reg. 19945, contemplating voluntary preparation of a biological assessment to assist in...

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