Deer v. Paulison

• Decision Date: 01 April 2008
• Docket Number: No. 05-16374.,05-16374.
• Citation: 522 F.3d 1133
• Parties: FLORIDA KEY DEER (Odocoileus virginianus clavium), National Wildlife Federation, et al., Plaintiffs-Appellees, v. R. David PAULISON, in his official capacity as Acting Director of The Federal Emergency Management Agency, an Agency of the United States of America, P. Lynn Scarlett, in her official capacity as Secretary of the United States Department of the Interior, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

522 F.3d 1133

FLORIDA KEY DEER (Odocoileus virginianus clavium), National Wildlife Federation, et al., Plaintiffs-Appellees, v. R. David PAULISON, in his official capacity as Acting Director of The Federal Emergency Management Agency, an Agency of the United States of America, P. Lynn Scarlett, in her official capacity as Secretary of the United States Department of the Interior, Defendants-Appellants.

No. 05-16374.

United States Court of Appeals, Eleventh Circuit.

April 1, 2008.

Robert J. Lundman, U.S. Dept. of Justice, ENR, Washington, DC, for Defendants-Appellants.

Mary Randolph Sargent, John F. Kostyack, Nat. Wildlife Fed., Washington, DC, for Plaintiffs-Appellees.

Thomas C. Jackson, Baker Botts, LLP, Washington, DC, for Amicus Curiae, Nat. Ass'n of Home Builders.

Tamara McNierney Scrudders, Johnson, Anselmo, Murdoch, Burke, Piper & McDuff, Ft. Lauderdale, FL, for Amicus Curiae, Monroe Cty., FL.

Valerie Fernandez, Pac. Legal Found., Stuart, FL, for Amicus Curiae, Pac. Legal Found.

James B. Dougherty, Law Office of J.B. Dougherty, Washington, DC, for Amicus Curiae, Taxpayers for Common Sense.

Appeal from the United States District Court for the Southern District of Florida.

Before ANDERSON and BARKETT, Circuit Judges, and TRAGER,^* District Judge.

BARKETT, Circuit Judge:

The Federal Emergency Management Agency ("FEMA") and the U.S. Fish and Wildlife Service ("FWS") appeal from an adverse summary judgment and grant of injunctive relief. The district court found that FEMA and the FWS failed to comply with section 7 of the Endangered Species Act, with regard to FEMA's administration of the National Flood Insurance Program in the Florida Keys.¹ FEMA and the FWS maintain that section 7(a)(2) of the Endangered Species Act does not apply to FEMA's provision of flood insurance and that FEMA has, in any event, fully complied with section 7. We affirm.

I. STATUTORY FRAMEWORK

To resolve the questions before us, we must first address the interaction between two congressional mandates: the National Flood Insurance Act of 1968, 42 U.S.C. §§ 4001-4129, and the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544.

A. The National Flood Insurance Act

Congress passed the National Flood Insurance Act of 1968 ("NFIA") to provide affordable flood insurance throughout the nation and to encourage sensible land use that would minimize the exposure of property to flood damage and loss. 42 U.S.C. § 4001(d)-(f); Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d 386, 388 (9th Cir.2000). Toward that end, the NFIA authorizes FEMA to establish and carry out the National Flood Insurance Program ("NFIP"). 42 U.S.C. § 4011.

Before insurance is provided within a community, however, the NFIA requires that the community satisfy certain eligibility criteria. Specifically, FEMA is required to issue flood insurance only once it has determined that a community has:

(1) evidenced a positive interest in securing flood insurance coverage under the flood insurance program, and

(2) given satisfactory assurance that by December 31, 1971, adequate land use and control measures will have been adopted for the State or area (or subdivision) which are consistent with the comprehensive criteria for land management and use developed under section 4102 of this title, and that the application and enforcement of such measures will commence as soon as technical information on floodways and on controlling flood elevations is available.

Id. § 4012 (emphasis added). The statute also establishes that "[a]fter December 31, 1971, no new flood insurance coverage shall be provided under this chapter in any area (or subdivision thereof) unless an appropriate public body shall have adopted adequate land use and control measures (with effective enforcement provisions) which [FEMA] finds are consistent with the comprehensive criteria for land management and use under section 4102 of this title." Id. § 4022(a).

Thus, FEMA is required to make flood insurance available in only those areas that have: (1) evidenced interest in securing flood insurance through the NFIP, and (2) adopted adequate land use and control measures that are consistent with the comprehensive criteria for land management and use developed by FEMA pursuant to 42 U.S.C. § 4102. Id. §§ 4012(c), 4022(a). In order to ascertain whether a locality interested in participating in the NFIP has adopted adequate land use and control measures, FEMA is authorized to conduct studies, Id. § 4102(a), and, on the basis of those studies and other relevant information, to develop the "comprehensive criteria" referenced above. Those criteria must be designed to encourage, where necessary, the adoption of state and local measures that will:

(1) constrict the development of land which is exposed to flood damage where appropriate,

(2) guide the development of proposed construction away from locations which are threatened by flood hazards,

(3) assist in reducing damage caused by floods, and

(4) otherwise improve the long-range land management and use of flood-prone areas.

Id. § 4102(c). The criteria now in effect are set forth in FEMA's regulations at 44 C.F.R. § 60.1-.26. The criteria relevant here are discussed below.

In addition to guiding FEMA's issuance of flood insurance, the NFIA requires FEMA to implement a "community rating system program" that provides discounts on flood insurance premiums in communities that establish additional floodplain management regulations that exceed the minimum criteria set forth in FEMA's eligibility criteria. 42 U.S.C. § 4022(b). Congress established the community rating system to serve four purposes:

(A) to provide incentives for measures that reduce the risk of flood or erosion damage that exceed the criteria set forth in section 4102 of this title and evaluate such measures;

(B) to encourage adoption of more effective measures that protect natural and beneficial floodplain functions;

(C) to encourage floodplain and erosion management; and

(D) to promote the reduction of Federal flood insurance losses.

Id. § 4022(b)(1).

B. The Endangered Species Act

The Endangered Species Act of 1973 ("ESA") is "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Its stated purposes were "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved" and "to provide a program for the conservation of such endangered species and threatened species." 16 U.S.C. § 1531(b). "The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost." Tenn. Valley Auth., 437 U.S. at 184, 98 S.Ct. 2279. In short, the preservation of endangered species was to be considered "the highest of priorities." Id. at 194, 98 S.Ct. 2279. At the most basic level, this goal translated into the ESA's requirement that the Secretaries of Commerce and the Interior maintain a list of endangered and threatened species ("listed species") and designate their critical habitats. 16 U.S.C. § 1533. The FWS administers the ESA with respect to species under the jurisdiction of the Secretary of the Interior, and the National Marine Fisheries Service, not relevant here, administers the ESA with respect to those under the jurisdiction of the Secretary of Commerce.² See Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. ___, 127 S.Ct. 2518, 2526, 168 L.Ed.2d 467 (2007); 50 C.F.R. §§ 17.11, 222.101(a), 223.102, 402.01(b).

At the heart of this dispute, and of Congress's plan to preserve endangered and threatened species, is section 7 of the ESA, which places affirmative obligations upon federal agencies. Section 7(a)(1) provides that all federal agencies "shall, in consultation with and with the assistance of the Secretary [of Commerce or the Interior], utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species." 16 U.S.C. § 1536(a)(1).

The mandate of section 7(a)(2) is even clearer:

Each Federal agency shall, in consultation with and with the assistance of the Secretary [of Commerce or the Interior], insure that any action authorized, funded, or carried out by such 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 which is determined ... to be critical, unless such agency has been granted an exemption for such action ... pursuant to subsection (h) of this section.

Id. § 1536(a)(2). Thus, section 7(a)(2) imposes two obligations upon federal agencies. The first is procedural and requires that agencies consult with the FWS to determine the effects of their actions on endangered or threatened species and their critical habitat. Id. § 1536(b). The second is substantive and requires that agencies insure that their actions not jeopardize endangered or threatened species or their critical habitat. Id. § 1536(a)(2).

Regulations implementing the procedural consultation requirement provide for an optional, informal consultation between the acting agency and the FWS prior to a determination that formal consultation is required. 50 C.F.R. § 402.02, .13. Formal consultation "is a process between the [FWS] and the Federal agency that commences with the Federal agency's written request for consultation under section 7(a)(2) of the Act." Id. § 402.02. It is required if an acting agency determines that any action it takes "may affect listed species or critical habitat." Id. § 402.14(a). Following formal consultation, the FWS is required to issue the acting agency "a written statement setting forth the [FWS's] opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the...