Sierra Club v. Marsh

• Citation: 816 F.2d 1376
• Decision Date: 08 May 1987
• Docket Number: No. 87-5531,87-5531
• Parties: 17 Envtl. L. Rep. 20,717 SIERRA CLUB, a California non-profit corporation; League for Coastal Protection, a California non-profit corporation, Plaintiffs-Appellants, v. John O. MARSH, Jr., Secretary of the Army; Colonel Fred Butler, District Engineer of the U.S. Army Corps of Engineers; Elizabeth Dole, Secretary of Transportation; Ray A. Barnhart, Administrator of the Federal Highway Administration; Leo J. Trombatore, Director of the California Department of Transportation; County of San Diego; City of Chula Vista; Donald P. Hodel, Secretary of the Interior; Santa Fe Land Improvement Company, Defendants- Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1376

816 F.2d 1376

17 Envtl. L. Rep. 20,717

SIERRA CLUB, a California non-profit corporation; League for Coastal Protection, a California non-profit corporation, Plaintiffs-Appellants, v. John O. MARSH, Jr., Secretary of the Army; Colonel Fred Butler, District Engineer of the U.S. Army Corps of Engineers; Elizabeth Dole, Secretary of Transportation Ray A. Barnhart, Administrator of the Federal Highway Administration; Leo J. Trombatore, Director of the California Department of Transportation; County of San Diego; City of Chula Vista; Donald P. Hodel, Secretary of the Interior; Santa Fe Land Improvement Company Defendants- Appellees.

No. 87-5531.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 6, 1987.

Decided May 8, 1987.

Laurens H. Silver, San Francisco, Cal., for plaintiffs-appellants.

Eileen Sobeck, Washington, D.C., Robert L. Meyer, George B. Blackmar, and Robert M. Gans, San Diego, Cal., for defendants-appellees.

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

Before GOODWIN, SNEED and BOOCHEVER, Circuit Judges.

BOOCHEVER, Circuit Judge:

The Sierra Club and the League for Coastal Protection appeal the district court's denial of their motion for a preliminary injunction halting construction of a combined highway and flood control project in southern San Diego County. They assert that the County of San Diego's failure to transfer 188 acres of land necessary to mitigate the project's effects on two endangered species of birds and the possibility of increased development on nearby private lands require a reinitiation of consultation between the Fish and Wildlife Service and the Army Corps of Engineers to determine whether additional modifications to the project are needed to prevent injury to the birds. We reverse the denial of the preliminary injunction.

FACTS

The California least tern (Sterne albifrons browni ) and the light-footed clapper rail (Rallus longirostris levipes ) are listed as endangered species under the Endangered Species Act of 1973, 16 U.S.C. Secs. 1531-1543 (1982 & Supp. III 1985) (the ESA or the act). 50 C.F.R. Sec. 17.11(h) (1986). These birds nest and forage in the coastal marshes of southern California and Mexico. Their numbers have declined as this habitat has disappeared and they are endangered throughout their ranges. The wetlands surrounding San Diego Bay are a significant portion of the birds' remaining habitat. Sweetwater Marsh contains approximately 75 percent of San Diego Bay's remaining wetlands and has been identified as habitat essential to the survival of the rail and the tern.

The federal project consists of the construction of a flood control channel in the flood plain of the Sweetwater River; construction of State Route 54 (SR 54), connecting Interstate Route 5 (I-5) and Interstate Route 805; construction of an interchange between I-5 and SR 54; and widening of I-5. The Army Corps of Engineers (COE or corps) is the federal sponsor of the flood control channel and is providing funding for it; the Federal Highway Administration (FHWA) is supervising and funding the highway construction. Pursuant to an agreement with the federal agencies, the California Department of Transportation (Caltrans) is in charge of the construction of both the highway and flood control elements of the project. The design and construction of the highways and channel are integrated: along much of its length the channel lies in the median of SR 54 and the material excavated from the channel is used to build the highways. There are three phases in the project's construction. Phase I has been substantially completed; phase II began in May 1985. The second phase includes work on the interchange between SR 54 and I-5 and on the flood control channel in the vicinity of the interchange.

On January 16, 1987, Caltrans started work on the channel and interchange in the area west of I-5, where Sweetwater Marsh is located.

Almost from the project's inception in 1968, the Fish and Wildlife Service of the Department of the Interior (FWS or service) has expressed concern about its effects on the birds and other organisms dependent on the estuary for food and shelter. By the passage of the Endangered Species Act of 1973, ¹ Congress prohibited federal agencies from authorizing, funding, or carrying out actions that would jeopardize the continued existence of endangered species. 16 U.S.C. Sec. 1536(a)(2) (as amended). The primary responsibility for insuring that federal projects do not harm endangered species or their habitats rests with the FWS. Id. at (b); 50 C.F.R. Sec. 402.01(b). The agency taking the action must assess the project's effects on endangered or threatened species and consult with the FWS to assure the project's compliance with the ESA. 16 U.S.C. Sec. 1536(a) & (c). After consultation, the FWS issues an opinion, often referred to as a "biological opinion," stating its conclusion as to whether the project would violate the ESA. Id. at (b). If the FWS does determine the project would jeopardize endangered species or their habitat, the opinion must specify any "reasonable and prudent alternatives" that would sufficiently mitigate the project's adverse effects. Id. at (b)(3)(A).

In its first opinions, the FWS concluded that the project's direct and indirect impacts would jeopardize the continued existence of the rail and tern. The major impact identified by the service was destruction of habitat: construction of the flood control channel would destroy more than 40 acres of marshland. ² It listed nine measures for mitigating the project's effects. One measure the FWS considered vital was that the COE acquire and preserve 188 acres of nearby wetlands. Forty-four acres of these "mitigation lands" would replace the acreage occupied by the channel; the remainder would provide additional habitat for the birds and buffer zones to protect the habitat. ³ In essence, the FWS was recommending a trade: in exchange for the habitat destroyed or adversely modified by the project, the COE would acquire and preserve from destruction 188 acres of marshland.

In response to the FWS's objection and recommendations, the COE reinitiated consultation with it in 1981. The corps adopted the service's recommendations and modified the project's design accordingly. The FWS concluded in its final opinion, dated October 23, 1981, that the modifications and mitigation measures would "provide the minimally acceptable loss compensation requirements needed to protect and maintain wetland habitat and endangered species." In the project's final environmental impact statement and its certification of consistency with the California Coastal Act, ⁴ the COE relied on the planned The federal agencies assumed throughout the planning process that the federal government would acquire the mitigation lands directly. To do so, Congress must grant the agencies authority to purchase or condemn the property. See United States v. 36.96 Acres of Land, 754 F.2d 855, 858-59 (7th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1956, 90 L.Ed.2d 364 (1986). The agencies had taken the first steps toward obtaining authorization, including preparation of an additional environmental impact statement. Nevertheless, considerably more time would pass before Congress approved the acquisition. To speed the project's construction, the County of San Diego (County), the project's local sponsor, offered to obtain the property and transfer it to the state or federal agency designated by the COE. The County and the COE signed a contract, referred to as a "Section 221 Agreement," ⁵ on December 18, 1984. In it, the County promised to transfer the mitigation lands within one year in consideration for the COE's commencing construction of the flood control channel.

acquisition and preservation of 188 acres of marsh for its conclusion that the project was not likely to jeopardize the birds' continued existence.

The County has failed to perform. It requested two extensions of the deadline for performance, which the COE denied. On August 1, 1986, the County, the City of Chula Vista (Chula Vista), and the owner of the land, the Santa Fe Land Improvement Company (Santa Fe), entered into an escrow agreement that conditioned the transfer of the land to the County on the COE's issuance of several permits needed for development on nearby private lands. The escrow agreement also reserved seven easements in the mitigation lands, which both the COE and FWS contend would reduce or eliminate the land's value as habitat for the endangered species. ⁶

In addition to the County's failure to transfer the mitigation lands, the California Coastal Commission approved Chula Vista's Local Coastal Program in September 1984. This development program calls for a 440-room hotel and convention center on Gunpowder Point ⁷, high-rise residential buildings on D Street Fill ⁸, and access roads to these developments. In the preparation of the final environmental impact statement by the COE and the biological opinions by the FWS, the agencies did not consider the effects these private projects would have on the adjacent wetlands because the Coastal Commission had not yet approved the plan. The commission had disapproved the entire plan in the spring of 1981 and its decision was upheld by the California Court of Appeal on July 2, 1982. See City of Chula Vista v. Superior Court, 133 Cal.App.3d 472, 183 Cal.Rptr. 909 (1982). The FWS concluded that the failure to acquire the mitigation lands and the commission's recent approval of increased development on the nearby uplands were likely to jeopardize the continued existence of the endangered species and requested that the COE reinitiate consultation with the service.

The COE refused. Although it did not inform the FWS of its reasons for refusing until well after this litigation had commenced, the COE contends that it will succeed in obtaining the mitigation lands free of...