Hawksbill Sea Turtle v. FEDERAL EMER. MGT. AGENCY
| Decision Date | 26 September 1996 |
| Docket Number | Civil Action No. 96-114. |
| Parties | The HAWKSBILL SEA TURTLE (ERETMOCHELYS IMBRICATA), et al., Plaintiffs, v. FEDERAL EMERGENCY MANAGEMENT AGENCY, an agency of the United States of America, et al., Defendants. |
| Court | U.S. District Court — Virgin Islands |
COPYRIGHT MATERIAL OMITTED
A. Jeffrey Weiss, St. Thomas, U.S.V.I., James Bryan Dougherty, Washington, DC, for Plaintiffs.
Richard Austin, St. Thomas, U.S.V.I., for Legal Services of the Virgin Islands.
Julio Brady, K. Glenda Cameron, Kingshill, St. Croix, U.S.V.I., for the Virgin Islands.
Mark A. Brown, U.S. Department of Justice, Wildlife & Marine Resources Section, Washington, DC, for Department of Interior and Bruce Babbitt.
Stanley de Jongh, Assistant U.S. Attorney, Federal Building, St. Thomas, U.S.V.I., for the United States.
Jordan S. Fried, David A. Trissell, Office of General Counsel, Federal Emergency Management Agency, Washington, D.C., for Federal Emergency Management Agency.
Shaun Skaggs, Department of the Interior, Office of Regional Solicitors, Atlanta, GA, for Department of Interior.
Louis Pilgrim, Virgin Islands Housing Authority, Charlotte Amalie, St. Thomas, U.S.V.I., for Virgin Islands Housing Authority.
Presently before the court is plaintiffs' Application for Temporary Restraining Order and Preliminary Injunction. Having considered plaintiff's application and supporting documents, defendant's opposition papers, and all other motions and documents submitted by the parties, having held a hearing on plaintiffs' motion for preliminary injunction, and for the reasons set forth below, the court will deny the request for preliminary relief.
This is the second of two occasions on which plaintiffs seek to prevent defendants from erecting a temporary emergency housing facility located within Estate Nazareth, St. Thomas, U.S. Virgin Islands (hereinafter "temporary housing project") for nearly 200 families displaced from their homes as a result of Hurricane Marilyn in September 1995.
In January 1996, a group of persons who own real property and reside in the vicinity of Vessup Bay, St. Thomas and who use and enjoy the waters and shoreline of Vessup Bay, Muller Bay, Red Hook Bay, Pillsbury Sound, and adjacent waters filed suit in the United States District Court in the District of the Virgin Islands to enjoin the construction of the temporary housing project on Tract No. 1, Red Hook Quarter, St. Thomas.1 In that case, Virgin Islands Tree Boa v. Witt, 918 F.Supp. 879 (D.V.I.), aff'd, 82 F.3d 408 (3d Cir.1996) (hereinafter "Tree Boa"), plaintiffs alleged that the temporary housing project would cause harm to the Virgin Islands Tree Boa and other endangered species.2 In particular, plaintiffs alleged that the Federal Emergency Management Agency ("FEMA") and the United States Fish and Wildlife Service ("USFWS") had violated the National Environmental Policy Act ("NEPA") and the Endangered Species Act ("ESA") by not protecting and conserving endangered species during the environmental consultation stage of the temporary housing project. The court, however, denied plaintiffs' request for preliminary injunctive relief.
After hearing oral argument on March 4, 1996, the United States Court of Appeals for the Third Circuit affirmed the District Court's opinion and order denying relief. On March 29, 1996, plaintiffs filed a motion dismissing their original complaint.
In the present action, plaintiffs again seek to enjoin construction and occupation of the temporary housing project. Now again, plaintiffs allege that, in planning for and providing the temporary emergency shelters, defendants violated numerous provisions of the ESA and caused irreparable harm to several endangered and threatened species and their habitats in the area of and around Vessup Bay in St. Thomas. In specific, plaintiffs allege harm to the Virgin Islands Tree Boa, the Hawksbill Turtle, the Green Sea Turtle, and other unnamed species.3
On April 2, 1996, plaintiffs in the present matter filed a motion for a temporary restraining order in the District Court for the District of Columbia. That court denied plaintiff's request for temporary injunctive relief and, before hearing oral argument on plaintiff's motion for a preliminary injunction, transferred the case to the District Court of the Virgin Islands on May 30, 1996. On June 6, 1996, Judge Raymond Finch recused himself from hearing the case, which was then assigned to Judge Stanley S. Brotman, Senior Judge of the District of New Jersey, sitting by designation. Between June 6, 1996 and the present, the parties have filed numerous motions and supporting documents with the court. On July 18, 1996, Magistrate Judge Jeffrey Resnick granted the motion of the Legal Services of the Virgin Islands to intervene as party-defendants on behalf of the indigent parties who are the prospective residents of the temporary housing project at Estate Nazareth.
A two-day hearing on plaintiffs' application for a preliminary injunction was held on August 7 and 8 before Judge Brotman at the United States Courthouse in Camden, New Jersey, during which the parties presented testimony and evidence. At this hearing, the court granted the Virgin Island Housing Authority's ("VIHA") motion to intervene. Thereafter, the parties have continued to submit evidence to this court for consideration pursuant to the court's directives at the hearing.
Judge Finch's opinion in Tree Boa provides a detailed accounting of the facts underlying the present case. For present purposes, the most salient facts are hereinafter set forth.
In September 1995, Hurricane Marilyn struck St. Thomas, displacing hundreds of people from their homes and causing substantial property damage. Pursuant to Section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5170 (1988) ("Stafford Act"), President Clinton declared the Virgin Islands a disaster area. Five months after the hurricane, many low-income Virgin Islands residents were still living in emergency shelters or in condemned homes. Pursuant to the Stafford Act, FEMA made funds available to VIHA for a temporary housing shelter project. VIHA reviewed several sites and ultimately selected 8.5 acres at Estate Nazareth adjacent to Vessup Bay.
In preparing for the temporary housing project, FEMA issued a Final Environmental Assessment ("EA") report. In conjunction with this report, FEMA analyzed any effects that the project might have on the environment. As part of its analysis, FEMA consulted with officials from various agencies, including USFWS. Correspondence with USFWS revealed that the project could potentially affect the habitat of the Virgin Islands Tree Boa. A USFWS biologist recommended certain measures to mitigate the effect on the Tree Boa and concluded that the project was not likely to affect adversely the species.
In addition to these mitigation measures for the Tree Boa, FEMA also recommended measures to preserve Vessup Bay, which it recognized as a "sensitive habitat."4 Because Vessup Bay would collect runoff from the project, the EA described measures to minimize the effects of sediment and sewage runoff. Based on its own information and its consultation with other agencies, FEMA concluded that the project was unlikely to have any adverse effect on the marine environment in the Bay.
On December 4, 1995, construction of the temporary housing project began. There is no dispute among the parties that there are Tree Boas in the area.5 However, the EA provided for numerous mitigation measures to protect, inter alia, the Tree Boa and the environment at the temporary housing project site. These mitigation measures included soil erosion, sewage control, and land clearing guidelines, as well as provisions calling for flat surfaces to prevent erosion and runoff from the site. In the course of the construction, VIHA enacted additional mitigation measures, such as laying down gravel and installing silt fences to further prevent runoff. On January 11, 1996, sediment began to appear in Vessup Bay. While the Tree Boa plaintiffs averred in their motion for injunctive relief that the construction at the temporary housing project caused the sediment-containing runoff, Judge Finch concluded that 1) plaintiffs' evidence did not prove the source of the runoff, and 2) mitigation measures provided for in the EA and enacted subsequent to it were sufficient. Tree Boa, 918 F.Supp. at 890.
Plaintiffs seek declaratory and injunctive relief for alleged violations of sections 7(a)(1), 7(a)(2), 7(c)(1), and 9(a)(1) of the ESA. Plaintiffs' complaint sets forth six claims which allegedly provide the basis for this court to issue the requested relief.
First, plaintiffs claim that in the course of defendants' construction of the temporary housing project at Estate Nazareth, defendants violated section 7(a)(1) by failing to conserve the St. Thomas Tree Boa, the Hawksbill Sea Turtle, and the Green Sea Turtle.6 Plaintiffs aver that defendants' construction of the temporary housing project will harm these species. (Compl. ¶ 43.)
Second, plaintiffs allege three separate violations of section 7(a)(2)7: (1) The construction and operation of the temporary housing project will violate the ESA by jeopardizing the continued existence of the St. Thomas Tree Boa. (Compl. ¶ 47.) (2) Failing to advise FEMA that the temporary housing project may affect the Hawksbill Turtle and the Green Sea Turtle and concluding that the housing project "was `not likely to adversely affect this species'" violated the ESA. (Compl. ¶ 51.) (3) FEMA's failure to initiate a consultation with regard to the Hawksbill Turtle and Green Sea Turtle violated the...
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Turtle v. Fed. Emergency Mgmt. Agency
...The District Court, after a hearing, denied Plaintiffs' motion on collateral estoppel grounds. Hawksbill Sea Turtle v. Federal Emergency Management Agency, 939 F.Supp. 1195 (D.Vi.1996). On appeal, the Third Circuit found that this Court had improperly relied upon the factual findings of Jud......
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Hawksbill Sea Turtle v. Federal Emergency Management Agency
...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 ......