Animal Lovers Volunteer Ass'n, Inc. v. Carlucci, s. 86-6428

• Decision Date: 13 June 1988
• Docket Number: Nos. 86-6428,86-6679,s. 86-6428
• Citation: 849 F.2d 1475
• Parties: Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. ANIMAL LOVERS VOLUNTEER ASSOCIATION, INC.; Pauline Baerg; Lisa Curran; Pat Llewellyn; Harold Baerg; and Lynne Garmston, Plaintiffs/Appellants, v. Frank CARLUCCI, in his official capacity as Secretary of the Department of Defense; William Ball III, in his official capacity as Secretary of the Navy; Rolf Wallenstrom, in his official capacity as Regional Director of the United States Fish and Wildlife Service; United States Navy; and United States Fish and Wildlife Service, Defendants/Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1475

849 F.2d 1475

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

ANIMAL LOVERS VOLUNTEER ASSOCIATION, INC.; Pauline Baerg Lisa Curran; Pat Llewellyn; Harold Baerg; and Lynne Garmston, Plaintiffs/Appellants, v. Frank CARLUCCI, in his official capacity as Secretary of the Department of Defense; William Ball III, in his official capacity as Secretary of the Navy; Rolf Wallenstrom, in his official capacity as Regional Director of the United States Fish and Wildlife Service; United States Navy; and United States Fish and Wildlife Service, Defendants/Appellees.

Nos. 86-6428, 86-6679.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 5, 1988.

Decided June 13, 1988.

Before JAMES R. BROWNING, Chief Judge, and NELSON and CANBY, Circuit Judges.

MEMORANDUM ^*

Appellants brought this action under the Administrative Procedures Act (APA), 5 U.S.C. Secs. 701-706, and the National Environmental Protection Act (NEPA), 42 U.S.C. Sec. 4332, challenging the United States Fish and Wildlife Service's (Service) decision to eradicate the red fox population from the Seal Beach National Wildlife Refuge (Wildlife Refuge), which lies within the Seal Beach Naval Weapons Station (Weapons Station). The project is intended to protect two endangered bird species believed to be threatened by the foxes. The Service had prepared an Environmental Assessment (Assessment) of the project concluding that the eradication program would cause no significant impact upon the human environment. As a result, no Environmental Impact Statement (EIS) was prepared. Appellants sought both a declaratory judgment that the Assessment did not support a finding of no significant impact and an injunction enjoining the eradication program until an EIS is prepared. The district court denied relief. We reverse.

1. Standing

The district court held that appellants have standing to challenge the government's finding of no significant impact. We agree.

Plaintiff has standing to challenge an alleged NEPA violation whenever it "creat[es] a risk that serious environmental impacts will be overlooked ... provided this injury is alleged by a plaintiff having a sufficient geographical nexus to the site of the challenged project that he may be expected to suffer whatever environmental consequences the project may have." City of Davis v. Coleman, 521 F.2d 661, 671 (9th Cir.1975). See also Friends of the Earth v. United States Navy, 841 F.2d 927, 932 (9th Cir.1988).

The government does not challenge the district court's finding that all the individual appellants, except Lynne Garmston, and many of the members of appellant Animal Lovers Volunteer Association live within a five-mile radius of the Weapons Station.

Appellants allege that by reducing the number of foxes in the area near appellants' homes the eradication project may increase the rodent population and thereby adversely affect the health of the public, including themselves. A negative impact on public health is clearly an "environmental impact"; it is equally clear that plaintiffs have shown a "geographical nexus" to the site as required by City of Davis.

Appellants also allege the eradication program will deprive them of an opportunity to observe the foxes in their neighborhoods. Such a "direct sensory impact of a change in the physical environment," Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 779 (1983) (Brennan, J., concurring), affecting appellants' "aesthetic or ecological surroundings," Animal Lovers Volunteer Ass'n, Inc. v. Weinberger, 765 F.2d 937, 938 (9th Cir.1985), may constitute injury in fact. The government contends the program will not affect foxes in appellants' neighborhood because the program will be limited to the Weapons Station itself. But as appellants plausibly allege, foxes do not recognize the boundary of the Weapons Station and the eradication project necessarily will affect foxes that frequent adjacent areas, including appellants' nearby neighborhoods. This is sufficient to give appellants standing. See Friends of the Earth, 841 F.2d at 931-32.

The district court properly distinguished Animal Lovers I, which involved a similar project to eradicate goats from San Clemente Island, a military enclave of the U.S. Navy. Because the plaintiffs had no access to the island, and lived on the mainland to which the goats had no access, the project did not directly affect plaintiff's physical environment. 765 F.2d at 938-39.

2. Sufficiency of the Environmental Assessment

Appellants contend the Assessment does not provide a sufficient basis for the Secretary's finding that the fox eradication project would not have a significant environmental impact. We agree. ¹

The Secretary argues that appellants' allegations regarding the impact upon the food chain and its consequences were speculative. But it is well established that plaintiffs need only allege facts that raise a substantial question of detrimental impact upon the environment to successfully challenge an Assessment; they need not prove such an impact. As we recently said in Save the Yaak Comm. v. Block, No. 86-3808, slip op. at 5321 (9th Cir. May 11, 1988), amending 840 F.2d 714, 717-8 (quoting Steamboaters v. F.E.R.C., 759 F.2d 1382, 1393 (9th Cir.1985)):

"If substantial questions are raised regarding whether the proposed action may have a significant effect upon the human environment, a decision not to prepare an EIS is unreasonable. Additionally, an agency's decision not to prepare an EIS will be considered unreasonable if the agency fails to 'supply a convincing statement of reasons why potential effects are insignificant.' "

(Citations omitted; emphasis added). See also LaFlamme v. F.E.R.C., 842 F.2d 1063, 1069 (9th Cir.1988); Foundation for North American Wild Sheep v. United States Dep't of Agric., 681 F.2d 1172, 1178 (9th Cir.1982).

Appellants offered several declarations supporting their allegations that elimination of the foxes from the food chain might increase the rodent and raccoon population in the area, and thus endanger human health as well as the bird and plant life. The Secretary's assessment simply ignored the impact the eradication might have on overall ecological balance of the area. The Assessment details and evaluates the problem facing the bird species in the Wildlife Refuge and considers certain advantages and disadvantages of alternative solutions, but it contains no discussion of the effect the program may have on the environment other than upon the birds it sought to protect. This omission alone renders the Assessment inadequate. See Save the Yaak, slip op. at 5323-24 (an Assessment that considered the effect of a proposed road on endangered and threatened species but did not consider the effect on other wildlife and plants held insufficient).

The Secretary argues that because the foxes...