Defenders of Wildlife v. Ballard

• Decision Date: 08 October 1999
• Docket Number: No. Civ. 97-794 TUC ACM.,Civ. 97-794 TUC ACM.
• Citation: 73 F.Supp.2d 1094
• Parties: DEFENDERS OF WILDLIFE, et al., Plaintiffs, v. Lt. General Joe N. BALLARD, Commander United States Army Corps of Engineers, Robert Walker, Acting Secretary of the United States Army, Defendants.
• Court: U.S. District Court — District of Arizona

73 F.Supp.2d 1094

DEFENDERS OF WILDLIFE, et al., Plaintiffs, v. Lt. General Joe N. BALLARD, Commander United States Army Corps of Engineers, Robert Walker, Acting Secretary of the United States Army, Defendants.

No. Civ. 97-794 TUC ACM.

United States District Court, D. Arizona.

October 8, 1999.

Order Denying Reconsideration and Granting Clarification November 10, 1999.

COPYRIGHT MATERIAL OMITTED

John Andrew Fritschie, Wasington, DC, Eric Robert Glitzenstein, Meyer & Glitzenstein, Washington, DC, for Plaintiff.

Lois J. Schiffer, Asst. Atty. Gen., Denver, CO, for Defendants.

ORDER

MARQUEZ, Senior District Judge.

Now fully briefed and pending before this Court are the parties' crossmotions for summary judgment which the parties agree will fully dispose of this action. Unfortunately before the Court can turn to the merits of the motions, it must once again address the scope of the action. As previously described, the Complaint is as follows:

Plaintiffs seek declaratory and injunctive relief under the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), and the Administrative Procedures Act (APA). Plaintiffs charge that the Defendant United States Army Corps of Engineers (COE) failed to prepare environmental assessments or environmental impact statements under NEPA for numerous permits in the range of the ferruginous pygmy-owl (pygmy-owl) (Claim I), failed to consult with the United States Fish and Wildlife Service (FWS) prior to taking actions which may affect pygmy-owls and other endangered and threatened species as required by ESA (Claim II), and acted arbitrarily and capriciously by failing to follow its own regulations and statements of policy designed to ensure compliance with the CWA, NEPA, and the ESA (Claim III).

(Order filed June 15, 1998 (June 15, 1998 Order) at 1-2.) Plaintiffs brought their claims under the citizen suit provision of the CWA, 33 U.S.C. § 1365(1)(2); the citizen suit provision of the ESA, 16 U.S.C. § 1540(g); and under the Administrative Procedures Act (APA) on the basis of 28 U.S.C. § 1331.

Early on, Defendants challenged Plaintiffs' right to proceed under the citizen suit provisions of the CWA and the ESA because of timeliness and sufficiency of Plaintiffs' notice. Defendants also argued that under the CWA, Plaintiffs could only sue the Administrator (EPA) and not the COE, hereinafter "Corps." Defendants did not contest jurisdiction under the APA. On June 15, 1998, the Court ruled on these issues. The Court held that Plaintiffs could proceed under the citizen suit provision of ESA for those claims covered by Plaintiffs' notices alleging violations made "within the context of specific development projects, such as Redhawk (a.k.a. Dove Mountain), Honeybee Canyon, Forest City, and Amphitheater High School." (June 15, 1998 Order at 9.) The Court reviewed the relevant text of the timely notices and concluded that within the general geographic confines of the notices, "the letters served to give notice to Defendants that Plaintiffs intended to sue because of Corps' management practice of issuing 404 permits under the CWA in the range of the pygmy-owl in Pima County without consulting FWS as required under the ESA." (June 15, 1998 Order at 11.) The Court explained as follows:

Plaintiffs' notice does not have to identify each and every site violation. Hercules, Inc., 50 F.3d at 1247. While Plaintiffs' allegations involve activities which occurred in specific locations, Plaintiffs' primary challenge is that Defendants failed to take actions mandated by statute and regulation. When describing a failure to act it is impossible to describe the time, date, activities, and persons responsible with the same specificity used when describing an affirmative act. Natural Resources Defense Council v. Southwest Marine, 945 F.Supp. 1330, 1333 (S.D.Cal.1996). Investigation and resolution of Plaintiffs' allegations as presented in the site-oriented format of the three notice letters would have resolved Plaintiffs' claim. With relative ease, the Defendants can check the circumstance of other 404 permits issued in the range of the pygmy-owl in Pima County. See Hercules, 50 F.3d at 1248 (applying similar logic to alleged claim of a discharge violation because state and defendant had easy access to other discharge information and could easily check for other violations of same type).

(June 15, 1998 Order at 11-12.)

The Court did not reach the issue of whether Plaintiffs could proceed under the citizen suit provision of the CWA against the Corps versus the EPA because Defendants conceded that Plaintiffs could challenge any final agency action related to the CWA under the APA. (June 15, 1998 Order at 8, n. 3.)

On April 27, 1999, this Court summarized Plaintiffs' claim for the purpose of clarifying the scope of Plaintiffs' Motion for Summary Judgment as follows:

Plaintiffs' claim intertwines the CWA, the ESA, and NEPA. The CWA provides a comprehensive program designed to "restore and maintain the chemical, physical, and biological integrity of the Nations's waters." 33 U.S.C. § 2151(a). The CWA prohibits the discharge of any pollutant, including dredged or fill material, into navigable waters unless authorized by a CWA permit. 33 U.S.C. § 1311(a). The Corps regulates the discharges by permits issued under CWA section 404, 33 U.S.C § 1344. The Corps issues individual permits on a case-by-case basis under section 404(a), 33 U.S.C. § 1344(a), or under 404(e) issues general permits, called nationwide permits (NWPs), on a state, regional or nationwide basis "for any category of activities involving discharges of dredged or fill material if the Secretary determines that the activities in such category are similar in nature, and will cause only minimal adverse effect on the environment," 33 U.S.C. § 1344(e)(1).

NEPA is the "basic national charter for protection of the environment." 40 C.F.R. § 1500.1(a). In enacting NEPA, Congress sought to assure that environmental, aesthetic, and cultural concerns are considered by federal decision-makers by requiring "the Federal Government to use all practicable means ... to improve and coordinate Federal planning." 42 U.S.C. § 4331(b). The cornerstone of NEPA is the environmental impact statement (EIS) that an agency must prepare for all "major Federal actions significantly affecting the quality of the human environment...." 42 U.S.C. § 4332(2)(C). In deciding whether to prepare an EIS, an agency may first prepare an environmental assessment (EA). An EA provides sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact (FONSI). Criteria for determining when a full EIS is required, include: "unique characteristics of the geographic area such as proximity to historic or cultural resources, parklands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas; whether the action is related to other actions with individually insignificant but cumulatively significant impacts; and the degree to which the action may adversely affect an endangered ... species." 40 C.F.R. §§ 1508.27(b)(3), (7), (9).

The ESA provides a means to conserve the ecosystems upon which endangered species and threatened species depend and provides a program for the conservation of endangered species and threatened species. 16 U.S.C. § 1531(b). A federal agency must ensure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species. 16 U.S.C. § 1536(a)(2). When a federal agency proposes to take an action that may affect a threatened or endangered species or its critical habitat, that agency must consult with the FWS and obtain a biological opinion from the FWS as to whether the proposed action is likely to result in a violation of the ESA. Id.; 50 C.F.R. § 402.

Plaintiffs' ESA claim alleges that the Corps failed to consult with FWS regarding the "likely, adverse effects" of individual and nationwide permits issued within the range of the pygmy-owl. Plaintiffs' NEPA claim is that the Corps issued individual and nationwide permits without conducting environmental analysis of the direct, indirect, and cumulative impacts of its individual and nationwide permits in the range of the pygmy-owl. Plaintiffs' claim under the APA accuses the Corps of acting arbitrarily and capriciously because it failed to comply with its own CWA regulatory provisions, such as mandatory requirements that it obtain the latest information on the pygmy-owl and the regulatory provisions requiring ESA and NEPA compliance.

(Order filed April 27, 1999 (April 27, 1999 Order) at 1-3.)

In spite of all this, Defendants assert in their Response/Crossmotion for Summary Judgment (Response/Crossmotion) that "Plaintiffs do not seek to have the Corp.'s decision to issue NWPs 13, 14, and 26 enjoined or declared illegal." (Response/Crossmotion at 28). Unless this Court's prior Orders are entirely off-base, however, that is precisely the focus of the Plaintiffs' Complaint. Pursuant to this Court's June 15, 1998 Order, Plaintiffs gave Defendants sufficient notice under the citizen suit provisions of ESA to support its claim that The Corps failed to consult with FWS regarding the cumulative impact of its 404 permits before issuing the permits and authorizing the various specified projects. Furthermore, this Court believes that even if Plaintiffs lack jurisdiction to proceed under the ESA citizen suit provision, if the Court rules favorably for Plaintiffs on their NEPA and CWA claims, this action will, nevertheless, result in § 7 consultation as required under ESA. In other words, if Defendants' FONSI or "no effect" findings are arbitrary and capricious because Defendants failed to consider the cumulative impacts of its...