Delaware Audubon Soc'y v. Salazar

Decision Date16 September 2011
Docket NumberCivil Action No. 1:10–CV–00985.
PartiesDELAWARE AUDUBON SOCIETY, et al., Plaintiffs, v. Ken SALAZAR, et al., Defendants.
CourtU.S. District Court — District of Delaware

OPINION TEXT STARTS HERE

Mary A. Jacobson, Kenneth T. Kristl, Widener University School of Law, Wilmington, DE, for Plaintiffs.

Ruth Ann Storey, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

TIMOTHY R. RICE, United States Magistrate Judge.

Plaintiffs Delaware Audubon Society and Public Employees for Environmental Responsibility (PEER) oppose a plan by the United States Fish and Wildlife Service (“FWS”) to build berms and repair sand dunes on and adjacent to the Prime Hook National Wildlife Refuge (“the Refuge,” and “the Project”). Plaintiffs seek relief under the Administrative Procedures Act (“APA”), 5 U.S.C. § 551 et seq., the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4331 et seq., and the National Wildlife Refuge System Improvement Act (“RIA”), 16 U.S.C. § 668dd et seq.1 The parties have filed cross-motions for summary judgment.

The question of how to best manage the long-term needs of the Refuge is unclear. Therefore, the FWS has defined the Project as a short-term, stopgap measure to preserve current conditions at the Refuge while it crafts a long-term refuge management plan. Because the record demonstrates the FWS followed the required procedures under NEPA and RIA, and for the reasons that follow, I cannot conclude the FWS acted arbitrarily or capriciously, abused its discretion, or otherwise acted in violation of law. I grant Defendants summary judgment on all claims.

I. FACTUAL BACKGROUNDA. The Refuge

Located in Sussex County, Delaware, the Refuge was established in 1963 as a sanctuary for migratory birds. R. at 15, 21.2 As the Refuge acquired more land, its purpose expanded to include “incidental fish and wildlife-oriented recreation development,” “protection of natural resources,” and “conservation of endangered species.” R. at 21. The Refuge now contains more than 10,000 acres of land along the Delaware Bay, id., including vast coastal marshes, R. at 15. Divided into four units, the Refuge has managed two areas as salt marshes (Units I and IV), and two areas as fresh or slightly brackish water pond habitats (Units II and III). R. at 15–16. Unit II—the Refuge's northern freshwater marsh—is bounded at the north by Fowler Beach Road, and at the south by Prime Hook Road. R. at 16. Units I and II are bounded to the east by “a continuous ribbon of a narrow band of sandy coastal barrier island beach.” R. at 16–17, 23.

Because of its undeveloped barrier islands and coastal marshes, the Refuge is a “priority conservation habitat.” R. at 32. It is used by horseshoe crabs for spawning, shorebirds and osprey for nesting, and shorebirds and other birds during migration. R. at 31–32. Along with other similar habitats along the Delaware Bay, the Refuge “support[s] a noteworthy shorebird migration that has worldwide ecological significance,” and “remain[s] one of the region's and Western Hemisphere's most important migratory stopovers for hundreds of bird species.” R. at 32. Its inhabitants feature two federally protected endangered species—the piping plover and the Delmarva fox squirrel—and several other species considered threatened or endangered by the state of Delaware. R. at 5.

Beginning in the 1990s, small segments of the dune line along the eastern edge of Units I and II experienced periodic overwashes and breaches as a result of rising sea levels and storms that have increased in both strength and frequency. R. at 17, 29. Portions of the dune line along those Units are owned by the Refuge, but substantial segments are private property. R. at 19, 24. Delaware's Department of Natural Resources and Environmental Control (“DNREC”) assists with water management on the refuge. R. at 2442. On several occasions between 1990 and 2006, DNREC reinforced the shoreline on the barrier islands along Units I and II by scraping sand east from overwash areas to create dunes. R. at 17, 2132, 4234, 4242. In 2008, the FWS similarly rebuilt dunes on both Refuge and private land along Unit II.3 R. at 18, 1548, 1599, 1635, 1640.

B. The Project

Since 2008, new breaches and overwashes have formed along the dunes separating Unit II from the Delaware Bay. R. at 18–19, 30. These incursions allow saltwater from the Bay to flow in and out of Unit II twice daily with the tides. R. at 18. As a result, much of the Unit's freshwater vegetation has died, salt-tolerant plants are beginning to grow, and some marsh areas have converted to open water. Id. Local residents from the Prime Hook Beach community—comprised of about 200 homes with both full-time and seasonal residents, and located on the barrier island along the southern portion of Unit II—complain that the existing breaches have exacerbated flooding. R. at 38. This sometimes renders the community's only access road impassable. Id.

The FWS is studying the present conditions in Unit II to determine the best long-term management plan for that portion of the Refuge. R. at 21. In the meantime, however, it plans to partner with DNREC and rebuild the dune line along Unit II once more, hoping to preserve current conditions for further study and prevent anticipated harms from a continued rapid influx of saltwater. Id. It fears the loss of the foundational peat layer beneath the marsh's vegetation and loss of marshland to open water, both of which would complicate efforts to restore any marsh system. Id.

Before embarking on its dune restoration project, the FWS performed an Environmental Assessment (“EA”) and invited public comment. R. at 11–81. The final EA, published in November 2010, spans more than sixty pages, examines three alternative actions in depth, explains why four other actions were rejected without detailed analysis, reviews relevant scientific research, discusses possible impacts on six aspects of the environment, and addresses public concerns. Id. Ultimately, the FWS decided to proceed with the Project using sand scraped from overwash areas within the Refuge, supplemented with sand trucked in from other locations. R. at 29. Its decision was based on the EA's conclusion that, for purposes of NEPA, the Project would not significantly impact the environment. R. at 82–85. The FWS also issued a Compatibility Determination (“CD”) pursuant to the RIA, finding the Project would neither materially interfere with, nor detract from, the mission of the System or the purpose of the Refuge. R. at 1–10.

The FWS intends to launch the Project on September 26, 2011.

C. The Lawsuit

Plaintiffs filed their complaint on November 17, 2010. See Compl., Del. Audubon Soc'y v. Salazar, No. 10–985 (D.Del. Nov. 17, 2010). They characterize the Project as “use [of] federal funds to benefit private land owners in a way which has potentially harmful effects on federally listed species and habitat, as well as the integrity of the Refuge and its natural resources.” Id. at 2. Plaintiffs seek declarations that Defendants have violated NEPA, the RIA, and the APA, along with an injunction preventing the Project from proceeding until further environmental studies are conducted. Id. at 2, 11–12.

On June 1, 2011, Plaintiffs moved for summary judgment based on the undisputed facts contained in the administrative record. See Pls.' Mem. Law Supp. Mot. Summ. J. at 1, Del. Audubon Soc'y v. Salazar, No. 10–985 (D. Del. June 1, 2011) [hereinafter Pls.' Br.]. Plaintiffs argue Defendants violated NEPA in the following three ways: (1) by issuing an EA describing a proposed action that will not accomplish the stated purpose, and lacking consideration of reasonable alternatives; (2) by giving inadequate consideration to context and intensity factors used to measure an action's significance under NEPA; and (3) by determining the Project would have no significant environmental impacts before completing the EA. Id. at 9–36. Plaintiffs also assert three violations of the RIA: (1) permitting a use of refuge resources that would interfere with and detract from the mission of the National Wildlife Refuge System (“the System”) and the purposes of the Refuge; (2) failing to use sound professional judgment in assessing the compatibility of the Project with the purposes of the Refuge; and (3) permitting an economic use of refuge resources without a sufficient compatibility determination or required permits. Id. at 36–42.

Defendants responded with a cross-motion for summary judgment on July 1, 2011, disputing each of Plaintiffs' claims. See generally Mem. Supp. Defs.' Cross–Mot. Summ. J. & Opp'n Pls.' Mot. Summ. J., Del. Audubon Soc'y v. Salazar, No. 10–985 (D.Del. July 1, 2011) [hereinafter Defs.' Br.]. Both parties filed reply briefs. See Combined Reply Br. Supp. Pls.' Mot. Summ. J. & Br. Opp'n Defs.' Cross–Mot. Summ. J., Del. Audubon Soc'y v. Salazar, No. 10–985 (D.Del. July 14, 2011) [hereinafter Pls.' Reply]; Reply Pls.' Opp'n Defs.' Cross–Mot. Summ. J., Del. Audubon Soc'y v. Salazar, No. 10–985 (D.Del. July 28, 2011) [hereinafter Defs.' Reply].

II. RELEVANT STATUTESA. The APA

My review of a final agency action is governed by the APA. 5 U.S.C. §§ 704, 706; see Soc'y Hill Towers Owners' Ass'n v. Rendell, 210 F.3d 168, 178 (3d Cir.2000) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415–17, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). Such action shall be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Overton Park, 401 U.S. at 416, 91 S.Ct. 814.

When evaluating a final agency action under the APA, I must conduct a “searching and careful” review of the facts. Id. Such review is limited to the administrative record that was before the agency...

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