Enos v. Marsh

• Decision Date: 27 August 1985
• Docket Number: No. 84-1640,84-1640
• Citation: 769 F.2d 1363
• Parties: , 15 Envtl. L. Rep. 20,853 Eric M. ENOS, Plaintiff-Appellant, v. John O. MARSH, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1363

769 F.2d 1363

23 ERC 1124, 15 Envtl. L. Rep. 20,853

Eric M. ENOS, Plaintiff-Appellant, v. John O. MARSH, et al., Defendants-Appellees.

No. 84-1640.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 9, 1984.

Decided Aug. 27, 1985.

Alan T. Murakami, Brown & Johnston, Boyce R. Brown, Jr., Honolulu, Hawaii, for plaintiff-appellant.

Fred R. Disheroon, Claire L. McGuire, Jacques B. Gelin, Dept. of Justice, Washington, D.C., Daniel A. Bent, U.S. Atty., Michael Chun, Asst. U.S. Atty., F. Henry Habicht, II, Asst. Atty. Gen., Washington, D.C., Randall Y.K. Young, Dep. Atty. Gen., Michael A. Lilly, Atty. Gen., Honolulu, Hawaii, for defendants-appellees.

Appeal from the United States District Court for the District of Hawaii.

Before HUG, TANG, and SCHROEDER, Circuit Judges.

TANG, Circuit Judge:

Eric Enos appeals a district court order 616 F.Supp. 32 denying a preliminary injunction to enjoin construction of the Barbers Point deep draft harbor project and granting the federal defendants'/appellees' motion for summary judgment on all claims. Enos raises claims under the Endangered Species Act, the National Environmental Policy Act, and the Water Resources Development Act. For the reasons stated below, we affirm.

BACKGROUND

Under section 301 of the River and Harbor Act of 1965 (Title III of P.L. 89-298), Congress authorized construction of a deep draft harbor at Barbers Point on the island of Oahu, Hawaii. Barbers Point is located on the southwest coast of the island in the Ewa district, adjacent to the district of Waianae. The project is to provide a second deep draft harbor for commercial and industrial use on Oahu.

As authorized, the project is the joint responsibility of the United States Army Corps of Engineers (Corps) and the State of Hawaii (state), through its Department of Transportation. The Corps is responsible for the construction of the project's principal features: an entrance channel 4280 feet long, 450 feet wide, 38-42 feet deep and a 92 acre inner harbor. The State of Hawaii is to provide all lands, easements, rights of way, and a portion of the project costs. In addition, the state plans to fund and construct shoreside terminal and transfer facilities.

In 1975, before the start of construction, the Corps initiated environmental studies pursuant to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. Secs. 4321, et seq. (1982). On April 30, 1976, the Corps issued a draft Environmental Impact Statement (EIS) for the project. The final EIS was filed December 27, 1976, and a Supplemental EIS was filed on February 27, 1977. In 1982, the Corps prepared an Environmental Assessment, and determined that any changes in planning or circumstances since 1977 did not require an additional Supplement to the EIS.

The Corps awarded the construction contract in March, 1982, and construction began in August of that year.

On October 5, 1982, certain residents of Waianae filed a complaint to enjoin construction of the harbor project. Waianae residents sought relief from the Secretary of the Army, the District Engineer for the Honolulu United States Army Engineer District, the Secretary of the Interior, and the Hawaii State Departments of Transportation, Land and Natural Resources, and Planning and Economic Development. Plaintiffs alleged violations under various federal environmental statutes and regulations including the Endangered Species Act of 1973 (ESA), 16 U.S.C. Secs. 1531 et seq. (1982), the National Environmental Policy Act, and the Water Resources Development Act (WRDA), 42 U.S.C. Sec. 1962d-17 (1982).

On December 29, 1982, the district court imposed a temporary restraining order enjoining all blasting operations. Waianae residents moved for a preliminary injunction which was heard February 3-5, 1983. Following that hearing, the court dissolved the temporary restraining order on February 9. The Ninth Circuit denied Waianae residents' emergency motion for a stay of execution of that order. Plaintiffs also moved the district court for a permanent injunction and for partial summary judgment.

On January 5, 1984, in a thorough and well-reasoned order, the district court denied Waianae residents' motions and granted the federal defendants' cross-motion for summary judgment on all claims.

Eric Enos, a resident of Waianae, alone appeals the judgment from the district court.

STANDARD OF REVIEW ON SUMMARY JUDGMENT

In reviewing a grant of summary judgment, we view the evidence in the light most favorable to the opposing party and determine whether any genuine issue of material fact remains for trial and whether the substantive law was correctly applied. Fed.R.Civ.P. 56(c); Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 981 (9th Cir.1985). The grant of summary judgment is reviewed de novo. Id.

DISCUSSION

I. The Endangered Species Act

In mid-1976 a plant species thought to be extinct, the Euphorbia skottsbergii var. kalaeloana ('akoko), was found in the vicinity of the Barbers Point harbor project. At that time, the United States Fish and Wildlife Service (FWS) had proposed that the 'akoko be designated as endangered under the ESA. 41 Fed.Reg. 24523 (June 16, 1976). The 'akoko was officially listed as an endangered species on August 24, 1982. 47 Fed.Reg. 36847 (1982).

A. Standard of Review

This court interprets de novo the statutory provisions of the ESA. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). The actions of the Corps and the FWS are reviewed in accordance with the Administrative Procedure Act (APA), 5 U.S.C. Sec. 706 (1982); Friends of Endangered Species, supra, 760 F.2d at 981. Administrative agency decisions will be upheld unless "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A). That is, the agency must have "considered the relevant factors and articulated a rational connection between the facts found and the choice made." Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 2257, 76 L.Ed.2d 437 (1983) (citation omitted) (quoted in Friends of Endangered Species, 760 F.2d at 982).

B. The FWS and the Corps did not violate the Endangered Species Act, 16 U.S.C. Sec. 1536.

Enos first argues that the 'akoko plant should have been given the same protections during the period that it was proposed to be listed as endangered as when the plant was officially designated as endangered. ¹ Plaintiff contends specifically that during the period the 'akoko was proposed to be listed as endangered, the ESA obligated the Corps to insure that its actions, as required under 16 U.S.C. Sec. 1536(a)(2), were not likely to jeopardize the existence of the plant species and to commence the consultation process, required under the same subsection, with the FWS. ² As shown below, however, the Act clearly and logically differentiates between those duties owed a species designated by the Secretary of the Interior as endangered and those duties owed a species proposed for listing. ³

The ESA contains both substantive and procedural provisions. See Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir.1985). For purposes of the issue raised by Enos, the Act substantively requires federal agencies to ensure that their actions are not "likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification" of the critical habitat of such species. 16 U.S.C. Sec. 1536(a)(2).

In its 1978 amendments to the ESA, Congress prescribed a three-step process to ensure compliance of this substantive provision. See Act of Nov. 10, 1978, Pub.L. No. 95-632, 1978 U.S.Code Cong. & Ad.News (92 Stat.) 3751; 3752-53 (codified within 16 U.S.C. Sec. 1536); Thomas v. Peterson, 753 F.2d at 769. First, a federal agency proposing to take action must inquire of the Fish and Wildlife Service whether "any species which is listed or proposed to be listed may be present" in the area of proposed action. 16 U.S.C. Sec. 1536(c)(1) (emphasis added). Second, if "such species" is present, the agency must prepare a "biological assessment" to determine whether the species "is likely to be affected" by the action. Id. The ESA, then, expressly provides that federal agencies are obligated to gather this information with respect both to species proposed for listing and those which are listed. However, the obligations owed each group are co-extensive only until this point.

Third, if the assessment determines that an "endangered species or a threatened species" is likely to be adversely affected, id. Sec. 1536(c)(1), the agency must formally consult with the FWS. See id. Sec. 1536(a)(2). After initiation of consultation, the federal agency "shall not make any irreversible or irretrievable commitment of resources" which would foreclose alternative action which would not jeopardize the existence of an endangered or threatened species. Id. Sec. 1536(d). The formal consultation results in the issuance of a "biological opinion" by the FWS. See id. Sec. 1536(b). If the biological opinion concludes that the proposed action would jeopardize the species or adversely modify the critical habitat, then the action may not go forward unless the FWS can suggest an alternative that avoids such jeopardy, destruction, or adverse modification. Id. Sec. 1536(b)(3) and (b)(4). Without exception, these latter provisions refer to protection owed "endangered species or threatened species."

In contrast, the ESA, as amended in 1979, requires that a federal agency "confer" with the FWS on action likely to adversely impact "any speciesproposed to be listed " or "critical habitat proposed to be designated for such species." Id. Sec. 1536(a)(4) (emphasis added). Significantly, federal agencies are not required to forego making resource commitments which could result in action...