Florida Key Deer v. Stickney

• Decision Date: 25 August 1994
• Docket Number: No. 90-10037-CIV.,90-10037-CIV.
• Citation: 864 F. Supp. 1222
• Parties: FLORIDA KEY DEER, (Odocoileus virginianus clavium), Henry Lee Morgenstern, National Wildlife Federation, Florida Wildlife Federation, and Defenders of Wildlife, Plaintiffs, v. Wallace E. STICKNEY, in his official capacity as Director of the Federal Emergency Management Agency, an agency of the United States of America, Defendant.
• Court: U.S. District Court — Southern District of Florida

864 F. Supp. 1222

FLORIDA KEY DEER, (Odocoileus virginianus clavium), Henry Lee Morgenstern, National Wildlife Federation, Florida Wildlife Federation, and Defenders of Wildlife, Plaintiffs, v. Wallace E. STICKNEY, in his official capacity as Director of the Federal Emergency Management Agency, an agency of the United States of America, Defendant.

No. 90-10037-CIV.

United States District Court, S.D. Florida.

August 25, 1994.

COPYRIGHT MATERIAL OMITTED

Henry Lee Morgenstern, Key West, FL, David J. White, William Robert Irvin, National Wildlife Federation, Atlanta, GA, for plaintiffs.

Joseph R. Perella, Environment and Natural Resources Div., U.S. Dept. of Justice, Washington, DC, Teresa J. Davenport, Asst. U.S. Atty., Miami, FL, for defendant.

MEMORANDUM OPINION

K. MICHAEL MOORE, District Judge.

THIS CAUSE came before the Court upon Plaintiffs' application for declaratory and injunctive relief under the Endangered Species Act, 16 U.S.C. sec. 1531, et seq. Plaintiffs seek judicial determination that Section 7(a)(2) of the Endangered Species Act requires the Federal Emergency Management Agency to consult with the United States Fish and Wildlife Service to determine whether the agency's actions in administering the National Flood Insurance Program in Monroe County, Florida are not likely to jeopardize the continued existence of the endangered Key deer. The case was tried before the Court in Key West, Florida. This Memorandum Opinion and Final Declaratory Judgment follows:

Nature of the Action

In this suit, Plaintiffs seek to compel the Defendant Federal Emergency Management Agency (FEMA) to comply with its obligations under the Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et seq., to insure, in consultation with the U.S. Fish and Wildlife Service (USFWS), that its actions in administering the National Flood Insurance Program (NFIP) in Monroe County, Florida, are not likely to jeopardize the continued existence of the endangered Florida Key deer.

Plaintiffs seek declaratory and injunction relief requiring FEMA to consult with the USFWS, pursuant to Section 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2), to determine the effects of the NFIP in Monroe County on the endangered Key deer, and, subsequent to consultation with the USFWS, to the Key deer pursuant to FEMA's obligations under ESA Section 7(a)(1), 16 U.S.C. § 1536(a)(1).

Standing

In order to demonstrate standing under the constitutional test for standing, Plaintiffs must show three elements: (1) that they have or will suffer some injury in fact, (2) that the injury is "fairly traceable" to the conduct of the Defendant, and (3) that the Court has the power to redress the injury. Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38-41, 96 S.Ct. 1917, 1924-26, 48 L.Ed.2d 450 (1976).

The desire to use or observe an animal species, even for purely aesthetic purposes, is a cognizable interest for purposes of standing. Lujan v. Defenders of Wildlife, ___ U.S. ___, ___, 112 S.Ct. 2130, 2137, 119 L.Ed.2d 351 (1992) (citing Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972)).

The Plaintiffs have demonstrated, and FEMA does not dispute, that Plaintiffs have and will continue to suffer "injury in fact" by virtue of the following: that Plaintiffs and their members derive scientific, recreational, and aesthetic benefit and enjoyment from the existence in the wild of the Key deer (Final Stipulation of Facts, at 6-8, ¶¶ 8-12, 15); that Plaintiffs' interests in the recovery of the Key deer are current and continual (Id. ¶ 15); that the interests of Plaintiffs and their members would be impaired if the population of the Key Deer continues to decline (Id.); that the population of the Key Deer is in fact in decline (Id. ¶ 3), and; that the Key deer is currently being harmed by new development (Id. ¶¶ 3, 16, 18-19). These undisputed facts demonstrate that Plaintiffs and their members have and are continuing to suffer "injury in fact."

Injury in fact also arises in this case from FEMA's failure to carry out statutorily-mandated procedures in a manner that impairs Plaintiffs' interests in the conservation and recovery of the Key deer. Courts have recognized that failure to comply with required procedures under similar circumstances may constitute injury in fact. See, e.g., National Wildlife Federation v. Hodel, 839 F.2d 694, 712 (D.C.Cir.1988); Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir.1985) (failure to prepare a biological assessment constitutes a procedural violation causing irreparable harm entitling plaintiff to relief); MunozMendoza v. Pierce, 711 F.2d 421, 428 (1st Cir.1983); City of Davis v. Coleman, 521 F.2d 661, 670-72 (9th Cir.1975). When FEMA violated the ESA by failing to consult with the USFWS, these procedural violations gave rise to an injury to Plaintiffs as individuals and organizations whose members observe and enjoy the continued existence of the Key deer in its native habitat.

Plaintiffs need not prove conclusively that there is a direct cause and effect relationship between the availability of federal flood insurance and development, or that federal flood insurance is a major cause of the development that causes harm to the Key deer. Rather, Plaintiffs must only make a showing that there is a "substantial likelihood" that the injury is "fairly traceable" to Defendant's act or omission, and a "substantial likelihood" that the relief requested will redress the injury claimed. Duke Power Company v. Carolina Environmental Study Group, 438 U.S. 59, 75 n. 20, 98 S.Ct. 2620, 2631 n. 20, 57 L.Ed.2d 595 (1978).

Individuals and organizations have standing to enforce procedural rights so long as the procedures in question are designed to protect some threatened concrete interest that is the ultimate basis of their standing. Lujan, ___ U.S. at ___ n. 8, 112 S.Ct. at 2143 n. 8. As noted by the Lujan Court:

There is this much truth to the assertion that "procedural rights" are special: The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy. Thus, under our case-law, one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency's failure to prepare an Environmental Impact Statement, even though he cannot establish with any certainty that the Statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years. (That is why we do not rely, in the present case, upon the Government's argument that, even if the other agencies were obliged to consult with the FWS, they might not have followed its advice.) What respondents' "procedural rights" argument seeks, however, is quite different from this: standing for persons who have no concrete interests affected—persons who live (and propose to live) at the other end of the country from the dam.

Id. at ___ - ___ n. 7, 112 S.Ct. at 2142-43 n. 7 (emphasis supplied).

In the instant case, Plaintiffs are akin to the people who live next to the dam site in the Lujan Court's above-cited example. FEMA has conceded that Plaintiffs and/or their members actually live in or visit Big Pine Key and the surrounding area, enjoy the existence of the Key deer in the wild, and intend to continue such activities in the future. Final Stipulation of Fact, at 7-8, ¶ 10. This is not a case of persons seeking to enforce some abstract, self-contained, noninstrumental right to have all agencies observe procedures required by law; FEMA's refusal to follow procedural requirements hits the Plaintiffs—and the Key deer—in areas where they live, visit, study, and recreate on a regular and continual basis. Plaintiffs have a procedural right because their concrete interests in the Key deer are at stake.

Plaintiffs have met their burden of demonstrating a substantial likelihood that a causal relationship exists between the availability of flood insurance and the rate or amount of new development.

In the context of Plaintiffs' claim relating to FEMA's procedural violation of Section 7(a)(2), Plaintiffs' must show only that FEMA has failed to initiate consultation as required by the ESA. Thomas, 753 F.2d at 763 (failure of a federal agency to comply with Section 7 procedural requirements is a violation of the substantive mandate of the ESA). In maintaining a cause of action against a federal agency for failure to comply with a non-discretionary procedural requirement of the ESA, the burden on the plaintiff is merely to show that the circumstances triggering the procedural requirement exist, and that the required procedures have not been followed. Id. at 765. FEMA's refusal to initiate consultation with the USFWS violates the procedural requirements of Section 7(a)(2) of the ESA and therefore impairs concrete interests of the Plaintiffs i.e., the recovery of the Key deer.

To demonstrate standing to challenge FEMA's substantive violation of Section 7(a)(2), Plaintiffs must only show that there is a "substantial likelihood" that the actions of FEMA in administering and implementing the NFIP in Key deer habitat in any way facilitates, encourages, or makes development more likely than would be the case without flood insurance, either directly or indirectly, thereby crossing the "low threshold of possible effect." Romero-Barcelo v. Brown, 643 F.2d 835, 857 (1st Cir.1981).

The evidence presented in this case clearly demonstrates that there is more than a substantial likelihood of cause and effect between federal flood insurance and new development, especially where, as demonstrated infra, FEMA provides the only commercially available flood insurance in Key deer habitat. The Court finds that Plaintiffs have met the "fairly traceable" element on the...