Fund for Animals, Inc. v. Rice

Decision Date13 June 1996
Docket NumberNo. 95-3339,95-3339
Citation85 F.3d 535
PartiesThe FUND FOR ANIMALS, INC., Defenders of Wildlife, Florida Biodiversity Project, Maynard L. Hiss, Holly Jensen, Sierra Club, Environmental Confederation of Southwest Florida, Plaintiffs-Appellants, v. Terry R. RICE, Colonel, District Engineer, U.S. Army Corps of Engineers, Bruce Babbitt, Secretary, Department of the Interior, Mollie Beattie, Director, U.S. Fish and Wildlife Service, John Wesley White, County Administrator, Sarasota County, Sarasota County, a political subdivision of the State of Florida, Defendants-Appellees, Carol Browner, Administrator, Environmental Protection Agency, Defendant.
CourtU.S. Court of Appeals — Eleventh Circuit

Sidney B. Maddock, Silver Spring, MD, Kathrine Meyer, Eric R. Glitzenstein, Meyer & Glitzenstein, Washington, DC, Thomas W. Reese, Law Office of Thomas W. Reese, St. Petersburg, FL, for appellants.

Roger Sims, Holland & Knight, Orlando, FL, Steven L. Brannock, Stacy D. Blank, Rory C. Ryan, Holland & Knight, Tampa, FL, Alice Thurston, U.S. Dept. of Justice, Environment Division, Appellate Section, Washington, DC, Jorge L. Fernandez, Sarasota County Attorney's Office, Sarasota, FL, for appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before KRAVITCH, DUBINA and CARNES, Circuit Judges.

DUBINA, Circuit Judge:

The Plaintiffs-Appellants ("the Plaintiffs"), seek to prevent the construction of a municipal landfill on a site in Sarasota County, Florida, that the Plaintiffs claim is an indispensable habitat for the highly endangered Florida Panther and also home to the threatened Eastern Indigo Snake. The Plaintiffs bring this case before us to challenge the district court's grant of summary judgment in favor of the Defendants-Appellees ("the Defendants"). The district court's challenged judgment has thus far allowed Sarasota County to proceed with construction of the landfill. For the reasons stated below, we affirm the district court's judgment.

I. BACKGROUND
A. The Florida Panther and the Eastern Indigo Snake

The Florida Panther (Felis concolor coryi ) was listed as endangered in 1967. See 32 Fed.Reg. 4001. This panther, which is a subspecies of the cougar, "is a large, slender cat, tawny above and whitish below." David S. Maehr, The Florida Panther, in 1 Rare and Endangered Biota of Florida 176 (Stephen R. Humphrey et al. eds., 1992) (hereinafter "Maehr"). According to the Fish and Wildlife Service ("the F.W.S."), the Florida Panther is "one of the most endangered large mammals in the world." F.W.S. Biological Opinion for the Sarasota Landfill Project at 10 (April 3, 1995) (hereinafter "F.W.S. Opinion"). 1 Although the Florida Panther once ranged throughout the Southeastern United States, it has been reduced to a single population in south Florida. The "geographic isolation, habitat loss, small population size, and associated inbreeding" of the remaining population have resulted in a significant loss of health and genetic variability in Florida Panthers. F.W.S. Opinion at 10-11. According to current estimates, there are only thirty to fifty adult Florida Panthers left in the wild. 2 Id. However, the record in this case indicates that there have been no confirmed sightings of the Florida Panther in the area in which the landfill is to be built. 3

The Eastern Indigo Snake (Drymarchon corais couperi ) was listed as threatened in 1978. See 43 Fed.Reg. 4028. Measuring up to 8 1/2 feet, this docile, nonpoisonous snake is the longest found in North America. Paul E. Mohler, The Eastern Indigo Snake, in 3 Rare and Endangered Biota of Florida 181 (Paul E. Mohler et al. eds. 1992) (hereinafter "Mohler"). Although this iridescent black snake once ranged throughout Florida, Georgia, southeastern South Carolina, southern Alabama, and southern Mississippi, its known populations are now restricted to certain areas in Florida and Georgia. F.W.S. Opinion at 24. The F.W.S. has not yet designated any critical habitat for the Eastern Indigo Snake.

B. The Landfill

On November 22, 1989, the United States Army Corps of Engineers ("the Corps") received an application from Sarasota County, Florida ("Sarasota County" or "the County") for a permit under Section 404 of the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1387. The proposed project for which Sarasota County sought a permit consists of constructing an 895-acre landfill and required ancillary structures on a 6,150-acre site known as the "Walton Tract." The Walton Tract is located in west central Sarasota County, north of the Caloosahatchee River, west of the Myakka River, and just southwest of the Myakka River State Park. According to current projections, the fill material for the landfill will impact approximately seventy-four acres of isolated wetlands. 4 The project also includes construction of a roadway extension ("the Knights Trail Road extension"), consisting of approximately 2.5 miles of new road and impacting 0.47 acres of wetlands.

During June of 1990, the Corps dispersed notice of Sarasota County's application to government agencies, private organizations, and other interested persons. The notice invited public comment on the landfill proposal. Two months later, the F.W.S. issued a Biological Opinion consenting to the project. 5 However, the Environmental Protection Agency ("the E.P.A.") recommended denial of the permit under Section 404(b)(1) of the guidelines promulgated pursuant to the Clean Water Act. At that time, Sarasota County projected that the landfill would affect 120 acres of wetlands.

The following year, Sarasota County submitted an alternative analysis, which included modifications of the project calculated to reduce the prospective effect on wetlands. Four sites, labeled D, E, F (the Walton Tract), and G, were proposed for the landfill. During September of 1993, Sarasota County submitted a revised plan that would reduce the landfill's effect on wetlands from 120 acres to approximately seventy-four acres. In February of 1994, the E.P.A. notified the Corps that it no longer objected to the issuance of the permit.

At the end of May 1994, the Corps completed an Environmental Assessment and Statement of Findings, determining that no environmental impact statement was required. In addition, the Corps announced that a public hearing would not benefit the decision-making process. After nearly five years of administrative review, the Corps approved the requested permit on June 3, 1994. On August 10, 1994, the Corps verified the applicability of Nationwide Permit No. 26 to Sarasota County's proposal to fill 0.47 acre of wetlands as part of the Knight's Trail Road extension project.

On June 17, 1994, the Plaintiffs submitted a sixty-day notice of intent to sue. The Plaintiffs alleged violations of the Clean Water Act and the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1534-44. Two months later, the F.W.S. requested resumption of § 7 consultation under the ESA to allow consideration of any potential effect on the Florida Panther and the Eastern Indigo Snake. 6

In October of 1994, the F.W.S. issued its first Biological Opinion addressing concerns regarding the Florida Panther and the Eastern Indigo Snake. The Opinion concluded that the project was unlikely to jeopardize further the existence of either the Florida Panther or the Eastern Indigo Snake. However, it did include an "incidental take" statement for the Eastern Indigo Snake and recommendations for Florida Panther conservation, wetland preservation, and a monitoring program. The Corps incorporated the F.W.S.'s recommendations and modified Sarasota County's permit on November 14, 1994. Two weeks later, the Plaintiffs commenced an action in federal district court against the Corps, the F.W.S., the E.P.A., 7 and the Sarasota County Administrator.

In response to the suit, the F.W.S. requested that the Corps resume § 7 consultation on the permit. The Corps suspended Sarasota County's permit the next day, and on February 7, 1995, the Corps also suspended its verification of coverage for discharge of fill associated with the Knight's Trail Road extension project. In April of 1995, the F.W.S. issued to the Corps its second Biological Opinion addressing concerns regarding the Florida Panther and the Eastern Indigo Snake. The Opinion included both an "incidental take" statement for the Eastern Indigo Snake 8 and conservation recommendations for the Florida Panther. This Opinion, which superseded the F.W.S.'s previous Biological Opinion, again concluded that the proposed project was unlikely to jeopardize the continued existence of either the Florida Panther or the Eastern Indigo Snake. See F.W.S. Opinion at 1. 9

On April 12, 1995, the Plaintiffs submitted comments to the Corps on the F.W.S.'s new Biological Opinion. The next day, the Corps determined, based on the F.W.S.'s Biological Opinion and the Corps' independent environmental assessment, that reinstatement of the permit to dredge and fill seventy-four acres of wetlands with additional modifications was in the public interest. Thus, the modified permit was reinstated on April 13, 1995.

Following final issuance of the permit, the Plaintiffs filed their Second Amended Complaint, which raised claims under the Clean Water Act, the Endangered Species Act, and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-70d. The complaint requested declaratory and injunctive relief. Sarasota County agreed to halt construction temporarily to allow the district court time to reach a considered decision after full briefing on the merits. In return, the Plaintiffs consented to expedite the process of district court review. In particular, the parties agreed to submit the case to the court on cross-motions for summary judgment. The district court heard oral argument on June 29, 1995.

During oral argument, the Plaintiffs requested leave of the court, should their summary judgment...

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