MEDINA COUNTY ENVIRON. ACTION v. SURFACE TRANSP., 09-60108.

• Decision Date: 06 April 2010
• Docket Number: No. 09-60108.,09-60108.
• Citation: 602 F.3d 687
• Parties: MEDINA COUNTY ENVIRONMENTAL ACTION ASSOCIATION, Petitioner, v. SURFACE TRANSPORTATION BOARD; United States of America; United States Fish and Wildlife Service, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

602 F.3d 687

MEDINA COUNTY ENVIRONMENTAL ACTION ASSOCIATION, Petitioner, v. SURFACE TRANSPORTATION BOARD; United States of America; United States Fish and Wildlife Service, Respondents.

No. 09-60108.

United States Court of Appeals, Fifth Circuit.

April 6, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David Franklin Barton (argued), Gardner Law Firm, San Antonio, TX, for Petitioner.

Virginia Strasser (argued), Ellen Hanson, Surface Transp. Bd., Eric H. Holder, Jr., U.S. Dept. of Justice, Washington, DC, for Surface Transp. Bd. and U.S. Fish & Wildlife Serv.

Lane Madison McFadden (argued), U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for U.S. and U.S. Fish & Wildlife Serv.

David Hyler Coburn (argued), Steptoe & Johnson, L.L.P., Washington, DC, for Intervenor.

Before KING, BARKSDALE and ELROD, Circuit Judges.

KING, Circuit Judge:

The petitioner, the Medina County Environmental Action Association (MCEAA), seeks review of a Construction and Operation Exemption Decision (the Decision) entered by one of the respondents, the Surface Transportation Board (STB). The Decision granted an exemption under 49 U.S.C. § 10502 that allows the intervenor, Southwest Gulf Railroad Co. (SGR), to construct and operate a seven-mile rail line and rail loading loop to service a proposed limestone quarry in Medina County, Texas, without meeting the prior approval requirements imposed by 49 U.S.C. § 10901.¹ MCEAA petitions this court directly for review of the Decision, as it may under 28 U.S.C. §§ 2321(a), 2342(5).

At issue is whether the STB and the second respondent, the United States Fish and Wildlife Service (FWS),² complied with their obligations under § 7 of the Endangered Species Act (ESA) to ensure that the proposed rail was "not likely to jeopardize the continued existence of any endangered species" before approving the exemption. 16 U.S.C. § 1536(a)(2). Specifically, MCEAA challenges the respondents' finding that the proposed rail and its "cumulative effects" are not likely to jeopardize the continued existence of the endangered golden-cheeked warbler, which is known to exist in Medina County, and of certain endangered karst invertebrates, which are known to exist in neighboring Bexar County. Also pending is MCEAA's motion to supplement the administrative record. For the reasons discussed below, we deny MCEAA's petition for review of the Decision and deny the motion to supplement.

I. Background

A. The Proposed Quarry and Rail

In 1999, Vulcan Construction Materials, LP (Vulcan), not a party to this case, entered into long-term leases for three contiguous pieces of property in north central Medina County, north of the unincorporated settlement of Quihi, Texas. Vulcan intends to develop this combined 1,760-acre tract as a limestone quarry in a phased approach. In "Phase One," Vulcan will develop the southernmost 640 acres of the site, approximately twenty percent of the total land area. The development will include a quarry pit, fuel storage area, plant maintenance facility, and production facility. Vulcan has indicated that it may quarry the rest of the site in up to four additional phases over the course of the next 50 years if there is market demand, but at present it has no specific plans for further development. SGR, which is owned by Vulcan's parent company, Vulcan Materials Co., seeks to build a seven-mile rail line and loading loop on the Phase One area and easements to the south that would connect the quarry with the Union Pacific Railway main line, along U.S. 90 at Dunlavy, Texas.³ MCEAA, a Texas non-profit corporation, was formed in 2000 to oppose the construction and operation of the quarry. Its members consist primarily of individuals in Quihi, Texas, who live or own land adjacent to or near the site of the proposed quarry and rail.⁴

Among the numerous challenges that MCEAA raised in opposition to the proposed quarry is that the quarry could threaten the endangered golden-cheeked warbler. In an effort to avoid this possibility, Vulcan began a voluntary consultation in 2000 with the FWS, seeking to structure the development of the quarry in compliance with § 9 of the ESA, which makes it "unlawful for any person subject to the jurisdiction of the United States to... take any endangered species within the United States." 16 U.S.C. § 1538(a)(1)(B). "Take" means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Id. § 1532(19). "Harm," in turn, includes "significant habitat modification or degradation that actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 C.F.R. § 17.3. The ESA imposes strict penalties for § 9 violations, including criminal penalties of up to one year in prison and a $50,000 fine per violation and civil penalties of up to $25,000 per violation. 16 U.S.C. § 1540(a), (b). Citizens may also bring civil suits to enjoin violators or to compel the FWS to enforce the statute against violators. Id. § 1540(g). If a proposed project is likely to result in "take" of a species or habitat, an applicant may petition the FWS under § 10 of the ESA for a permit, under "such terms and conditions as the FWS deems necessary or appropriate," that allows the project to proceed with some degree of "take." Id. § 1539(a)(2)(B).

On April 16, 2001, at Vulcan's request, officials from FWS's Austin field office accompanied a geologist for Vulcan to the proposed quarry site to study the potential for the project to harm the golden-cheeked warbler. Vulcan proceeded, with the FWS's advice and guidance, to conduct intensive surveys of the Phase One area but found no warblers and little or no habitat that would support warblers. Vulcan also conducted preliminary "screening" surveys on the rest of the 1,760-acre tract and again found no warblers, although the northern portion of the tract did contain some suitable habitat. Vulcan submitted the results of these surveys in a report to the FWS in October 2001. The report also described four additional phases for potential development to occur over the next twenty to fifty years, but indicated that there were not yet any specific development plans for those phases. Vulcan stated that it would begin conducting intensive surveys of future phases a minimum of three years before commencing development. The FWS responded to the report by letter on March 20, 2002, expressing approval of the survey work and the phased approach.⁵

Vulcan published another report in August 2003 that described the results of intensive surveys of the Phase One area conducted in 2002 and 2003. As in the prior report, Vulcan reported that no golden-cheeked warblers were found and that the potential warbler habitat within the Phase One area was "poor to marginal." The report did disclose, however, that one warbler had been heard calling on one occasion from the northeast of the Phase One site in 2003. On October 17, 2003, the FWS provided feedback on the report by letter, noting that the report's conclusions as to the absence of warblers on the property were consistent with the observations of its own field agents, who had toured portions of the property just two days earlier.

B. Evaluation of the Proposed Rail for the § 10901 Exemption

On February 27, 2003, SGR petitioned the STB for an exemption under 49 U.S.C. § 10901 to construct a seven-mile rail line and loading loop, to be located in the Phase One area and on easements to the south, to service the proposed quarry. The STB quickly determined that SGR met the statutory requirements for exemption and granted conditional approval, contingent upon a determination that the approval would not violate the STB's obligations under § 7 of the ESA. Section 7 imposes an affirmative duty on federal agencies to ensure that their "actions" are "not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species." 16 U.S.C. § 1536(a)(2).⁶ An agency "action" includes "the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid" to private parties. 50 C.F.R. § 402.02. Because granting the exemption that SGR sought would qualify as an "action" under the regulations, the STB was required to assess the § 7 ramifications of the proposed rail. The STB's approval was not required for any other action associated with the proposed quarry, and the parties have not pointed to any other aspect of the proposed quarry that required or will require approval under § 7.

1. The STB's Informal Consultation with the FWS

In assessing whether the proposed rail was "likely to jeopardize" endangered or threatened species or their habitats, the STB was required to consult with the FWS. 16 U.S.C. § 1536(a)(2).⁷ The STB initiated an "informal consultation"⁸ with the FWS on March 31, 2003. In the first step of an informal consultation, the agency must determine whether an endangered or threatened species, or "critical habitat"⁹ for such species, may be present in the vicinity of the proposed action. Id. § 1536(c)(1); 50 C.F.R. § 402.13(a). If no such species or critical habitat may be present, no further consultation is required; if they may be present, then the informal consultation proceeds to the second step. 50 C.F.R. § 402.13.¹⁰

On April 22, 2003, the FWS informed the STB that the endangered goldencheeked warbler was listed in FWS records as being present in Medina County,¹¹ although no designated critical habitat for the warbler (or for any other species) was listed in the vicinity of the proposed action. The FWS indicated that most of the area around the proposed rail had previously been cleared for agriculture and did not offer supportive habitat for the warbler, but that a small portion of land near the proposed loading loop...