Miccosukee Tribe of Indians of Florida v. U.S.

Decision Date05 May 2009
Docket NumberNo. 08-10799.,08-10799.
Citation566 F.3d 1257
PartiesMICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a federally-recognized Indian tribe, Plaintiff-Appellant, v. UNITED STATES of America, U.S. Fish and Wildlife Service, et al., Defendants-Appellees, Natural Resources Defense Council, Intervenor-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Dexter W. Lehtinen, Felippe Moncarz, Kelly Brooks Smith, Lehtinen, Vargas & Reidel, P.A., Miami, FL, for Plaintiff-Appellant.

Mark R. Haag, U.S. Dept. of Justice, ENRD, Washington, DC, Robert A. Bourque, Kyle A. Lonergan, James G. Gamble, Simpson, Thacher & Bartlett, LLP, Bradford H. Sewell, Natural Resources Defense Council, New York City, for Appellees.

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

Before TJOFLAT and CARNES, Circuit Judges, and BOWEN,* District Judge.

CARNES, Circuit Judge:

For centuries, a broad, shallow sheet of fresh water that covered most of South Florida flowed south from Lake Okeechobee to the Florida Bay. This phenomenon was the "river of grass" or Everglades, which supported unique and fragile flora and fauna. As so often happens with natural treasures, people sought to control and manipulate the Everglades for their own ends. After the State of Florida's efforts to tame the Everglades failed, in 1948 the Army Corps of Engineers got involved.

The Corps undertook the Central & Southern Florida Flood Project, which it hoped would control flooding, divert water away from developing areas, provide a source for irrigating crops, facilitate recreation, and "enhance" wildlife. See Miccosukee Tribe of Indians v. United States, 980 F.Supp. 448, 454 (S.D.Fla.1997). In order to bend the water to its will, the Corps created thousands of miles of canals and levees supported by scores of pumps, gates, and dams. This massive plumbing project drained the northern portion of the original Everglades for agricultural use and diverted water into distinct, deeper Water Conservation Areas for controlled release into the southern part of the original area, which became Everglades National Park. There followed what the government artfully calls "unplanned environmental consequences." This case involves one of those consequences, which pits a sparrow against a hawk.

I.

The Cape Sable seaside sparrow, which we will refer to as simply "the sparrow," lives primarily in and around Everglades National Park. It was listed as endangered in 1967 and received critical habitat designation in 1977. The fragility of the sparrow as a species stems from two of its attributes. It has a short lifespan, and its nesting success depends on specific kinds of vegetation and water levels. If it is to survive, this species must have favorable breeding conditions without long periods of interruption. The sparrow exists in six subpopulations, all of which live in or around the Everglades. One of them is located apart from the others, which might provide the species with a measure of protection against extinction if some calamity were to wipe out the other five subpopulations. This important outlying group, called "Subpopulation A," lives directly south of the S-12 gates—outside of the bird's designated critical habitat—and it decreased from more than 2,600 birds in 1992 to 112 birds in 2006. The Corps' method of releasing water into the Everglades, specifically at its S-12 gates, has been blamed for that decline.

The Everglade Snail Kite, a type of hawk, lives in the marshes of Florida and Cuba. Like the sparrow, the kite was also listed as endangered in 1967 and received critical habitat designation in 1977. And like the sparrow, the kite's survival depends on specific water levels. Kites feed primarily on apple snails, which require periods of inundation to reproduce, but the birds nest in woody vegetation that dies off if that inundation lasts too long or if the water level goes too high. It is, in that respect, a Goldilocks kind of bird when it comes to water levels—not too low, not too high. During a period of regional drought, Florida's total kite population declined from 3,400 birds in 1999 to 1,700 in 2002, but it appears to have stabilized since then. The kite's designated critical habitat includes more than 841,000 acres, of which just over a third are directly north of the S-12 gates in Water Conservation Area 3A (WCA-3A).

The problem, then, is that the kites prefer steady and moderate to low water levels above the S-12 gates, while the sparrows prefer low water below the S-12 gates.1 Both birds are protected by the Endangered Species Act of 1973, 16 U.S.C. § § 1531-1544. The Act outlaws the "take" of any endangered species and it defines "take" to include "harm," which in turn includes "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." 16 U.S.C. § 1532(19); 50 C.F.R. § 17.3.

Section 7(a)(2) requires every federal agency to ensure that its actions will not jeopardize the continued existence of any endangered species. 16 U.S.C. § 1536(a)(2). To coordinate their efforts to comply with section 7(a)(2), the agencies involved, here the Army Corps of Engineers and the Fish & Wildlife Service, consult with each other. When a proposed agency action may adversely affect an endangered species or its critical habitat, the Service creates a "biological opinion" determining whether the action would jeopardize the species. 50 C.F.R. § 402.14. If the proposed action would not jeopardize the species but still might result in incidental harm to it, the Service attaches to the biological opinion an incidental take statement establishing the terms and conditions under which the incidental take may occur. 50 C.F.R. § 402.14(i).

In the early 1980s Congress authorized a restructuring of the Corps' water management system in order to restore wildlife in the Everglades. Someone decided that the best way to figure out how to correct the unplanned environmental consequences was to undertake a series of trial-and-error tests, each lasting several years. During each test, water would be released from various gates in varying amounts. Under one of these, "Test 7," the Corps began releasing large amounts of water through the S-12 gates. Those gates are located just to the north of the Everglades between the habitats of the endangered kites and the endangered sparrows. Test 7, which began in 1995, was scheduled to continue until 1999.

In 1998 the Service and the Corps, whose eyes were on the sparrow, began to modify their water releases in response to a dramatic decline in the sparrow's population below the S-12 gates. To avoid flooding the little bird into extinction, the Corps created an "Interim Structural and Operational Plan" that altered Test 7 by closing the gates during sparrow breeding season. In 1999 the Service issued a biological opinion concluding that continued flooding through S-12 would lead to the extinction of the sparrow but also warning that "stacking" high water above S-12 might adversely impact the kite.

Between 1999 and 2002, the Corps and the Service consulted and developed the "Interim Operational Plan for the Protection of the Cape Sable Seaside Sparrow" (Interim Plan). During the same period, a regional drought cut the number of kites statewide in half, from 3,400 to 1,700 birds. The Service issued a second biological opinion in 2002, this time analyzing the Interim Plan and concluding it would not jeopardize the kite or adversely modify its habitat. The Corps then implemented the Interim Plan, which changed the S-12 water release schedule to create at least sixty continuous days each year, during sparrow breeding season, in which water below the gates would remain under 6.0 feet above sea level. Water began to back up north of the gates—in the kites' critical habitat and on Miccosukee tribal land. Birds cannot sue, but a tribe can and this one did.2

II.

In November 2005 the Miccosukee Tribe filed a lawsuit against the Fish & Wildlife Service, challenging its 2002 approval of the Interim Plan. Meanwhile, in a separate case involving the same area that was filed under the National Environmental Policy Act, the district court ordered the Service to prepare a Supplemental Environmental Impact Statement based on the Interim Plan. Miccosukee Tribe of Indians v. United States, 420 F.Supp.2d 1324, 1345 (S.D.Fla.2006). The Service and the Corps then consulted again to assess the impacts of continuing the Interim Plan. In November 2006 the Service issued another biological opinion, this time including the Supplemental Environmental Impact Statement, but it still found that the kite would not be jeopardized by allowing the Interim Plan to continue until 2010 or 2011 for the good of the sparrow.

The Miccosukee Tribe, whose eye was on the kite and on tribal lands in WCA-3A, believed that the kite and the lands were jeopardized by the Service's actions. As a result, the Tribe filed a second amended complaint in February 2007, claiming that the Service's 2006 biological opinion violated the Act and that the Service's consultation with the Corps was deficient under section 7 of the Act. The parties filed cross motions for summary judgment, and the district court granted the government's motion. This is the Tribe's appeal.

III.

We review de novo the district court's grant of summary judgment and use the same standard of review utilized by the district court. Sierra Club Inc. v. Leavitt, 488 F.3d 904, 911 (11th Cir.2007). Biological opinions are final agency actions subject to judicial review under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). Bennett v. Spear, 520 U.S. 154, 178, 117 S.Ct. 1154, 1169, 137 L.Ed.2d 281 (1997). Specifically, the standard is whether the biological opinion is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); ...

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