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

• Decision Date: 12 May 2006
• Docket Number: No. 05-23045-CIVMOORE.,05-23045-CIVMOORE.
• Citation: 430 F.Supp.2d 1328
• Parties: MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a federally-recognized Indian tribe, Plaintiff, v. UNITED STATES of America, U.S. Fish & Wildlife Service, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

430 F.Supp.2d 1328

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a federally-recognized Indian tribe, Plaintiff, v. UNITED STATES of America, U.S. Fish & Wildlife Service, et al., Defendants.

No. 05-23045-CIVMOORE.

United States District Court, S.D. Florida.

May 12, 2006.

COPYRIGHT MATERIAL OMITTED

Kelly Sue Brooks, Lehtinen Vargas Reiner & Riedi, Miami, FL, for Plaintiff.

Mark A. Brown, United States Department of Justice Wildlife & Marine Resources Section, Washington, DC, for Defendants.

ORDER

K. MICHAEL MOORE, District Judge.

THIS CAUSE came before the Court upon Federal Defendants' Memorandum in Support of Motion to Dismiss and for Expedited Consideration Thereof (DE # s 23, 24), and Federal Defendants' Second Motion to Dismiss and for Expedited Consideration Thereof (DE # 33).

UPON CONSIDERATION of the Motions, and being otherwise fully advised in the premises, the Court enters the following Order.

I. Background

The facts of this case have already been extensively discussed in an earlier order. See Miccosukee Tribe of Indians of Florida v. U.S., 420 F.Supp.2d 1324 (S.D.Fla. 2006). In brief, the Miccosukee Tribe of Indians ("Plaintiff" or "Tribe") seek redress for alleged environmental violations against a new defendant, the U.S. Fish & Wildlife Service ("FWS" or the "Service") among others. Specifically, the Plaintiff alleges that the Service violated the Endangered Species Act ("ESA"), the Administrative Procedures Act ("APA"), the National Environmental Policy Act ("NEPA") and the Indian Trust Doctrine in connection with its issuance of a Biological Opinion ("BO") in 1999, which was later amended in March, 2002. The Biological Opinions concerned an Interim operating Plan ("IOP") that the the U.S. Army Corps of Engineers (the "Corps") adopted to avoid jeopardizing the Cape Sable Seaside Sparrow until the completion of a water delivery project (the Modified Water Deliveries Project, or "MWD Project"). The Amended Biological Opinion concluded that the Corps' implementation of the IOP was not likely to jeopardize the continued existence of the Everglades Snail Kite and was not likely to adversely modify designated Snail Kite habitat. Plaintiff argues that these conclusions were wrong and that the Snail Kite and its habitat were damaged.

II. Standard of Review

A motion to dismiss for failure to state a claim merely tests the sufficiency of the complaint; it does not decide the merits of the case. Milburn v. United States, 734 F.2d 762, 765 (11th Cir.1984). On a motion to dismiss, the Court must construe the complaint in the light most favorable to the plaintiff and accept the factual allegations as true. SEC v. ESM Group, Inc., 835 F.2d 270, 272 (11th Cir. 1988). Further, the Court should not grant a motion to dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (citations omitted); South Fla. Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 406 (11th Cir.1996). Specifically, "[i]t is a well-settled principle of law that a complaint should not be dismissed merely because a plaintiff's allegations do not support the particular legal theory he advances, for the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory." Bowers v. Hardwick, 478 U.S. 186, 201-02, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (Blackmun, J., dissenting) (quotations omitted); see Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir.1997). Nonetheless, to withstand a motion to dismiss, it is axiomatic that the complaint must allege facts sufficiently setting forth the essential elements of a cause of action.

III. Discussion

Defendants first argue that Plaintiff lacks standing. In order to establish standing, the plaintiffs must have suffered an injury in fact, i.e., the invasion of a legally protected interest which is concrete and particularized, not conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "Moreover, there must be some causal connection between the asserted injury and the challenged action, and the injury must be of the type likely to be redressed by a favorable decision." See Gutherman v. 7-Eleven, Inc., 278 F.Supp.2d 1374, 1378 (S.D.Fla.2003) (citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985)). In the context of cases alleging environmental violations, plaintiffs "adequately allege injury in fact when they aver they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity." Sierra Club v. Johnson, 436 F.3d 1269, 1279 (11th Cir.2006) (quoting Friends of the Earth v. Laidlaw Environmental Servs., Inc., 528 U.S. 167, 183, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)).

The Supreme Court has held that unlike a motion for summary judgment, "[a]t the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we `presum[e] that general allegations embrace those specific facts that are necessary to support the claim.'" Bennett v. Spear, 520 U.S. 154, 167-8, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). In keeping with this standard, the complaint alleges the requisite injury in fact. As the Complaint alleges:

• "These FWS demanded gate closings continue to this day and have caused, and continue to cause, sustained high water levels in WCA 3A that have resulted in cumulative irreparable harm to the Tribe's culture and way of life, to tribal lands and natural resources in WCA 3A, to the Snail Kite and its critical habitat. Moreover, the gate closings adversely impact the promises made to the Miccosukee Tribe that these lands would be preserved in a natural state in perpetuity and that wildlife and their habitat would be preserved." Amended Compl. ¶ 24.

• "The second RPA has resulted in sustained high water in vast areas of Tribal Everglades in WCA 3A that has caused, and will continue to cause, cumulative irreparable harm to the Tribe's lands and tree islands in WCA 3A, the Tribal culture and, way of life, the endangered Snail Kite and its critical habitat in WCA 3A and adversely impacts the promises made to the Miccosukee Tribe that these lands would be preserved in a natural state in perpetuity and that wildlife and their habitat would be preserved." Amended Compl. ¶ 31.

• "The Amended Biological Opinion and its RPA and Incidental Take Statement has caused, and will continue to cause, severe degradation of the Tribal Everglades in WCA 3A, including destruction of the tree islands and biodiversity, and irreversible ecological harm to the critical habitat of the endangered Snail Kite, as well as harm to the Tribe's entire culture and way of life through unacceptably and unnaturally sustained high water levels there." Amended Compl. ¶ 61.

Furthermore, Defendants' contention that FWS's actions are not "fairly traceable" to the harm alleged is without merit. The Supreme Court's holding in Bennett v. Spear is directly on point. In that case, the Plaintiffs challenged the biological opinion issued by FWS for the Bureau of Reclamation. 520 U.S. at 159, 117 S.Ct. 1154. The Bureau operated the project at issue in compliance with the biological opinion, leading to increased water levels and alleged harm to the Plaintiffs. Id. The Government argued, as it does here, that the "action agency" (the Army Corps of Engineers) "retains ultimate responsibility for determining whether and how a proposed action shall go forward." Id at 168, 117 S.Ct. 1154. Similarly, the Defendants here claim that any injuries "are caused by the actions of the Corps, and not by any actions of FWS" because "the ultimate decision whether to proceed with the proposed action is committed to the discretion of the action agency." Def. Second Motion to Dismiss, at 3. As the Supreme Court noted, this "wrongly equates injury `fairly traceable' to the defendant with injury as to which the defendant's actions are the very last step in the chain of causation. While . . . it does not suffice if the injury complained of is the result of the independent action of some third party not before the court' . . . that does not exclude injury produced by determinative or coercive effect upon the action of someone else." Id. at 168-9, 117 S.Ct. 1154. And, the FWS's Biological Opinion is certainly "coercive." While "[t]he action agency is technically free to disregard the Biological Opinion and proceed with its proposed action, ... it does so at its own peril. . .. The Service itself is, to put it mildly, keenly aware of the virtually determinative effect of its biological opinions." Id. at 170, 117 S.Ct. 1154.

Defendants' attempt to distinguish Bennett is not persuasive. Defendants argue that the chain of causation between the FWS's issuance of the Biological Opinion and the injury alleged by the Tribe is overextended. The Court disagrees: FWS issued a biological opinion, which the Corps adopted and the Plaintiff was allegedly harmed by its implementation. This is certainly sufficient to satisfy the "fairly traceable" requirement, especially considering Plaintiff's "modest" burden at this stage of the litigation. Bennett, 520 U.S. at 171, 117 S.Ct. 1154.

A. Count II

In Count II, the Tribe alleges that pursuant to Section 7 of the ESA, the Secretary of the Interior (the "Secretary") is required to reinitiate consultation after the Secretary learned that "the premises upon which the Secretary based his findings in a Biological Opinion concerning an endangered species are flawed .. ." Amended Compl., ¶ 116. The Defendants respond that the Army Corps of Engineers—not FWS—has...