Miccosukee Tribe of Indians of Florida v. US

• Decision Date: 19 March 2010
• Docket Number: Case No. 05-23045-CIV.
• Citation: 697 F. Supp.2d 1324
• 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

697 F. Supp.2d 1324

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.

Case No. 05-23045-CIV.

United States District Court, S.D. Florida.

March 19, 2010.

Dexter Wayne Lehtinen, Felippe Moncarz, Kelly Brooks Smith, Lehtinen Reidi Brooks Moncarz, P.A., Miami, FL, for Plaintiff.

Donald Jodrey, United States Department of Interior, Mark A. Brown, United States Department of Justice Wildlife & Marine Resources Section, Washington, DC, Kyle A. Lonergan, Simpson Thacher & Bartlett LLP, New York, NY, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART THE MICCOSUKEE TRIBE OF FLORIDA'S MOTION TO ENFORCE THE MANDATE

K. MICHAEL MOORE, District Judge.

THIS CAUSE came before the Court upon the Miccosukee Tribe of Florida's Motion to Enforce the Mandate (dkt. # 205).

UPON CONSIDERATION of the Motion, the Responses, the pertinent portions of the record, and being otherwise fully advised in the premises, the Court enters the following Order.

I. BACKGROUND

The Cape Sable seaside sparrow ("sparrow") represents one out of eight subspecies of North American seaside sparrow.¹ Biological Opinion 2006 at 21 ("BiOp 2006") (dkt. # 70-1) (the "sparrow's distribution is limited to the short-hydroperiod wetlands at the bottom of the greater Everglades system"). The sparrow is protected under the Endangered Species Act of 1973 ("ESA"). Id. The sparrow requires low water levels for nesting because sparrows build their nests between four and eight inches above the water. Id. at 23-24. Therefore, higher water levels in the sparrow's nesting areas can diminish its nesting success rate. Id. "At water levels over 2 ft above ground surface ... the majority of the vegetation in sparrow habitat is completely inundated, leaving sparrows with very few refugia." Id. at 27. "Sparrows are generally sedentary and avoid forested areas, and they are not likely to travel great distances to find mates or to find outlying patches of suitable habitat." Id. at 25. Thus, according to the Fish and Wildlife Service ("FWS"), the survival of the sparrow depends largely upon maintaining a lower water depth within its habitat.²

The Everglade snail kite ("snail kite") is another endangered species.³ The snail kite's primary forage is the apple snail mollusk. Id. at 35. The apple snail, and therefore the snail kite, thrive in areas that have "interdigitated areas of open water" that are between 0.5 and 4.3 feet deep. Id. at 36. Increased water levels in snail kite habitat negatively affect the snail kite because it reduces the number of apple snails. Id. at 61. "High water levels result in reduced position and reduced growth rates of young snails, and fewer adult-size snails are available for snail kites." Id. at 69.

The wood stork is an endangered species with its primary habitat in the southeastern United States.⁴ To hunt successfully, wood storks rely on shallow and open water about two to six inches deep that is free of dense aquatic vegetation. Id. at 45. When nesting, wood storks seek out locations where drying wetlands concentrate prey. Id. at 46. Water levels that are too high or too low are not suitable for foraging and may cause the wood stork to abandon the prey site when water depth and prey density drops below a certain efficiency threshold. Id. at 47. Thus, maintenance of water levels in certain sections of the Everglades affects the viability of the sparrow, snail kite, and wood stork.

"In the early 1980's Congress authorized a restructuring of the Army Corps of Engineers' (the "Corps") water management system in order to restore wildlife in the Everglades." Miccosukee v. United States, 566 F.3d 1257, 1263 (11th Cir.2009). A series of trial and error tests were conducted. One of these tests, called Test 7, was conducted in 1995 and was scheduled to last four years. Id. Under Test 7, large amounts of water were released through the S-12 gates, located just north of the Everglades. Id. In 1998, the Corps and FWS, with whom the Corps collaborates, began to modify the water management activity in response to a serious decline in the sparrow population. Id. The sparrow relies on low water levels below the S-12 gates during its nesting season. Id. at 1262. The snail kite relies on steady and moderate to low water levels above the S-12 gates to ensure the availability of the apple snail. Id. When the S-12 gates are open, the water level below the gates rises, negatively impacting the sparrow. Id. When the gates are closed, water builds up behind the gates, negatively impacting the snail kite. Id.

FWS issued biological opinions in 1999, 2002, and 2006, analyzing the ecological impacts of the water management actions. Between 1999 and 2002, the Corps and FWS collaborated to develop the Interim Operational Plan for the Protection of the Cape Sable seaside sparrow ("IOP"). Id. The IOP sets forth procedures for water management activities and provides for the monitoring and management of environmental impacts. The Corps has operated under the IOP since 2002.

On March 3, 2006, Plaintiff Miccosukee Tribe of Indians (the "Miccosukee Tribe") filed an Amended Complaint (dkt. #30) seeking various forms of relief for an allegedly faulty biological opinion dated March 28, 2002. The Amended Complaint alleges that in late 1997, FWS began demanding the closure of certain gates along Tamiami Trail to stop the flow of water out of WCA-3A⁵ to benefit the endangered sparrow located downstream to the south. Am. Compl. ¶ 7. The Miccosukee Tribe alleges that the closing of these gates has kept water levels above the gate abnormally high, resulting in harm to both Plaintiff and the snail kite and its critical habitat. Id. This restriction of water allegedly continued after the FWS issued a Biological Opinion in 1999 ("BiOp 1999"), and an Amended Biological Opinion in 2002 ("BiOp 2002").

On November 17, 2006, FWS promulgated its BiOp 2006, which is now the operative biological opinion, superseding the 2002 and 1999 Opinions. See Am. Compl. ¶ 11. The BiOp 2006 included an Incidental Take Statement ("ITS"). BiOp 2006, at 74. In response, Plaintiff filed a Second Amended Complaint (dkt. # 76) seeking (1) injunctive and declaratory relief from the BiOp 2006 which allegedly violated the ESA and its implementing regulations, pursuant to the Administrative Procedure Act ("APA") (Count I); (2) injunctive and declaratory relief for violations of Section 7 of the ESA and its implementing regulations (Count II); (3) injunctive and declaratory relief for violations of Section 9 of the ESA and its implementing regulations (Count III); and for improper agency action under the APA (Count IV),

The Parties cross-moved for summary judgment and this Court granted summary judgment in favor of Defendants. Miccosukee v. United States, 528 F.Supp.2d 1317 (S.D.Fla.2007). The Miccosukee Tribe appealed and the Eleventh Circuit Court of Appeals affirmed in part and reversed and remanded in part. Miccosukee v. United States, 566 F.3d 1257 (11th Cir.2009). The Eleventh Circuit affirmed on all grounds except for its holding that the ITS was defective because (1) FWS failed to meet its burden of demonstrating that it is impractical to provide a numerical trigger for reconsultation; and (2) the habitat markers used in the ITS were arbitrary and capricious. Id. at 1275. The Eleventh Circuit ordered that the ITS be modified accordingly and remanded the action for proceedings consistent with its Order. Id.

On November 12, 2009, Defendants filed an Amended Incidental Take Statement ("Amended ITS") (dkt. #204-1). The Amended ITS uses habitat markers in lieu of numerical triggers to measure incidental take for the sparrow, snail kite and wood stork. The Amended ITS also removed the numerical triggers for the sparrow and wood stork contained in the first Incidental Take Statement and replaced them with habitat markers. The Miccosukee Tribe now asserts that the Amended ITS is invalid because it utilizes habitat markers instead of numerical incidental take triggers.

II. STANDARD OF REVIEW

The standard of review employed by this Court is provided by the APA and the ESA. See Fund for Animals, Inc. v. Rice, 85 F.3d 535, 547-548 (11th Cir.1996); see also Sierra Club v. Flowers, 423 F.Supp.2d 1273, 1283-84 (S.D.Fla.2006). Under both the APA and the ESA, this Court is only permitted to overrule agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See 5 U.S.C. § 706(2)(A). In deciding whether agency action is arbitrary and capricious, a court assesses "whether the decision was based on a consideration of the relevant factors and whether there has been clear error of judgment." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

The Supreme Court has stated that the strong deference that courts give to agencies when reviewing APA and ESA claims is to "protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which the courts lack both expertise and information to resolve." Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 56, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). Further, the Supreme Court has held that when a court reviews agency decisions that are technical and require scientific determinations, the "reviewing court must generally be at its most deferential." Marsh v. Or. Natural Resources Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Thus, this Court may not substitute its judgment for that of an agency's. See Preserve Endangered Areas of Cobb's History, Inc. v. U.S. Army Corps of Eng'rs., 87 F.3d 1242, 1246 (11th Cir.1996). A reviewing court must still, however, engage in a "thorough, probing, in-depth review." See Citizens to Preserve...