National Wildlife Federation v. Norton

Decision Date20 August 2004
Docket NumberNo. CIV.A. 03-1393(JR).,CIV.A. 03-1393(JR).
Citation332 F.Supp.2d 170
PartiesNATIONAL WILDLIFE FEDERATION, et al., Plaintiffs, v. Gale NORTON, Secretary, U.S. Department of the Interior, et al., Defendants.
CourtU.S. District Court — District of Columbia

John F. Kostyack, Mary Randolph Sargent, National Wildlife Federation, Washington, DC, for Plaintiffs.

Adam J. Siegel, Eric G. Hostetler, Mark Arthur Brown, U.S. Department of Justice, Washington, DC, for Defendants.

Francis A. Vasquez, Jr., White & Case LLP, Washington, DC, Frank Edward Matthews, Hopping Green & Sams, P.A., Tallahassee, FL, for Intervenor-Defendant.

MEMORANDUM

ROBERTSON, District Judge.

Three conservation groups, the National Wildlife Federation, the Florida Wildlife Federation, and the Florida Panther Society, challenge the U.S. Army Corps of Engineers' (Corps) issuance to Florida Rock Industries of a Clean Water Act "dredge and fill" permit for the operation of a limestone mine on a 6000 acre site near Ft. Myers, Florida. Plaintiffs assert that mining operations on that site will unacceptably reduce the habitat of the endangered Florida panther. They have sued the Corps of Engineers and the U.S. Fish and Wildlife Service (FWS), which issued the Biological Opinion upon which the permit is based, alleging violations of the Endangered Species Act, the National Environmental Policy Act, the Clean Water Act, and the Administrative Procedure Act. Florida Rock has intervened as a defendant. All parties have filed motions for summary judgment.

After reviewing the arguments of the parties and the records of the agencies' decisions, I find that the Biological Opinion (BiOp) issued by FWS is "arbitrary and capricious" within the meaning of the Administrative Procedure Act, and therefore invalid, because FWS failed to make or articulate a rational connection between the record facts and its "no jeopardy" decision and failed to provide a proper analysis of the cumulative impact of development upon the panther. These findings mean that the Environmental Assessment and Statement of Findings (EA/SOF) issued by the Corps, which relies heavily upon the invalid FWS biological opinion, is itself invalid, as is the dredge and fill permit, which depends for its validity upon the environmental assessment and statement of findings. The plaintiffs' motion for summary judgment will therefore be granted in most respects, the dredge and fill permit invalidated, and the BiOp and EA/SOF remanded to the agencies that issued them.

The reasons for these findings and conclusions are set forth below.

1. FACTUAL BACKGROUND

The Florida panther (Puma concolor coryi), a subspecies of cougar, was listed as endangered in 1967. See 32 Fed.Reg. 4001. Large carnivores, such as the Florida panther, are thought to be critical to the maintenance of healthy ecosystems. See BiOp for the proposed Fort Myers Mine # 2 in Lee County, Florida (Jan. 30, 2002), Admin. Rec. (AR) Vol. 3, Tab 98, at 16. The Florida panther was once found throughout the southeastern United States, but hunting and habitat destruction over the last two centuries have drastically reduced its population and its range. The single confirmed reproducing population of about 78 Florida panthers that exists today has a 2.2 million acre range in south Florida. Id. at 12, 17. The largest contiguous panther habitat is the Big Cypress National Preserve/Everglades ecosystem, although suitable habitat extends into other areas of south Florida. Id. at 17. It is estimated that approximately half of the habitat used by the panther is located on privately-owned land. Id. at 12.

The adult panther is a largely solitary, nocturnal animal. Research indicates that its preferred habitat is native upland forest, a vegetation type that attracts important panther prey, but this conclusion is based on daytime radio collar (telemetry) studies, which may not accurately reflect the types of habitat the panthers prefer during their more active, nighttime hours. Id. at 13-14. Male panthers tend to have a larger home range than females. Id. at 13. FWS estimates that a minimum of 50 breeding adults is necessary to maintain a viable population. Estimates in the record put the panther population at 78, id. at 19, of which at least 15 are non-breeding juveniles. See McBride, Current Panther Distribution (Nov.2001), AR Vol. 2, Tab 44, 3-4.

Three basic planning documents in the record deal with the Florida panther:

• In 1986, an inter-agency committee, whose members represented FWS, the Florida Game and Fresh Water Fish Commission, and the National Park Service, convened to coordinate recovery planning. These agencies formed a habitat preservation working group in 1991 to develop a comprehensive plan to protect the panther's habitat. The working group published a Habitat Preservation Plan (HPP), which used telemetry data and other sources to select land for acquisition and/or protection. HPP, AR Vol. 3, Tab 2, at iii. The HPP classified target lands as either Priority 1 ("lands frequently used or high quality habitat") or Priority 2 ("lands less frequently used or low quality habitat") and deemed both types of lands to be "essential" the maintenance of a self-sustaining population of panthers. Id. at 33-34.

• In May 1999, FWS included an updated recovery plan for the panther as part of its Multi-Species Recovery Plan (MSRP). FWS, South Florida MSRP, AR Vol. 3, Tab 37, at 4-127 — 4-128. The MSRP acknowledged that the HPP's priority scheme identified 374,868 hectares of occupied and potential panther habitat "considered essential to maintaining a minimum viable population of 50 breeding adult panthers in South Florida." Id. The MSRP also identified habitat loss, urbanization, and agricultural expansion as central threats to the panther. Id. at 4-117, 4-127 — 4-128.

• Panther habitat was also identified as part of the Southwest Florida Final Environmental Impact Statement (SWFEIS), a document issued in July 2000 by the Corps. AR Vol. 3, Tab 146, App. H, Map 17.

Florida Rock Industries ("Florida Rock") wishes to open a limestone mine on a 6000 acre site known as Fort Myers Mine # 2, located near Ft. Myers, just to the south of the Southwest Florida International Airport and Florida Route 82. BiOp, at 10-11. The site is located within the Corkscrew Regional Ecosystem Watershed (CREW), and within an area designated as Priority 2 land in the HPP and identified as panther habitat in the SWFEIS. According to the telemetry data in the administrative record of this case, one radio-collared panther (# 92) was recorded on the project site in May of 2001. Id. at 18. Four other panthers have been recorded within two miles of the site, and FWS determined it was "reasonable to expect that they too would have used the project site at one time or another." Id. According to the same data, one radio-collared panther and three uncollared panthers populated the CREW Ecological Unit, representing at least five percent of the known panther population. Id. at 19.

The Florida Rock site includes over 2304.5 acres of jurisdictional wetlands and 3766.1 acres of uplands. Id. at 10. As currently planned, the mine will directly impact 3,677.0 acres (approximately 61 percent of the site), of which 334.1 are wetlands. (Fill material will be deposited into 57.6 acres of jurisdictional wetland, while 276.5 acres of jurisdictional wetlands will be excavated.) Because the mine plan involves the filling of jurisdictional wetlands, Florida Rock must have a dredge and fill permit under Section 404(b) of the Clean Water Act. Florida Rock duly filed its application for such a permit with the Corps on Sept. 30, 1997. The Corps issued a public notice about the application on March 9, 1998, and notified interested parties and agencies. EA/SOF for Permit No. 199402492(IP-JB) (Feb. 6, 2003), at 3.

As originally filed, Florida Rock's mining plan made little or no provision for conservation, and both FWS and the Environmental Protection Agency (EPA) objected to it. The EPA recommended denial because the plan did not adequately mitigate the expected wetlands impacts, while FWS objected because the plan would cause unacceptable damage to the aquatic environment and might affect the panther and other endangered species. BiOp, at 2, 6. On September 19, 2001, the Corps and FWS initiated formal consultation over the endangered species impacts of the mine. Id. at 9. Eventually, Florida Rock agreed to establish a 802-acre "wildlife corridor" on the eastern portion of the property as "compensatory mitigation" for the impacts to the wetlands. The corridor would be managed as part of the CREW lands. Id. at 9. In addition, a large wetland feature on the western side of the site (the 1,050.0 acre "western slough") will remain undisturbed. Id. at 11. The EPA withdrew its objections based on these changes, EA/SOF, at 8, and on February 3, 2002, FWS issued its BiOp, which concluded that the proposed mine would not jeopardize the panther (a "no jeopardy" opinion).

Plaintiffs submitted letters to the Corps during June and October of 2002, expressing concern about the contents of the BiOp. The Corps forwarded these letters to Florida Rock. EA/SOF, at 8-9. In August, Florida Rock responded to the letters, arguing that state and local authorities had thoroughly reviewed the issues and that plaintiffs' letters made references to non-peer reviewed literature that the Corps need not credit.1 Id. Thereafter, on February 6, 2003, expressly relying on the BiOp, the Corps issued its EA/SOF, finding that the project satisfied the requirements of the CWA. In addition, pursuant to the National Environmental Policy Act (NEPA), the Corps concluded that a full Environmental Impact Statement (EIS) was not necessary. The contents of the BiOp and the EA/SOF will be discussed in greater detail below. Plaintiffs filed this lawsuit on June 26, 2003.

1. DISCUSSION

In order to operate the mine as planned,...

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