National Wildlife Federation v. Coleman, 75--3256

• Decision Date: 25 March 1976
• Docket Number: No. 75--3256,75--3256
• Citation: 529 F.2d 359
• Parties: , 32 A.L.R.Fed. 306, 6 Envtl. L. Rep. 20,344, 6 Envtl. L. Rep. 20,648 NATIONAL WILDLIFE FEDERATION et al., Plaintiffs-Appellants, v. William T. COLEMAN, Secretary of Transportation, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 359

529 F.2d 359

9 ERC 1465, 32 A.L.R.Fed. 306, 6

Envtl. L. Rep. 20,344,

6 Envtl. L. Rep. 20,648

NATIONAL WILDLIFE FEDERATION et al., Plaintiffs-Appellants, v. William T. COLEMAN, Secretary of Transportation, et al.,

Defendants-Appellees.

No. 75--3256.

United States Court of Appeals, Fifth Circuit.

March 25, 1976.

Rehearing and Rehearing En Banc

Denied May 19, 1976.

Rehearing Denied June 11, 1976.

A. Spencer Gilbert, III, Jackson, Miss., Robert J. Golten, Natl. Wildlife Fed., Washington, D.C., for plaintiffs-appellants.

Robert E. Hauberg, U.S. Atty., Joseph E. Brown, Jr., Asst. U.S. Atty., A. F. Summer, Atty. Gen. of Miss., Jackson, Miss., Walter Kiechel, Jr., Asst. Atty. Gen., Washington, D.C., Frank E. Shanahan, Jr., Asst. Atty. Gen. of Miss., Ed Davis Noble, Jr., Jackson, Miss., Brent Ward, General Litigation Sec., Land & Natural Resources Div., Dept. of Justice, Wallace H. Johnson, Larry A. Boggs, George R. Hyde, Attys., Dept. of Justice, Washington, D.C., for defendants-appellees.

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

Before THORNBERRY, SIMPSON and MORGAN, Circuit Judges.

SIMPSON, Circuit Judge:

Appellants, National Wildlife Federation (NWF) and Mississippi Wildlife Federation (MWF), brought this action in the court below seeking declaratory relief and to enjoin the construction of a 5.7 mile section of Interstate Highway Route 10 (I--10) ¹ through Jackson County, Mississippi, which would traverse the habitat of the Mississippi Sandhill Crane (Grus canadensis pulla) an endangered sub-species. Count I of the complaint alleged that construction of this segment of I--10 and of an interchange at the Earl Bond Road (also known as the Gautier-Vancleave Road) would threaten the continued existence of the crane and would result in the destruction and modification of its critical habitat in violation of Section 7 of the Endangered Species Act of 1973, Title 16, U.S.C., Section 1536 (hereinafter § 7). Count II alleged a violation by appellee Coleman, Secretary of Transportation, of Section 4(f) of the Department of Transportation Act, Title 49, U.S.C., Section 1653(f) (hereinafter § 4(f)), in that he had not determined that there is no feasible and prudent alternative to the construction of the highway as located and designed, and that all appropriate measures to minimize the harm to the habitat of the crane have been planned. The appellants requested that construction of the 5.7 mile section of I--10 be enjoined until (i) modifications are made to insure that the proposed segment will not jeopardize the continued existence of the Mississippi Sandhill Crane, or destroy or modify habitat critical to the crane, and (ii) appellee Coleman makes the findings required under § 4(f). Appendix A hereto is a map of the area.

After a hearing on the merits combined with a hearing on appellants' Request for a Preliminary Injunction, F.R.Civ.P., Rule 65(a)(2), the district court entered an order dismissing the complaint. National Wildlife Federation v. Coleman, S.D.Miss.1975, 400 F.Supp. 705. The district court held that the determination by the Office of the Attorney General of the State of Mississippi on the nonapplicability of § 4(f) was binding on the Secretary of Transportation, and, therefore, that § 4(f) provided no jurisdictional basis for the suit. Id. at 709. The court further held that although it had jurisdiction under § 7, the appellants had failed to meet their burden of proving a violation of that section since the project in controversy would not jeopardize the continued existence of the Mississippi Sandhill Crane or result in the distruction or modification of its in the destruction or modification of its The NWF and MWF filed a notice of appeal on August 24, 1975, and on August 20 filed a motion for an injunction pending appeal. On September 10, 1975, we ordered the appeal expedited and directed that the motion for injunction be carried with the case. Following oral argument on December 9, 1975, we enjoined appellees until further order from (a) initiating or carrying out any further work or incurring any further contractual obligations with respect to the interchange at the Earl Bond Road; and (b) excavating any borrow pits in Sections 2, 3, 4, 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 20, 21, 22, 23, and 37 of Township 7 South, Range 7 West, of the lands involved in this appeal. This order was to remain in effect pending this decision on the merits and the disposition of any petitions for rehearing hereafter filed.

After examination of the record, we

I--10, part of the National System of Interstate and Defense Highways, Title 23, U.S.C., Section 101(b), is a limited access highway across the southern United States which when completed will extend from Los Angeles, California, to Jacksonville, Florida. In Mississippi I--10 will be approximately 77.1 miles long traversing Hancock, Harrison, and Jackson Counties, and is being constructed with 90% federal financing pursuant to the Federal-Aid Highway Act, Title 23, U.S.C., Section 101 et seq. The construction of the segment of I--10 in Mississippi has been under consideration since 1963, and is being built by the Mississippi the Patuxent Wildlife Research Center, Laurel, in conjunction with and pursuant to authorization by the Federal Highway Administration (FHWA). The right-of-way for the Mississippi segment of I--10 was acquired prior to the filing of this action, most of it prior to 1970. Approximately 58.2 miles of I--10 in Mississippi from the Louisiana border to Mississippi State Highway 57 (Highway 57) is near completion. The remaining 18.9 mile segment of I--10 in Mississippi extends from Highway 57 eastward to the Alabama line and contains the 5.7 mile segment in controversy. This 5.7 mile section runs from an interchange at the intersection of I--10 and Highway 57 on the west to the west bank of the Pascagoula River on the east. ² Within this 5.7 mile segment the plans call for the construction of an interchange at the junction of the Earl Bond Road and I--10. Both the interchange and the 5.7 section of I--10 will transect the habitat of the Mississippi Sandhill Crane, bisecting the eastern unit of a proposed refuge for the crane, and traversing Section 16 land held by the State of Mississippi in trust for the Jackson County School District.

An estimated number of 40 Mississippi Sandhill Cranes ³ still exist, their range being confined to a total area of approximately 40,000 acres in Jackson County, Mississippi. The Department of Interior designated the Mississippi Sandhill Crane an endangered sub-species on June 4, 1973, listing it on the Department's Endangered Species Register per designation at 38 Fed. Reg. 14678, pursuant to In 1974, after the right-of-way for the segment of I--10 had been acquired, the U.S. Fish and Wildlife Service (Fish and Wildlife Service) proposed the creation of a Mississippi Sandhill Crane Refuge consisting of two separate units totaling 11,300 acres in Jackson County. The western unit, Ocean Springs, ⁴ of the proposed refuge lies east of Highway 57 and is bounded and transversed in part on the South by I--10. As noted earlier this portion of I--10 is substantially complete and is not involved in this controversy. ⁵ The eastern unit, Fountainbleau, ⁶ of the proposed refuge, which comprises approximately one-half of the total refuge, is traversed at its narrowest point by I--10. This portion of the proposed refuge includes Section 16 land held by the State of Mississippi in trust for the support of the Jackson County School System. By letter dated August 12, 1974, the Fish and Wildlife Service requested that the Nature Conservancy, a private organization, acquire approximately 2480 acres in the Fountainbleau unit, consisting of four privately owned tracts. In this letter the Director of the Fish and Wildlife Service proposed that the Conservancy acquire the land and hold it until the Service obtained sufficient funding from Congress to purchase it. If, however, the Service was unable to purchase the land within a reasonable time the Conservancy could 'take such action as necessary to recover its investment.' As a result of this proposal the Conservancy in late 1974 acquired approximately 2000 acres. ⁷ After the oral argument before us counsel for appellant NWF filed in these proceedings an affidavit of the Director of Land Acquisition of the Nature Conservancy which avers that on November 25, 1975, the Nature Conservancy transferred title to approximately 1,708 acres to the Fish and Wildlife Service.

Section 3 of the Endangered Species Act of 1969, Pub. L. 91--135, Dec. 5, 1969, repealed and replaced by the Endangered Species Act of 1973, Title 16, U.S.C., Section 1531 et seq. The sole natural habitat of the Crane is marked by the Jackson-Harrison County line on the west, the Pascagoula River on the east, United States Highway 90 on the south, and Bluff Creek on the north. For breeding grounds the cranes use only wet, semi-open, and savanna-like lands with marsh areas, with more trees than is typical of the nesting habitat of other sub-species of sandhill cranes. The nests are built in small openings in shallow water from vegetation surrounding the nest. Although the cranes are non-migratory, during the winter months they flock together in a roosting site in the eastern portion of the Pascagoula Marsh.

The Fish and Wildlife Service in 1960 assigned Jacob M. Valentine, Jr., a wildlife management biologist, to study the effects of then proposed I--10 in Louisiana, Mississippi and Alabama. In a 1963 report titled 'The Status of the Florida Sandhill Crane in Jackson County, Mississippi' Valentine stated that the proposed route of I--10 would 'cross through the area used by the cranes as nesting, loafing, roosting, and feeding grounds'. Valentine wrote in the report that at that time the greatest threats to the continued existence of the crane flock were...