Sierra Club v. Norton, CIV.A. 02-258CBC.
| Decision Date | 19 June 2002 |
| Docket Number | No. CIV.A. 02-258CBC.,CIV.A. 02-258CBC. |
| Citation | 207 F.Supp.2d 1310 |
| Parties | SIERRA CLUB and Friends of the Earth, Inc., Plaintiffs, v. Gale A. NORTON, Secretary, Department of the Interior, et al. Defendants, and Fort Morgan Paradise Joint Venture, et al., Defendants/Intervenors. |
| Court | U.S. District Court — Southern District of Alabama |
Carrie Esther Boykin, Nathalie M. Walker, Mary Jane Mace, New Orleans, LA, Daniel A. Hannan, Franklin & Stein, P.C., Mobile, AL, for plaintiffs.
Patricia Nicole Beyer, U.S. Attorney's Office, Mobile, AL, Barclay T. Samford, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for Gale A. Norton, Fish & Wildlife Service, defendants.
Sid J. Trant, Andrew Robert Greene, Bradley Arant Rose & White, LLP, Birmingham, AL, David A. Bagwell, Fairhope, AL, Murray Dov Feldman, Holland & Hart, LLP, Boise, ID, for Fort Morgan Paradise Joint Venture, defendant.
Caine O'Rear, III, Hand Arendall, L.L.C., Mobile, AL, Edwin S. Schwartz, Tucker, GA, Richard A. Horder, Kilpatrick Stockton, LLP, Atlanta, GA, for Gulf Highlands, LLC, defendant.
This action again brings before this court a contest between real estate development along the coast of Baldwin County, Alabama, and preservation of a federally-protected endangered species, Peromyscus polionatus ammobates, commonly known as the Alabama Beach Mouse. In its current procedural posture, the case presents a narrow issue (which in the nature of such matters is replete with acronyms): whether plaintiffs are entitled to a preliminary injunction in relation to their claim that the United States Fish and Wildlife Service ("FWS") violated the National Environmental Policy Act ("NEPA") in granting two Incidental Take Permits1 ("ITPs") to developers without requiring preparation of an Environmental Impact Statement ("EIS").
The ITPs at issue involve 196.5 acres of the remaining beach mouse habitat, and allow two developers to take (harm or kill) beach mice both during construction of several high-rise condominium towers and other structures on Fort Morgan Peninsula, Baldwin County, Alabama, and through the degradation and/or destruction of its habitat. These projects and the permits are discussed in more detail below.
Plaintiffs bring this action pursuant to the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321, et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551, et seq.2 Plaintiffs seek a preliminary injunction prohibiting the "take" of any ABM and the destruction of any of its habitat by Gulf Highlands LLC and Fort Morgan Paradise Joint Venture ("Developers" or "Intervenors") in reliance on the ITPs issued for the proposed developments on Fort Morgan Peninsula in Baldwin County, Alabama.
On April 30, 2002, the Court held a hearing on the plaintiffs' Motion for Preliminary Injunction. All parties, including intervenors, were represented. The government and the intervenors presented selected documents which formed part of the administrative record.3 The government also offered live testimony of two witnesses, David Flemming, an ecological services supervisor in the Atlanta Regional Office of the FWS, and Will McDearman. Mr. Flemming supervised the ITP review in this case. Mr. McDearman was involved with preparation of the ITP analysis for two prior ITPs which this court overturned in Sierra Club v. Babbitt. Since 1998, he has been working as a biologist for the FWS field office in Jackson, Mississippi, and thus had no role in addressing the two current ITPs. In addition, each of the developers submitted affidavits addressing the amount of economic harm should the court grant a preliminary injunction, the value in monetary terms of the land set aside as a "preserve" for the beach mouse under the HCP, and other matters.
The court has been previously called upon to wade into similar conflicts over the Alabama Beach Mouse. In one such recent case, Sierra Club v. Babbitt, 15 F.Supp.2d 1274 (S.D.Ala.1998), this court remanded two other ITPs which had been issued by the FWS for development projects on the Fort Morgan Peninsula in Baldwin County.4 The court held that the lack of current, reliable population data, lack of data on distribution of the Alabama Beach Mouse within its range, and lack of an estimate of the minimum viable population size rendered the FONSI arbitrary and capricious, in the absence of any basis for determining how the proposed action would affect the ability of the Alabama Beach Mouse to survive or recover.5
In the instant case, the FWS has again issued two ITPs for development on 196.5 acres of privately owned land on the Fort Morgan Peninsula of Baldwin County. The agency asserts that it has avoided the failings previously found by this court.6 The FWS does not now claim to have sufficient additional data on total population and population density and distribution within the range to allow a determination of the effect of the developments on beach mouse viability; the agency has not determined the minimum population needed for the continued viability and recovery of the species.
Instead, the agency asserts that it can approve the permits based primarily upon a habitat-based analysis. However, the record does not demonstrate that the agency has any clearer idea what effect the project will have on the beach mouse under this approach than it did under the incomplete population-based approach previously criticized by the court. Indeed, the Environmental Assessment issued by the FWS acknowledges that, under its habitat-based analysis, the agency still does not know what effect the loss of optimal habitat is likely to have on the species. Tab 7(EA) §§ 4.4.4, 5.1.1. Nor has the Service cogently identified, under its habitat-based analysis, the minimum habitat requirements for the continued survival-let alone recovery-of the species. It thus has not considered such minimum requirements in connection in the decision that the ITPs at issue would not cause a "significant" impact on the environment, so as to require more detailed analysis of the decision through preparation of an Environmental Impact Statement.7
Despite this lack of data, the agency entered a finding that the proposed action would have no significant impact on the environment, including particularly the endangered Alabama Beach Mouse. As discussed below, the court finds that plaintiffs are likely to succeed on the merits of their claim that the FWS's Finding of No Significant Impact ("FONSI") in the absence of such data was arbitrary and capricious, that the threatened impact-as found by the FWS-to the ABM's habitat is significant, that such impact is more significant when considered in connection with the cumulative impact of other prior and reasonably foreseeable future losses, and that the issuance of the ITPs without completion of an EIS was thus improper. The court further finds that the plaintiffs are entitled to entry of a preliminary injunction.
This court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331.
The court has previously held, in a closely analogous case brought by Sierra Club against the same governmental defendants8 over incidental take permits for the Alabama Beach Mouse issued to developers on the Fort Morgan Peninsula, that Sierra Club has standing to bring such a claim. Sierra Club v. Babbitt, 15 F.Supp.2d 1274, 1276-77 (S.D.Ala.1998). Sierra Club makes similar allegations in this action. The court adopts its former analysis, and determines that standing is no impediment to the court's exercise of jurisdiction.9
This action challenges a final agency action, the issuance by the Fish and Wildlife Service of an Incidental Take Permit for the endangered Alabama Beach Mouse without an Environmental Impact Statement, and thus presents a reviewable issue. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)(overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192, (1977)); 5 U.S.C. § 701.
A. Preliminary Injunction:
In deciding the plaintiffs' Motion for Preliminary Injunction, the court considers whether the evidence supports a finding in plaintiffs' favor on four elements: "(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction were not granted, (3) that the threatened injury to the plaintiff outweighs the harm an injunction may cause the defendant, and (4) that granting the injunction would not disserve the public interest." Am. Red Cross v. Palm Beach Blood Bank, Inc., 143 F.3d 1407, 1410 (11th Cir.1998).
In reviewing the preliminary injunction claim, the court considers the likelihood of success on the merits. That analysis requires the court to consider the merits of plaintiffs' claim under the appropriate legal standard for review of that decision. Of particular importance in this action is NEPA's requirement that the agency prepare an Environmental Impact Statement ("EIS") for any "major" federal action which will "significantly" affect the "human environment.10" In this action, the parties acknowledge that the action is federal and major; the only issue affecting the decision to prepare an EIS is whether the action's environmental impact is "significant." To determine if an action's threatened impacts are significant, the agency must prepare an Environmental Assessment ("EA"), followed either by a Finding of No Significant Impact ("FONSI") or, if the impact is found to be significant, the creation of an EIS. 42 U.S.C. § 4332(2)(C).11
In this action, plaintiffs challenge the FWS's decision that it was unnecessary to prepare an Environmental Impact Statement ("EIS") for the proposed issuance of...
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