Turtle v. Fed. Emergency Mgmt. Agency

• Citation: 39 V.I. 268
• Decision Date: 15 July 1998
• Docket Number: CIV. A. 97–187.,Nos. CIV. A. 96–114,s. CIV. A. 96–114
• Parties: The HAWKSBILL SEA TURTLE (ERETMOCHELYS IMBRICATA), et al., Plaintiffs, v. FEDERAL EMERGENCY MANAGEMENT AGENCY, an agency of the United States of America, et al., Defendants.
• Court: United States District Courts. 3th Circuit. District of the Virgin Islands

39 V.I. 268

The HAWKSBILL SEA TURTLE (ERETMOCHELYS IMBRICATA), et al., Plaintiffs,

v.FEDERAL EMERGENCY MANAGEMENT AGENCY, an agency of the United States of America, et al., Defendants.

Nos. CIV. A. 96–114, CIV. A. 97–187.

District Court of the Virgin Islands, Division of St. Thomas and St. John.

July 2, 1998.

As Amended July 15, 1998.

Property owners and residents sought declaratory and injunctive relief under Endangered Species Act (ESA) with regard to construction of temporary housing for displaced hurricane victims. The District Court, Brotman, J., sitting by designation, held that: (1) Federal Emergency Management Agency (FEMA) and Fish and Wildlife Service (FWS) satisfied their obligation to conserve protected Virgin Islands Tree Boa and Sea Turtles; (2) FEMA did not have obligation to prepare biological assessment; (3) determinations that project was not likely to jeopardize existence of protected species was not abuse of discretion; (4) FEMA was not required to reinitiate consultation with FWS or National Marine Fisheries Service (NMFS); and (5) sufficient threat of harm was not established to warrant injunctive relief.

Ordered accordingly. A. Jeffrey Weiss, St. Thomas, U.S.V.I., James Bryan Dougherty, Washington, D.C., for Plaintiffs.

Richard Austin, St. Thomas, U.S.V.I., for Legal Services of the Virgin Islands.

Julio Brady, Ernest Batenga, Kingshill, St. Croix, U.S.V.I., for the Virgin Islands.

Mark A. Brown, U.S. Department of Justice, Wildlife & Marine Resources Section, Environment & Natural Resources Division, Washington, D.C., for Department of Interior and Bruce Babbitt.

John M. Ebersole, Kahlman Fallon, Department of the Interior, Office of Regional Solicitors, Southeast Regions, Atlanta, GA, for Department of Interior.

Toni Florence, Assistant U.S. Attorney, St. Thomas, U.S.V.I., for U.S.

Jordan S. Fried, David A. Trissell, Office of General Counsel, Federal Emergency Management Agency, Washington, D.C., for Federal Emergency Management Agency.

Michael McLemore, Department of Commerce, NOAA, Office of General Counsel, Southeast Regional Office, St. Petersburg, FL, for Department of Commerce.

Lois Pilgrim, Virgin Islands Housing Authority, St. Thomas, U.S.V.I., for Virgin Islands Housing Authority.

FINDINGS OF FACT AND CONCLUSIONS OF LAW ON MOTIONS FOR PERMANENT INJUNCTIVE AND DECLARATORY RELIEF

BROTMAN, District Judge, Sitting by Designation:

Presently before this Court are Plaintiffs' claims under Sections Seven (“Section 7”) ¹ and Nine (“Section 9”) ² of the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531– 1544, and their Applications for Permanent Injunctive Relief and Declaratory Relief.

INTRODUCTION AND PROCEDURAL HISTORY

In January 1996, a group of persons who own real property and reside in the vicinity of Vessup Bay, St. Thomas and who use and enjoy the waters and shoreline of Vessup Bay, Muller Bay, Red Hook Bay, Pillsbury Sound, and adjacent waters filed suit in the District Court of the Virgin Islands to enjoin the construction of the temporary housing project on Tract No. 1, Red Hook Quarter, St. Thomas.³ In that case, Virgin Islands Tree Boa v. Witt, 918 F.Supp. 879 (D.Vi.1996), decided by Judge Raymond Finch, plaintiffs alleged that the temporary housing project would cause harm to the Virgin Islands Tree Boa and other endangered species.⁴ In particular, they alleged that the Federal Emergency Management Agency (“FEMA”) and the United States Fish and Wildlife Service (“FWS”) had violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., by not protecting and conserving endangered species during the environmental consultation stage of the temporary housing project. The District Court, however, denied plaintiffs' request for preliminary injunctive relief. After hearing oral argument on March 4, 1996, the United States Court of Appeals for the Third Circuit affirmed the Court's opinion and order, denying relief without opinion. Virgin Islands Tree Boa v. Witt, 82 F.3d 408 (3d Cir.1996).

Soon after the Third Circuit's decision, Plaintiffs filed a motion dismissing their original complaint, and then filed another Complaint (“Complaint” or “Complaint I”) in the United States District Court for the District of Columbia again seeking to enjoin construction and occupation of the temporary housing project. On April 2, 1996, Plaintiffs moved for a temporary restraining order in that court, which was denied. On May 30, 1996, before hearing oral argument on Plaintiff's motion for a preliminary injunction, the court transferred the case to the District Court of the Virgin Islands. On June 6, 1996, Judge Finch recused himself from hearing the case, which was then assigned to United States District Judge Stanley S. Brotman, Senior Judge of the District of New Jersey, sitting by designation.

Plaintiffs alleged that, in planning for and providing the temporary emergency shelters, Defendants violated numerous provisions of the ESA and caused irreparable harm to several endangered and threatened species and their habitats in the area of and around Vessup Bay in St. Thomas. Specifically, Plaintiffs alleged harm to the Virgin Islands Tree Boa (“Tree Boa”), the Hawksbill Sea Turtle, the Green Sea Turtle, and other unnamed species, and sought preliminary injunctive relief.⁵ The District Court, after a hearing, denied Plaintiffs' motion on collateral estoppel grounds. Hawksbill Sea Turtle v. Federal Emergency Management Agency, 939 F.Supp. 1195 (D.Vi.1996).

On appeal, the Third Circuit found that this Court had improperly relied upon the factual findings of Judge Finch. Accordingly, it reversed the Court's opinion and order and remanded the case for reconsideration of Plaintiffs' motion for preliminary injunction. Hawksbill Sea Turtle v. Federal Emergency Management Agency, 126 F.3d 461, 478 (3d Cir.1997). It also directed the Court to dismiss Plaintiffs' claims with respect to the Hawksbill and Green Sea Turtles (collectively, “Sea Turtles”) due to their failure to comply with the notice requirements of the ESA. Id. The Third Circuit noted, however, that, since filing the Complaint, Plaintiffs had provided the requisite notice and were now at liberty to refile their claims and request that the matter be consolidated with the Tree Boa proceedings presently before this Court. Id. at 473.

On remand, the claims with respect to the Sea Turtles were dismissed, and Plaintiffs then refiled those claims in a separate complaint (“Complaint II”). Pursuant to the suggestion by the Third Circuit and Fed.R.Civ.P. 42, the Court consolidated the claims into the present action, and also consolidated the preliminary injunction hearing and final hearing pursuant to Fed.R.Civ.P. 65.

On October 31, 1997, the Court held oral argument on Plaintiffs' and Defendants' Cross Motions for Summary Judgment. After argument, the parties made several unsuccessful attempts to resolve the matter. Thereafter, they requested that the Court make its final determination on the merits. The parties agreed that a trial was unnecessary as they had submitted all of the relevant evidence in support of their positions through motions, memorandums of law, supporting exhibits, and testimony presented during the August 7 and 8, 1996 hearings, and further testimony and argument would be cumulative. The Court concurred and ordered both sides to submit proposed findings of fact and conclusions of law by January 31, 1998. It now proceeds to decide all pending matters and issue a final determination on the merits.

FINDINGS OF FACT

The basis of the Findings of Fact has been the oral testimony and exhibits, including the administrative record, presented during the August 7 and 8, 1996 preliminary injunction hearing. Pursuant to an agreement between the parties, ⁶ the Court has considered the Supplemental Affidavit of Peter J. Tolson, Ph.D. in Lieu of Personal Testimony, Plaintiff Exhibit P–1, weighing this “testimony” in light of the objections made in Federal Defendants' Objections Affidavits of Peter Tolson and Teresa Turner filed subsequent to the hearing (“Objections”). The Court has also considered the Affidavit of Teresa Turner, Ph.D., Plaintiff Exhibit P–2, under the same standards.⁷

I. BACKGROUND

1. In September 1995, Hurricane Marilyn struck St. Thomas, displacing hundreds of people from their homes and causing substantial property damage. At the request of Governor Roy L. Schneider, and under Section 501 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5170 (1988) (“Stafford Act”), President Clinton declared the Virgin Islands a disaster area. Administrative Record (“A.R.”) 24 § 3.1.1.1.

2. Five months after the hurricane, many low-income Virgin Island residents were still living in emergency shelters. Some individuals were inhabiting condemned facilities, including major buildings of the Warren E. Brown public housing apartments and individual homes. A great need for emergency shelter existed. Id. § 1.0.

3. Pursuant to the Stafford Act, FEMA made funds available to the Virgin Island Housing Authority (“VIHA”) for a temporary housing shelter project consisting of prefabricated structures. The VIHA reviewed several sites and ultimately selected 8.5 acres at Estate Nazareth adjacent to Vessup Bay. The project was entitled the Estate Nazareth Emergency Shelter project (“Project”), which planned to house a maximum 800 people, although the VIHA estimated that shelter for only 550 people was necessary. Id. § 2.3.

II. GEOGRAPHY

4. The project site is directly adjacent to Highway 32 between the National Guard Armory and the Ivanna Eudora Kean High School. It is surrounded on three sides by other, preexisting developments. Only the northern side of the site is undisturbed. Id. § 3.3.1.1; Transcript of August 1986 Hearing (“Tr. of Aug. 1986 Hearing”), Vol. 2 at 268.

5. The western side of the project site consists of...