Virgin Islands Tree Boa v. Witt

• Decision Date: 21 February 1996
• Docket Number: Civil No. 1996/08.
• Citation: 918 F. Supp. 879
• Parties: The VIRGIN ISLANDS TREE BOA (Epicrates Monensis Granti), et al., Plaintiffs, v. James Lee WITT, et al., Defendants.
• Court: U.S. District Court — Virgin Islands

918 F. Supp. 879

The VIRGIN ISLANDS TREE BOA (Epicrates Monensis Granti), et al., Plaintiffs, v. James Lee WITT, et al., Defendants.

Civil No. 1996/08.

District Court, Virgin Islands, D. St. Thomas and St. John.

February 16, 1996.

Opinion Amending Decision February 21, 1996.

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A. Jeffrey Weiss, Ann M. Rost, James Dougherty, A.J. Weiss & Associates, St. Thomas, VI, for Plaintiffs.

Julio A. Brady, Attorney General, Pamela Wood, Assistant Attorney General, Office of the Attorney General, Department of Justice, St. Thomas, VI, Lois E. Pilgrim, Virgin Islands Housing Authority, St. Thomas, VI, Stanley L. de Jongh, Assistant U.S. Attorney, Office of the U.S. Attorney, St. Thomas, VI, Jordan S. Fried, David A. Trissel, Washington, DC for Defendants.

Richard Austin, Supervising Attorney, Legal Services of the Virgin Islands, St. Croix, VI for Intervenors.

OPINION

FINCH, District Judge:

THIS MATTER comes before the Court on plaintiffs' motion for a preliminary injunction. Defendants opposed the motion. The parties filed a voluminous amount of documents with the Court including motions, memoranda of law, and associated exhibits.¹ The parties presented evidence and arguments to this Court from January 29 through January 31, 1995.

I. INTRODUCTION

Plaintiffs in the above-captioned action seek to prevent continued construction of temporary emergency housing at Tract No. 1, Estate Nazareth ("the Estate Nazareth Project" or "the Project") on St. Thomas. Plaintiffs alleged that defendants committed various violations of federal and local laws, including environmental laws. For the reasons stated in this Opinion, this Court will deny plaintiffs' motion for a preliminary injunction.

II. PROCEDURAL HISTORY

Plaintiffs filed both their Complaint and Motion for Temporary Restraining Order and Preliminary Injunction on January 19, 1996. On January 22, 1996, they amended the Complaint to correct the names of several defendants. From January 19 through February 12, 1996, the parties have filed numerous motions and memoranda of law with the Court.

On January 19, 1996, Chief Judge Thomas K. Moore of the District Court of the Virgin Islands, Division of St. Thomas and St. John, granted plaintiffs' motion for a temporary restraining order ("TRO"). Plaintiffs filed a $5000 bond as required by the TRO. Chief Judge Moore set a hearing on plaintiffs' motion for a preliminary injunction.

On January 23, 1996, plaintiffs filed a motion for expedited discovery. Chief Judge Moore held a hearing that same day on the motion, but reserved decision. All parties had not received a copy of the motion at the time of the hearing. On January 25, 1996, Judge Moore recused himself from the case, with the case being assigned to Judge Raymond L. Finch in the Division of St. Croix.²

This Court held a hearing on the preliminary injunction from January 29, 1995 through January 31, 1995 at which the parties had the opportunity to present testimony and evidence. The parties have not yet commenced discovery.

III. BACKGROUND AND FACTS³

A. Parties and Intervenors

The 86 persons listed in the caption of both the Complaint and Amended Complaint as plaintiffs are residents and property owners of Estate Nazareth on St. Thomas or of the nearby portions of Estate Smith Bay.⁴ Leading the list of plaintiffs in the caption is an additional plaintiff: the Virgin Islands Tree Boa (Epicrates Monensis Granti) ("the Tree Boa"). The Virgin Islands Tree Boa, also known as the St. Thomas Tree Boa, is a federally protected endangered species.

Defendants are the Director of the Federal Emergency Management Agency ("FEMA"), FEMA, the Director of the United States Fish and Wildlife Service ("USFWS"), the Governor of the Virgin Islands, the Commissioner of the Virgin Islands Department of Planning and Natural Resources ("DPNR"), the Executive Director of the Virgin Islands Housing Authority ("VIHA")⁵, and VIHA. The Director of FEMA, the Director of USFWS, and FEMA comprise the "federal defendants." Intervenors are party defendants who are a group of persons displaced by Hurricane Marilyn who remain at emergency shelters almost five months after the hurricane.

B. Hurricane Marilyn

In mid-September 1995, Hurricane Marilyn struck the Virgin Islands, with St. Thomas bearing the brunt of the hurricane's fury.⁶ The hurricane caused extensive destruction of or damage to homes and other structures; loss of personal property; and widespread disruption of public utilities.

At the request of Governor Roy L. Schneider, the President of the United States declared the Virgin Islands a disaster area. The President had authority to issue such declarations pursuant to Section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5170 (1988).

In the aftermath of the hurricane, many residents of St. Thomas were homeless or faced the prospect of living in their damaged or unsafe homes. A great need for emergency shelters existed. Many residents moved into emergency shelters. For some shelter inhabitants, living conditions were less than desirable, with some complaining of unsanitary conditions, lack of privacy, and other health or social-related problems.⁷

Some persons displaced by Hurricane Marilyn continue to live at an emergency shelter almost five months after the hurricane. Others, residing in the heavily-damaged Warren E. Brown public housing community on St. Thomas or in privately-owned homes, remained in their damaged or officially condemned homes. Motivating factors included the lack of alternative dwellings in which to live or fear for the safety of personal property that displaced persons moving to shelters would be forced to leave behind because of policies at the shelters.

C. The Project

The temporary emergency housing being constructed at Estate Nazareth consists of prefabricated buildings on concrete footings. A "maximum of 56 multifamily buildings" will be built. (Pls.' Ex. 1 at 2-2). VIHA will use gravel to mitigate possible runoff of water by allowing for percolation of water into the soil, thereby decreasing runoff into the nearby waters of Vessup Bay. Walkways and roads will be covered with gravel. The buildings will have prefabricated concrete slabs. Unlike the shelter where displaced persons currently reside in an open area with no kitchen and with portable bathrooms, the apartments at the Estate Nazareth Project site will have bedrooms, a kitchenette, and bathroom facilities. (Tr.Vol. 1 at 181).

The Estate Nazareth Project is a to be a temporary one.⁸ VIHA plans to dismantle the prefabricated buildings for future use elsewhere. The number of buildings and people living on the site will decrease as VIHA repairs the permanent housing to which most of the people living at the Estate Nazareth Project will be moved. (See Pls.' Ex. 1 at 3-8; Tr.Vol. 2 at 175-76). A rapid decrease would occur over the first six months. The site will be replanted and natural reforestation will take place to restore the trees.

D. The Environmental Assessment

VIHA runs the Warren E. Brown public housing community and several others. Several of its housing communities received extensive damage from Hurricane Marilyn, and some buildings had to be condemned. Following Hurricane Marilyn, VIHA formulated a plan to create temporary emergency housing for residents displaced by the hurricane.⁹ After reviewing various alternatives, VIHA developed plans for constructing prefabricated temporary emergency housing sufficient in number to accommodate the approximately 550 people that it identified needed to be transferred from damaged or unsafe homes or from emergency shelters. The proposed temporary emergency housing would accommodate public housing residents and some displaced persons from privately-owned homes. (Tr.Vol. 2 at 181).

VIHA reviewed several sites on St. Thomas for the proposed temporary emergency housing, rejecting all but two sites as unsuitable. The VIHA Executive Director testified that VIHA considered other alternatives, but sites at Estate Ross and Estate Nazareth were the only "practical" sites on which to rapidly construct the needed temporary emergency housing. (Tr.Vol. 2 at 167).

The two sites that VIHA selected were a one-acre site at Estate Ross in Charlotte Amalie and 8.5 acres of a site at Estate Nazareth that is the subject of the instant litigation.¹⁰ VIHA intended to use the temporary emergency housing for the approximately six months that it estimated it would take to repair the approximately 149 VIHA permanent public housing units damaged by the hurricane. (Pls.Ex. 1 at 1-2, 2-3, 2-4).

VIHA received approval to proceed from FEMA, the federal agency that would provide funding for the temporary emergency housing project ("the Estate Nazareth Project"). VIHA selected a winning bid following an expedited bidding process. It permitted design modifications to be made to conform to the structures that the winning bidder proposed to construct.

FEMA prepared a Final Environmental Assessment report ("the EA") for the Estate Nazareth Project, issuing that report on November 16, 1995.¹¹ (Pls.' Ex. 1). FEMA did so despite its understanding that the National Environmental Policy Act ("NEPA") contained a statutory exclusion for the action FEMA planned to take with regards to the Estate Nazareth Project. (Tr.Vol. 2 at 43). Moreover, FEMA issued a Finding of No Significant Impact ("FONSI") on that same date. FEMA determined that the mitigation measures provided for in the EA would "compensate" for any significant environmental impacts that might occur. (Tr.Vol. 2 at 44).

During the time that FEMA was preparing the EA, it conducted an analysis of various factors relating to any effects the proposed Project might have on the environment. FEMA officials involved in the preparation of the EA met with officials from various agencies,...