BUTLER, Chief Judge.
This action commenced in April of 1997 in the United States District Court of the District of Columbia when the original plaintiff's
It is important at the outset to note that the original preliminary injunction sought to
Dealing first with the defendant's claim that the Sierra Club had no standing to bring this suit, as this court previously stated in Sierra Club v. U.S. Army Corps of Engineers, 935 F.Supp. 1556, 1568 (S.D.Ala.1996), "[i]n order to possess standing to invoke the power of federal court, a plaintiff must satisfy the following three constitutional requirements:"
Because there appears to be no dispute that the plaintiffs are capable of satisfying the second and third constitutional requirements recited by the Region 8 court, this analysis will focus on the nature and extent of the injury suffered by the plaintiffs. In Lujan, the Supreme Court elaborated on the injury in fact criterion by stating that "a plaintiff raising only a generally available grievance" who claims harm "to his and every citizen's interest" and who seeks relief that "no more directly and tangibly benefits him than it does the public at large" has not satisfied the injury in fact requirement. See, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d at 372. Thus, a "plaintiff must show that the challenged conduct has caused or will imminently cause demonstrable particularized injury to him such that he will benefit personally in a tangible way from the court action." Sierra Club v. U.S. Army Corps of Engineers, 935 F.Supp. at 1569. "In order to show an injury in fact, a plaintiff need not make any showing as to the magnitude of the injury suffered, and may satisfy the requirement by merely establishing that an `identifiable trifle' of an injury has been or will imminently be incurred as a result of the challenged conduct". Id.; See United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 2417 n. 14, 37 L.Ed.2d 254 (1973). Therefore, "the critical distinction is between a person with a direct stake in the litigation and a person with a mere interest in a problem." See Id.
In the original complaint, the plaintiff organization characterizes itself and its members in the following fashion:
Furthermore, plaintiffs also claimed the following in their original complaint:
To bolster their claims further, three individual members of the Sierra Club submitted affidavits to the court explaining how they are benefitted by the ABM and its critical habitat, and how they would be harmed by defendants' actions. Sierra Club member Margie Welch filed an affidavit in which she states that she has used and enjoyed the beaches, dunes and other lands in, around and adjacent to the Bon Secour National Wildlife Refuge and the Fort Morgan Peninsula as long as she can remember. She also states that she has made efforts to observe and enjoy the ABM, and she discusses how the ABM is important to the growth of sea oats on the dunes (the seeds are scattered by the mouse). Finally, she states that the sea oats add to her enjoyment of the beauty and serenity of the area and the loss of the ABM will diminish the dunes. In a second affidavit, Sierra Club member Tom Hodges states that he owns property on and resides on the Fort Morgan Peninsula in the vicinity of the projects at issue. He states that he walks and hikes in the area, and also makes efforts to observe and enjoy the endangered species. In addition, Mr. Hodges claims that the value of his property depends upon sea oats protecting it from erosion, and thus the loss of the ABM threatens his property. A third affidavit was filed by Sierra Club member Eric Huber, who describes hiking annually in the Bon Secour National Wildlife Refuge and on the beach near the projects at issue, looking for ABM, and how their loss would diminish his enjoyment of the area. He relates how the loss of the ABM would diminish his enjoyment of the Bon Secour National Wildlife Refuge.
The allegations presented in the complaint and in the affidavits filed by individual members of the plaintiff organization are sufficient, as a matter of law, to satisfy the injury in fact requirement for standing. As this court stated in Sierra Club v. U.S. Army Corps of Engineers, "the case law is abundantly clear that a minimal showing of detriment is all that is required to establish an injury in fact." 935 F.Supp. at 1571; See, e.g. Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 231 n. 4, 106 S.Ct. 2860, 2866 n. 4, 92 L.Ed.2d 166 (holding that plaintiff whale watchers alleged sufficient injury in fact by asserting that their ability to engage in whale watching activities would be adversely affected by continued whale harvesting activities of the defendant). Accordingly, the Court hereby rejects the defendants' argument that the plaintiff has not sufficiently alleged an injury in fact in this case. Finally, because no other challenges have been raised by defendants, the Court further concludes that the plaintiff organization possesses the requisite standing to pursue this action in federal court.
Defendants next contend that the Sierra Club did not comply with the statutory notice requirement which is prerequisite to bringing a citizen's suit under ESA § 11(g). In Bennett v. Spear, the Supreme Court stated that regardless of whether the plaintiff satisfied the ESA statutory notice requirements, they may nevertheless bring any ESA claim pursuant to the APA and any NEPA claim. See Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Therefore, the defendants' argument does not affect plaintiff's claims brought under NEPA, or any ESA claims which plaintiff is capable of demonstrating may be brought under the APA. See Bennett, 520 U.S. 154, 117 S.Ct. at 1167.
The Supreme Court has stated that summary judgment is a tool to isolate and dispose of claims or defenses which are either factually unsupported or which are based on undisputed facts. Celotex Corp. v. Catrett, 477 U.S. 317, 323- 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate where there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The test for whether there is a genuine issue over a material fact is two fold. First, the materiality of a fact is determined from the substantive law governing the claim, and only disputes over facts that might affect the outcome of the suit are relevant on summary judgment. Id. Second, any dispute over material fact must be "genuine", and a dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party. Id., 477 U.S. at 252, 106 S.Ct. at 2512. Finally, it is the non-moving party's burden to demonstrate that there is evidence to support each essential element of his claim. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.
As previously stated, this matter originally came before the Court on preliminary injunction, however, the parties have agreed that the trial of the action on the merits be advanced and consolidated with the hearing of the application by the parties filing summary judgment motions seeking this Court's determination as to whether the Administrative Record is sufficient under the arbitrary and capricious standard to warrant the agency action at issue. Any discovery in this case pertaining to the present motions has been completed, and is now contained in the two sets of Administrative Records. As to all challenges raised by both parties, although the parties have differing interpretations regarding the facts, there is no genuine dispute as to what those facts are. Summary judgement is, therefore, appropriate at this time.
The Plaintiffs first contend that the ITPs and Habitat Conservation Plans ("HCPs")
"It is rudimentary administrative law that discretion as to the substance of the ultimate decision does not confer discretion to ignore the required procedures of decision making." Bennett, 520 U.S. 154, 117 S.Ct. at 1166; See SEC v. Chenery Corp., 318 U.S. 80, 94-95, 63 S.Ct. 454, 462, 463, 87 L.Ed. 626 (1943). When an administrative agency fails to provide an adequate basis in the Administrative Record for its action, such action is arbitrary and capricious. See e.g. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983); Nat'l Nutritional Foods Ass'n v. Weinberger, 512 F.2d 688, 701 (2nd Cir.) cert. den., 423 U.S. 827, 96 S.Ct. 44, 46 L.Ed.2d 44 (1975) (stating that, "even under the "arbitrary and capricious" standard agency action will not be upheld where inadequacy of explanation frustrates review"); and AT & T v. FCC, 974 F.2d 1351 (D.C.D.C.1992) (agency action will not be upheld where agency has failed to offer a reasoned explanation of the record). Thus, although under the "arbitrary and capricious" standard, a reviewing court may not set aside an agency action that is rational, based on consideration of the relevant factors and within the scope of the authority delegated to the agency by the statute, "... the agency must examine the relevant data and articulate a satisfactory explanation for its action including a `rational connection between the facts found and the choice made.'" Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43, 103 S.Ct. at 2866.
This Court has spent a considerable amount of time carefully reviewing the Administrative Record in order to ascertain whether the agency supplied a sufficient basis for the Court to determine whether the ICPs and HCPs "minimize and mitigate" the projects' harm to the ABM "to the maximum extent practicable" as required by ESA § 10(a)(2)(B)(ii). In making this determination the Court must first look to the substantive law (ESA § 10(a)(2)(B)(ii)) to ascertain what is required of the agency, and then to the Administrative Record to determine whether the agency has complied with the law.
Against the ESA statutory framework and the FWS's regulations regarding Endangered Wildlife (50 C.F.R., § 17.21, et. seq.) it is unlawful to "take"
The ABM was listed as endangered in 1985, and at that time the FWS concluded that the species' habitat was being drastically destroyed "by residential and commercial development, recreational activity, and tropical storms". 50 Fed.Reg. 23872 (June 6, 1985). The FWS determined that on the portion of the Alabama coast known as the Fort Morgan Peninsula, there was in 1985 a total baseline habitat of approximately 671 acres of which approximately 402 are known as fore dunes, 269 scrub dunes. (FM AR Tab 3, Table 2 of BO). Between 1985, when the ABM was listed, and January 1996, when the FWS issued an ITP for construction of the first of the two developments at issue in this case — the 52 acre Aronov project — another 8.5% of dwindling ABM habitat was lost due to additional commercial development and damage from Hurricane Opal. (Aronov AR Tab 10, p. 17). Indeed, during that time, the FWS issued four other ITPs allowing further habitat loss in the area, including two permits for the construction of single family residences and two permits for the construction of an additional 110, multi-family residential development — the 64-lot "Laguna Key" development, and the 60-unit "Kiva Dunes" residential community and golf course. (Aronov AR Tab 10, p. 17-20). According to the FWS, the four ITPS issued prior to Aronov resulted in the destruction of a total of 41.3 acres of ABM habitat. (FM AR Tab 3, Table 3). The remaining ABM habitat has also been reduced by a series of hurricanes, and in January 1996 the FWS concluded that the "designated critical habitat may be an inadequate area for ABM recovery and delisting". (Aronov AR Tab 10, p. 11). In the final biological opinion, the FWS noted that the net direct effect of the Fort Morgan project will be the permanent destruction of 37 acres of currently occupied ABM habitat, of which 25 are scrub dunes habitat and an undetermined number of ABM will be incidentally taken during destruction. The FWS also determined that as to the Aronov Project the net direct effect will be the permanent destruction of 7.5 acres currently occupied by ABM, 6.5 of which is scrub dune habitat, and an undetermined number of ABM incidentally taken during construction. (Aronov AR Tab 10). During the internal coordinating process among the FWS and its regional field office in Jackson, Mississippi, the field office received a draft of the BO (FM AR Tab 3) for the Fort Morgan project and concurred that the ITP "will not jeopardize the ABM or adversely modify its critical habitat ...", but goes further and states its "primary concern" is over the "level of mitigation provided" (FM AR Tab 13), or "whether the mitigation has been to the maximum extent practicable". The field office also received a draft of the BO (Aronov AR Tab 10) for the Aronov project and concurred that the ITP should be issued. (Aronov AR Tab 2).
The primary bone of contention in this lawsuit evolves around the proposals in the HCPs incorporated into the Aronov Realty Management, Inc. ITP at paragraph H(5) that there be $60,000 collected from the developer for offsite, mitigation "to acquire property of quantity and quality sufficient to compensate for and minimize unavoidable impacts of the project area", and incorporated in the Fort Morgan ITP at paragraph G(5) that there be $150,000 collected from the developer for offsite mitigation. The plaintiffs first contend that the level of off site mitigation funding is inadequate, and cannot be supported by any rational basis in the Administrative Record. In addition, the plaintiffs challenge the inconsistent application of the FWS's off site mitigation policies. Finally, the Plaintiffs contend that the FWS's reliance on speculative unnamed sources to contribute additional funds in order to make up for the inadequacy of the amounts of off site mitigation funding the FWS required the developers to pay is arbitrary and capricious, and otherwise not in accordance with the law.
First, the plaintiffs maintain that the level of mitigation funding for both projects is inadequate, and that the agency's determination of these amounts is arbitrary and capricious. The lack of any analysis in the Administrative Record concerning whether the
In addition, the plaintiffs contend that the inconsistency in the amounts of offsite mitigation funding that the FWS has required for various high density developments on the Alabama coast
Finally, the FWS's speculative reliance on other unnamed sources to contribute funds to make up for the inadequacy of the amounts of offsite mitigation funding required is simply contrary to the law and unsupported by any factually reliable basis in the Administrative Record. In the Biological Opinions the FWS states that the Applicant's offsite mitigation funding would have to be combined with additional funds from a non-profit organization in order to purchase a large tract or several tracts for mitigation purposes. The BO does not establish how much those funds would be, who they would come from, or whether it is likely they could be acquired. Nevertheless, the FWS issued the two ITPs at issue by relying on funding from an unknown source for an unknown amount, and accepts that his will "minimize and mitigate" the effects of the projects to the maximum extent practicable. Because the Administrative Record does not establish what level of funding has been offered by "other sources", the FWS cannot demonstrate any basis in the Administrative Record upon which the level or amount of offsite mitigation measures are "to the maximum extent practicable". Moreover, the law establishes that the FWS cannot comply with the strict ESA mandate that the HCP "minimize and mitigate" the effects of the projects to the "maximum extent practicable" simply by relying on speculative future actions by others. Cf. Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir.1987) (action agency cannot "insure" project will not jeopardize species based on promise of future mitigation measures); NWF v. Coleman, 529 F.2d 359 (5th Cir. 1976). cert. denied, 429 U.S. 979, 97 S.Ct. 489, 50 L.Ed.2d 587 (proposed actions by others does not "insure" that agency's actions will not cause jeopardy); Southwest Center for Biological Diversity v. Babbitt, 939 F.Supp. 49 (D.D.C.1996) (FWS's reliance on future actions by Forest Service does not comport with the language of statute that FWS base its listing decisions on "existing" regulatory mechanisms).
Based upon all of the above considerations, the Court finds that the Administrative Record is devoid of any rational basis upon which the FWS could have reasonably relied in deciding to issue the ITPs for these two projects. Therefore, because the Court finds that the permits at issue fall short of both the ESA and APA standards, they must be remanded to the agency for review and reissuance.
The plaintiff next contends that the FWS issued a "finding of no significant impact" ("FONSI"), and failed to prepare an environmental impact statement ("EIS") as required under NEPA. Federal agencies are required under NEPA to consider the environmental consequences of proposed actions to ensure "fully informed and well considered" decisions.
In reviewing an agency's decision not to prepare an EIS, courts must "ensure that the agency has taken a `hard look' at environmental consequences" of its action. Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). While a review of agency action is narrow and presumes the agency action valid, Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C.Cir.), cert. denied., 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976), an agency action shall be set aside as arbitrary and capricious where the agency has "entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfr. Ass'n., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). There are four criteria to be considered in determining whether an agency's decision not to prepare an EIS is arbitrary and capricious:
After a careful review of the Administrative Record, the Court is persuaded that many of the important "facts" on which the FWS based its decision appear to be assumptions, presumptions, or conclusions themselves — not facts based on any evidence, documents, or data in the Administrative Record. First, the FWS lacks a reasonably accurate, current estimation of the total number of ABM remaining throughout the ABM's dwindling range. According to the Aronov BO, in 1994 the speculation as to the total number of ABM ranged from 45 to 1,000, and the FWS now concedes that "accurate ABM density estimates are not available."
The FWS supervisor's conclusion is further supported in the Administrative Record by the following statement by Dr. Nicholas Holler:
Moreover, although the FWS has determined the range of the ABM, the Administrative Record lacks any data showing how the ABM are distributed within that range. The FWS field officer noted that: "In the absence of data comparing the relationships between residential density and ABM relative abundance, the Service does not exactly know the density and related conditions when ABM can no longer persist in a residential matrix." (FM AR Tab 13, p. 8). The finding of no significant impact is made without any inventory or population data regarding how many of this declining endangered species exist elsewhere in the range, and without knowing how many of the species are being destroyed in the project sites. Thus, there are no current or past population data trends to evaluate in the Administrative Record or to support the FWS's FONSIs. Moreover, the Administrative Record has no information on the minimal viable population of the ABM. This is clearly stated in the Fort Morgan project's EA: "The size of a minimally viable population has not been estimated because of inadequate demographic and other data." (FM AR Tab 3, p. 12). Without knowing the minimum viable population the FWS cannot reasonably estimate the extent of the impact the additional takings will pose, and thus, without this data the FWS cannot reasonably state that the projects will not have a significant impact.
While it is unclear to the Court on what basis the findings of no significant impact were made, it is clear on what basis they were not. They are not made on the basis of population inventories in the project area. They are not made on the basis of population trend data for the species throughout its range. They are not made on the basis of any minimal viable population data. Therefore, the FWS's findings of no significant impact are based only on the FWS's assumption that these projects will not kill or take a large enough number of reproductive members of the population to effect viability, and such findings are not supported by any fact or analysis in the Administrative Record. Because the agency failed to consider important aspects of the problem and relied on insufficient, inadequate, and, out of date data, it was arbitrary and capricious for the FWS to issue findings of no significant impact, and thus, in their action violated NEPA. As the Court concludes that the record does not support the FWS's findings of no significant impact or the decisions not to prepare EISs, the Court holds that a remand is necessary. On remand, the FWS must gather the necessary scientific data and conduct the required scientific analysis in order to determine whether the issuance of the ITPs will have a significant impact on the ABM or its critical
Accordingly, the plaintiff's motion for preliminary injunction (treated by the stipulation as a motion for summary judgment) is
The Court remands to the Fish and Wildlife Service the decision to issue the two ITPs for review in accordance with the findings of this Order, and if the ITPs are to be issued, for consideration of whether the issuance of the permits would have a significant impact on the quality of the environment.
It is so