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Hawksbill Sea Turtle v. Federal Emergency Management Agency

Citation: 29 ELR 20100
No. CIV. A. 96-114, 97-187, 11 F. Supp. 2d 529/(D.V.I., 07/02/1998, 07/15/1998)

The court holds that the Federal Emergency Management Agency (FEMA) and the U.S. Fish and Wildlife Service (FWS) satisfied their Endangered Species Act (ESA) obligations concerning possible adverse affects of an emergency housing project on endangered and threatened turtle and snake species. The court first holds that FEMA and the FWS did not violate their ESA § 7(a)(1) duties to conserve the species. Conservation plans under § 7(a)(1) are voluntary measures that the federal agencies have the discretion to undertake, and the ESA does not mandate that particular actions be taken by agencies under § 7(a)(1). FEMA and the FWS provided evidence that they adopted various, specifically targeted mitigation measures in an attempt to conserve the species, and the plaintiffs residents and property owners have not specified any conservation measures that the agencies failed to take. Thus, the agencies' actions were not arbitrary and capricious. The court next holds that FEMA did not violate ESA § 7(c)(1) by failing to prepare a biological assessment (BA) addressing the possible impacts of the project on the species. FEMA was not required to prepare a BA in connection with the project because federal regulations state that a BA is required only for federal actions that are "major construction projects." Because FEMA submitted a finding of no significant impact after completing its environmental assessment, the temporary housing project could not constitute a major construction activity. Further, federal regulations do not require BAs to be performed when, after informal consultation, the agency and the FWS agree that the agency action is not likely to affect any listed species or critical habitat. In addition, FEMA's interpretation of § 7(c)(1) with respect to BAs is based on a permissible construction of the statute.

The court then holds that FEMA and the FWS did not violate ESA § 7(a)(2) procedurally or substantively with regard to the snake species. The FWS acted within its discretion when it chose the information on which it relied in conducting the informal consultation. Furthermore, it adequately supported its conclusion that the project was not likely to affect the snake species adversely when it stated that a primary reason for its determination was that the site was already highly disturbed and partially cleared. In addition, there is no evidence that FEMA selectively withheld any information from the FWS during informal consultation. Nor is there evidence that FEMA altered or withheld information from the FWS on the proposed duration of the project. Furthermore, FEMA did not violate its § 7(a)(2) procedural obligations by failing to reinitiate consultation with the FWS when it extended the project's duration. Even if the incremental change in the length of the project from 6 to 18 months is considered "new information," the residents and property owners failed to present any evidence showing that the new information may affect the snake species. Also, it is not readily apparent that the FWS considered the temporary nature of the project important in reaching its determination that the action was not likely to jeopardize the species' continued existence.

The court also holds that FEMA and the National Marine Fisheries Service (NMFS) did not violate ESA § 7(a)(2) procedurally or substantively with regard to the turtle species. The NMFS adequately supported its conclusion that the project was unlikely to affect the species adversely. The "new information" concerning drastic increases in sewage and sediment runoff as a result of the project did not require FEMA to reinitiate consultation, because the NMFS previously concluded that sea turtles rarely, if ever, occur in the inner bay area at issue. And although FEMA arguably violated ESA § 7(a)(1) by failing to contact the NMFS before the beginning of construction to determine if any endangered or threatened species may be present in the area, FEMA ultimately brought itself into compliance before the notice period expired.

The court next holds that FEMA and the FWS did not take the snake species under ESA § 9. The residents and property owners provided insufficient evidence to establish a causal relationship between the habitat modification caused by the project and the actual harm to the species. They failed to present any direct or circumstantial evidence establishing the presence of the species on the site at the time it was cleared or during construction. They also failed to produce any direct evidence that the acts of clearing the site or constructing the project actually killed or injured a snake. Last, the court holds that FEMA and the FWS did not take the turtle species under ESA § 9. The residents and property owners again failed to produce sufficient evidence to meet the requisite standard for a take under § 9.

[A prior decision in this litigation is published at 28 ELR 20101. A decision related to this litigation is published at 26 ELR 21167.]

Counsel for Plaintiffs
A. Jeffrey Weiss
A.J. Weiss & Associates
4002 Raphune Hill Rd., Ste. 3, St. Thomas VI 00802
(809) 777-3011

Counsel for Defendants
Jordan S. Fried
Federal Emergency Management Agency
Federal Center Plaza
500 C St. SW, Washington DC 20472
(202) 646-2500