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Hawksbill Sea Turtle v. Federal Emergency Management Agency

Citation: 28 ELR 20101
No. 96-7661, 126 F.3d 461/(3d Cir., 09/22/1997)

The court holds that property owners and residents failed to satisfy Endangered Species Act (ESA) § 11 notice requirements in their suit against the Federal Emergency Management Agency (FEMA) concerning an emergency housing project's alleged taking of endangered and threatened turtle species, but that they may pursue their ESA claim concerning the Virgin Islands Tree Boa. The court first holds that the residents and property owners failed to comply fully with ESA § 11's notice requirements. ESA § 11(g) requires that a 60-day notice of intent to sue be provided to the Secretary of the Interior or the Secretary of Commerce, depending on which has the relevant program responsibilities. When the turtles are swimming in the bay, the U.S. Department of Commerce has the regulatory responsibility, and when the turtles return to the beach, regulatory jurisdiction shifts to the U.S. Department of the Interior. The residents and property owners only provided notice to the Secretary of the Interior, which satisfies the notice requirement for the Tree Boa. However, they alleged that the housing project will harm the marine and land habitat of the turtles. The alleged harm to the turtles cannot be viewed as occurring solely or primarily on land. The court rejects the argument that Public Interest Research Group of N.J. v. Hercules, 25 ELR 20684 (3d Cir. Mar. 31, 1995), establishes that a hyper-technical reading of the ESA's notice requirements is not required where the underlying purposes of the ESA counsels against dismissal of the action. In Hercules, each of the requisite defendants received notice of petitioner's intent to file suit. Therefore, the focus was on the contents of the notice given, not on whether notice was given. Here, unlike Hercules, the agency charged with enforcement of the ESA never received notice of the suit. The court also rejects the argument that the notice provision is fatuous in that it requires notice to be given to different agencies depending on the location of the species, because the provision is unambiguous and, therefore, conclusive.

The court next holds that ESA § 9's claims with regard to the endangered Tree Boa are not collaterally estopped. This action involves new and qualitatively different evidence than the earlier National Environmental Policy Act (NEPA) action brought by the residents and property owners. Since the initial construction of the housing project, there have been an increased number of Tree Boa sightings. Also, the housing project, once considered to last only six months, is now expected to continue for up to 18 months. The court further holds that the inappropriateness of applying issue preclusion to ESA § 9's claim is compounded by the fact that § 9 requires a different analysis of the facts than did the NEPA claims of the first action. NEPA provides for a before-the-fact risk analysis procedure, and accordingly, the judge in the prior action had to review only anticipatory mitigation measures, not the mitigation measures as implemented. Instead of reviewing FEMA's actions and whether they effected a taking, the district court gave collateral estoppel effect to the prior district court's finding that the mitigation measures established for the project were adequate. Any findings made with respect to the merit of those claims cannot support the application of collateral estoppel in this action.

[A decision related to this litigation is published at 26 ELR 21167].

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

Counsel for Appellees
J. Carol Williams, Peter A. Appel
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Roth and Weis, JJ.