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Water Keeper Alliance v. Department of Defense

Citation: 32 ELR 20314
No. No. 01-2057, 271 F.3d 21/53 ERC 1481/(1st Cir., 11/13/2001)

The court affirms a district court denial of an environmental group's motion for a preliminary injunction to stay the U.S. Department of the Navy's exercises on the island of Vieques near Puerto Rico. The group alleged that the Navy violated certain Endangered Species Act (ESA) § 7 procedural requirements when, instead of preparing a biological assessment, it engaged in informal consultations with the U.S. Fish and Wildlife Service (FWS) concerning interim measures for the training activities on Vieques between August 2000 and December 2001. The court first holds that the district court correctly found that the group was unlikely to succeed on the merits. The group failed to show that the Navy violated the ESA when it concluded that the interim activities did not constitute a major construction activity necessitating a biological assessment. Even assuming that the activities required a biological assessment, the group failed to show that the FWS' consultation was not the functional equivalent. Moreover, the group failed to show irreparable harm. Although a procedural violation under the ESA constitutes irreparable injury, the group failed to show that the ESA entitles it to insist on the procedure of no-action by the Navy until a biological assessment is filed with the FWS. Therefore, the district court did not err in requiring the group to show further irreparable harm and in holding that the group's vague assertions of probable damage to endangered species was insufficient. The court next holds that the national security interest implicated by the Navy's activities outweighs the interest given to protecting endangered species from the vague harm alleged here. The court further holds that the district court did not abuse its discretion in finding that the public interest weighed in favor of denying the group's motion for a preliminary injunction.

Counsel for Plaintiffs
Robert F. Kennedy Jr.
Pace Environmental Law Clinic
78 N. Broadway, White Plains NY 10603
(914) 422-4343

Counsel for Defendants
David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Stahl, J. Before Lynch and Lipez, JJ.

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