National Wildlife Fed'n v. Coleman
Citation: 6 ELR 20344
No. No. 75-3256, 529 F.2d 359/9 ERC 1465/(5th Cir., 03/25/1976) Rev'd
Plaintiffs seek reversal of the lower court's dismissal, 5 ELR 20566, of this declaratory and injunctive action under the Endangered Species Act and Department of Transportation Act challenging a proposed interstate highway segment and interchange which would transect the habitat of the Mississippi Sandhill Crane, an endangered sub-species. In December 1975 this court enjoined the project pending appeal, ELR 65297. The district court erred in relying on an opinion of the Mississippi Attorney General to conclude that none of the lands to be traversed are public park lands within the meaning of § 4(f) of the DOT Act. The Secretary of Transportation is not bound by state official's determinations of qualifying lands under § 4(f). Nonetheless, the district court was correct in finding § 4(f) inapplicable to the lands involved, which include property purchased by the Nature Conservancy and later transferred to the Fish and Wildlife Service for possible inclusion in a game refuge. At the time of acquisition or approval of the project none of the lands could meet the dual test of public ownership (except for historic sites) and formal designation as public park, recreational area or wildlife and water fowl refuge. The Secretary was therefore not required to find that there was no feasible and prudent alternative to using these lands before approving the project. Section 7 of the Endangered Species Act of 1973 imposes on federal agencies a mandatory duty to insure that actions which they authorize, fund or carry out will neither jeopardize the existence of an endangered species nor destroy or modify its critical habitat. Under § 7, agencies must consult with the Interior Department, but the decision whether to proceed with an agency action lies with the agency itself, subject to judicial review under the arbitrary and capricious standard. Plaintiffs have the burden of establishing that the Secretary failed to take the action necessary to insure that the interstate highway project will not jeopardize the crane or its critical habitat, as determined by the Interior Department. The district court erred in concluding that there was no evidence to support the proposition that the highway project would have substantial adverse effects on the species and habitat. The project impact statement letters from the Interior Department and Fish and Wildlife Service, and testimony from the nation's foremost expert on sandhill cranes all affirmed that private development always accompanies highway and interchange construction and predicted that such development would constitute the project's major impact on the crane and its habitat. The Federal Highway Administration did not meet its § 7 obligation by relying on proposed acquisition by the Fish and Wildlife Service of a refuge for the crane, or by prohibiting the use of borrow pits (excavations of earth used for fill in building roads). In both cases the area affected is far smaller than the 100,000 acres of designated critical habitat. Plaintiffs seek not a permanent injunction against the project but rather a preliminary order until changesare made which will satisfy the Secretary of Interior that the project will not threaten the crane's continued existence. Accordingly, deferring to the Secretary's expertise, the court directs the district court to enjoin the federal and state defendants from constructing the interchange and excavating borrow pits. The injunction is to remain in effect until the Secretary determines that all necessary modifications have been made to insure that the project will no longer jeopardize the existence of the crane or destroy or modify its critical habitat.
For counsel, see ELR 65266.
For himself, Thornberry & Morgan, JJ.