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Sierra Club v. Marsh

Citation: 17 ELR 20717
No. No. 87-5531, 816 F.2d 1376/(9th Cir., 05/08/1987)

The court holds that the Corps of Engineers violated the Endangered Species Act (ESA) by allowing construction activities on a flood control and highway project to continue without ensuring adequate mitigation measures to protect the habitat of two endangered species of birds, and halts construction until the Corps reinitiates consultation under the ESA with the Fish and Wildlife Service (FWS). The original consultation had resulted in the FWS recommending the purchase of nearby wetlands as a mitigation measure. The county, the project's local sponsor, agreed to purchase the land to speed up the construction process. When the county failed to transfer the land and entered into an agreement concerning the land that reserved certain easements, and a state agency approved development on nearby land, the FWS requested that consultation be reinitiated. The court first holds that it may consider the merits and enter a final judgment in this interlocutory appeal of the denial of a preliminary injunction. The record is fully developed, and the determination of whether the district court erred turns on the interpretations of law, not on the resolution of factual disputes. The court then holds that the district court incorrectly applied the traditional balancing test in denying plaintiffs' motion for a preliminary injunction. Congress has foreclosed the courts' traditional exercise of equitable discretion for violations of ESA § 7, and the Supreme Court has repeatedly reinforced this view. The court rejects the federal defendants' argument that the Supreme Court's recent decision in Amoco Production Co. v. Village of Gambell, 17 ELR 20574, requires application of the traditional balancing test, since the Court carefully distinguished the language of the Alaska National Interest Lands Conservation Act, the statute at issue in Gambell, from the ESA.

The court holds that the Corps violated § 7(a)(2) of the ESA by allowing construction activities that adversely affected the habitat of the endangered species to continue without first ensuring the acquisition of the mitigation land. Although the Corps initially complied with the Act by entering into the agreement with the county concerning the purchase of the land, that compliance lapsed when the Corps learned that its expectations under the agreement were not being fulfilled. The land remains in private ownership and is subject to easements that will eliminate its usefulness as a wildlife refuge; any risk that the district court will not find in the Corps' favor on the easement issue is to be borne by the project, not by the endangered species. In a note, the court observes that the district court erred in balancing the hardships between the parties even under the traditional injunction test, since the court had failed to consider the irreparable harm to the species from the destruction of its habitat if the Corps does not prevail on the easement issue.

The court holds that the Corps violated regulations requiring reinitiation of consultation when new information reveals that the effects of the proposed action could affect the endangered species to an extent not previously considered. The county's breach of the transfer agreement and the dispute over the easements will adversely affect the endangered species' habitat; the anticipated mitigation efforts have been delayed and may never take place at all. The Corps' argument that it is not required to reinitiate consultation until it is reasonably certain that it will not obtain the land free of the easements is inapposite, since the reasonably certain standard applies only to indirect effects. Acquisition of the land was one of several alternatives that the FWS found necessary to minimize the project's impacts on the endangered species, and thus is not an indirect effect of the federal action. The court declines to award plaintiffs attorneys fees, since it cannot state that the government's position was not substantially justified.

Counsel for Plaintiffs-Appellants
Laurens H. Silver
Sierra Club Legal Defense Fund, Inc.
2044 Fillmore St., San Francisco CA 94115
(415) 567-6100

Counsel for Defendants-Appellees
George B. Blackmar, Robert M. Gans
Peterson, Thelan & Price
Suite 2300, California First Bk. Bldg., 530 "B" St., San Diego CA 92101
(619) 234-0361

Before Goodwin and Sneed, JJ.