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Virgin Islands Tree Boa v. Witt

ELR Citation: 26 ELR 21167
Nos. 1996/08, 918 F. Supp. 879/(D.V.I., 02/21/1996)

The court refuses to preliminarily enjoin the Federal Emergency Management Agency's (FEMA's) construction of temporary emergency housing for hurricane-displaced Virgin Islands residents based on citizens' claims that FEMA violated the National Environmental Policy Act (NEPA) or the Endangered Species Act (ESA). The court first holds that plaintiffs' motion to amend their complaint to add a plaintiff who wrote a letter that may satisfy the ESA's notice requirement is untimely and is not in the interest of justice. The court next denies plaintiffs' motion to reopen the preliminary-injunction proceedings. Plaintiffs had sufficient time to present evidence concerning their claims. The court holds that the plaintiffs failed to show a likelihood of success on their claim that FEMA violated NEPA. FEMA's environmental assessment (EA) analyzed the finding of no significant impact, alternative projects and project sites, possible environmental effects, and mitigation measures. The court further holds that in determining whether FEMA's actions were significant agency actions, FEMA appropriately considered each factor that the Counsel on Environmental Quality set forth in 40 C.F.R. §1508.27. The court also holds that it is inappropriate to choose between FEMA's and the plaintiffs' experts on the specific impacts the housing project would have on the Virgin Islands tree boa. The court next holds that plaintiffs cannot succeed on their claims that sediment from FEMA's project will harm hawksbill or green turtles, because plaintiffs have not alleged that any harm occurred or will occur to either turtle species or to sponges or grasses on which the turtles feed. The court further holds that although a conflict exists between FEMA's regulations interpreting the Stafford Act and FEMA's categorical exclusion regulations, that FEMA may have disregarded its own rules is not dispositive.

The court next holds that the plaintiffs failed to prove a substantial likelihood of success on the merits of their ESA claims. FEMA's EA included an ESA §7 consultation with the U.S. Fish and Wildlife Service (FWS) regarding the tree boa, and FEMA is following the FWS' recommended mitigation measures. The court holds that plaintiffs failed to provide federal defendants with the requisite notice of suit under the ESA. The court also holds that no private right-of-action exists for claims that FEMA violated the National Flood Insurance Act's floodplain regulations or that FEMA jeopardized the national flood insurance program. The court next upholds an Executive Order issued by the Virgin Island's governor ordering the suspension of local laws to permit temporary emergency housing construction. Although the governor attempted to extend the Executive Order's effectiveness beyond its legal limit, the Executive Order was effective when FEMA took its actions to build temporary housing, purportedly in violation of local land use and zoning laws. The court also holds that plaintiffs failed to exhaust their administrative remedies concerning their claims under the coastal zone management laws. Plaintiffs should have taken any complaints regarding a permit granted to the Virgin Islands Housing Authority (VIHA) under such laws to the Board of Land Use Appeals. The court next holds that plaintiffs cannot succeed on the merits of their claim regarding the local Water Pollution Control Act, because they presented inadequate evidence to show that the project will lead to increased water pollution. The court holds that the plaintiffs lack standing to sue under either the local ESA or the local act requiring VIHA housing projects to include recreation areas, because those statutes do not provide a private cause-of-action. The court next holds that plaintiffs failed to show that they have suffered or will suffer irreparable harm. They failed to adequately prove that the project would harm the water quality, tree boas, or use and enjoyment of their land. Moreover, the balance of the harms tips in favor of the project, and preventing temporary housing from being built is not in the public interest.

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

Counsel for Defendants
Stanley L. de Jongh, Ass't U.S. Attorney
U.S. Attorney's Office
U.S. CtHse., St. Thomas VI 00804
(809) 774-5757