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Fund for Animals v. Rice

ELR Citation: 26 ELR 21433
Nos. 95-3339, 85 F.3d 535/42 ERC 1968/(11th Cir., 06/13/1996)

The court upholds the U.S. Army Corps of Engineers' (the Corps') grant of a Federal Water Pollution Control Act (FWPCA) §404 permit for the construction of a municipal landfill in Sarasota County, Florida. The court first holds that the Corps adequately considered alternative sites for the project. Environmental-group plaintiffs' argument that the Corps should have chosen an alternative site is meritless because the Corps was not bound by the County's determination that the chosen site was the least environmentally suitable alternative, and the record indicates that the Corps adhered to the sequencing preference expressed in the FWPCA regulations. Each of the alternative sites poses its own environmental problems that led the Corps to determine that it was less suitable for the landfill than the chosen site. Because the Corps took into account all the considerations that factor into the alternatives analysis, plaintiffs failed to demonstrate that the Corps acted arbitrarily and capriciously in granting a permit to fill 74 acres of wetlands on the site. The court also holds that the Corps gave full consideration to all pertinent cumulative impacts on the endangered Florida panther. The court next holds that it was within the Corps' discretion not to hold its own public hearings on the project after it concluded that doing so was unlikely to generate any new information that was not already in the Corps' possession. Also, the Corps' notice of the permit application was sufficient with respect to construction of an access road and the project's potential impact on threatened and endangered species. The court holds that the Corps did not act arbitrarily and capriciously by concluding that it had before it sufficient information to determine that an environmental impact statement (EIS) for the project was unnecessary. When the Corps concluded that no EIS was required, it had the benefit of two separate "no jeopardy" biological opinions from the U.S. Fish and Wildlife Service (FWS), approval by the U.S. Environmental Protection Agency, voluminous information provided by plaintiffs, and information resulting from two public hearings the state had held on the project. The court next holds that the Corps and FWS did not violate §4(f) of the Endangered Species Act (ESA) by failing to implement the 1987 Recovery Plan for the Florida Panther. The plan is not a document with the force of law divesting all discretion and judgment from FWS, and FWS identified reasonable justifications for issuing "no jeopardy" biological opinions. Thus, FWS and the Corps did not act arbitrarily and capriciously by issuing and following the opinions, respectively. Last, the court holds that the district court did not abuse its discretion by denying plaintiffs discovery on a congressman's involvement in the permitting decisions. Congressional input neither created an appearance of impropriety nor actually affected the outcome. The court remands, however, to allow the district court to consider deleting a footnote in its opinion criticizing plaintiffs' counsel for making the discovery request.

Counsel for Plaintiffs
Eric R. Glitzenstein
Meyer & Glitzenstein
1601 Connecticut Ave. NW, Ste. 450, Washington DC 20009
(202) 588-5206

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

Before KRAVITCH, DUBINA, and CARNES, Circuit Judges.