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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

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11th Circuit rules against FEMA and FWS in historic case; development in key deer habitat remains enjoined

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Florida Key Deer and National Wildlife Federation v. Paulison, No. 05-16374 (11th Cir., April 1, 2008) available online.
In an opinion released today, the 11th Circuit upheld a U.S. District Court ruling, finding that the Federal Emergency Management Agency (“FEMA”) and the U.S. Fish and Wildlife Service (“FWS”) failed to comply with section 7 of the Endangered Species Act, with regard to FEMA’s administration of the National Flood Insurance Program (“NFIP”) in the Florida Keys.  The opinion reflects a milestone in this historic litigation – ongoing for over eighteen years – and in it, the 11th Circuit adopts some of the 9th Circuit’s most progressive interpretations of the Endangered Species Act.  Significantly, the opinion means that the injunction on flood insurance for the Florida Keys will remain intact, which in turn may reduce the likelihood of development within the habitat of the endangered Florida Key deer.  Among the court's rulings were (A) the consultation requirements in 7(a)(2) of the ESA apply to FEMA’s administration of the National Flood Insurance Program, (B) section 7(a)(2) of the ESA did requires FEMA to independently analyze the FWS’s proposed “reasonable and prudent alternatives”, (C) Section 7(a)(1) of the ESA requires agencies to develop meaningful species- and location-specific conservation programs; and (D) the district court’s injunction was appropriate.

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Photo of Key Deer, at and from the National Key Deer Refuge on Big Pine Key, FL

NOTEABLE RESOURCES:
  • News coverage by Florida Times-Union
  • Press release by NWF
  • "What's Killing the Key Deer," in National Wildlife Federation's magazine.
  • National Association of Homebuilders on their amicusparticipation in the proceedings.

Excerpts from the opinion, available online.

LEGAL BACKGROUND:
    Congress passed the National Flood Insurance Act of 1968 (“NFIA”) to provide affordable flood insurance throughout the nation and to encourage sensible land use that would minimize the exposure of property to flood damage and loss…  However, FEMA is required to make flood insurance available in only those areas that have: (1) evidenced interest in securing flood insurance through the NFIP, and (2) adopted adequate land use and control measures that are consistent with the comprehensive criteria for land management and use developed by FEMA…
    At the heart of this dispute, and of Congress’s plan to preserve endangered and threatened species, is section 7 of the Endangered Species Act, which places affirmative obligations upon federal agencies.Thus, Section 7(a)(2) imposes two obligations upon federal agencies. The first is procedural and requires that agencies consult with the FWS to determine the effects of their actions on endangered or threatened species and their critical habitat. Id. § 1536(b). The second is substantive and requires that agencies insure that their actions not jeopardize endangered or threatened species or their critical habitat. Id. § 1536(a)(2).

CASE BACKGROUND:
    In 1984, the FWS determined that FEMA’s administration of the NFIP in the Florida Keys potentially jeopardized the existence of the Florida Key deer by effectively authorizing the development that pushed the Key deer to the brink of extinction. In 1989, however, FEMA refused the FWS’s request for formal consultation, asserting that the ESA did not apply to the NFIP.  In 1990, the plaintiffs, which we hereafter collectively refer to as the “Wildlife Organizations,” filed this suit seeking an injunction requiring FEMA to comply with section 7(a)(2) of the ESA by formally consulting with the FWS about the impact of its administration of the NFIP on the Key deer…
    After defeats in district court proceedings, the FWS issued a 2003 biological opinion, which found, among other things, that the NFIP, as administered in the Florida Keys, jeopardized the continued existence of the Key deer and eight other listed species, but included Reasonable and Prudent Alternatives (RPAs) and conservation measures for FEMA to implement...
    On March 29, 2005, the district court granted the Plaintiff “Wildlife Organizations” motion for summary judgment, finding that FEMA had not satisfied its obligation under section 7(a)(1) to carry out programs to conserve species and that neither FEMA nor the FWS had satisfied their obligations under section 7(a)(2). Fla. Key Deer v. Brown (Fla. Key Deer II), 364 F. Supp. 2d 1345, 1352–61 (S.D. Fla. 2005). On September 12, 2005, the district court enjoined FEMA from providing any insurance for new developments in the suitable habitat of the listed species in Monroe County pending further consultation and compliance with its order of March 29, 2005. Fla. Key Deer v. Brown (Fla. Key Deer III), 386 F. Supp. 2d 1281, 1294 (S.D. Fla. 2005).

NOTEABLE CIRCUIT COURT FINDINGS:

A. Whether section 7(a)(2) of the ESA applies to FEMA’s administration of the NFIP
    Among the purposes Congress directed FEMA to consider in designing the program is the protection of “natural and beneficial floodplain functions.” Id. § 4022(b)(1)(B). We find that the language of 42 U.S.C. § 4022(b)(1) provides ample discretion for FEMA to consider listed species…  FEMA and the FWS alternatively argue that even if FEMA has the requisite discretion to consider the effects of its administration of the NFIP on listed species, the issuance of flood insurance is not a legally relevant “cause” of the development in the Florida Keys that threatens the listed species. We are not persuaded…  Here, FEMA has the authority in its administration of the NFIP, as discussed above, to prevent the indirect effects of its issuance of flood insurance by, for example, tailoring the eligibility criteria that it develops to prevent jeopardy to listed species. Therefore, its administration of the NFIP is a relevant cause of jeopardy to the listed species.

B. Whether section 7(a)(2) of the ESA requires FEMA to independently analyze the FWS’s proposed “reasonable and prudent alternatives”
    In addition to finding that the FWS’s 2003 RPAs were arbitrary and capricious, the district court held that “FEMA’s admitted failure to engage in any independent consideration of the sufficiency of the 2003 RPAs renders its actions arbitrary and capricious.” Fla. Key Deer II, 364 F. Supp. 2d at 1359. That is, the district court found that agencies cannot rely exclusively on the FWS’s postconsultation recommendations without conducting any independent analysis of their sufficiency. For this proposition, the court relied upon Pyramid Lake Paiute Tribe of Indians v. U.S. Department of the Navy, wherein the Ninth Circuit stated that “federal agency cannot abrogate its responsibility to ensure that its actions will not jeopardize a listed species; its decision to rely on aFWS biological opinion must not have been arbitrary or capricious.” 898 F.2d 1410, 1415 (9th Cir. 1990).  We agree with the Ninth Circuit.

C. Whether section 7(a)(1) of the ESA requires agencies to develop species- and location-specific conservation programs.
    After determining that section 7(a)(1) imposes a “specific, rather than a generalized duty to conserve species,” the district court held that FEMA failed to fulfill its obligations under the provision because FEMA had implemented only a voluntary program with no effect on the specific species affected by its actions. Fla. Key Deer II, 364 F. Supp. 2d at 1361…  while agencies might have discretion in selecting a particular program to conserve—an issue we do not decide here—they must in fact carry out a program to conserve, and not an “insignificant” measure that does not, or is not reasonably likely to, conserve endangered or threatened species. To hold otherwise would turn the modest command of section 7(a)(1) into no command at all by allowing agencies to satisfy their obligations with what amounts to total inaction. Here, we have no trouble concluding that FEMA’s program to conserve amounted to the total inaction that other courts have condemned. Through the program, FEMA has offered incentives for communities to develop conservation plans for approximately nine years, and yet FEMA has cited no record evidence that even a single community has developed or adopted such a plan in response.

D. Whether the district court’s injunction was inconsistent with the ESA and the NFIA.
    FEMA and the FWS challenge the injunction on appeal, claiming that the district court erred by requiring FEMA to act inconsistently with the NFIA. They argue that the NFIA commands FEMA to issue flood insurance to otherwise eligible communities and that FEMA is without discretion to selectively issue flood insurance in Monroe County. We find no error in the district court’s injunction…  The injunction prohibits the issuance of flood insurance for new  developments in the suitable habitats of the listed species, but it does not require FEMA to continue to issue flood insurance in Monroe County. FEMA may, consistently with the injunction and its discretion to consider the ESA in its development of eligibility criteria, withdraw Monroe County’s eligibility for flood insurance pending the required consultation with the FWS and development of new and satisfactory eligibility criteria.