Fund for Animals, Inc. v. Rice , 85 F.3d 535 ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
No. 95-3339.
The FUND FOR ANIMALS, INC., Defenders of Wildlife, Florida
Biodiversity Project, Maynard L. Hiss, Holly Jensen, Sierra Club,
Environmental Confederation of Southwest Florida, Plaintiffs-
Appellants,
v.
Terry R. RICE, Colonel, District Engineer, U.S. Army Corps of
Engineers, Bruce Babbitt, Secretary, Department of the Interior,
Mollie Beattie, Director, U.S. Fish and Wildlife Service, John
Wesley White, County Administrator, Sarasota County, Sarasota
County, a political subdivision of the State of Florida,
Defendants-Appellees,
Carol Browner, Administrator, Environmental Protection Agency,
Defendant.
June 13, 1996.
Appeal from the United States District Court for the Middle
District of Florida. (No. 94-1913-CIV-T-23E), Steven D. Merryday,
Judge.
Before KRAVITCH, DUBINA and CARNES, Circuit Judges.
DUBINA, Circuit Judge:
The Plaintiffs-Appellants ("the Plaintiffs"), seek to prevent
the construction of a municipal landfill on a site in Sarasota
County, Florida, that the Plaintiffs claim is an indispensable
habitat for the highly endangered Florida Panther and also home to
the threatened Eastern Indigo Snake. The Plaintiffs bring this
case before us to challenge the district court's grant of summary
judgment in favor of the Defendants-Appellees ("the Defendants").
The district court's challenged judgment has thus far allowed
Sarasota County to proceed with construction of the landfill. For
the reasons stated below, we affirm the district court's judgment.
I. BACKGROUND
A. The Florida Panther and the Eastern Indigo Snake
The Florida Panther (Felis concolor coryi ) was listed as
endangered in 1967. See 32 Fed.Reg. 4001. This panther, which is
a subspecies of the cougar, "is a large, slender cat, tawny above
and whitish below." David S. Maehr, The Florida Panther, in 1 Rare
and Endangered Biota of Florida 176 (Stephen R. Humphrey et al.
eds., 1992) (hereinafter "Maehr"). According to the Fish and
Wildlife Service ("the F.W.S."), the Florida Panther is "one of the
most endangered large mammals in the world." F.W.S. Biological
Opinion for the Sarasota Landfill Project at 10 (April 3, 1995)
(hereinafter "F.W.S. Opinion").1 Although the Florida Panther once
ranged throughout the Southeastern United States, it has been
reduced to a single population in south Florida. The "geographic
isolation, habitat loss, small population size, and associated
inbreeding" of the remaining population have resulted in a
significant loss of health and genetic variability in Florida
Panthers. F.W.S. Opinion at 10-11. According to current
estimates, there are only 30-50 adult Florida Panthers left in the
wild.2 Id. However, the record in this case indicates that there
1
"F.W.S. Opinion" refers only to the 1995 Biological
Opinion. As discussed infra, the F.W.S. completed three separate
Biological Opinions for the Sarasota landfill project. However,
the first one, completed in 1990, did not concern either the
Florida Panther or the Eastern Indigo Snake. The second one,
completed in 1994, addressed concerns regarding the Florida
Panther and the Eastern Indigo Snake, but was superseded by the
third opinion, the "F.W.S. Opinion," completed in 1995.
2
It is unknown how many Florida Panthers once roamed the
Southeastern United States. Theoretical estimates place
approximately 1,360 Panthers in what is now Florida. Ken
Alvarez, Twilight of the Panther 35 (1993). Anecdotal evidence
from early American history suggests the presence, at one time,
of large panther populations in the American South. For example,
have been no confirmed sightings of the Florida Panther in the area
in which the landfill is to be built.3
The Eastern Indigo Snake (Drymarchon corais couperi ) was
listed as threatened in 1978. See 43 Fed.Reg. 4028. Measuring up
to 81/2 feet, this docile, nonpoisonous snake is the longest found
North America. Paul E. Mohler, The Eastern Indigo Snake, in 3 Rare
and Endangered Biota of Florida 181 (Paul E. Mohler et al. eds.
1992) (hereinafter "Mohler"). Although this iridescent black snake
once ranged throughout Florida, Georgia, southeastern South
Carolina, southern Alabama, and southern Mississippi, its known
populations are now restricted to certain areas in Florida and
Georgia. F.W.S. Opinion at 24. The F.W.S. has not yet designated
any critical habitat for the Eastern Indigo Snake.
B. The Landfill
On November 22, 1989, the United States Army Corps of
a narrative of Hernando deSoto's 16th Century expedition to
Florida told of "many lions and bears ..." Id. at 36 (citations
omitted). While traveling through Georgia during Colonial times,
naturalist William Bartram observed that "bears, tygers
[panthers], wolves and wild cats ... are numerous enough." Id.
(citation omitted).
3
The landfill site is located fifty miles north of the
Caloosahatchee River. Florida Panthers have not been documented
north of this river, which proceeds inland from Fort Myers and
then generally northeast. The Plaintiffs' allegation that
anecdotal evidence proves that there are now Florida Panthers
north of the Caloosahatchee River is not persuasive. While
anecdotal sightings of Florida Panthers have been reported, such
information is generally unsupported by verifiable documentation.
Florida Panthers by nature are "secretive and illusive and seldom
observed," and "confusion and misidentification with the more
widely distributed bobcat" is common. F.W.S. Opinion at 18. The
very expert upon whom the Plaintiffs rely has indicated to the
F.W.S. that "the fact that there are no records of road kills is
compelling evidence that Panthers are not present [in or around
the landfill site]." F.W.S. Opinion at 17 (referencing Maehr,
D., emphasis supplied).
Engineers ("the Corps") received an application from Sarasota
County, Florida ("Sarasota County" or "the County") for a permit
under Section 404 of the Clean Water Act ("CWA"), 33 U.S.C. §§
1251-1387. The proposed project for which Sarasota County sought
a permit consists of constructing an 895-acre landfill and required
ancillary structures on a 6,150-acre site known as the "Walton
Tract." The Walton Tract is located in west central Sarasota
County, north of the Caloosahatchee River, west of the Myakka
River, and just southwest of the Myakka River State Park.
According to current projections, the fill material for the
landfill will impact approximately seventy-four acres of isolated
wetlands.4 The project also includes construction of a roadway
extension ("the Knights Trail Road extension"), consisting of
approximately 2.5 miles of new road and impacting 0.47 acres of
wetlands.
During June of 1990, the Corps dispersed notice of Sarasota
County's application to government agencies, private organizations,
and other interested persons. The notice invited public comment on
the landfill proposal. Two months later, the F.W.S. issued a
4
For purposes of the CWA, the Corps defines wetlands as:
[T]hose areas that are inundated or saturated by
surface or ground water at a frequency and duration
sufficient to support, and that under normal
circumstances do support, a revalence of vegetation
typically adapted for life in saturated soil
conditions. Wetlands generally include swamps,
marshes, bogs, and similar areas.
40 C.F.R. § 232.2(r); see Sheldon M. Novick et al. eds.,
Environmental Law Institute, 2 Law of Environmental
Protection § 12.06[1][b] (1994).
Biological Opinion consenting to the project.5 However, the
Environmental Protection Agency ("the E.P.A.") recommended denial
of the permit under Section 404(b)(1) of the guidelines promulgated
pursuant to the Clean Water Act. At that time, Sarasota County
projected that the landfill would affect 120 acres of wetlands.
The following year, Sarasota County submitted an alternative
analysis, which included modifications of the project calculated to
reduce the prospective effect on wetlands. Four Sites, labeled D,
E, F (the Walton Tract), and G, were proposed for the landfill.
During September of 1993, Sarasota County submitted a revised plan
that would reduce the landfill's effect on wetlands from 120 acres
to approximately seventy-four acres. In February of 1994, the
E.P.A. notified the Corps that it no longer objected to the
issuance of the permit.
At the end of May 1994, the Corps completed an Environmental
Assessment and Statement of Findings, determining that no
environmental impact statement was required. In addition, the
Corps announced that a public hearing would not benefit the
decision-making process. After nearly five years of administrative
review, the Corps approved the requested permit on June 3, 1994.
On August 10, 1994, the Corps verified the applicability of
Nationwide Permit No. 26 to Sarasota County's proposal to fill 0.47
acre of wetlands as part of the Knight's Trail Road extension
project.
5
In consenting to the project in 1990, the F.W.S. indicated
that the landfill would not affect the Wood Stork (Mycteria
americana ). The F.W.S. did not, at that time, consider the
effects that the landfill would have on the Florida Panther and
the Eastern Indigo Snake.
On June 17, 1994, the Plaintiffs submitted a sixty-day notice
of intent to sue. The Plaintiffs alleged violations of the Clean
Water Act and the Endangered Species Act ("ESA"), 16 U.S.C. §§
1534-44. Two months later, the F.W.S. requested resumption of § 7
consultation under the ESA to allow consideration of any potential
effect on the Florida Panther and the Eastern Indigo Snake.6
In October of 1994, the F.W.S. issued its first Biological
Opinion addressing concerns regarding the Florida Panther and the
Eastern Indigo Snake. The Opinion concluded that the project was
unlikely to jeopardize further the existence of either the Florida
Panther or the Eastern Indigo Snake. However, it did include an
"incidental take" statement for the Eastern Indigo Snake and
recommendations for Florida Panther conservation, wetland
preservation, and a monitoring program. The Corps incorporated the
F.W.S.'s recommendations and modified Sarasota County's permit on
6
Section 7 of the ESA requires that federal agencies consult
with the F.W.S. to ensure that actions the agency authorizes are
not likely to jeopardize the continued existence of species
listed as "threatened" or "endangered," or adversely modify or
destroy habitat designated as critical to the survival of a
listed species. 16 U.S.C. § 1536. If the proposed action may
affect a listed species, formal consultation between the agency
and the F.W.S. is required. Id.; 50 C.F.R. § 402.14. When
formal consultation is initiated, the agency is required to
provide the F.W.S. information about the proposed project and the
"best scientific and commercial data available." 50 C.F.R. §
402.14(d). The F.W.S. then prepares a biological opinion
including: (1) a conclusion regarding whether the proposed
action is likely to jeopardize the continued existence of a
listed species or adversely modify critical habitat; (2) when
necessary, an "incidental take" statement regarding animals
likely to be killed by the project; and (3) reasonable and
prudent alternatives to the action if the proposed action is
likely to jeopardize a species. Id. The phrases "jeopardize the
continued existence of," "destruction or adverse modification,"
and "incidental take" are defined by regulation at 50 C.F.R. §
402.02.
November 14, 1994. Two weeks later, the Plaintiffs commenced an
action in federal district court against the Corps, the F.W.S., the
E.P.A.,7 and the Sarasota County Administrator.
In response to the suit, the F.W.S. requested that the Corps
resume § 7 consultation on the permit. The Corps suspended
Sarasota County's permit the next day, and on February 7, 1995, the
Corps also suspended its verification of coverage for discharge of
fill associated with the Knight's Trail Road extension project. In
April of 1995, the F.W.S. issued to the Corps its second Biological
Opinion addressing concerns regarding the Florida Panther and the
Eastern Indigo Snake. The Opinion included both an "incidental
take" statement for the Eastern Indigo Snake8 and conservation
recommendations for the Florida Panther. This Opinion, which
superseded the F.W.S.'s previous Biological Opinion, again
concluded that the proposed project was unlikely to jeopardize the
continued existence of either the Florida Panther or the Eastern
Indigo Snake. See F.W.S. Opinion at 1.9
7
The E.P.A. was later omitted from the Plaintiffs' Second
Amended Complaint.
8
This "incidental take" statement permits Sarasota County to
kill up to fifty-two snakes within "the footprint of the
landfill" and to "take" an additional two snakes per year in
connection with the construction and use of the access road
during the life of the project. Assuming the life of the project
is thirty-nine years, as projected, the F.W.S. will thus allow
the County to kill up to 130 Eastern Indigo Snakes as
"incidental" to the landfill project. However, the F.W.S.
specifically determined that this level of take would not
jeopardize the existence of the Eastern Indigo Snake due to the
remaining level of population elsewhere in the snake's range.
See F.W.S. Opinion at 26, 28-29.
9
This Opinion, as well as the previous one, are referred to
as "no jeopardy" opinions. A "no jeopardy" biological opinion is
a scientific determination by the F.W.S. that the proposed action
On April 12, 1995, the Plaintiffs submitted comments to the
Corps on the F.W.S.'s new Biological Opinion. The next day, the
Corps determined, based on the F.W.S.'s Biological Opinion and the
Corps' independent environmental assessment, that reinstatement of
the permit to dredge and fill seventy-four acres of wetlands with
additional modifications was in the public interest. Thus, the
modified permit was reinstated on April 13, 1995.
Following final issuance of the permit, the Plaintiffs filed
their Second Amended Complaint, which raised claims under the Clean
Water Act, the Endangered Species Act, and the National
Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-70d. The
Complaint requested declaratory and injunctive relief. Sarasota
County agreed to halt construction temporarily to allow the
district court time to reach a considered decision after full
briefing on the merits. In return, the Plaintiffs consented to
expedite the process of district court review. In particular, the
parties agreed to submit the case to the court on cross-motions for
summary judgment. The district court heard oral argument on June
29, 1995.
During oral argument, the Plaintiffs requested leave of the
court, should their summary judgment motion be denied, to pursue
discovery on the issue of whether United States Senator Bob Graham
(D-Florida) had improperly intervened on Sarasota County's behalf.
is "not likely to jeopardize the continued existence of a listed
species or result in the destruction or adverse modification of
critical habitat." 50 C.F.R. 402.14(h)(3). A "jeopardy" opinion
can be issued only when the proposed federal action is expected
"to reduce appreciably the likelihood of both the survival and
recovery" of a listed species. Id. at 402.02.
The Plaintiffs based their discovery request on a memorandum that
indicated that Senator Graham had contacted the Attorney General
regarding the litigation and was working to see if the Department
of Justice would withdraw a recommendation that a draft
environmental assessment of the project be made available for
public comment.
On October 12, 1995, the district court granted summary
judgment in favor of Sarasota County and denied the Plaintiffs'
contingent request for discovery. The Plaintiffs filed a notice of
appeal and asked this court to grant an emergency injunction
prohibiting Sarasota County from commencing construction of the new
facility until resolution of the appeal. This court denied the
Plaintiffs' emergency motion for an injunction pending appeal in an
order dated October 26, 1995, and set an expedited briefing
schedule.
II. STATEMENT OF THE ISSUES
(1) Whether the district court erred in finding that the Corps
did not act arbitrarily or capriciously in making the
following three decisions:
A. to grant a permit to fill seventy-four acres of
wetland on the Walton Tract for a county landfill;
B. not to hold its own public hearing on the project;
and
C. not to prepare an Environmental Impact Statement
under NEPA.
(2) Whether the district court erred in finding that the
F.W.S. did not violate the ESA by issuing "no jeopardy"
Biological Opinions and in finding that the Corps did not
act arbitrarily or capriciously in relying on those
Opinions.
(3) Whether the district court erred in denying the Plaintiffs
an opportunity to take discovery on the extent to which
the Corps' decision may have been inappropriately
influenced by Senator Graham's intervention.
III. STANDARDS OF REVIEW
The standard of review applicable to the main issues in this
case is provided by the Administrative Procedure Act ("APA"), 5
U.S.C. § 706, which states that a court may set aside agency action
that is "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). On
appeal, this court, in reviewing the administrative record, applies
the same arbitrary and capricious standard of review utilized by
the district court. North Buckhead Civic Ass'n v. Skinner, 903
F.2d 1533, 1538-39 (11th Cir.1990). As we recently explained, this
standard is exceedingly deferential:
To determine whether an agency decision was arbitrary and
capricious, the reviewing court "must consider whether the
decision was based on a consideration of the relevant factors
and whether there has been a clear error of judgment.' This
inquiry must be "searching and careful,' but "the ultimate
standard of review is a narrow one.' Along the standard of
review continuum, the arbitrary and capricious standard gives
an appellate court the least latitude in finding grounds for
reversal; "[a]dministrative decisions should be set aside in
this context ... only for substantial procedural or
substantive reasons as mandated by statute, ... not simply
because the court is unhappy with the result reached.' The
agency must use its best judgment in balancing the substantive
issues. The reviewing court is not authorized to substitute
its judgment for that of the agency concerning the wisdom or
prudence of the proposed action.
Skinner, 903 F.2d at 1538-40 (footnotes and citations omitted)
(emphasis added). See also Marsh v. Oregon Nat. Res. Council, 490
U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).
The standard of review applicable to the district court's
decision regarding discovery is the abuse of discretion standard.
See, e.g., Castle v. Sangamo Weston, Inc., 744 F.2d 1464, 1466
(11th Cir.1984).
IV. DISCUSSION
This court recognizes that, with respect to both the Florida
Panther and the Eastern Indigo Snake, "[t]he most insidious and far
reaching threat to the survival of [the] species is habitat loss or
degradation." Mohler at 184 (regarding the Eastern Indigo Snake);
accord Maehr at 180 (regarding the Florida Panther). The present
case, however, involves a challenge to administrative action
governed by the APA. Therefore, we can set aside the federal
agencies' actions here only if we find that the agencies abused
their discretion, or acted arbitrarily, capriciously, or contrary
to law. See Skinner, 903 F.2d at 1538-39. In this case, it is
readily apparent that in approving the landfill location the
Federal agencies acted in a manner that was not an abuse of
discretion, arbitrary, capricious, or contrary to law.
Accordingly, we will not set aside the federal agencies' actions.
A. Challenges Under The Clean Water Act
The CWA prohibits the discharge of pollutants, including
10
dredged spoil, into the waters of the United States, except in
compliance with various sections of the CWA, including Section 404.
33 U.S.C. § 1311(a). Section 404(a) authorizes the Secretary of
the Army, acting through the Corps, to issue permits for the
discharge of dredge or fill material into waters of the United
States. 33 U.S.C. § 1344(a). The Corps may issue individual
permits on a case-by-case basis, or it may issue general permits on
a state, regional, or nationwide basis. 33 U.S.C. § 1344(a), (e).
10
"Waters of the United States" is defined by regulation to
include wetlands. 33 C.F.R. 328.3(a), (b).
The Plaintiffs allege that the Corps violated the substantive
and procedural requirements of the CWA in three ways: (1) by not
choosing an alternative site where the landfill would have a less
adverse impact on wetlands; (2) by not considering the cumulative
impact of the permitting decision; and (3) by not giving notice
and an opportunity for a public hearing on the permit. We consider
each of these contentions in turn.
1. Alternative Sites
The Plaintiffs' primary argument is that the Corps ignored
alternative sites where the landfill would have had less of an
impact on the aquatic ecosystem. Under applicable Section 404
guidelines, a discharge of dredge or fill will not be permitted if,
among other things, there is a "practicable alternative" to the
proposed discharge that would have a less adverse impact on the
aquatic ecosystem. 33 U.S.C. § 1344(b)(1); 40 C.F.R. § 230.10(a).
An alternative is considered practicable if "it is available and
capable of being done after taking into consideration cost,
existing technology and logistics in light of overall project
purposes." 40 C.F.R. § 230.10(a)(2). The guidelines create a
rebuttable presumption that practicable alternatives are available
where the activity associated with a proposed discharge would occur
on a wetland and is not water dependent. 40 C.F.R. 230.10(a)(3).
If the Corps finds that the permit complies with the Section
404(b)(1) guidelines, the permit "will be granted unless the
district engineer determines that it would be contrary to the
public interest." 33 C.F.R. § 320.4(a)(1). The public interest
review evaluates "the probable impacts, including cumulative
impacts, of the proposed activity and its intended use on the
public interest." Id.According to the Plaintiffs, Sarasota County itself identified
three such practicable alternatives, and use of any of these sites
would result in less harm to the environment than use of the Walton
Tract. The Plaintiffs rely heavily on a particular section of a
1991 study performed by Sarasota County in which the County
considered alternatives to the Walton Tract. As part of this
study, Sarasota County assigned a numerical "environmental score"
to each of the four potential sites. The scoring system was
designed to give higher scores to those sites most suited for a
landfill. As the following point totals illustrate, the Walton
Tract received the lowest numerical score of the four tracts in the
analysis: Site D—39 points; Site E—39 points; Site F, (the
Walton Tract)—34 points; and Site G—41 points.
Nonetheless, the Plaintiffs' argument that an alternative to
the Walton Tract should have been chosen is meritless for two
reasons. First, the ranking was done by Sarasota County and not
the Corps, and the Corps is not bound by an applicant's ranking
system. In fact, the Corps conducts its own independent
evaluation, and its practicable alternative analysis is not
susceptible to numerical precision, but instead requires a
balancing of the applicant's needs and environmental concerns. See
Sylvester v. United States Army Corps of Eng'rs, 882 F.2d 407, 409
(9th Cir.1989); Louisiana Wildlife Fed'n, Inc. v. York, 761 F.2d
1044, 1048 (5th Cir.1985) (per curiam).
Second, the Corps and Sarasota County point to numerous
reasons to explain why, although the Walton Tract received the
lowest environmental score, it was nonetheless the most suited for
placement of a landfill. Specifically, our review of the record
persuades us that the Corps did not act contrary to, but instead
adhered to the sequencing preference expressed in the CWA
regulations: (1) avoidance, (2) minimization, and (3) compensatory
mitigation. See 33 C.F.R. 320.4(r); 40 C.F.R. 230.10.
As its first task, the Corps determined that there was no
alternative site available that would avoid any impact on wetlands.
Had a suitable upland site existed, such a site would have been
entitled to a presumption that it was a practical alternative. See
40 C.F.R. § 230.10(a)(3).11 Each of the four highest ranking sites
contain scattered, isolated wetlands: Site D is 19% wetlands, Site
E is 22% wetlands, Site G is 13% wetlands, and the Walton Tract is
22% wetlands. A landfill of 895 acres in Sarasota County would
involve impacts on aquatic ecosystems (i.e., filling of wetlands)
and raise the same Section 404 permitting concerns no matter which
of the four sites was chosen. Since the Plaintiffs have not
identified an 895-acre parcel of contiguous uplands in all of
Sarasota County, it is not clear that the presumption established
by 40 C.F.R. § 230.10(a)(3) would ever apply in this case.
The absence of a suitable upland site required the Corps to
analyze all suitable alternatives. In this case, each of the
alternative sites poses its own environmental problems which led
the Corps to determine that it was less suitable for the landfill
11
The Corps also considered a no-action alternative, which
was rejected because the County's existing landfill capacity is
expected to be reached by 1999.
than the Walton Tract. Site D contains wetlands across its
southern boundary, including the headwaters for a stream know as
South Creek. The site contains ninety-two acres of wetlands, which
is eighteen more acres of wetlands than would be filled by the
project if done on the Walton Tract. Most notably, Site D is
confirmed to be a nesting site for the Bald Eagle (Haliaeetus
leucocephalus ).12 Site E borders the Myakka River State Park and
contains two large wetland systems that drain to both the Myakka
River and a waterway called the Cow Pen Slough. Site E contains
sixty-one acres of wetlands. Presence of a state listed species,
the Florida Sandhill Crane (Grus canadensis ), was confirmed on the
site. Moreover, any landfill located on Site G would have been
within the Myakka River watershed. The Corps noted the probable
presence of the Eastern Indigo Snake on Site G, and Site G was also
designated a "Priority 1 Florida Panther habitat."13
By contrast, the Walton Tract possesses characteristics that
the Corps considered to be significant environmental advantages.
Each of the other sites is considerably smaller than the Walton
Tract: Site D is 2,130 acres, Site E is 3,360 acres, and Site G is
2,100 acres. The Walton Tract is 6,150 acres. Thus, the site is
large enough to provide a broad natural vegetative buffer around
12
At the time the prospect sites were being evaluated, the
Bald Eagle was listed as an endangered species. However, on July
12, 1995, the Bald Eagle was formally removed from the endangered
species list and is classified as threatened.
13
"Priority 1 Panther habitat" means that the F.W.S. has
identified the areas as containing "those lands that should be
preserved first and are characterized as areas most frequently
used by panthers and/or land of high quality suitable native
habitat." F.W.S. Opinion at 13.
all sides of the landfill. The large size of the tract also allows
a substantial buffer between the landfill and adjoining areas.
Sarasota County has zoned approximately 2,971 acres on the site as
a conservation area, which includes the most valuable areas of
upland wetland habitat on the Walton Tract and adjoins other
preserve areas off-site. These preserved lands combine with
adjacent properties to form a continuous unit of potentially
suitable Florida Panther habitat and serve as a barrier between the
Myakka River ecosystem and further development from the west.
Where, as here, filling of wetlands cannot be avoided, then
"appropriate and practicable steps" must be taken to minimize the
potential adverse impacts of the discharge on wetlands. 40 C.F.R.
§ 230.10(d). While the original design of the landfill would have
impacted approximately 120 acres, Sarasota County subsequently
scaled down the project so that wetland impacts would be reduced to
approximately seventy-four acres. Furthermore, although the
project will eliminate approximately seventy-four acres of isolated
wetlands, the large size of the Walton Tract allows on-site
mitigation. Sarasota County is replacing the lost acreage with
approximately seventy acres of wet prairie habitat in the northeast
corner of the tract and enhancing and restoring an additional 262
acres of wetlands. While wetlands will be lost, a greater acreage
of higher quality wetlands will be restored and enhanced, resulting
in no net loss of wetland resources. See, e.g., National Wildlife
Fed'n v. Whistler, 27 F.3d 1341, 1346 (8th Cir.1994) (affirming
permit where no net loss of nation's wetlands); see also Town of
Norfolk, 968 F.2d at 1449; Friends of the Earth v. Hintz, 800 F.2d
822, 836 (9th Cir.1984).
In discussing the alternatives analysis, the district court
did not suggest, nor do we, that practicable alternatives may be
ignored because of the mitigation potential of a site, as the
Plaintiffs claim. To the contrary, the district court recognized,
as do we, that the Corps had taken into account all the
considerations which factor into the alternatives analysis. There
is no substantial question as to whether Sarasota County needs a
new landfill, because the County's current landfill must close in
1999. Sarasota County, the Corps, the F.W.S., and the E.P.A. all
scrutinized the project for over five years, and all agree that the
Walton Tract is the most suitable site for the new landfill.
Accordingly, insofar as the CWA practicable alternatives analysis
is concerned, we hold that the Plaintiffs failed to demonstrate
that the Corps acted arbitrarily and capriciously in granting a
permit to fill seventy-four acres of wetlands on the Walton Tract.14
2. Cumulative Impacts
Secondarily, the Plaintiffs claim that the Corps failed to
take into account the impact of its decision on the survival and
recovery of the Florida Panther "in light of the many other
projects that are currently under way or planned in South Florida."
Appellant's Br. at 40-41. This argument is meritless. The Corps'
Statement of Findings clearly indicates that the Corps gave full
14
The Plaintiffs argue that the Okeechobee landfill, which
is outside Sarasota County, is a practical alternative. The
Corps disagrees. It appears that the Okeechobee landfill lacks
sufficient capacity to handle the amount of waste anticipated to
be generated in Sarasota County and, indeed, even today has not
been expanded by its developers and cannot yet accommodate
inter-county waste.
consideration to all pertinent cumulative impacts. See A.R. 149 at
48-51. While recognizing that the project will eliminate some
potential Florida Panther habitat, the Corps also determined that
the "proposed project will not have an adverse impact on this
unoccupied habitat" because the "preservation of 2,970 acres of
land as part of the compensation for wetland impacts will preserve
the option to provide for future Florida Panther habitat [should
Florida Panthers be relocated there]." Id. The Plaintiffs'
assertion that destruction of Florida Panther habitat south of the
Caloosahatchee River increases the need to preserve it in another
region is thus met by the commitment of the 2,970 acres for future
Florida Panther habitat. In sum, the Plaintiffs have failed to
demonstrate that the Corps acted arbitrarily and capriciously in
analyzing the cumulative effects of the proposed landfill.
3. Public Hearings
The Plaintiffs' third argument under the CWA is that the
Corps violated requirements by failing to provide the public "any
hearings" on the landfill project and by failing to provide the
public with information regarding possible effects of the project
on the Florida Panther and the Eastern Indigo Snake. The CWA
mandates an "opportunity for public hearings." See 33 U.S.C. §
1344(a). However, the statute does not state that the Corps itself
must hold its own public hearings regardless of how many other
hearings have been held on a project. The applicable regulations
provide the Corps discretion to hold hearings on permit
applications on an "as needed" basis. 33 C.F.R. § 327.4. If the
Corps determines that it has the information necessary to reach a
decision and that there is "no valid interest to be served by a
hearing," the Corps has the discretion not to hold one. Id. at §
327.4(b).
Here, the Corps recognized that two public hearings on the
project had already been conducted under the state process. Given
the information generated from these hearings and the voluminous
written information submitted to the Corps by opponents of the
project, including the Plaintiffs, the Corps concluded that holding
its own additional public hearing was unlikely to generate any new
information that was not already in the Corps' possession.
Moreover, the Plaintiffs point to no such information. Under these
circumstances, we are persuaded that the Corps did not act
arbitrarily or abuse its discretion in deciding to forego further
public hearings on the matter.
The Plaintiffs also argue that the public notice provided by
the Corps was defective because: (1) it failed to specifically
state that the project could potentially affect the Florida Panther
and the Eastern Indigo Snake; and (2) it did not mention or
illustrate the creation of a three-mile access road on the Walton
Tract. These arguments are meritless. First, the notice of the
permit application was widely disseminated in June of 1990 as
required by 33 C.F.R. § 325.3(a). The notice informed the public
that "several threatened or endangered species may be expected to
be present on the site" and invited comment. Nothing in the
applicable statutes or regulations requires a species-by-species
listing in the notice, and no further notice is required by statute
or regulation.
Second, while the Plaintiffs are correct that the public
notice did not mention the access road, the applicable regulations
give the Corps discretion about whether to issue supplemental
public notice about such matters. Such notice is to be distributed
by the district engineer "if in his view there is a change in the
application data that would affect the public's review of the
proposal." 33 C.F.R. 325.2(a)(2). The Corps considered the road
to be a minor change in the application data and declined to issue
supplemental notice. Given that the road's construction affects
less than one-half acre of additional wetlands, this conclusion was
not arbitrary or capricious.
B. Preparation of Environmental Impact Statement Under the National
Environmental Policy Act.
The Plaintiffs allege that the Corps' decision not to prepare
an Environmental Impact Statement violated NEPA and its
implementing regulations by ignoring evidence of the project's
harmful effects. The NEPA requires a federal agency to prepare an
Environmental Impact Statement if the agency proposes to undertake
a "major federal action[ ] significantly affecting the quality of
the human environment." 42 U.S.C. § 4332(2)(C). The statute
imposes procedural but not substantive requirements on the agency.
"NEPA does not work by mandating that agencies achieve particular
substantive environmental results." Marsh v. Oregon Natural
Resources Council, 490 U.S. at 371, 109 S.Ct. at 1858. Instead,
NEPA "works" by requiring that the environmental consequences of an
action be studied before the proposed action is taken. Id.In deciding whether to prepare an Environmental Impact
Statement for a proposed action, an agency must initially determine
if the action is of a type that (1) normally requires the
preparation of an Environmental Impact Statement, or (2) normally
does not require either an Environmental Impact Statement or an
Environmental Assessment. 40 C.F.R. § 1501.4(a). If the proposed
action falls into neither category, the agency must prepare an
Environmental Assessment 40 C.F.R. § 1501.4(b). The Environmental
Assessment is expected to be a brief and concise document
containing sufficient evidence and analysis for the agency to
determine whether to prepare an Environmental Impact Statement or
a Finding of No Significant Impact ("FONSI"). "The purpose of an
[Environmental Assessment] is to determine whether there is enough
likelihood of significant environmental consequences to justify the
time and expense of preparing an environmental impact statement."
River Road Alliance, Inc. v. Corps of Eng'rs of U.S. Army, 764 F.2d
445, 449 (7th Cir.1985), cert. denied, 475 U.S. 1055, 106 S.Ct.
1283, 89 L.Ed.2d 590 (1986).
The role of the court in reviewing the sufficiency of an
agency's consideration of environmental facts is limited both by
the time in which the decision was made and by the statute
mandating review. Vermont Yankee Nuclear Power Corp. v. Nat'l
Resource Defense Council, Inc., 435 U.S. 519, 555, 558, 98 S.Ct.
1197, 1217, 1219, 55 L.Ed.2d 460 (1978). Moreover, this Circuit
has stated that a court's "only role [under NEPA] is to ensure that
the agency has taken a "hard look' at the environmental
consequences of the proposed action." Druid Hills Civic Ass'n v.
Federal Highway Admin., 772 F.2d 700, 709 (11th Cir.1985) (citing
Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730
n. 21, 49 L.Ed.2d 576 (1976)).
The Plaintiffs contend that the Corps' decision not to
prepare an Environmental Impact Statement in this case fell short
of the requisite "hard look" and that the Corps' actions were a
mere "paperwork exercise." Appellants' Br. at 43. In response,
the Corps and Sarasota County argue that the Environmental
Assessment prepared in this case satisfied the need for a hard look
at the project and that the Environmental Assessment supported the
Corps' FONSI, which obviated the need to prepare an Environmental
Impact Statement.
The Corps prepared its Environmental Assessment for the
project in April of 1995. The Environmental Assessment resulted in
a FONSI, meaning that the Corps concluded that no Environmental
Impact Statement was required for the project. At this point, the
Corps had the benefit of two separate "no jeopardy" F.W.S.
Biological Opinions regarding the Florida Panther and the Eastern
Indigo Snake, approval by the E.P.A., voluminous information
(including expert opinions) provided by the Plaintiffs, and
information resulting from the two public hearings the state had
held on the project. In light of the five preceding years of
extensive administrative review, it would be difficult for us to
conclude that the Corps failed to take a hard look at the project
before deciding to forego the time and administrative costs of
preparing an Environmental Impact Statement. Instead, we hold that
the Corps did not act arbitrarily or capriciously by concluding
that it had before it sufficient information to determine that the
project would not significantly affect the quality of the human
environment and that preparation of an Environmental Impact
Statement was therefore unnecessary. As explained by the Supreme
Court:
[O]nce an agency has made a decision subject to NEPA's
procedural requirements, the only role for a court is to
insure that the agency has considered the environmental
consequences; it cannot interject itself within the area of
discretion of the executive.
Stryker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223,
227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1979) (citation and
internal quotation marks omitted).
C. Challenges Pursuant to the Endangered Species Act
The Plaintiffs claim that § 4(f) of the ESA requires the Corps
and the F.W.S. to implement the 1987 Recovery Plan for the Florida
Panther and that the Corps and the F.W.S., in violation of the ESA,
15
are failing in that regard. The Plaintiffs' reasoning can be
summarized as follows: (1) the ESA requires that recovery plans
shall be developed and implemented for endangered species; (2) the
F.W.S.'s 1987 Recovery Plan for the Florida Panther includes a
"Habitat Preservation Plan" stating that "areas proposed for
habitat preservation," which include the Walton Tract, "should be
monitored to the maximum extent possible to obviate adverse habitat
modifications;" (3) the F.W.S. fails to "implement" the Recovery
Plan if it issues a "no jeopardy" opinion for a suitable Florida
Panther habitat as specified by the Recovery Plan; and (4) the
15
Section 4 of the ESA addresses "recovery plans," which
formulate actions designed to enhance species recovery to the
point where ESA protection is no longer needed. 16 U.S.C. §
1533(f). The Secretary is required to "develop and implement"
such plans "unless he finds that such a plan will not promote
conservation of the species." Id.Corps acted arbitrarily and capriciously in relying on the F.W.S.
"no jeopardy" Opinions in granting a permit to Sarasota County.
The Plaintiffs' line of reasoning is flawed in several
respects. First, the practical effect of the Plaintiffs' position
would be to elevate the 1987 Recovery Plan into a document with the
force of law. We cannot take such an approach. Section 1533(f)
makes it plain that recovery plans are for guidance purposes only.
See 16 U.S.C. § 1533(f). By providing general guidance as to what
is required in a recovery plan, the ESA "breathe[s] discretion at
every pore." Strickland v. Morton, 519 F.2d 467, 469 (9th
Cir.1975).
Second, the Plaintiffs' position cannot be reconciled with the
Corps' statutory duty under § 7 of the ESA to consult with the
F.W.S. about the environmental impact of proposed agency actions
and the F.W.S.'s duty to arrive at a biological opinion based upon
the best scientific data available. There would be absolutely no
point to the consultation and preparation of a biological opinion
if the F.W.S.'s opinion were predetermined based upon whether
proposed project lands fell within the borders of properties
discussed in one of any number of recovery plan documents. The
Plaintiffs thus misconstrue the interrelationship and legal effect
of the 1987 Recovery Plan on the 1995 F.W.S. Biological Opinion.
Third, the F.W.S. identified reasonable justifications for
issuing its "no jeopardy" Biological Opinions. To begin with,
there have been no verified Florida Panther sightings either on the
Walton Tract or near it within the last ten years. According to
the Florida Panther Habitat Protection Plan ("HPP"), there is no
16
occupied Florida Panther territory anywhere in Sarasota County.
The HPP concludes, some anecdotal evidence notwithstanding, that no
occupied Florida Panther habitat exists in Sarasota County or, for
that matter, anywhere north of the Caloosahatchee River. Moreover,
the contested land has not been designated as critical habitat
under the ESA. It is a major flaw in the Plaintiffs' argument to
assume that the project will destroy or adversely modify the
Florida Panther's "critical habitat" when it has not been
determined that this particular site is a critical habitat. The
land included in the HPP's recommendation for a critical habitat
designation area is not anywhere in Sarasota County. In addition,
the Walton Tract has not been identified as a reintroduction site
for Florida Panthers, nor is it adjacent to any such sites. See
F.W.S. Opinion at 20-21. Because the Walton Tract is not in
proximity to areas of known Florida Panther use, it does not
possess an important characteristic of areas suitable for Florida
Panther reintroduction.
In summary, because the Recovery Plan is not a document with
the force of law divesting all discretion and judgment from the
F.W.S., and because the F.W.S. identified reasonable justifications
for issuing "no jeopardy" Biological Opinions with respect to the
Walton Tract, we hold that the Plaintiffs have failed to meet their
burden of demonstrating that the F.W.S. acted arbitrarily and
capriciously by issuing the Opinions. Likewise, we hold that the
Plaintiffs have failed to show that the Corps acted arbitrarily and
16
The HPP was developed and approved in November, 1993, to
implement the Florida Panther Recovery Plan.
capriciously by relying on these Opinions when consultation with
the F.W.S. is exactly what is required by the relevant statutory
scheme.
D. Disallowing Discovery
At oral argument on the cross-motions for summary judgment,
the Plaintiffs presented a government document demonstrating
contact between Senator Bob Graham and the United States Department
of Justice. The document is a memorandum providing an account of
a meeting that was held between the Corps and Sarasota County
during the time that the landfill permits were suspended while the
F.W.S. and the Corps completed the new § 7 consultation that was
initiated as a result of the Plaintiffs' lawsuit. The memorandum
states that Senator Graham "had contacted the Attorney General"
with regard to the litigation, and that "Sen. Graham was working to
see if [the Department of] Justice would withdraw [a]
recommendation" that a draft environmental assessment be made
available for public comment. See # A.R. Tab 137. At oral
argument, the Plaintiffs' counsel brought this document to the
attention of the district court and requested that, should the
court deny the Plaintiffs' motion for summary judgment, the
Plaintiffs be permitted to take discovery on the extent to which
Senator Graham's involvement may have influenced the agencies'
decisions in this case, particularly the Corps' decision not to
prepare an environmental impact statement. The district court
denied this discovery request. The Plaintiffs claim that this
denial was improper. We conclude that the district court's order
denying discovery must stand because it was not an abuse of
discretion.
None of the cases upon which the Plaintiffs rely provides a
basis for permitting discovery on the issue involving the
memorandum from Senator Graham. For example, in ATX, Inc. v.
United States Department of Transportation, 41 F.3d 1522, 1527
(D.C.Cir.1994), members of Congress strongly voiced opposition to
ATX's airline application to the Department of Transportation
("D.O.T."). Several members of Congress wrote letters directly to
D.O.T. Secretary Federico Pena urging him to deny the ATX
application, and the record contained letters from over 125 members
of Congress to other transportation department officials. Id. In
holding that the congressional pressure was insufficient to
invalidate D.O.T.'s adjudication, the D.C. Circuit noted that "
"the proper focus is not on the content of congressional
communications in the abstract, but rather upon the relation
between the communications and the adjudicator's decision-making
process.' " Id. (citation omitted). There, as here,
"congressional input neither created an appearance of impropriety
nor actually affected the outcome." Id. As discussed in Section
IV.B of this opinion, it is clear that the Corps' decision not to
complete an environmental impact statement was based on the merits
of this case. Furthermore, the legal issue raised in the
controversial memorandum—whether to circulate a draft environmental
assessment for public comment—is irrelevant. Even if such a
recommendation had been made and withdrawn, there is no legal
requirement that an environmental assessment be circulated publicly
and, in fact, they rarely are. Thus, the district court did not
abuse its discretion when it disallowed discovery on this issue.
V. CONCLUSION
Based upon the foregoing, we hold that the Corps and the
F.W.S. did not act arbitrarily and capriciously in any of their
decisions in this case, and that the district court did not abuse
its discretion in disallowing discovery on the issue involving the
memorandum from Senator Graham. Accordingly, we affirm the
district court's grant of summary judgment in favor of the
Defendants. Nevertheless, we are remanding the case to the
district court to enable the court to resolve a motion pending
before it.17 In light of the limited purpose of this remand, we see
no need to assign this case to a different judge on remand.
Accordingly, the Plaintiff's request for reassignment is denied.
See United States v. Torkington, 874 F.2d 1441, 1447 (11th
17
As we understand it, currently there is a motion pending
in the district court to delete the first footnote in its October
12, 1995 Order. We remand this case for the limited purpose of
enabling the district court to resolve this motion. We are
disturbed by the language contained in the disputed footnote.
See District Court Order at 1 n. 1. As discussed above, the
Plaintiffs requested at oral argument that they be permitted to
take discovery on the issue of whether Senator Bob Graham had
improperly intervened on behalf of the County. This request was
supported by a memorandum the Plaintiffs presented that stated
that Senator Graham was "working to see if" the Justice
Department would withdraw a recommendation that an environmental
assessment be publicly circulated. The district court engaged in
a harsh rebuke of the Plaintiffs' counsel for even making this
discovery request, calling it a "defamation of Senator Graham"
and indicating that counsel would be held in contempt if she
continued. Our careful review of the record persuades us that
this language was unwarranted and completely unnecessary to the
district court's disposition of this case. The Plaintiffs'
counsel was wholly within her rights in this case to request
discovery on the issue of Senator Graham's involvement. Because
there is a motion pending before the district court, we direct
the district court to take a second look at the footnote and
consider deleting it.
Cir.1989) (identifying elements to be considered in determining
whether to reassign a case to a different judge).
AFFIRMED and REMANDED.