Center for Biological Div. V. U.S. Fish & Wildlife

202 F.Supp.2d 594

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff, v. UNITED STATES FISH AND WILDLIFE SERVICE, Defendant and La Cantera Development Co., Intervenor-Defendant.

No. CIV.A.SA-01-CA1139FB.

United States District Court, W.D. Texas, San Antonio Division.

May 3, 2002.

COPYRIGHT MATERIAL OMITTED

Amy R. Johnson, Austin, TX, Matt Kenna, Kenna & Hickcox, P.C., Durango, CO, for Center for Biological Diversity.

Susan B. Biggs, Asst. U.S. Atty., San Antonio, TX, Robert L. Gulley, U.S. Dept. of Justice, Wildlife & Marine Resources Section, Washington, DC, Martin Lalonde, U.S. Dept. of Justice, Gen. Lit. Sec., Washington, DC, for U.S. Fish and Wildlife Service.

R. Laurence Macon, Akin, Gump, Strauss, Hauer & Feld, San Antonio, TX, Michael Klein, Smith, Robertson, Elliott & Glen, L.L.P., Austin, TX, Steven P. Quarles, Crowell & Moring, Washington, DC, J. Michael Klise, Rowell & Moring, L.L.P., Washington, DC, Alan Glen, Smith, Robertson, Elliott & Glen, Austin, TX, for La Cantera Dev. Co.

Stuart N. Henry, Henry & Levin, Austin, TX, for the Lone Star Chapter and the Alamo Regional Group of the Sierra Club.

ORDER CONCERNING PENDING MOTIONS FOR SUMMARY JUDGMENT

BIERY, District Judge.

First, they destroyed the Carolina parakeet, and I did not speak out because I was not a Carolina parakeet.

Next, the Florida red wolf was made extinct, and I said nothing because I am homo sapien, not Canis rufus floridanus.

Then they took the habitat of the silver trout, the Santa Barbara song sparrow, and the Wisconsin cougar, but I inhabited elsewhere and had no concern and did not get involved.

Then my environment began to deteriorate and decay— and there were no other species to whom I could look for protection.¹

This dispute presents technical environmental legal issues. In a larger sense, the case compels us to think about our responsibility as stewards of the earth which bore and sustains us. For those of Western religious beliefs, the author of the creation story teaches that we "have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth."² But "dominion" does not mean "destruction," and our elected representatives have passed the Endangered Species Act standing for that proposition. At about the time our political ancestors were writing the Magna Carta, St. Francis of Assisi implicitly foresaw the need for protective legislation when he wrote:

By our own fault we have lost the beautiful relationship which we once had with all ... creation....Give us the grace to see all animals as gifts from [God] and to treat them with respect for they are [God's] creation.³

In a perfect world, the lion would lie down with the lamb; and we would live in peace with each other and in harmony with the land. It is not; lions still eat lambs; and we do not. Instead of a community of neighborhoods, we are becoming a segregated collection of consuming Haves served by minimum wage Have-nots whose festering envy will someday manifest itself. While ancient Rome had its bread and circuses, we have our air conditioned malls and arenas to satisfy the appetites of American materialism and entertainment. The reaping and reckoning in public health and quality of life which will come to our children and grandchildren will echo from what we incrementally sow into their environment and whether we come to an epiphany of the interdependence and interrelatedness played out in the mystery of the dance called life.

Apparently invoking the principle that matter is neither created nor destroyed but merely changes forms, defendant-intervenor La Cantera Development Co. wishes to profit from suburban consumerism by transforming Nature's beauty into upscale shopping venues accompanied no doubt by lovely, non-porous asphalt parking lots over a part of our water supply. Despite my personal lamentation about failing to nurture nature, my oath and the judicial process require decisions to be made within the parameters of the law, notwithstanding my own view that we have quite enough of the sterility of steel and concrete stores, several now standing vacant. See Perkins v. Alamo Heights Indep. School Dist., No. SA-02-CA-313-FB, 2002 WL 1160583 (W.D.Tex. Apr. 9, 2002) (order concerning jurisdiction and preliminary injunction) (to be published) ("[w]hile I might have made a distinction and different decision...my personal opinion is secondary to the law"); Dutmer v. City of San Antonio, 937 F.Supp. 587, 589 (W.D.Tex.1996) (notwithstanding personal opposition, Court does not sit in loco parentis to decide whether terms limits make better or worse government).

A preview of the legal analysis is that plaintiff Center for Biological Diversity would prefer pristine wilderness. Defendant-intervenor La Cantera would rather develop the land with no responsibility for its actions on living things. The United States Fish and Wildlife Service is the regulatory referee charged with keeping the ball somewhere around the 50-yard line as between encroaching human activity and endangered species. The law requires the judicial branch of government to give deference to administrative agency decisions so long as they are supported by substantial evidence and are not arbitrary and capricious. See Newell Recycling Co., Inc. v. United States Envtl. Prot. Agency, 231 F.3d 204, 206 (5th Cir.2000) (decision by Environmental Protection Agency's Appeal Board must be affirmed by court unless "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."); Meadows v. Securities & Exch. Comm'n, 119 F.3d 1219, 1224 (5th Cir.1997) (court to uphold decision by agency unless "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"; factual findings by the Commission to be upheld "if supported by substantial evidence"); Louisiana v. Mathews, 427 F.Supp. 174, 175 (E.D.La.1977) (judicial review of action by Food & Drug Administration banning sale and distribution of small turtles limited to whether defendants acted "arbitrarily, capriciously, in abuse of their discretion or otherwise unlawfully"); see also Texas Alcoholic Beverage Comm'n v. Top of the Strip, Inc., 993 S.W.2d 242, 249 (Tex. App.—San Antonio, 1999, pet. denied) (court's review of TABC order based on substantial evidence rule; court may reverse or remand case if substantial rights of appellant have been prejudiced because administrative findings, conclusions, inferences, or decisions are "arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion"; reviewing court evaluates reasonableness not correctness of the order). For the reasons stated below, this Court finds United States Fish and Wildlife Service negotiated and regulated vigorously and at arms length to discharge its duty under the Endangered Species Act with the result that La Cantera Development Co. purchased, and has set aside and will maintain 181 on-site and off-site acres of protected land for the subject species and their cave habitats. Plaintiff Center for Biological Diversity's Motion for Summary Judgment (docket # 27) is DENIED. The motions for summary judgment by defendants La Cantera Development Co. (docket # 29) and United States Fish and Wildlife Service (docket # 30) are GRANTED.

Procedural Parameters

On October 22, 2001, the United States Fish and Wildlife Service (hereinafter referred to as FWS or Service) issued an Incidental Take Permit to La Cantera Development Company related to the development of approximately 750 acres of land in northern Bexar County, Texas. The permit was issued pursuant to section 10 of the Endangered Species Act, 16 U.S.C. § 1539(a), and authorized the permittee, La Cantera Development Company, Ltd. (hereinafter referred to as La Cantera or defendant-intervenor) to "take" three species of karst invertebrates, Rhadine exilis, a troglobitic ground beetle, Rhadine internalis, also a troglobitic ground beetle, and Circurina madla, a meshweaver spider,⁴ incidental to the construction, operation and management of the development of the property.⁵ "Threats to the[ese] species and their habitat include destruction and/or deterioration of habitat by construction; filling of caves and karst features and loss of permeable cover; contamination from septic effluent, sewer leaks, run-off, pesticides, and other sources; predation by and competition with nonnative fire ants; and vandalism." 65 Fed.Reg. 81419. Like the warning to humans by a dying canary in the coal mine, some of these dangers adversely affect homo sapiens.

FWS contends that before making its decision to issue the incidental take permit, it completed a comprehensive analysis and documentation process pursuant to section 10 of the Endangered Species Act and the National Environmental Policy Act of 1969. The analysis and documentation process featured a Habitat Conservation Plan, Biological Opinion, an environmental assessment, a finding of no significant impact, and extensive public participation.

On December 12, 2001, plaintiff Center for Biological Diversity (hereinafter referred to as Center), filed suit in this Court seeking declaratory and injunctive relief. Plaintiff alleges the FWS violated both the Endangered Species Act and the National Environmental Policy Act by improperly issuing a Habitat Conservation Plan, incidental take permit, and a finding of no significant impact and allowing the development of the La Cantera property in northern Bexar County, Texas. Plaintiff argues the development will cause an improper take of three endangered invertebrate species and cause undue environmental harm to the property which contains significant environmental values and which is in the Edwards Aquifer Recharge Zone.

On January 16, 2002, Center filed its Motion for Temporary Restraining Order and Preliminary Injunction asking the Court to "enjoin the defendant United States Fish and Wildlife Service ... to...