Miccosukee Tribe of Indians of Florida v. U.S.

528 F.Supp.2d 1317

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a federally-recognized Indian tribe, Plaintiff, v. UNITED STATES of America, U.S. Fish & Wildlife Service, et al., Defendants.

No. 05-23045-CIV-MOORE.

United States District Court, S.D. Florida.

December 21, 2007.

COPYRIGHT MATERIAL OMITTED

Dexter Wayne Lehtinen, Felippe Moncarz, Kelly Brooks Smith, Lehtinen Vargas Reiner & Riedi, Miami, FL, for Plaintiff.

Donald Jodrey, United States Department of Interior Office of the Solicitor, Mark A. Brown, United States Department of Justice, Washington, DC, Kyle A. Lonergan, Simpson Thacher & Bartlett LLP, New York, NY, for Defendants.

ORDER GRANTING FEDERAL DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

K. MICHAEL MOORE, District Judge.

THIS CAUSE came before the Court upon Federal Defendants' Motion for Summary Judgment (dkt # 131) and Plaintiffs Motion for Summary Judgment (dkt # 134). The Parties' cross motions for summary judgment stem from the Plaintiff s Second Amended Complaint (dkt # 76). Counts I, II, and IV, of the Second Amended Complaint (dkt # 76) are the only remaining claims.

UPON CONSIDERATION of the Motions, the pertinent portions of the record, and being otherwise fully advised in the premises, the Court enters the following Order.

I. BACKGROUND

The Cape Sable Seaside Sparrow ("Sparrow") represents one out of eight subspecies of North American seaside sparrow. AR 3322 at 21 (the "sparrow['s] distribution is limited to the short-hydro-period wetlands at the bottom of the greater Everglades system"). The Sparrow is protected under the Endangered Species Act of 1973. Id. The endangered Sparrow requires low water levels for nesting because Sparrows build their nests between four and eight inches above the water. Id. at 23-24. Therefore, higher water levels in the Sparrows' nesting areas can diminish their success at nesting and procreation. Id. ("[a]t water levels over 2 ft above ground surface, occurring in October 1995, even the majority of the vegetation in sparrow habitat is completely inundated, leaving sparrows with very few refugia") Id. at 27. Further, "sparrows are generally sedentary and avoid forested areas, they are not likely to travel great distances to find mates or to find outlying patches of suitable habitat." Id. at 25. Thus, according to the Fish and Wildlife Service ("FWS"), the survival of the endangered Sparrow depends largely upon maintaining a lower water depth within its habitat.¹

The Everglades Snail Kite ("Snail Kite") bird, is the other endangered species that appears to be most at risk under the Interim Operating Plan and the currently contested 2006 Biological Opinion. The Snail Kite, like the Sparrow, is an endangered species under the 1973 Endangered Species Act. Id. at 33. The Snail Kite's primary forage is the apple snail mollusk. Id. at 35. The apple snail, and therefore the Snail Kite, thrives in areas that have "interdigitated areas of open water" that are between half of a foot to 4.3 feet deep. Id. at 36. Increased water level in Snail Kite habitat negatively affects the birds because it reduces the number of attainable apple snails. Id. at 61. ("High water levels result in reduced position and reduced growth rates of young snails, and fewer adult-size snails are available for snail kites.") Id. at 69.² As a result, the maintenance of water levels in certain sections of the Everglades affects the viability of both the endangered Sparrow and Snail Kite. Specifically, Sparrow Subpopulation A's critical habitat is located south of the Tamiami Canal, below the gates and locks, while one of the Snail Kite's critical habitats is located north of the Tamiami Canal in WCA 3-A.³ Therefore, in order to preserve the correct low water habitat Sparrow Subpopulation A requires, located south of the canal, water must be retained above the canal in WCA 3-A, which negatively affects the Snail Kite habitat.

On March 3, 2006, Plaintiff Miccosukee Tribe of Indians ("Plaintiff') filed an Amended Complaint (the "Complaint") (dkt # 30) seeking various forms of relief for an alleged faulty biological opinion dated March 28, 2002. The Complaint alleges that in late 1997, the FWS began demanding the closure of certain gates along Tamiami Trail to stop the flow of water out of WCA-3A⁴, to benefit the endangered Sparrow located downstream to the south. Compl. at 7. Plaintiff alleges that the closing of these gates has resulted in harm to both Plaintiff and endangered species, specifically the Snail Kite and its critical habitat. Id. The closing of the gates and the subsequent restriction of water flow may keep water levels behind the gates abnormally high. This increased water depth, as described above, could reduce the number of attainable apple snails, which are the Snail Kite's primary food source. AR 3322 at 61 ("[e]xtended hydroperiods and deep water impact woody vegetation ... [t]his change represents a reduction in the quality of foraging habitat for snail kites, and a reduction in the suitability of habitat to support abundant apple snails").

This restriction of water allegedly continued after the FWS issued a Biological Opinion in 1999 ("1999 BO"), and an Amended Biological Opinion in 2002 ("Amended BO"). The Plaintiff contends that the Amended BO concluded, without proper evidence or analysis, that portions of the designated Snail Kite critical habitat would not be affected by the Reasonable and Prudent Alternatives ("RPA"), which were adopted within the Amended BO. During the course of this action, a Second Amended Biological Opinion (2006 BO) (dkt # 70-1) was filed.

The biological opinions, promulgated by FWS, exist to provide analysis regarding the Army Corps of Engineers ("Corps") Interim Operational Plan ("IOP"). The Corps' TOP exists to set forth a procedure for performing its duties while balancing those duties' effect on the environment. The Corps has operated under the particular IOP since 2002. See Def. Mot. at 1. The IOP provides for operation of the Central and Southern Florida Project in a way that protects the Sparrows' nesting habitat, but also mitigates flooding, allowing for the development of land and other projects. Id.

On November 17, 2006, FWS promulgated its 2006 BO, which is now the operative biological opinion, superseding the 2002 and 1999 Opinions. See Amd. Compl. at 11. In response, Plaintiff filed a Second Amended Complaint (dkt # 76). Generally, in the Second Amended Complaint (dkt # 76), Plaintiff seeks (1) injunctive and declaratory relief for a "faulty" Amended biological opinion in violation of the Endangered Species Act ("ESA") and its implementing regulations, pursuant to the Administrative Procedure Act ("APA") (Count T); (2) injunctive and declaratory relief for violations of Section 7 of the ESA and its implementing regulations (Count II); (3) injunctive and declaratory relief for violations of Section 9 of the ESA and its implementing regulations (Count III); for improper agency action under the APA (Count IV). See Second Amended Complaint. This Court previously dismissed Count III, but held that Plaintiff may pursue Count III under Count I, which requests relief under the APA. See Order Granting Motion for Partial Judgment on Pleadings (dkt # 107). In sum, Plaintiff requests summary judgment by challenging the FWS' 2006 BO for failure to adhere to the requirements of ESA and for improper agency action under the APA.

In response, Federal Defendants seek summary judgment on all Plaintiffs claims. Federal Defendants maintain that the FWS did not act arbitrarily, capriciously, or commit a clear error of judgment; consequently, FWS' determinations should be granted great deference and be upheld. See Def. Mot. at 4.

II. ANALYSIS

A. Standard of Review

The standard of review, employed by this Court, for the remaining claims in this case is provided by the APA and the ESA. See Fund for Animals, Inc. v. Rice, 85 F.3d 535, 547-548 (11th Cir.1996); See also Sierra Club v. Flowers, 423 F.Supp.2d 1273, 1283-84 (S.D.Fla.2006). Under both the APA and the ESA, this Court is only permitted to overrule agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See 5 U.S.C. § 706(2)(A). Specifically, the arbitrary and capricious standard of review also applies to claims brought under environmental statutes such as the ESA. See Flowers, 423 F.Supp.2d at 1284. In deciding whether agency action was arbitrary and capricious, the court determines "whether the decision was based on a consideration of the relevant factors and whether there has been clear error of judgment." Motor Vehicle Mfrs. Ass'n v. State Farm. Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

Further, summary judgment is only appropriate where the administrative record shows there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c). Fed. R.Civ.P.; See also Preserve Endangered Areas of Cobb's History, Inc. v. United States Army Corps of Engineers, 87 F.3d 1242, 1246 (11th Cir.1996). Only issues of material facts, which are defined as facts "that might affect the outcome of the suit under the governing law," will preclude entry of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Despite the moving party's high burden, the Eleventh Circuit cautions, "[h]owever, even in the context of summary judgment, an agency action is entitled to great deference." Id. The Supreme Court states that the strong deference the courts give to agencies when reviewing APA and ESA claims is to "protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which the courts lack both expertise and information to resolve." Norton v. Southern Utah Wilderness Alliance...