Defenders of Wildlife v. United States Department of the Navy
733 F.3d 1106
11th Cir.2013Background
- Navy proposed an instrumented Undersea Warfare Training Range (USWTR) and selected a site 50 nautical miles offshore near Jacksonville, FL; installation expected to begin ~2014 and operations later (projected fully operational by 2023).
- Navy prepared an EIS (drafts 2005, revised 2008) analyzing both installation and operations; issued a Record of Decision (ROD) in July 2009 authorizing construction but deferring authorization of operations until later environmental/permit actions.
- NMFS issued a 2009 biological opinion finding installation not likely to adversely affect listed species, but that operations are likely to adversely affect (but not jeopardize) some listed species; NMFS did not include an incidental take statement for operations because MMPA authorization must precede such a statement and would expire before operations began.
- Appellants (conservation groups) challenged the ROD/EIS and NMFS biological opinion under NEPA, ESA, and APA, arguing (1) Navy violated NEPA by contracting for construction before an ROD for operations, (2) NMFS failed to meaningfully analyze operations in the biological opinion, and (3) NMFS improperly omitted an incidental take statement for expected operational take.
- District court granted summary judgment to Navy/NMFS; Eleventh Circuit reviews de novo under the APA’s arbitrary-and-capricious standard and affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Navy violated NEPA (40 C.F.R. §1506.1(a)) by signing a construction contract before issuing an ROD for operations | Contracting for construction before an ROD authorizing operations prejudiced future NEPA analysis and impermissibly segmented the project | Navy had issued an EIS and an ROD authorizing construction; §1506.1(a) prohibits actions taken before an ROD, not after one for the covered phase; EIS already analyzed both phases | Affirmed: No NEPA violation; ROD authorized construction and EIS had analyzed both installation and operations; staged RODs are not categorically forbidden |
| Whether NMFS’s biological opinion unlawfully failed to “meaningfully” analyze the entire action (installation + operations) | BO relied on other opinions and recycled analyses; it did not adequately account for unique operational impacts of the USWTR | BO and administrative record considered both phases; BO defined the action to include operations, analyzed operation-specific stressors, relied on Navy modeling in the EIS, and will reinitiate consultation before operations | Affirmed: BO sufficiently analyzed installation and operations; agencies’ staged consultation was not arbitrary |
| Whether NMFS unlawfully omitted an incidental take statement for operations in the BO | BO must include an incidental take statement now to set triggers and avoid segmentation; waiting undermines protection and monitoring | For marine mammals, an incidental take statement must be predicated on an MMPA authorization which would expire before operations; since no take is expected during installation and operations will not occur until after reconsultation and MMPA authorization, postponement is rational; BO provides strictest reinitiation trigger (any take) | Affirmed: OMISSION not arbitrary; incidental take statement and MMPA authorization appropriately deferred until reinitiation before operations |
Key Cases Cited
- Wilderness Watch v. Mainella, 375 F.3d 1085 (11th Cir.) (NEPA requires agencies to take a "hard look" at environmental consequences)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (U.S.) (NEPA is procedural, EIS must inform decisionmaking)
- Fund for Animals, Inc. v. Rice, 85 F.3d 535 (11th Cir.) (arbitrary-and-capricious review; courts should not substitute their judgment for agencies')
- Andrus v. Sierra Club, 442 U.S. 347 (U.S.) (NEPA requires timely EIS preparation to inform decisions)
- Miccosukee Tribe of Indians of Florida v. United States, 566 F.3d 1257 (11th Cir.) (APA standard for reviewing agency action and ESA consultation principles)
- Tenn. Valley Auth. v. Hill, 437 U.S. 153 (U.S.) (ESA’s conservationist purpose to prevent species extinction)