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.
No. 95-3339
United States Court of Appeals, Eleventh Circuit
June 13, 1996
As Amended Aug. 12, 1996
85 F.3d 535
Before KRAVITCH, DUBINA and CARNES, Circuit Judges.
Roger Sims, Holland & Knight, Orlando, FL, Steven L. Brannock, Stacy D. Blank, Rory C. Ryan, Holland & Knight, Tampa, FL, Alice Thurston, U.S. Dept. of Justice, Environment Division, Appellate Section, Washington, DC, Jorge L. Fernandez, Sarasota County Attorney‘s Office, Sarasota, FL, for appellees.
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
The Eastern Indigo Snake (Drymarchon corais couperi) was listed as threatened in 1978. See
B. The Landfill
On November 22, 1989, the United States Army Corps of 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“),
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 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
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“),
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 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
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
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“),
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. 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:
- to grant a permit to fill seventy-four acres of wetland on the Walton Tract for a county landfill;
- not to hold its own public hearing on the project; and
- 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 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“),
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 (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 dredged spoil, into the waters of the United States,10 except in compliance with various sections of the CWA, including Section 404.
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.
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
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
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 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
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 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.
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
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
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
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.”
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.”
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.
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. Natural Resource Defense Council, Inc., 435 U.S. 519, 555, 558 (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 (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
[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 (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, are failing in that regard.15 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 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
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 occupied Florida Panther territory anywhere in Sarasota County.16 The HPP concludes, some anecdotal
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 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
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.17
AFFIRMED.
DUBINA
CIRCUIT JUDGE