MEDINA COUNTY ENVIRONMENTAL ACTION ASSOCIATION v. SURFACE TRANSPORTATION BOARD; UNITED STATES OF AMERICA; UNITED STATES FISH AND WILDLIFE SERVICE
No. 09-60108
United States Court of Appeals, Fifth Circuit
April 6, 2010
REVISED MAY 6, 2010
Before KING, BARKSDALE, and ELROD, Circuit Judges.
KING, Circuit Judge:
The petitioner, the Medina County Environmental Action Association (MCEAA), seeks review of a Construction and Operation Exemption Decision (the Decision) entered by one of the respondents, the Surface Transportation Board (STB). The Decision granted an exemption under
At issue is whether the STB and the second respondent, the United States Fish and Wildlife Service (FWS),2 complied with their obligations under § 7 of the Endangered Species Act (ESA) to ensure that the proposed rail was “not likely to jeopardize the continued existence of any endangered species” before approving the exemption.
Specifically, MCEAA challenges the respondents’ finding that the proposed rail and its “cumulative effects” are not likely to jeopardize the continued existence of the endangered golden-cheeked warbler, which is known to exist in Medina County, and of certain endangered karst invertebrates, which are known to exist in neighboring Bexar County. Also pending is MCEAA‘s motion to supplement the administrative record. For the reasons discussed below, we deny MCEAA‘s petition for review of the Decision and deny the motion to supplement.
I. Background
A. The Proposed Quarry and Rail
In 1999, Vulcan Construction Materials, LP (Vulcan), not a party to this case,
Among the numerous challenges that MCEAA raised in opposition to the proposed quarry is that the quarry could threaten the endangered golden-cheeked warbler. In an effort to avoid this possibility, Vulcan began a voluntary consultation in 2000 with the FWS, seeking to structure the development of the quarry in compliance with § 9 of the ESA, which makes it “unlawful for any person subject to the jurisdiction of the United States to . . . take any [endangered] species within the United States.”
On April 16, 2001, at Vulcan‘s request, officials from FWS‘s Austin field office accompanied a geologist for Vulcan to the proposed quarry site to study the potential for the project to harm the golden-cheeked warbler. Vulcan proceeded, with the FWS‘s advice and guidance, to conduct intensive surveys of the Phase One area but found no warblers and little or no habitat that would support warblers. Vulcan also conducted preliminary “screening” surveys on the rest of the 1,760-acre tract and again found no warblers, although the northern portion of the tract did contain some suitable habitat. Vulcan submitted the results of these surveys in a report to the FWS in October 2001. The report also described four additional phases for potential development to occur over the next twenty to fifty years, but indicated that there were not yet any specific development plans for those phases. Vulcan stated that it would begin conducting intensive surveys of future phases a minimum of three years before commencing development. The FWS responded to the report by letter on March 20, 2002, expressing approval of the survey work and the phased approach.5
Vulcan published another report in August 2003 that described the results of intensive surveys of the Phase One area conducted in 2002 and 2003. As in the prior report, Vulcan reported that no golden-cheeked warblers were found and that the potential warbler habitat within the Phase One area was “poor to marginal.” The report did disclose, however, that one warbler had been heard calling on one occasion from the northeast of the Phase One site in 2003. On October 17, 2003, the FWS provided feedback on the report by letter, noting that the report‘s conclusions as to the absence of warblers on the property were consistent with the observations of its own field agents, who had toured portions of the property just two days earlier.
B. Evaluation of the Proposed Rail for the § 10901 Exemption
On February 27, 2003, SGR petitioned the STB for an exemption under
1. The STB‘s Informal Consultation with the FWS
In assessing whether the proposed rail was “likely to jeopardize” endangered or threatened species or their habitats, the STB was required to consult with the FWS.
On April 22, 2003, the FWS informed the STB that the endangered golden-cheeked warbler was listed in FWS records as being present in Medina County,11
Because the golden-cheeked warbler was listed as being present in Medina County and because there was potential for the proposed action to affect the habitat of listed karst invertebrates in neighboring Bexar County, the informal consultation proceeded to the second step, in which the STB was required to conduct a “biological assessment” of the effects of the proposed action.
The ESA regulations permit an agency to conduct a biological assessment as part of an “Environmental Impact Statement” (EIS) prepared in compliance with the National
the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.
As part of the EIS, the STB15 and an independent, third-party consultant, URS Corporation, conducted walking and aerial surveys of the various proposed routes for the seven-mile rail line and the site for the proposed loading loop. No golden-cheeked warblers were found. Almost no suitable warbler habitat was found, although the area just south of the proposed loading loop was dispersed woodland composed largely of juniper and oaks that the STB concluded had “low potential” to support
2. The EIS Documents
The STB ultimately prepared three EIS documents for the proposed rail. The STB circulated the first, a “Draft Environmental Impact Statement” (Draft EIS), for notice and comment on November 5, 2004. The Draft EIS assessed the possible environmental impacts of four alternative routes for the rail and concluded that none was likely to adversely affect the golden-cheeked warbler or listed karst invertebrates. The FWS concurred with the Draft EIS on May 19, 2005. On December 8, 2006, in response to concerns raised by MCEAA and others, the STB circulated for notice and comment a “Supplemental Environmental Impact Statement” (Supplemental EIS) that analyzed three additional proposed rail routes and concluded that these, too, were not likely to adversely affect any listed species. The FWS concurred with the Supplemental EIS on July 24, 2006. The STB issued a “Final Environmental Impact Statement” (Final EIS) on May 30, 2008, that incorporated large portions of the Draft EIS and Supplemental EIS and set forth additional research and conclusions. The FWS concurred with the Final EIS on September 11, 2008.16 The EIS documents concluded that the proposed action was not likely to jeopardize the continued existence of the golden-cheeked warbler or any karst invertebrates. The conclusions in the EIS documents were drawn from the results of the STB‘s own surveys and from the reports that Vulcan prepared in 2001 and 2003 with the advice and guidance of the FWS.
In concluding that the proposed action was not likely to jeopardize the continued existence of any listed species, the EIS documents specifically considered the cumulative impacts of the construction and operation of Phase One of the quarry. The STB declined to assess the rest of the proposed quarry in its cumulative impacts analysis, concluding that no other development was “reasonably foreseeable.” The STB concluded in the EIS documents that the proposed rail and the cumulative impact of the Phase One quarry activities were not likely to adversely affect the golden-cheeked warbler because no warblers had been found in the proposed action area, because little suitable habitat existed in that area, and because Vulcan had announced plans to set aside the portions of the site containing the most suitable habitat, including a 200-foot-wide border around the entire quarry, as a
The EIS documents also contain the STB‘s assessment of the environmental impact of what the STB referred to as the “no-action” alternative. SGR contended that if the proposed rail project were not approved, Vulcan would proceed with Phase One of the quarry project using trucks to remove the limestone. SGR estimated that 1,700 truck runs per day, 850 loaded outbound and 850 unloaded inbound, would be required to service the approximately 5 million tons of limestone aggregate per year that SGR projected the quarry would produce in the “reasonably foreseeable future.” SGR estimated that the same work could be accomplished by just four rail trips per day, two loaded outbound and two unloaded inbound. The STB credited these estimates after considering detailed submissions from SGR. In the Draft EIS, the STB noted that the no-action alternative would displace approximately 125 acres of brushland, which carried “the potential for greater displacement of wildlife habitat and populations” than the proposed rail routes. The STB also noted in the Draft EIS that the no-action alternative had greater potential than a rail line to increase “impervious cover” (ground that water cannot penetrate) which in turn could make the land less conducive to the development of karst features, although again, the threat would “likely be minimal.” In the Final EIS, the STB extensively analyzed the physical and economic feasibility of the no-action alternative and concluded that “based on all the information available to date . . . truck transport of the limestone from [Vulcan‘s] quarry to the [Union Pacific] rail line would be feasible.” It also found that “the available information shows that [Vulcan] could (and would) transport the limestone by truck if the rail line were not built.”
These findings as to the no-action alternative, which MCEAA does not seriously contest, highlight an important point that is easily lost in the technical and regulatory complexities of this case: Because the STB‘s approval was not required for any other action associated with the proposed quarry, because no other aspect of the proposed quarry required approval under § 7, and because the quarry would go forward with or without the proposed rail, the implications of the STB‘s decision were relatively narrow. The STB could grant the exemption, in which case development of the quarry would proceed with rail service; or deny the exemption, in which case quarry development would still proceed with service by truck—an alternative that all parties agree would be more environmentally invasive. This court‘s sole task in evaluating the MCEAA‘s petition is to determine whether the choice that STB made was arbitrary and capricious.
The EIS documents also included detailed studies of the amounts of noise and vibration that the construction and operation activities would produce. The main purpose of the analysis was to determine whether and to what extent the noise and vibration would affect offsite residences and cultural resources, such as prehistoric
3. The Decision
The STB issued its Decision approving the
Although the STB‘s involvement with the proposed quarry ended with its grant of the exemption for the rail, the FWS‘s involvement is ongoing. At Vulcan‘s request, the FWS is continuing to work with Vulcan in an advisory capacity to ensure that Vulcan‘s actions at the quarry do not violate Vulcan‘s obligations under § 9 of the ESA. Although Vulcan‘s consultation and cooperation are voluntary, the penalties for violations of § 9—prison time, fines of up to $50,000 per violation, and the threat of citizen suits—provide powerful incentives for Vulcan to heed the FWS‘s advice.
C. MCEAA‘s Asserted Bases for Relief
On February 13, 2009, MCEAA timely filed a petition to appeal the STB‘s Decision, naming the STB and FWS as respondents. At issue is whether the STB, in granting the § 10502 exemption, reached an arbitrary and capricious conclusion that the activity that it was authorizing was “not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.”
II. The Standard of Review
We review the STB‘s and FWS‘s determinations as to § 7 of the ESA under the Administrative Procedure Act (APA),
III. Analysis
A. Whether the Scope of the Biological Assessment Rendered the Decision Arbitrary and Capricious
MCEAA argues that the STB‘s Decision was arbitrary and capricious because it relied on a biological assessment that assessed only the proposed rail and Phase One area. MCEAA contends that to satisfy § 7 of the ESA and the accompanying regulations, the STB and FWS should have analyzed the effects of the proposed development of the entire 1,760-acre tract before concluding that the proposed rail was not likely to jeopardize the continued existence of the golden-cheeked warbler. The respondents counter that the scope of the biological assessment was appropriate because it encompassed only those actions associated with the proposed rail that were reasonably certain to occur.
The ESA § 7 regulations leave the contents of a biological assessment (which here was conducted as part of the EIS) to the discretion of the evaluating agency. The biological assessment “may” include “[a]n analysis of the effects of the action on the species and habitat, including consideration of cumulative effects, and the results of any related studies.”
1. The Proposed Development of the Entire Tract is Not an “Interrelated Action”
MCEAA first contends that the biological assessment should have evaluated the proposed development of the entire tract because the entire proposed quarry is an “interrelated action” with the proposed rail. The ESA regulations define an interrelated action as being “part of a larger action and depend[ing] on the larger action for [its] justification.”
It is important to remember that interrelated . . . activities are measured against the proposed action. That is, the relevant inquiry is whether the activity in question should be analyzed with the effects of the action under consultation because it is interrelated to . . . the proposed action. Be careful not to reverse the analysis by analyzing the relationship of the proposed action against the other activity.
See U.S. Fish & Wildlife Service, Section 7 Consultation Handbook at 4-26 (1998) (emphasis in original) (hereinafter “FWS Handbook“).18 The FWS‘s comments to the regulations further indicate that “the ‘but for’ test should be used to assess whether an activity is interrelated with . . . the proposed action.” 51 Fed. Reg. at 19,932. The Ninth Circuit, the only circuit to have interpreted the term, has adopted this definition. See Sierra Club v. Marsh, 816 F.2d 1376, 1387 (9th Cir. 1987) (“The test for interrelatedness . . . is ‘but for’ causation: but for the [proposed action], these activities would not occur.” (citing 51 Fed. Reg. at 19,932)). Although interpretations contained in agency manuals and
comments are not entitled to the highest level of deference, a court may nevertheless defer to an agency‘s interpretation of its own regulation, depending upon “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and
MCEAA contends that the proposed development of the entire tract is an “interrelated action” with the proposed rail because “[t]he rail line has no independent utility without all of the phases of the quarry.” But this contention reverses the relevant analysis.19 The “larger action” is the proposed rail, the activity that the STB was called upon to approve. The issue, for purposes of determining whether proposed development of the entire tract was an interrelated action, is whether, but for the proposed rail, development of the tract as a quarry would occur. If development of the tract would not depend on the proposed rail, then the tract does not qualify as an interrelated action. The STB specifically found, after considering detailed submissions by SGR, that Vulcan feasibly could operate the quarry without a rail, using trucks to remove the limestone. The STB also found that Vulcan likely would take this course if the rail exemption were not granted. The respondents’ refusal to consider the
proposed development of the entire tract as an “interrelated action” did not render the Decision arbitrary and capricious.
2. The Proposed Development of the Entire Tract is Not a “Cumulative Effect”
MCEAA next argues that the proposed development of the entire tract should have been evaluated as one of the “cumulative effects” of the proposed rail. The ESA regulations define “cumulative effects” as “those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation.”
The Endangered Species Handbook explains that “[i]ndicators of actions ‘reasonably certain to occur’ may include“:
approval of the action by State, tribal or local agencies or governments (e.g., permits, grants); indications by State, tribal or local agencies or governments that granting authority for the action is imminent; project sponsors’ assurance the action will proceed;
obligation of venture capital; or initiation of contracts. The more State, tribal or local administrative
discretion remaining to be exercised before a proposed non-Federal action can proceed, the less there is a reasonable certainty the project will be authorized. Speculative non-Federal actions that may never be implemented are not factored into the “cumulative effects” analysis. At the same time, “reasonably certain to occur” does not require a guarantee the action will occur. The action agency and the Services should consider the economic, administrative, and legal hurdles remaining before the action proceeds.
FWS Handbook at 4-30.
Our circuit has not interpreted the term “reasonably certain to occur,” but it has interpreted the “reasonably foreseeable” standard for assessing cumulative impacts under NEPA,
environmental consequences to include [them] in the cumulative impact calculus.” Id. at 369. We noted that the applications could ultimately be denied or approved contingent upon substantial modifications, and that even if approved, the projects might not go forward because of financing issues. Id. at 371-72.
As the petitioner, MCEAA has the burden of showing that the proposed development of the entire tract should have been treated as a cumulative effect because its development as a quarry is reasonably certain to occur. MCEAA argues that development of the entire tract is reasonably certain to occur because Vulcan has entered into long-term leases for it. But the fact of the long-term leases is not tantamount to a reasonable certainty that financial incentives will exist in the future to develop the land—certainly not in any way sufficiently specific for the respondents to conduct a meaningful scientific assessment of the development‘s effects.
MCEAA also argues, for the first time in its reply brief, that a map that Vulcan submitted to the TCEQ as part of its proposed WPAP shows specific plans for development of the entire tract. The map identifies karst features on the property and shows where those features are in relation to proposed quarry pits over the entire tract. We need not address this argument, as it is raised for the first time in a reply brief, see Alaniz v. Zamora-Quezada, 591 F.3d 761, 777 (5th Cir. 2009) (citing Peteet v. Dow Chem. Co., 868 F.2d 1428, 1437 (5th Cir. 1989)), but in any event, this argument is not persuasive. SGR clarified at oral argument that the TCEQ required a review of the proposed plans for the entire tract before awarding regulatory approval to begin quarry activities on the site,
and that the plans submitted merely reflected Vulcan‘s best guess
MCEAA also overlooks one significant contingency to the development of future quarry phases: If golden-cheeked warblers or karst invertebrates are found to live on this land, then Vulcan will be obligated under § 9 to avoid any “take,” which may in turn preclude or inhibit development of the land. In this respect, time may work in the MCEAA‘s favor: warblers may move on to the unsurveyed portions of the property before any survey work is done. There is every indication that if future surveys reveal the presence of warblers, Vulcan‘s § 9 obligations will be strictly enforced—the FWS is monitoring Vulcan in an ongoing capacity, and the MCEAA may bring a citizens’ suit to enforce compliance.
The STB‘s and FWS‘s refusal to consider the proposed development of the entire tract as a “cumulative effect” of the proposed rail did not render the Decision arbitrary and capricious. As in Gulf Restoration, MCEAA has not shown that the future phases of the quarry are free from regulatory and financial contingencies such that their occurrence would be reasonably foreseeable, much less reasonably certain. We are persuaded that the respondents’ refusal to consider the proposed development of the entire tract as a “cumulative effect” of the proposed rail did not render the Decision arbitrary and capricious.
3. The Proposed Development of the Entire Tract is Not an “Indirect Effect”
Finally, MCEAA contends that the proposed development of the entire tract should have been evaluated as an “indirect effect” of the proposed rail. The ESA regulations define “indirect effects” as “those that are caused by the
proposed action and are later in time, but still are reasonably certain to occur.”
proposed development of the entire tract as an “indirect effect” rendered the Decision arbitrary and capricious.
The complexities of the regulatory arguments on this issue also obscure a fundamental point: The STB has no authority to stop development of the quarry, which the evidence shows could and would be developed regardless of whether the rail were built. The STB had two choices: Grant the exemption and allow the rail—the environmentally preferable alternative—to go forward, or deny the exemption, in which case quarry development would progress, serviced by a more environmentally disruptive fleet of trucks. We cannot say that the STB abused its discretion in choosing the former.
B. Whether the Effects Analysis Rendered the Decision Arbitrary and Capricious
MCEAA also contends that the respondents’ analysis of the effects and cumulative effects of the proposed rail and Phase One on listed species and karst formations was so inadequate as to render the Decision arbitrary and capricious.21
MCEAA first complains that the portions of the EIS documents that considered the environmental effects of noise and vibration from the construction and operation of the rail line, and the cumulative impact of noise and vibration from the quarry, were conclusory in nature and did not specifically assess what effect these would have on listed species. MCEAA also argues that the EIS documents should have assessed the effect that lighting from the quarry‘s
projected round-the-clock operation would have on listed species.22 The respondents counter that the analysis was thorough and that the absence of analysis specific to listed species does not render the Decision arbitrary and capricious. We agree. The noise and vibration analysis, far from being conclusory, is detailed and methodical, projecting decibel and vibration levels for each of the proposed actions, assessing which residences and other structures would be affected, and proposing extensive mitigation measures. As for the absence of analysis specific to listed species, all of the survey evidence available to the STB and FWS showed that no listed species were present in the areas where the noise and vibrations were to occur—rendering analysis of effects of noise, vibration, and light on those species superfluous, if not impossible. Furthermore, the STB found, and MCEAA does not dispute, that whatever adverse noise and vibration effects the proposed rail posed, the effects from the no-action alternative would be worse. Even if the STB could have done more analysis—and the record does not show that more was required—MCEAA has not shown that the noise and vibration analysis rendered the Decision arbitrary and capricious. See Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1448 (9th Cir. 1996) (deferring to agency judgment despite “gaps and imperfections” in the administrative record).
were not surveyed, and the STB has “conclude[d] without any analysis that Vulcan‘s proposed mitigation will be sufficient.” Neither of these criticisms is supported by the record. As MCEAA has acknowledged in other parts of its briefing, Vulcan produced detailed surveys and maps of the karst features on the entire tract as part of its WPAP. The STB found, after conducting a biological analysis of the proposed rail and Phase One areas, that the mitigation measures required by the TCEQ as a condition of approval of the WPAP would adequately address any danger that these activities might pose to groundwater and karst features, or to the listed karst invertebrates that rely on them. In addition, one mandatory condition of the Decision was that SGR consult with a “karst feature specialist” and “implement appropriate mitigation measures” if it discovered any additional karst features during rail construction. MCEAA‘s critique of the STB‘s analysis of the effects on karst invertebrates lacks support in the record and does not show that the Decision was arbitrary and capricious.
Finally, MCEAA argues that the STB and FWS improperly premised their approvals of the proposed action on two mitigation measures that MCEAA contends are “unenforceable” and insufficient to mitigate the effects of the proposed action. The first such measure is Vulcan‘s commitment to maintaining a 200-foot-wide vegetated buffer along the perimeter of the site. The second is Vulcan‘s commitment to clear land only outside the golden-cheeked warblers’ breeding season. MCEAA‘s criticisms of these measures lack merit. The 200-foot-wide vegetated buffer is mandatory and enforceable as part of Vulcan‘s commitments to the TCEQ under the WPAP. And although Vulcan‘s commitment only to clear land outside the warblers’ breeding season is part of Vulcan‘s voluntary program of cooperation with the FWS to avoid violating § 9, the possible penalties and threat of citizen suits give Vulcan every incentive to
adhere to this commitment. The STB‘s and FWS‘s conclusions that these mitigating measures would provide meaningful protection to listed species are the type of technical determinations to which we accord particular deference. See Marsh, 490 U.S. at 376-77. MCEAA has not shown that the respondents’ reliance on these mitigation measures in support of their conclusions as to jeopardy rendered the Decision arbitrary and capricious.
C. The Motion to Supplement
MCEAA has moved to supplement the administrative record with two documents that contain information that MCEAA contends the agencies should have considered before reaching their determinations.23 MCEAA argues that by failing to consider the type of information contained in these documents, the agencies failed to consider the “best scientific and commercial data” in rendering their decision, as § 7 of the ESA requires. See
a reduction in the amount of available habitat.” The second document is a series of Field Season Reports that the Army submitted to the FWS between 2000 and 2008. These reports contain the results of surveys performed of Camp Bullis‘s warbler population and show an increase in the population of singing male warblers during those years.
When reviewing an agency action under the APA, we review “the whole record or those parts of it cited by a party.”
- the agency deliberately or negligently excluded documents that may have been adverse to its decision, . . .
- the district court needed to supplement the record with “background information” in order to determine whether the agency considered all of the relevant factors, or
- the agency failed to explain administrative action so as to frustrate judicial review.
Id. (internal quotation marks and citations omitted). MCEAA contends that supplementation is appropriate in this case because the FWS deliberately or negligently failed to consider the findings in its own 2005 Biological Opinion and the survey documents it received as to the effects of development on warbler habitat before concurring with the STB‘s findings in the Final EIS. The STB and FWS oppose supplementation, arguing that this is not the type of
extraordinary circumstance that merits supplementation and that there is no reason why they should have considered these documents.
The information that MCEAA urges from the proffered documents can be reduced to a simple proposition: When the golden-cheeked warbler‘s habitat is marginalized or destroyed by what MCEAA refers to as the “edge effects” of development—for example, land clearing, noise, lighting, and vibration—the warbler will move, if possible, to an area where the habitat is better. All of the survey evidence available to the STB and FWS, however, showed that there were no listed species in the proposed rail and Phase One area—rendering any analysis of whether the rail and quarry activities would drive them out of that area superfluous. Furthermore, the EIS documents discussed the quality and extent of potential habitat in the proposed rail and Phase One areas and gave extensive consideration to how construction and operations could proceed while best preserving the small amount of “low quality” habitat present in the Phase One area. The documents with which MCEAA proposes to supplement the administrative record do not contain information
MCEAA‘s petition also attached an affidavit by John Kennerly, a landowner to the north of the 1,760-acre tract, dated January 12, 2009. This
affidavit was not part of the administrative record and MCEAA has not moved to supplement the administrative record with this document. Accordingly, we do not consider Kennerly‘s affidavit in the disposition of this case.
IV. Conclusion
For the foregoing reasons, MCEAA‘s petition for review of the Decision and motion to supplement are DENIED.
Notes
include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man‘s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
MCEAA also accuses the respondents of failing to consider the WPAP as a “related study,” as it may under