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GERBER v. BABBITT

May 15, 2001

JOHN E. GERBER III, ET AL., PLAINTIFFS,
v.
BRUCE BABBITT, SECRETARY, DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS, CREEK LIMITED PARTNERSHIP, DEFENDANT-INTERVENOR.



The opinion of the court was delivered by: James Robertson, United States District Judge.

MEMORANDUM

FACTS

Home Port is a residential community development site owned by Winchester Creek Limited Partnership. It is situated in Grasonville, Queen Anne's County on Maryland's Eastern Shore. The area in which Home Port is sited is also one of the last natural habitats for the Delmarva fox squirrel, which was added to the endangered species list in 1967.
In early 1997, Mareen Waterman, president of Winchester Creek Limited Partnership, asked the Fish and Wildlife Service to determine whether an ITP would be required in order for WLCP to proceed with the Home Port development plan. The Service responded that it did not believe the development would "take"*fn1 any fox squirrels if residents took certain precautionary measures, such as strict enforcement of speed limits and leash laws for domestic pets.
In March 1998, plaintiffs — homeowners near the development and a non-profit membership organization known as Defenders of Wildlife — filed suit against the Service, claiming that its permissive response to Mr. Waterman's inquiry had violated the ESA, the NEPA and the APA. See AR 80, at 2. That suit was dismissed without prejudice pursuant to a stipulation that the Service would "submit to the Federal Register for publication notice of availability of a draft [Habitat Conservation Plan (HCP)] and application for an [ITP] for the proposed Homeport on Winchester Creek residential development project." Later that month, the Service issued a draft environmental assessment (EA), a draft HCP, and an agreement with WCLP governing the terms of development. The Service published notice in the Federal Register that these documents were available for inspection at its Chesapeake Bay field office, and it mailed courtesy copies of them to plaintiffs pursuant to the stipulation. The courtesy copies did not include a map of the off-site mitigation site referenced in the draft HCP. (Plaintiffs subsequently made a FOIA request to the Service for all documents relating to the Home Port Development. In its FOIA response, the Service took the position that, except for the draft EA and HCP and the ITP application, documents relating to the Home Port site were "privileged and exempt from disclosure under [FOIA]." AR 161.)
Plaintiffs submitted numerous comments to the Service regarding the proposed development, but they maintained in their submissions that they were unable to comment meaningfully on the mitigation site because they lacked any information about it. After the public comment period had ended, the Service, in response to plaintiffs' inquiry, admitted that it had failed to provide them with a map or the location of the off-site mitigation area. In response to public comment, it made the location of the mitigation site and a map available to the public, but it refused to extend the comment period to allow plaintiffs to address the mitigation site specifically.
In May 1999, the Service announced its approval of the Home Port HCP and issued an ITP. Plaintiffs sent a formal objection, asserting that the Service had failed to adhere to the ESA and hte NEPA and again requesting that the comment period be reopened. The Service rejected that request.
Plaintiffs then sued again and moved for a preliminary injunction. I denied that motion on November 17, 1999.

ANALYSIS

Plaintiffs' motion for summary judgment argues that the Service violated the ESA, the NEPA, and the APA by: 1) failing to make the mitigation site location available for public comment; 2) failing to analyze whether WCLP would "minimize and mitigate" to the "maximum extent practicable" the project's impact; 3) failing to prepare an Environmental Impact Statement (EIS); and 4) failing to reinitiate consultation despite a change in conditions following approval of the ITP.

1. The availability of the mitigation site location and map

Plaintiffs assert a number of grievances about what they view as a calculated effort on the part of the Service to keep them in the dark about the mitigation site that was offered by WCLP: that the Service wrongfully failed to send them a copy of the site map with their courtesy copy of the other materials; that the Service wrongfully withheld the map from its response to plaintiffs' FOIA request; that they never had specific notice that the map was available for public inspection at the Service's field office; and that probably the map was probably not there and available for inspection anyway.

The record does not permit these grievances to be completely resolved,*fn2 but they are not dispositive of or even central to the issues in the case. Plaintiffs were able to, and did, provide extensive commentary on the ITP application without knowing the precise location of the mitigation site. Plaintiffs point to no ...


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