United States District Court, District of Columbia
May 15, 2001
JOHN E. GERBER III, ET AL., PLAINTIFFS,
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.
Plaintiffs bring this action claiming that the Fish and Wildlife
Service violated the National Environmental Policy Act, the Endangered
Species Act, and the Administrative
Procedures Act by issuing an Incidental Take Permit (ITP) for the Delmarva
fox squirrel in connection with the construction of the Home Port
Development at Winchester Creek in Queens County, Maryland. Plaintiffs also
allege that the Service was statutorily required to reinitiate consultation
once it learned that a proposed roadway would result in increased area road
traffic, which is the leading cause of fox squirrel "takes." Before me are
cross-motions for summary judgment. For the reasons that follow,
defendants' motions for summary judgment will be granted.
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
Plaintiffs then sued again and moved for a preliminary injunction. I
denied that motion on November 17, 1999.
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 authority for the proposition
that they were entitled to know every detail of the HCP.
Indeed, plaintiffs have not shown that they would have offered any
additional commentary if they had been shown the map. The record reveals
that plaintiffs' general concerns about the site were considered by the
Service, which is all that is required by NEPA. See Robertson v. Methow
Valley Citizens Council, 490 U.S. 332, 352-53 (1989) (NEPA requires
informed decisions, not substantive results, and it does not require
mitigation plans be fully developed). And, under the APA's harmless
error provision, see 5 U.S.C. § 706, there is nothing in either the
plaintiffs' prior submissions or their fully informed arguments here that
was not adequately considered by the Service during the decisionmaking
process.*fn3 Any procedural violation
by the Service in failing to make the mitigation site location and map
public "clearly had no bearing . . . on the substance of the decision
reached." Steel Manufacturers Ass'n v. EPA, 27 F.3d 642,
649 (D.C. Cir. 1994) (quoting Chemical Mfrs. Ass'n v. EPA,
870 F.2d 177, 202, clarified, 885 F.2d 253 (5th Cir. 1989)).
2. The Service's analysis of the proposed development Plaintiffs raise
numerous complaints about the adequacy of the Service's analysis of the
proposed development and WCLP's proposed mitigation efforts.
The Service cannot mandate that an applicant for an ITP implement any
one particular alternative. While the Administrative Record demonstrates
that the Service was aware that moving the access road might result in a
slightly decreased incidence of DFS takes, it ultimately concluded that
moving the road would require WCLP to stop work on the Home Port project
and to reinitiate state zoning and permit application procedures. Given
both the Service's and the developer's expertise in such projects, their
conclusion that this would render the project impractical is entitled to
deference, and plaintiffs have failed to establish that it was
arbitrary, capricious or not in accordance with law.
3. Failure to prepare an EIS
"[A]n EIS must be prepared only when significant environmental impacts
will occur as a result of the proposed action." Cabinet Mountains
Wilderness v. Peterson, 685 F.2d 678, 682 (D.C. Cir. 1982). My review of
the Service's decision as to whether an EIS is necessary involves
evaluating only whether it has taken a "hard look" at the environmental
impact and documented "its determination of `no significant impact.'"
Friends of the Ompompanoosuc v. FERC, 968 F.2d 1549, 1556 (2d Cir. 1992)
(quoting Town of Orangetown v. Gorsuch, 718 F.2d 29, 34 (2d Cir. 1983)).
The Service considered all relevant factors, including the best available
scientific evidence and the precedential value of the decision, see
40 C.F.R. § 1508.27(b)(9), and concluded that the mitigation measures
proposed by WCLP would be more than adequate. The Service has taken the
required "hard look."
4. Failure to reinitiate consultation
Plaintiffs' argument that the Service was required to reinitiate
consultation rests on its submission that there was "new information . . .
that may affect [the fox squirrel] or critical habitat in a manner or
to an extent not previously considered." 50 C.F.R. § 402.16.
Plaintiffs allege that the Service failed to consider: 1) a overpass for
Highway 50 and an access road that might be built near the mitigation
site; and 2) the potential development of another subdivision near the
mitigation site. The Service has convincingly demonstrated that it is
not required to reinitiate consultation on either of these grounds. The
highway project is not close enough to the mitigation site to pose a
threat to the fox squirrel under the Service's guidelines, and any
highway project will in any event require separate ESA consultation prior
to finalization and construction. The development near the mitigation
site was known to the Service at the time of its decision to issue the
ITP and is not "new information" requiring additional consultation.
An appropriate order accompanies this memorandum.
For the reasons stated in the accompanying memorandum, it is this ___
day of May, 2001,
ORDERED that plaintiffs' motion for summary judgment [#53] is denied.
And it is
FURTHER ORDERED that defendants' motions for summary judgment [#63, 68]