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GERBER v. BABBITT
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.
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 ...
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