Posted on May 21, 2009 by Patricia Barmeyer
The Eleventh Circuit has waded, again, into the ongoing debates over restoration of the Everglades. In addressing yet another lawsuit filed by the Miccosukee Tribe, the Court largely upheld the Fish & Wildlife Service’s delicate balance between the competing and inconsistent habitat needs of the Cape Sable seaside sparrow and the Everglade Snail kite, both endangered species. The seaside sparrow needs stable low water levels below a certain water control structure; the kite’s habitat is destroyed by the resulting rising water levels in the impoundment. The FWS issued a biological opinion allowing the Corps of Engineers to operate the structure to avoid extinction of the sparrow and to conduct an incidental take of the kite. While largely affirming the agency, the Eleventh Circuit reversed on the issue of the trigger that would require initiation of consultation under Section 7 and, along the way, made new law in this circuit on several important issues.
First, the court rejected the tribe’s argument, often advanced by conservation groups in ESA litigation, that the ESA requires that FWS “give the benefit of the doubt to the species.” The court held that this language, taken from a conference committee report, does not mean that the FWS is required to issue a jeopardy opinion if the evidence is evenly balanced between likely jeopardy and likely no jeopardy. Rather, the Eleventh Circuit explained, the language was intended to prevent FWS from shirking its consultation duties by relying on scientific uncertainty, but did not require any substantive result. The court held that “the need to give a species the benefit of the doubt cannot stand alone as a challenge to a biological opinion.”
Second, the court held that the FWS Consultation Handbook, which is not a formal rule, is nevertheless entitled to Chevron deference because it was adopted after notice and comment, citing Nw. Ecosystem Alliance v. United States Fish & Wildlife Service, 475 F.3d 1136, 1142-43 (9th Cir. 2007).
Third, the court rejected the argument that negative impacts on a species’ critical habitat must be permanent to amount to “adverse modification” under the ESA. Writing for the court, Judge Carnes noted: “It is not enough that the habitat will recover in the future if there is a serious risk that when that future arrives the species will be history.”
Finally, the Eleventh Circuit invalidated the incidental take statement because it used a habitat indicator — specific water levels– as a proxy to establish the trigger that would require the agency to reinitiate the Section 7 consultation process. The court held that the FWS’ use of a habitat indicator as a proxy, as provided for in the Consultation Handbook, fails Chevron step one, based on its conclusion that the legislative history of the ESA clearly indicates Congressional intent that actual population data must be used as the trigger for re-consultation, unless the agency demonstrates that it is impracticable to do so. Further, even if the agency can demonstrate the need to use a habitat proxy, the habitat proxy trigger must be addressed to the specific habitat needs of the species.
This decision, reviewing the FWS’ attempt to manage challenging species protection problems and breaking new ground on ESA legal issues, is sure to be much-cited and widely debated.
Tags: Endangered Species Act