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Hawksbill Sea Turtle v. Federal Emergency Management Agency

September 22, 1997

HAWKSBILL SEA TURTLE; GREEN SEA TURTLE (CHELONIA MYDAS); VIRGIN ISLANDS TREE BOA (EPICRATES MONENSIS GRANTI); JEFFREY WEISS; DAVID A. BRENER; ALAIN M. BRIN; GARY E. BRIN; ROBERT COCKAYNE; SALLY COCKAYNE; ROBIN COCKAYNE; FRANK DALY; ANNETTE DALY; JOAN E. DELUGO; DOROTHY DRUMMEY; EASTWIND ASSOCIATION; JANET EGBERT; W. HOUSTON EVAN, II; WALTER FEDDERSEN; DEBORAH FOSTER; RICHARD FOSTER; JOHN FREEMAN; PATRICIA FREEMAN; BONNIE GRAY; SANFORD GRISHMAN; LISA GAYE HALL; IVERINE HEDRINGTON; HARRY ILLINGWORTH; KIMBERLY JONES; GREGORY JOSEPH; SUSAN KARDYS; NELSON KELLER; ANDREA KING; CRAIG LUCAS; ANDREW MARON; CATHY MARON; PAUL V. MAYNARD, M.D.; ROSALYN MOSS; WILLIAM MOSS; JO NORTON; LARRY NORTON; DR. MAXINE A. NUNEZ; EDMOND G. RAWSON, III; SUSAN RAWSON; ROBERT M. PETERSEN; PAIGE SANTIAGO PASSANO; MAXINE LAVITT; JOSEPH SELFRIDGE; ERIC SOLDIEW; ELLEN STEWART; CLARE TYSON; JOHN T. WAGNER; DELORES WAGNER; RUSSELL WHITE

v.

FEDERAL EMERGENCY MANAGEMENT AGENCY, AN AGENCY OF THE UNITED STATES OF AMERICA; WITT, JAMES LEE; DEPARTMENT OF INTERIOR, AN AGENCY OF THE UNITED STATES OF AMERICA; BABBIT, BRUCE, SECRETARY OF THE INTERIOR THE HAWKSBILL SEA TURTLE (ERETMOCHELYS IMBRICATA); THE GREEN SEA TURTLE (CHELONIA MYDAS); THE VIRGIN ISLANDS TREE BOA (EPICRATES MONENSIS GRANTI); A. JEFFREY WEISS; DAVID A. BRENER; ALAIN M. BRIN; GARY E. BRIN; ROBERT COCKAYNE; SALLY COCKAYNE; ROBIN COCKAYNE; FRANK DALY; ANNETTE DALY; JOAN E. DELUGO; DOROTHY DRUMMEY; EASTWIND ASSOCIATION; JANET EGBERT; W. HOUSTON EVANS, II; JANE FEDDERSEN; WALTER FEDDERSEN; DEBORAH FOSTER; RICHARD FOSTER; JOHN FREEMAN; PATRICIA FREEMAN; BONNIE GRAY; SANFORD GRISHMAN; LISA GAYE HALL; IVERINE HEDRINGTON; HARRY ILLINGWORTH; KIMBERLY JONES; GREGORY JOSEPH; SUSAN KARDYS; NELSON KEELER; ANDREA KING; CRAIG LUCAS; ANDREW MARON; CATHY MARON; PAUL V. MAYNARD, M.D.; ROSALYN MOSS; WILLIAM MOSS; JO NORTON; LARRY NORTON; DR. MAXINE A. NUNEZ; EDMOND G. RAWSON, III; SUSAN RAWSON; SHARON J. PETERSEN; ROBERT M. PETERSEN; PAIGE SANTIAGO-PASSANO; MAXINE LAVITT-SAWYER; JOSEPH SELFRIDGE; ERIC SOLDIEW; ELLEN STEWART; CLARE TYSON; JOHN T. WAGNER; DELORES WAGNER; RUSSELL WHITE, APPELLANTS



On Appeal From the District Court of the Virgin Islands (Division of St. Thomas and St. John)

(D.C. Civ.No. 96-cv-00114)

Before: BECKER, ROTH, and WEIS, Circuit Judges.

BECKER, Circuit Judge.

Filed September 22, 1997

Argued April 8, 1997

(Filed September 22, 1997)

OPINION OF THE COURT

This appeal from an order of the district court denying injunctive relief under the Endangered Species Act ("ESA"), 16 U.S.C. Section(s) 1536 et seq., presents a number of interesting questions under the ESA and under the law of collateral estoppel. The plaintiffs, who include (by their popular names) the Hawksbill Sea Turtle, the Green Sea Turtle, and the Virgin Islands Tree Boa, which are endangered or threatened species, and also a number of individuals who own real property and reside in the vicinity of Vessup Bay in the east end of St. Thomas (the habitat of these species), filed suit to enjoin the construction of a temporary housing project in nearby Estate Nazareth. The project was a hurried response to the devastation wrought by Hurricane Marilyn, which struck St. Thomas in December 1995 and displaced many people from their homes. The gravamen of the complaint is that the project would cause harm to the turtles and the Tree Boa species in violation of the ESA.

This is the plaintiffs' second lawsuit. In theirfirst action, see Virgin Islands Tree Boa v. Witt, 918 F. Supp. 879 (D.V.I. 1996), plaintiffs alleged that the Federal Emergency Management Agency ("FEMA"), the United States Fish and Wildlife Service ("FWS"), and instrumentalities of the Virgin Islands Territorial Government had violated the ESA as well as the National Environmental Policy Act ("NEPA") because they had failed to follow specific procedures which are designed to ensure that the relevant governmental actors had adequately considered the risks that the housing project threatened to inflict on the Tree Boa and the marine environment of Vessup Bay during the planning and construction phase.

The case was assigned to Judge Finch, who held an evidentiary hearing held in late January 1996. In a written opinion, Judge Finch found that there was no clear evidence that Tree Boas actually inhabited the project site or that the project site was the source of sedimentation run-off into Vessup Bay. Also satisfying himself as to the adequacy of FEMA's proposed mitigation measures, he concluded that defendants had satisfied their duties under the ESA and NEPA, and denied plaintiffs' request for preliminary injunctive relief. With respect to plaintiff's ESA claims, Judge Finch did not address the substantive requirements of Section(s) 9 of the Act, holding only that with respect to the procedural requirements of Section(s) 7, the defendants had engaged in the requisite consultation process so as to "fulfill their duty to safeguard the future of the Tree Boa." Judge Finch alternatively found that he felt compelled to dismiss the ESA claims for failure to satisfy the statute's notice requirements, and we affirmed. See Virgin Islands Tree Boa v. Witt, 82 F.3d 408 (3d Cir. 1996) (table).

Plaintiffs then discontinued that action and instituted the present action, which is against the federal defendants only, still seeking to enjoin the construction and occupation of the housing project. See Hawksbill Sea Turtle v. FEMA, 939 F. Supp. 1195 (D.V.I. 1996). In the new action, plaintiffs sought injunctive relief only under the ESA, alleging that, in providing the temporary housing shelters, defendants had violated the procedural requirements of Section(s) 7 and the substantive requirements of Section(s) 9, thereby causing irreparable harm not only to the endangered Tree Boa but also to the endangered Hawksbill Sea Turtle and the threatened Green Sea Turtle. Judge Brotman, to whom the matter was reassigned following Judge Finch's recusal, held a hearing in early August 1996 and received substantial evidence in addition to that taken by Judge Finch, including new and qualitatively different evidence that was favorable to plaintiffs.

At the threshold, Judge Brotman decided that, with regard to the turtles, plaintiffs had not satisfied the requirements of the ESA that notice be given to the appropriate cabinet officer, which is a prerequisite to their right to sue. Additionally, Judge Brotman gave preclusive effect to the factual findings made by Judge Finch in the previous action, relying extensively on Judge Finch's finding that FEMA's mitigation measures were adequate to protect the Tree Boa and the marine environment of Vessup Bay. Then, basing his decision almost entirely on Judge Finch's findings and not on the significant new evidence that he had received, Judge Brotman concluded that plaintiffs had not shown a likelihood of success on the merits of their ESA claims or irreparable harm to the species they sought to protect because "[w]ith the mitigation measures in place, the temporary housing project at Estate Nazareth will not affect adversely the Tree Boa, the Hawksbill Turtle, the Green Sea Turtle, or these animals' habitats." Id. at 1210. He denied preliminary injunctive relief, and plaintiffs now appeal.

As an initial matter, this appeal requires us to determine whether satisfaction of Section(s) 11 of the ESA, 16 U.S.C. Section(s) 1540(g), is a prerequisite to plaintiffs' suit with respect to the turtles because the plaintiffs failed to notify the Secretary of Commerce of their intent to sue sixty days before filing this action. Under the ESA and the regulations promulgated thereunder, the Secretary of Commerce must be notified of claims concerning endangered sea turtles in a marine habitat. The plaintiffs had given notice of their suit only to the Secretary of the Interior, whom the ESA and its regulations requires to be notified of claims concerning harm to sea turtles in a terrestrial habitat. Plaintiffs submit that the duplicitous notice requirements are not only fatuous, particularly with respect to the Hawksbill Sea Turtle which occupies both habitats and surely does not know when it crosses from the jurisdiction of the Secretary of Commerce to that of the Secretary of the Interior, but also extraordinarily difficult to decipher given the complexity of the regulatory scheme.

We acknowledge the difficulty that the public must have in understanding the highly technical nature of the statutory scheme, quite forcefully elucidated in Judge Roth's dissent. However, Section(s) 11 and its accompanying regulations still must be given effect, and as we read them, they mandate that, with respect to the turtles, notice to the Secretary of Commerce was required before filing suit. Plaintiffs, who were represented by counsel at all times, failed to comply with this requirement. On this basis, the district court noted that, even if plaintiffs could establish sufficient evidence to merit the issuance of injunctive relief as to the Hawksbill and Green Sea Turtles, "this court would dismiss these claims for failure to comply with the ESA's notice requirement." 939 F. Supp. at 1203. Although the district court did not formally dismiss plaintiffs' claims with respect to the sea turtles, it should have done so.

We next consider plaintiffs' challenges to the district court's denial of injunctive relief. The foremost consideration here is whether Judge Brotman erred in giving preclusive effect to Judge Finch's factual findings in determining whether to grant injunctive relief to the plaintiffs. Plaintiffs assert that, because a preliminary injunction proceeding is not "final," findings made in the course of such a proceeding are not entitled to preclusive effect. They also contend that, with respect to their ESA claims, because Judge Finch provided alternative holdings in support of his decision, any findings relating to those claims are dicta and cannot support collateral estoppel. Additionaly, they claim that, since the issues actually litigated in the first proceeding pertained to NEPA violations, not ESA violations, there were not identical issues present here and hence there is no basis for preclusion. Finally, plaintiffs submit that, irrespective of the operative statutory authority, Judge Brotman was presented with new and qualitatively different evidence from that which was before Judge Finch, so that Judge Finch's findings of fact were limited to the time of the first hearing and could not appropriately be given preclusive effect.

We do not agree that factual findings established in cognate prior litigation can never be given preclusive effect. However, because Judge Finch's findings made with respect to plaintiffs' ESA claims were clear dicta, they can not support the application of collateral estoppel. To be sure, some factual findings, made with respect to the NEPA claims, might have merited the application of collateral estoppel had they been addressed to a contemporaneous ESA claim. However, plaintiffs' second suit presented a new and significantly different factual setting, such that Judge Finch can not be said to have decided the same issues as were presented by plaintiffs' second action. More specifically, in the six months that lapsed between the two proceedings, plaintiffs discovered quantitatively different evidence of live, injured, and dead Tree Boas near the project site, in contrast to Judge Finch's findings that no Tree Boas existed on the project site. This finding had driven his conclusion that the mitigation measures were adequate to "safeguard the future of the Tree Boa."

Under these circumstances, it was incumbent upon Judge Brotman to ground his findings on the new evidence. We also note that, in making his findings, Judge Finch had credited the defendants' representation that the housing project was temporary in nature, and he reviewed mitigation measures that were designed for a project of six months duration. However, by the time of the evidentiary hearing before Judge Brotman, the project had been under construction for eight months, and defendants had represented to the court that the project was now expected to last up to eighteen months past the completion of construction. In sum, Judge Brotman erred when he decided that Judge Finch's findings barred relitigation of the factual issues presented by plaintiffs' claims.

This result is buttressed by the impact of the current serious adverse financial condition of the Virgin Islands Housing Authority ("VIHA"). It is now clear that the project is in limbo, as there are insufficient funds to continue construction or to take it down. *fn1 These pragmatic factors combined with the significance of the new evidence before Judge Brotman further counsel the need for a new and unconstricted look at plaintiffs' claims.

For the foregoing reasons, we will reverse the order of the district court and remand to the district court for reconsideration of plaintiffs' motion for a preliminary injunction with respect to the Tree Boa in light of all relevant evidence available to it. As this matter must come before the district court for final hearing, we suggest to the district court that it consolidate the preliminary injunction hearing and final hearing pursuant to Fed. R. Civ. P. 65, and in view of the distressed situation of the project, that it list the matter for an early hearing. *fn2

I. Facts & Procedural History

The underlying facts are set forth in detail in Virgin Islands Tree Boa, 918 F. Supp. at 884-91, and Hawksbill Sea Turtle, 939 F. Supp. at 1197-99. For present purposes, we make only the following general account.

A. The Estate Nazareth Project

In September 1995, Hurricane Marilyn struck the Virgin Islands, displacing hundreds of people from their homes and causing extensive property damage. Indeed, five months after the hurricane, many low-income residents of St. Thomas were still living in emergency shelters or in condemned homes. President Clinton declared the Virgin Islands a disaster area, and FEMA made funds available to the Virgin Islands Housing Authority for a housing project, which would consist of prefabricated structures sufficient to house 550 people. VIHA reviewed several sites and selected an area of 8.5 acres at Estate Nazareth, which is adjacent to Vessup Bay. As originally planned, the project would be temporary, as the displaced persons would live on the project site only until VIHA repaired their permanent housing. VIHA expected the number of persons residing at Estate Nazareth to decrease rapidly in the first six months.

In preparation for the Estate Nazareth project, FEMA prepared a Final Environmental Assessment Report (the "EA"), in which it analyzed any effects the project might have on the environment, discovering in the process that the project site may be a prime habitat of the endangered Virgin Islands Tree Boa (Epicrates monensis granti). FEMA, in consultation with FWS and the local Division of Fish And Wildlife ("DFW"), developed certain mitigation measures intended to avoid significant harm to the Tree Boa species. The measures included hand clearing of brush prior to the operation of any machinery on site, and collection and transfer of any snakes found. The procedure of looking for Tree Boas, which are nocturnal animals, would involve examining the rocks and brush where the snakes take refuge during the day. The EA also proposed the restoration of habitat following dismantling of the project.

FEMA also recognized that Vessup Bay was a "sensitive habitat," which would receive the run-off from the housing project. Although the EA failed to mention the Hawksbill and Green Sea Turtles specifically, both are endangered or threatened species that have habitats in the Bay. The EA described measures designed to mitigate the effects of sedimentation and sewage run-off, including sewage control, land clearing guidelines, and prevention of soil erosion. The EA was issued on November 16, 1995. On the same day, FEMA issued a Finding of No Significant Impact, in which it expressed its conclusion that the mitigation measures provided for in the EA would compensate for any significant environmental impacts that might occur.

On December 4, 1995, construction of the Estate Nazareth housing project began. The site was cleared in the manner designated by the Tree Boa mitigation measures provided for in the EA. No Tree Boas were found. Mitigation measures intended to retard soil erosion were also instituted. Following rain showers in mid-January 1996, sediment began to appear in Vessup Bay. In the course of construction, VIHA performed mitigation measures in addition to those recommended by the EA, including laying down gravel and installing silt fences, in order to prevent further runoff into the Bay.

To date, construction of thirty-eight buildings has been completed, thirty-one of which are occupied. Forty two units are nearly ready for occupancy but another sixty are far from completion. Although originally intended to last six months, as FEMA has now described the project, it will last no more than eighteen months from the date of completion or occupation.

B. The First Action

In the first action, eighty-six St. Thomas residents and property owners, together with the Virgin Islands Tree Boa as a named plaintiff, brought suit against FEMA, the FWS, the Governor of the Virgin Islands, the Commissioner of the Virgin Islands Department of Planning and Natural Resources, the Executive Director of VIHA, and VIHA, seeking to enjoin the construction and occupation of the housing project on the grounds that the defendants had violated various federal and territorial laws. Only the claims based on the ESA and NEPA are relevant here; Judge Finch rejected the others as infirm as a matter of law, and those rulings are not appealed. Plaintiffs asserted that FEMA and FWS had failed to fulfill their duties under the ESA. Virgin Islands Tree Boa, 918 F. Supp. at 892. More specifically, plaintiffs claimed that in the course of defendants' construction of the housing project, defendants had failed to conserve the protected species, as required bySection(s) (7)(a)(1), *fn3 or to ensure through consultation with various agencies and the preparation of a "biological assessment" that the project would not jeopardize the continued existence of the Tree Boa and sea turtles, as required by Section(s) 7(a)(2) and Section(s) 7(c)(1). *fn4 Additionally, plaintiffs alleged that construction and occupation of the temporary housing project effectuates a "taking" of the Tree Boa and sea turtles in violation of Section(s) 9(a) of the ESA. *fn5 Finally, plaintiffs complained that FEMA had prepared an Environmental Assessment ("EA") instead of a more detailed Environmental Impact Statement ("EIS") in violation of NEPA.

Judge Moore granted a temporary restraining order to the plaintiffs and then recused himself. Judge Finch was then assigned the case, and from January 29 through 31, 1995, he held an evidentiary hearing on plaintiffs' motion for a preliminary injunction. Plaintiffs' expert on the Tree Boa and their habitat, Dr. Peter Tolson, testified that the Estate Nazareth housing project is a prime habitat for the Tree Boa, and that construction of the project has jeopardized and will continue to jeopardize the existence of the Tree Boa by reducing its habitat and increasing the chances that Tree Boas will be killed by humans and feral animals. He testified that, at the time of the hearing, the latest sighting of a Tree Boa of which he was aware was in the Fall of 1995, before Hurricane Marilyn. Plaintiffs also presented evidence that the increased sedimentation in Vessup Bay would damage the sea grass beds on which the turtles depended for food.

Defendants adduced testimony that efforts to locate Tree Boa conducted during the day on the Estate Nazareth project site had failed to demonstrate the Tree Boa's existence there. Additionally, defendants presented evidence of FEMA's mitigation efforts, as proposed and implemented as of that stage in the project. With regard to the sedimentation build-up in Vessup Bay, defendants developed evidence that the run-off came from an alternative source, id. at 899, and that mitigation efforts would reduce the possibility that run-off would carry soil into Vessup Bay.

Based on this evidence, Judge Finch entered an order denying the motion for a preliminary injunction. With respect to the Tree Boa, Judge Finch noted that the court could not find that the snakes did in fact live at the project site. Id. at 892. Additionally, he found that, "[w]hile some question remains about the adequacy of the mitigation measures as they existed in early January of this year," the project provided for adequate mitigation of potential adverse effects on the Tree Boa and its habitat, and that "people already living nearby, cars traveling through the area, and animals pose enough threat that the temporary addition of at most 550 people ... poses no significant increase in the dangers already facing the Tree Boa." Id. at 891. Based on these factual findings, the judge concluded that FEMA had complied with NEPA's procedural requirements when it conducted the EA. Id. at 898.

Addressing plaintiffs' ESA claims, Judge Finch held that FEMA had conducted the "Section 7 consultation" with FWS necessary to ensure that it did not take an action that jeopardized the "continued existence of the Tree Boa." Id. at 901-02. Without specifically addressing plaintiffs' Section(s) 9 claim, Judge Finch noted that, even if the plaintiffs could succeed on the merits, he would have to dismiss their ESA claims for failure to provide notice to the Secretary of Commerce and the defendants, as the statute and its implementing regulations require.

With respect to plaintiffs' ESA claims regarding the Hawksbill and Green Sea Turtles, Judge Finch noted that, because plaintiffs had failed to allege that any harm had occurred or would occur to either species of turtle or to the grasses upon which the turtles feed, the claims were not properly before the court. Id. at 892, n.23, & 899-900. Judge Finch determined as a matter of fact that, even if they had brought viable claims with respect to the turtles, plaintiffs had failed to "prove sufficiently that the Estate Nazareth Project was the source of any run-off into Vessup Bay." Id. at 900. The plaintiffs appealed to this Court and we affirmed. Virgin Islands Tree Boa v. Witt, 82 F.3d 408 (3d Cir. 1996) (table).

C. The Second Action

Before the case in front of Judge Finch could proceed to a final hearing, the plaintiffs voluntarily dismissed that action under Fed. R. Civ. P. 41(a). Forty-seven of the original property owners then joined with five additional property owners and two new animal species -- the Hawksbill Sea Turtle and the Green Sea Turtle -- as named plaintiffs, and moved for a temporary restraining order in the District Court for the District of Columbia. Pursuing claims under the ESA only, plaintiffs alleged that, in the course of construction of the housing project, defendants had violated Section(s) (7)(a)(1) and (2), Section(s) 7(c)(1), and Section(s) 9. The district court denied plaintiffs' request for temporary injunctive relief and transferred the case to the District Court of the Virgin Islands.

Judge Brotman, to whom the case was reassigned after Judge Finch recused himself, held an evidentiary hearing on August 7 and 8, 1996 on plaintiffs' application for a preliminary injunction. Plaintiffs presented an affidavit from Dr. Tolson in which he reiterated his belief that the project site was a prime habitat for Tree Boas and that development of the site has had and will continue to have detrimental effects on the Tree Boa population and its habitat. More specifically, he testified that the Tree Boa population would be threatened by an influx of feral predators and human predators, that habitat near the project site cannot support Tree Boas fleeing the cleared project site, and that as more Tree Boas die, there will be a concomitant reduction in the genetic viability of the species, and thus a further risk to its survival.

Dr. Tolson also stated that in the brief period since February 1996 there had been six documented sightings of Tree Boas within one half mile of the project site, in contrast to the thirty-eight sightings reported since the early 1970's. This translates to .85 Tree Boa sightings per month since construction on the Estate Nazareth, as compared to an average of .13 per month in the period before construction. Plaintiffs also presented the affidavit of a lay witness, who testified to observing a live Tree Boa within one half mile of ...


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