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National Wildlife Federation v. Harvey

July 20, 2006

NATIONAL WILDLIFE FEDERATION AND ARKANSAS WILDLIFE FEDERATION PLAINTIFFS
v.
FRANCIS J. HARVEY, IN HIS OFFICIAL CAPACITY AS ACTING SECRETARY OF THE U.S. DEPARTMENT OF THE ARMY AND GALE NORTON, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF THE INTERIOR DEFENDANTS



The opinion of the court was delivered by: Wm. R.Wilson, Jr. United States District Judge

ORDER

A Complaint*fn1 and Motion*fn2 were filed by Plaintiffs asking for an injunction to stop work on the Grand Prairie Project ("GPP"), pending completion of a supplemental Environmental Impact Statement ("EIS"), in accordance with the National Environmental Policy Act ("NEPA"), and a formal consultation under the Endangered Species Act ("ESA"). Jurisdiction is asserted under the Administrative Procedure Act (APA).*fn3

Defendants, Francis J. Harvey and Gale Norton,*fn4 are sued in their official capacities as Secretary of the Army and Secretary of the Department of the Interior. Secretary Norton delegated all responsibility on this issue to the United States Fish and Wildlife Service ("FWS"), and Plaintiffs are specifically challenging the Army Corps of Engineers ("Corps").

I. Introduction

Completion of the Grand Prairie Project ("GPP") and the protection of the Ivory-billed Woodpecker ("IBW") are at the heart of this case. The question is whether the two interests conflict; i.e., will completion of the Grand Prairie Project diminish the Ivory-billed Woodpecker's chance for survival?

Some doubt the existence of the IBW. Often things in the natural world, as well as in other worlds, cannot be proved to a certainty. And it may well be that doubts in this instance are justified, at least to some extent. Here, however, the parties have stipulated that the IBW exists, so for purposes of this case, it does.

For the reasons set forth below, Plaintiff's Amended Motion for Preliminary Injunction based on alleged violations of the National Environmental Policy Act is DENIED. Plaintiff's Amended Motion for Preliminary Injunction based on a likely violation of Section 7 of the Endangered Species Act is GRANTED.

A. The Grand Prairie Project*fn5

The GPP is designed to prevent the depletion of the Alluvial and Sparta aquifers by pumping water from the White River and delivering it to some of the Grand Prairie farmland, by constructing a pumping station, and employing a system of canals, pipelines, and streams. Based on the current rate of usage, it is estimated that the Alluvial aquifer will go dry, or nearly so, in four to nine years. Many scientist believe that, if the Alluvial aquifer drys up, it could contaminate the underlying Sparta aquifer. Preservation of the Alluvial aquifer will benefit (perhaps save) the Sparta aquifer. This aquifer flows under several states including Arkansas, Louisiana, Missouri, Tennessee, and Mississippi. The potential depletion and destruction of the aquifers is of great concern to economic and agricultural interests -- it is also an important environmental concern.

The pumping station for the GPP will be located next to the White River, northeast of DeValls Bluff, Arkansas.*fn6 The GPP's pumping station, water withdrawal, and water delivery system will affect the Cache River Wildlife Refuge and the Wattenensaw Wildlife Management Area.*fn7 Importantly, the GPP's impact area will include the White River National Wildlife Refuge*fn8 -- home of the largest remaining bottomland ecosystem on any tributary of the Mississippi River. The area is renowned for its fish and wildlife, and is the last known North American refuge of the IBW.

B. The Ivory-billed Woodpecker

The IBW is the largest woodpecker in the United States and the second largest in the world.*fn9 Before 2004, it was believed to be extinct. It was last seen in northeastern Louisiana in the 1940's.*fn10 In April 2005, scientists confirmed that it was seen in the Cache River National Wildlife Refuge, and heard in the White River National Wildlife Refuge, several miles to the South.

The bird's moniker is "Lord God Bird," because, according to lore, it is so majestic that, when it was seen, people exclaimed, "Lord God!" It is also known as the "Grail" bird, because, in the last 60 years, searching for it was akin to searching for the Holy Grail.

The IBW thrived in the once untouched forests that covered the southeastern United States -- in the delta of the Mississippi and Ohio Rivers. It is a reclusive bird that prefers large expanses of bottomland swamp forest and extensive wilderness.*fn11 As the forest began disappearing, so did the IBW.*fn12

In order to thrive, the IBW must have uninhabited forest with old-growth trees and a continuous supply of newly dead trees. A single breeding pair may need as much as seventeen square miles of forest bottomland.*fn13 The IBW forages in trees greater than 11.8 inches in diameter, where they feed on beetles and beetle larvae in dead trees, and on ground dwelling insects.*fn14 It is known to nest forty feet above ground in large dead trees or in dead portions of live trees.

It was sighted in February and filmed in April 2004, in the Cache River National Wildlife Reserve, north of Stuttgart, Arkansas and west of Carlisle, Arkansas, along Interstate 40.*fn15 Sound recordings were made of the IBW in January 2005 in the White River National Wildlife Refuge, south of DeWitt, Arkansas in the lower White River Basin.*fn16

The costs of allowing an endangered species, such as the IBW, to become extinct are "incalculable."*fn17

II. Background

In 1996, Congress authorized the Grand Prairie Region and Bayou Meto flood control project.*fn18 The Corps, after years of studying plans for agricultural water supply, groundwater management, and conservation, issued a draft Environmental Impact Statement (EIS) in 1998. After public comment, the Corps issued the final EIS in 1999. After a second round of public comment, the project was approved by a Record of Decision ("ROD") of the Corps which was signed in February 2000.*fn19

Four years later, the project was challenged by the Arkansas Wildlife Association, the National Wildlife Association, and other conservation groups. A complaint was filed in February 2004, alleging violations of NEPA and requesting preliminary and permanent injunctions.

On March 4, 2004, the Corps issued a draft Environmental Assessment ("EA") that addressed changes to the original plan, primarily requiring the replacement of canals with pipelines. A Finding of No Significant Impact ("FONSI") was issued by the Corps on July 2, 2004. The final EA calculated that construction of the pump station, inlet channel, pipelines, canals, and the regulating reservoir would cause temporary effects to 60 acres, and permanent effects to 75 acres of upland hardwoods, bottomland hardwoods, and forested swamps. In addition, the Corps conceded that the project would cause 11 acres of temporary and 30 acres of permanent destruction of the scrub/shrub swamp, and l acre of permanent destruction of marshland.*fn20

A hearing on the Complaint was conducted in August 2004, and the District Court issued its opinion in November 2004.*fn21 The Court found that "the Grand Prairie Project will not adversely impact the White River or its Basin."*fn22 The District Court noted that "[t]he minimum flow requirements set forth a minimum level of water depth for the White River sufficient to sustain navigation, fisheries, and wetlands."*fn23 The Court emphasized that the minimum flow requirement will protect the White River and its ecosystem because, if the River were to drop below a certain level, no more water could be pumped out. The Court concluded:

The Court has extensively reviewed the FEIS [Final Environmental Impact Statement]. . . .Based on this review, the Court concludes that the Corps complied with the NEPA and the CEQ regulations in its evaluation of the direct and indirect environmental impacts of the project, and, in particular, the Corps' study of the impact of the project upon the wetlands and bottomland hardwoods of the White River Basin.*fn24

The Eighth Circuit affirmed this decision.*fn25

After the District Court's ruling, the Corps began the first phase of the GPP --construction of the six-unit pumping station. A contract was awarded and construction was authorized to begin in April 2005. However, remarkable new information emerged that would cause another challenge to the GPP.

On April 28, 2005, the FWS announced the rediscovery of the IBW.*fn26 After this, the Corps suspended construction.*fn27 Beginning in May 2005, the Corps evaluated the effects of the GPP on the IBW and issued a Biological Assessment on May 24, 2005. In its assessment, the Corps concluded that the GPP is not likely to adversely affect this Woodpecker.*fn28

Before entering a formal concurrence, the FWS issued a letter telling the Corps that it had to meet specific requirements.*fn29 This letter required the Corps to conduct pre-construction surveys for IBW habitat, delay construction if the habitat is within one mile of the construction site, and adopt long-term monitoring of water withdrawals.*fn30 Water flow monitoring was required because, even with the minimum flow cutoff, the projects's operation will alter water levels in the area -- making some forested wetlands slightly drier-- and affecting the "flood plain resources."*fn31 After notification of the Corps' Biological Assessment, and the FWS's letter of concurrence issued June 8, 2005, Plaintiffs initiated the present action on September 8, 2005.

Plaintiffs filed a complaint, alleging that the FWS violated the ESA,*fn32 the APA,*fn33 and that the Corps violated NEPA.*fn34 An Amended Complaint was filed incorporating the allegations of the first Complaint and added the contention that the Corps violated the ESA and the APA.*fn35

According to Plaintiffs, the Corps and the FWS arbitrarily concluded that the GPP would not adversely affect the IBW. They allege that jeopardy is likely because: (1) the Corps will destroy 135 acres of forest without ruling out the possibility that it may include the bird's nesting, roosting, and foraging trees; (2) the GPP will draw down one hundred fifty eight (158) billion gallons of water each year from the White River, and this will significantly reduce the water levels in the wetland forests; (3) some tree species will die when water levels fall, and the forest will gradually decline; (4) the FWS never revealed which trees would be most threatened by the change in water level; (5) the Corps is rushing to construct a massive pumping station located fourteen miles away from the IBW sighting; (6) the canals and pipelines will fragment the bottomland forest, which may adversely affect IBW habitat; and (7) the noise and human activity involved in construction and pumping activity will adversely affect the IBW. Plaintiffs point out that there is very little known about the IBW, and more study is necessary before beginning such a large, irreversible commitment of federal resources.

A hearing was held in this case on February 6, 2006. Since that hearing, Defendants filed a Notice of Completion of Endangered Species Act Section 7 Consultation.*fn36 The Corps and the FWS agreed to habitat surveys, long-term botanical and hydrologic monitoring, and an "adaptive management" plan.*fn37

Defendants acknowledge that final action under the Informal Consultation process is now complete, but they challenge jurisdiction based on lack of final agency action, and this is still pending. Jurisdictional issues such as standing and ripeness are determined at the time the lawsuit is filed.*fn38 The controlling date here is September 8, 2005.

III. Standing and Ripeness

The APA requires review of agency action, but only if the action is final.*fn39 An administrative action is final if it marks the consummation of the agency's decision-making process and it "determines rights or obligations from which legal consequences will flow."*fn40

"The finality doctrine [concerns] whether the initial decision-maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury."*fn41

The FWS issued a conditional concurrence letter on June 8, 2005,*fn42 agreeing that the GPP would not likely have an adverse affect on the IBW. This letter allowed additional construction and represented an "irreversible commitment of resources." An irreversible commitment of funds ...


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