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Water Log 18.3

District Court Ruling Favors Beach Mouse Habitat

Sierra Club v. Babbitt, 1998 Westlaw 481452 (S.D. Ala. 1998).

Kristen M. Fletcher, J.D., LL.M.,

Susan F. E. Bruhnke, 3L

Introduction

In August, the U.S. District Court for the Southern District of Alabama ruled that a federal agency must reconsider its decision to allow high-density development on the Alabama coastline that may harm the endangered Alabama Beach Mouse. The court found that the Fish and Wildlife Service (FWS), the agency responsible for protection of the beach mouse, violated both the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA) by permitting construction on the dwindling beach mouse habitat. The court is requiring the FWS to reexamine whether allowing construction in the Beach Mouse's habitat would have a significant impact on the environment along a portion of the Alabama coast known as the Fort Morgan Peninsula.

The Alabama Beach Mouse, a sand-colored mouse indigenous to the beaches and sandy fields of southern Alabama, was listed as endangered in 1985 when the FWS concluded that the species' habitat was being drastically destroyed "by residential and commercial development, recreational activity, and tropical storms." 1 At the time of listing, 671 acres of beach mouse habitat remained on the Fort Morgan Peninsula on the Alabama coast. The FWS speculated that the remaining habitat may not be an adequate area to allow the beach mouse population to recover. Since then, the habitat has been reduced by commercial and residential development, a golf course, and a series of hurricanes. Nevertheless, the FWS permitted two high density housing complexes within the beach mouse habitat. The Sierra Club challenged the issuance of these permits under the ESA and the NEPA, asking the District Court to suspend the permits until the FWS revises its environmental analysis and permit conditions.

The Beach Mouse and the ESA

The Sierra Club first challenged the permits under the Endangered Species Act which forbids harming a beach mouse or severely depleting or modifying its habitat. The ESA, however, offers a limited exception for landowners who wish to develop a piece of land but find an endangered species located on it. The landowners can prepare a Habitat Conservation Plan (plan, often called an HCP) showing the impact of the development on the species, methods to preserve habitat within the development, and ways to mitigate harmful impacts. The applicant must specify the proposed mitigation activities and secure adequate funding. Once the plan is approved, the FWS can issue an "incidental take permit" authorizing otherwise lawful activities that may harm a listed species. The FWS approved the plans and issued permits for two Fort Morgan developments stating that issuing the permits "will not jeopardize the beach mouse" or adversely modify its critical habitat. The FWS did "remain concerned" over whether the mitigation in the permit plans was to the maximum extent practicable, as required by the ESA.

The Sierra Club argued that the sections of the plan and permits addressing mitigation efforts were inadequate under the ESA. First, it asserted that the funding for the proposed mitigation activities was inadequate. The Sierra Club offered evidence that, prior to permit issuance, the FWS noted concern because "the project provides the least mitigation for the effects of high density development of any previous" beach mouse permit or plan.3 The FWS claimed its concerns were met when the applicant added mitigation measures. In addition, the FWS asserted its discretion as a federal agency in making this determination.

The court agreed with the Sierra Club and found that the FWS ignored its initial concerns, failing to determine if the proposed amount could provide adequate mitigation. The court noted the complete lack of consideration or explanation of the amount of mitigation funding in the plan or permits. Without analysis or consideration, the court concluded that the FWS cannot support its decision that the amount of mitigation funding was adequate and found the issuance of permits arbitrary and capricious.

Next, the Sierra Club challenged the plan because it relied on unnamed sources to contribute funds for offsite mitigation. According to the plaintiff, this failed to meet the ESA requirement that mitigation activities minimize and mitigate project impacts to the maximum extent practicable. The court agreed, citing the FWS's own analysis stating that the "Applicant's offsite mitigation funding would have to be combined with additional funds from a non-profit organization in order to purchase a large tract or several tracts for mitigation purposes." 4 The plan and permits, however, do not specify the source or the amount. Without this information, the court could find no rational basis for issuance of the permits.

Third, the Sierra Club asserted that the FWS failed to develop standards to determine the appropriate levels of mitigation necessary for the continued existence of the beach mouse. Under its own Habitat Conservation Planning Handbook, the FWS stresses the need for consistency of mitigation measures for a species and for specific standards. The Handbook states that "the Service should not apply inconsistent mitigation policies for the same species, unless differences are based on biological or other good reasons and are clearly explained." 5 Nevertheless, the court could find "no evidence that the FWS paid any attention to its own guidelines." 6 It found the FWS could not justify its issuance of the permits and must establish standards to protect the Alabama Beach Mouse and its habitat.
 

Analysis under the NEPA

Finally, the Sierra Club contended that the FWS failed to prepare an Environmental Impact Statement (EIS) as required by the NEPA. 7 The NEPA requires that federal agencies like the FWS consider the environmental consequences of proposed actions to ensure fully informed and well considered decisions. A project that may adversely affect an endangered species or its critical habitat is considered to significantly affect the environment, requiring an EIS. Rather than prepare an Environmental Impact Statement, the FWS issued a "finding of no significant impact" for the Fort Morgan developments, concluding its analysis of possible impacts on the Alabama Beach Mouse.

In reviewing the FWS decision not to prepare an EIS, the court had to ensure that the FWS took a hard look at the environmental consequences of its actions. The FWS claimed that its decision was sound and in its discretion. The court, however, found that "many of the important 'facts' on which the FWS based its decision appear to be assumptions, presumptions, or conclusions themselves -- not facts based on any evidence, documents, or data. . . ." 8 Specifically, the court noted that the FWS lacked an estimate of beach mouse population, its remaining habitat, and the occurrence of beach mice on the habitat in question. It stated, "[b]ecause the agency failed to consider important aspects of the problem and relied on insufficient, inadequate, and out-of-date data, it was arbitrary and capricious for the FWS to issues findings of no significant impact, and thus, in their action, violated NEPA." 9
 

Conclusion

The District Court remanded the decision to issue the permits to the FWS. It directed the FWS to gather the necessary data and conduct the required scientific analysis in order to determine whether the permits issued meet requirements under the ESA and the NEPA. The court stressed that the FWS must do more than merely go through the motions in performing its duties to protect the Alabama Beach Mouse from extinction.
 

Notes

1. Sierra Club v. Babbitt, 1998 Westlaw 481452 at 19 (S.D. Ala. 1998), citing 50 Fed. Reg. 23872 (June 6, 1985).

2. Endangered Species Act, 16 U.S.C. §§ 1531 - 1544 (1998). The ESA also requires the designation of a species critical habitat, that habitat necessary for the continuation of the species.

3. Sierra Club at 28.

4. Id. at 25.

5. U.S. Fish and Wildlife Service and National Marine Fisheries Service, Endangered Species Habitat Conservation Planning Handbook, at 3-20 (1996).

6. Sierra Club at 33.

7. National Environmental Policy Act, 42 U.S.C. §§ 4321 - 4370d (1998).

8. Sierra Club at 37.

9. Id. at 39.
 
 


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