JOHN J. O'SULLIVAN, United States Magistrate Judge
THIS cause is before the Court on Plaintiff Miccosukee Tribe's Motion for Preliminary Injunctive Relief (DE #19) filed on November 13, 2002. This motion was referred to the undersigned by the Honorable K. Michael Moore pursuant to 28 U.S.C. § 636 (b)(1)(A). Oral argument was heard on December 18, 2002. Upon a review of the motion, the responses thereto, the court file, the administrative record, oral argument and applicable law, the undersigned respectfully RECOMMENDS that the Plaintiffs Motion be DENIED.
INTRODUCTION
In this case, the plaintiff Miccosukee Tribe (the "Plaintiff" or the "Tribe") challenges the Record of Decision, adopted July 3, 2002, by the U.S. Army Corps of Engineers (the "Corps") designed to avoid jeopardy to the endangered Cape Sable Seaside Sparrow ("Sparrow") in the Everglades National Park while administering a number of Congressionally-authorized programs aimed at balancing the water-related needs of South Florida. AR 3666, Tab 57. Specifically, the Tribe challenges the implementation of the "Interim Operating Plan for the Protection of the Cape Sable Seaside Sparrow" (the "IOP"). The IOP is an interim plan to achieve compliance with the U.S. Fish and Wildlife Service's ("FWS") 1999 Biological Opinion, which concluded that implementation of the then-current water regulation schedule, known as "Test 7," would jeopardize the continued existence of the Sparrow. AR 223 at 77.
Like the so-called ISOP and ISOP 2001 before it, the IOP is designed to reduce the risk of the Sparrow's extinction due to its reproductive failure. Successful Sparrow breeding depends heavily on the amount of water present in Sparrow habitat during its nesting season. Also like its predecessors, the lop has the practical effect of drying Sparrow nesting habitat in the western portion of the Everglades and increasing water levels in the Sparrow habitat in the eastern portion of the Park. The Tribe alleges that the IOP has caused and continues to cause sustained high water levels in an area called Water Conservation Area 3A ("WCA 3A") and thus has harmed and continues to harm the Tribe's lands, various economic interests of the Tribe, and the Tribe's way of life.
In the instant action, the Plaintiff challenges the Corp's deviation from the Test 7 regulation schedule for the third time since 1999. At the time the Plaintiff filed its Complaint in this case, cross motions for summary judgment concerning implementation of the ISOP and ISOP 2001 were pending in Case No. 00-0033-CIV-MOORE. For further background, a more detailed factual description of ISOP and ISOP 2001 is provided in a Report and Recommendation prepared by the undersigned on the cross motions for summary judgment in that case. See DE #273, December 16, 2002.
PROCEDURAL HISTORY
The Tribe filed its Original Complaint (DE #1) challenging the IOP on September 20, 2002, shortly after the Corps issued its Record of Decision adopting the IOP. Briefly, the Tribe alleges that in implementing the IOP, the Federal Defendants violated: the National Environmental Policy Act ("NEPA") (Count I); the Endangered Species Act ("ESA") (Count II); the agency action and rulemaking provisions of the Administrative Procedure Act ("APA") (Counts III and IV); the Fifth Amendment guarantee of Due Process (Count V); the Indian Trust Doctrine as reflected in the Florida Indian Land Claims Settlement Act of 1982 (Count VII); the Federal Advisory Committee Act ("FACA") (Count VIII); and that the Corps improperly delegated agency authority (Count IX). The Complaint also contains a claim for federal common law nuisance (Count Count VI). The Tribe's claims center on the alleged injuries they have suffered and will continue to suffer due to the effects of IOP on the water levels in Water Conservation Area 3A ("WCA 3A"). These alleged injuries include degradation of the environment in WCA 3A, damage to tree islands and ecological harm to the endangered snail kite. See Complaint at ¶ 50.
42 U.S.C. § 4321 et seq.
16 U.S.C. § 1531 et seq.
5 U.S.C. § 551 et seq.
U.S.C. § 1 et seq.
FACTS
In February 2001, the Corps issued a draft EIS ("DEIS") on the IOP. One of the alternatives analyzed under the DEIS was the ISOP 2001, the second of two previous short-term interim plans for protection of the Sparrow. Following its issuance, the Corps solicited comments from the public and received comments from the Tribe. Public reception of the DEIS led to a new round of mediation before the U.S. Institute for Environmental Conflict Resolution, with a new focus on South Florida Water Management District ("SFWMD") concerns about meeting the non-environmental waterrelated needs of South Florida. Participants in the mediation included the Corps, the Unites States Fish and Wildlife Service ("FWS"), SFWMD, and the Everglades National Park. See Fed. Def. Memo. at 28. As a result of the mediation, in October 2001, the Corps issued a supplemental draft EIS ("SDEIS") that described and recommended a new alternative, "Alternative 7," to ISOP 2001. Alternative 7 was largely based on ISOP 2001 but added several new elements to meet SFWMD's concerns.
As noted in Footnote 1, the historical facts giving rise to this action have been discussed extensively in the two related cases immediately preceding this one, Case Nos. 99-2899-CIV-MOORE and 00-0033-CIV-MOORE. A detailed description of the various programs implemented by the Corps of Engineers as well as the circumstances giving rise to the IOP and the two interim plans that preceded it can be found in the undersigned's Report and Recommendation in Case No. 00-0033-CIV-MOORE at DE #273, December 16, 2002.
Again, the Corps took public comments on the SDEIS in the fall of 2001. Several commenters expressed concern regarding flood control of the residential and agricultural areas adjacent to the park. These concerns led SFWMD to withdraw its support for Alternative 7 as the IOP. Once more, the Corps, USFWS, Everglades National Park and the SFWMD resumed mediation and developed "Alternative 7R," designed to protect the Sparrow while advancing the other goals of the Modified Water Deliveries ("MWD") Project. See Fed. Def. Memo. at 8. Alternative 7R is based on Alternative 7 but apparently modifies it by incorporating pre-storm drawdown and poststorm recovery operations and by incorporating the use of structures and features previously approved pursuant to ongoing projects. These include the construction of a new pump station, removal of four miles of levee from the L-67 extension and the construction of a connector reservoir and two seepage reservoirs. See Pl. Memo. at 13-15.
In late April 2002, the Corps issued a Final EIS ("FEIS") for the IOP. The FEIS evaluates Alternative 7R as the preferred alternative for the IOP but also includes an evaluation of ISOP 2001 as the "No Action Alternative." On July 3, 2002, the Corps issued a Record of Decision ("ROD") implementing Alternative 7R as the IOP. Since July 3, the IOP has been the operative plan for protection of the Sparrow.
STANDARD OF REVIEW
The standard of review applicable in this case is provided by the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, which states that a court may set aside agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706 (2)(a). As the Eleventh Circuit carefully explains inFund for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir. 1996), this standard is exceedingly deferential. While the inquiry must be "searching and careful," the court's review of the substantive agency decision is narrow and limited in scope. The reviewing court must first determine whether the agency acted within the scope of its authority, and next whether the decision reached was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. When specialists express conflicting views, an agency has discretion to rely on the reasonable opinions of its own qualified experts, but a court must carefully review the record and satisfy itself that the agency has considered all relevant factors in making its decision and that the conclusion itself does not represent clear error in judgment. Citizens to Preserve Overton Park Inc. v. Volpe, 401 U.S. 402, 416 (1971), Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989), Environmental Coalition of Broward County, Inc. v. Myers, III, 831 F.2d 984, 986 (11th Cir. 1987).
PRELIMINARY INJUNCTION
A preliminary injunction is an extraordinary remedy, the entitlement to which the plaintiff bears the burden of proving by clear and convincing evidence. See Granny Goose Foods v. Brotherhood of Teamsters, 415 U.S. 423, 442 (1974). A preliminary injunction may be granted only if plaintiff establishes four elements: 1) a substantial likelihood of success on the merits; 2) an immediate and irreparable injury absent injunctive relief; 3) a threatened harm to the plaintiffs that outweighs any injury the injunction would cause to the nonmovant; and 4) no adverse effect to the public interest. South Dade Land Corp. v. Sullivan, 853 F. Supp. 404, 406 (S.D. Fla. 1993) (citing United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir. 1983)). In considering these four prerequisites, the court must be mindful that a preliminary injunction is an extraordinary and drastic remedy which should not be granted unless the movant clearly carries the burden of persuasion. See Canal Auth. of Florida v. Callaway, 489 F.2d 567, 573 (5th Cir. 1974).
In cases arising under Section 7 of the ESA, the Supreme Court has found that Congress has altered the district courts' exercise of traditional equitable discretion as to the balancing of harms and the weight of the public interest.
Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as institutionalized caution.
Tennessee Valley Authority v. Hill,
437 U.S. 153, 193-94 (1978),
see Amoco Prod. Co. v. Village of Gambell, Alaska,
480 U.S. 531, 543 n. 9 (1987). For such claims, the "balance of hardships and the public interest tip heavily in favor of the endangered species,"
Sierra Club v. Marsh,
816 F.2d 1376, 1383 (9th Cir. 1987) (citations omitted).
The undersigned has examined the Plaintiff's filings to determine whether they meet the burden of showing both a likelihood of success on the merits and an immediate and irreparable harm to the Plaintiff. See Weinberger v. Romero-Barcelo, 465 U.S. 305, 312-14 (1982). Because the undersigned concludes that the Plaintiff has failed to demonstrate an immediate and irreparable injury absent an injunction and because the balance of hardships and the public interest must tip in favor of the continued survival of the Cape Sable Seaside Sparrow, the undersigned finds that the Plaintiff is not entitled to preliminary injunctive relief and RECOMMENDS that the Plaintiff's Motion (DE #19, 11/13/02) be DENIED. It is therefore unnecessary to reach a conclusion as to the Plaintiff's likelihood of success on the merits of its claims.
This Report and Recommendation does not include an extensive, separate discussion of the Plaintiff's FACA claim. The Plaintiff alleges that the mediation process employed by the Federal Defendants to develop the IOP constituted a "federal advisory committee" in violation of FACA. Without addressing the Plaintiff's likelihood of success on the merits, the undersigned finds that the Plaintiff does not demonstrate an irreparable injury resulting from the mediation process. The record demonstrates that the Tribe was consulted repeatedly throughout the NEPA process. See California Forestry Ass'n v. U.S. Forest Service, 102 F.3d 609, 613-14 (D.C. Cir. 1996).
1. Immediate and Irreparable Injury
The Plaintiff makes two arguments to support its claim that it is suffering an immediate and irreparable injury. First, the Tribe claims that the Corps adoption of the IOP, allegedly in violation of NEPA amounts to an irreparable injury. Second, the Tribe claims that the lop has caused higher water levels and associated damage to WCA 3A.
The Plaintiffs first argument is not consistent with precedent. The Supreme Court has cautioned lower courts not to "mechanically . . . grant an injunction for every violation of law." Romero-Barcelo, 456 U.S. at 313. Even assuming, for example, that a violation of NEPA, the APA, and the ESA have occurred, none of these violations create a presumption of irreparable injury. The Tribe does not have the automatic right to an injunction. See e.g. Amoco Production Co. v. Village of Campbell, 480 U.S. 531 (1987); Romero-Barcelo, at 312 (quoting Yakus v. United States, 312 U.S. 414, 440 (1944)).
The crux of the Plaintiff's second argument is that the Plaintiff is entitled to a preliminary injunction because the implementation of the IOP has led allegedly to high water areas in WCA 3-A. Specifically, the Plaintiff alleges that water levels in WCA 3A are currently "above the lawfully adopted Regulation Schedule and have been there for almost three months" and that closure of the S-12 structure gates will cause "sustained high water to remain on Tribal lands and cause irreparable harm to . . . [WCA 3A]." Pl. Memo. at 18. For its part, the Federal Defendants submit that water levels in this area are "largely a factor of rainfall" and therefore not largely dependent on the status of the S-12 gates. Sylvester Declaration at ¶ 5.
Regardless of Plaintiff's allegations regarding structural and operational elements of the IOP, such as the S-12 gates, that may adversely affect water levels in WCA 3A, submissions by the parties demonstrate that water levels in the area have been receding rather than rising and that current water levels are not significantly higher than historical levels. See generally Declaration of Susan Sylvester. First, data submitted by the Federal Defendants in conjunction with their opposition papers demonstrates that, following 2002 closure of the S-12 gates, water levels in WCA 3A on November 18, 2002 exceeded 40-year historical average levels by only .16 feet (1.92 inches). Sylvester Declaration at ¶ 7. These November 2002 water levels are lower than those measured one year earlier, in November of 2001, which exceeded historical averages by about .96 feet. See id. Second, and more significantly, water levels in WCA 3A are currently lower than the levels attained when two of the Plaintiff's previous motions for preliminary injunctive relief from prior interim plans were denied. Moreover, although the recorded water level in WCA 3A was lower than the November 2002 level when the Plaintiff's third motion for preliminary injunction was denied in June 2002, the recorded level at that time exceeded the historical average level by more than .5 feet as compared to the .16 foot difference from the historical average measured in November 2002. See id. Third, unlike previous instances in which the Plaintiff has sought (and been denied) injunctive relief, no impending weather event threatens to further increase WCA 3A water levels at the present time. Cf. Case No. 99-2899-CIV-MOORE, DE #175, November 5, 2001 (emergency motion for injunctive relief prompted by anticipated landfall of Hurricane Michelle).
November 2002 levels are compared against measurements taken from 1962-2001. See Sylvester Declaration at ¶ 7.
See Sylvester Declaration at ¶ 8.
a. Harm to Tree Islands
The Plaintiff alleges that prolonged high water levels can indeed cause stress to tree islands located in WCA 3A. The Federal Defendants concede this to be the case. See AR 3662 (FEIS at 56). However, while the Corps' Final Environmental Impact Statement notes that "minor adverse effects due to raised water levels could occur in the vicinity of tree islands in . . . WCA 3A . . .," it also states "water levels of comparable height and duration have been shown to have negligible impacts on tree island vegetation." Id. at iv. In addition, the FWS has been unable to identify any incremental damage that would occur to tree islands over the time period contemplated for implementation of the IOP. See AR 3666, Tab 57 at 4; AR 3662 at B-55. Based on the foregoing, the undersigned finds that the Plaintiff has failed to meet its burden of demonstrating immediate and irreparable injury to the tree islands.
b. Harm to the Snail Kite
Similarly, with respect to the snail kite, the Tribe alleges that sustained high water levels in WCA 3A threaten the endangered snail kite and degrade its habitat. See e.g., Complaint at ¶¶ 50, 52, 70. Despite these allegations, the Tribe does not demonstrate that any such degradation would be irreparable. In contrast, the record indicates that neither the permitted incidental take of the snail kite nor the degradation of its critical habitat will appreciably diminish survival or recovery of the snail kite. AR 3663 at 56 (FWS Amended Biological Opinion).
The recent water level measurements in WCA 3A and the record's discussion of anticipated effects of the IOP on the Everglades environment generally, as well as on the tree islands and the snail kite in particular, demonstrate that the Plaintiff cannot meet its burden with respect to a showing of immediate and irreparable injury absent the granting of a preliminary injunction.
2. The Balance of Hardships and the Public Interest
The Tribe has not demonstrated that the preliminary injunction sought will not cause harm to the Sparrow or to other parties. In fact, it is plain that the issuance of an injunction against implementing the IOP would endanger the Sparrow. See FEIS; AR 223 at 77. Courts are hesitant to grant injunctive relied when the relief requested may cause actual harm to the environment, American Motorcycle Ass'n v. Watt, 714 F.2d 962, 966-67 (9th Cir. 1983). In the unusual case, such as this one, where enjoining a governmental action that allegedly violates NEPA might actually jeopardize natural resources, a court must look at the impact to the greater public interest in determining whether to grant the injunction. See id. As the Federal Defendants point out in their filings, the ongoing litigation between the Tribe and the Corps results from the government's efforts to avoid jeopardizing the Sparrow while implementing Congressional mandates to protect the Everglades environment and minimizing adverse effects to other water-related interests. In the ROD, the Corps concedes that not every species living in the Everglades will be or can be provided exactly equal treatment or protection from harm. See AR 3666, Tab 57 (ROD at 5).
The undersigned finds that enjoining the IOP and returning to the Test 7 operating conditions that gave rise to the development of the IOP would risk returning the Sparrow to its jeopardy status. Such a result would run counter to Congressional intent that endangered species are to be afforded the highest of priorities. See Tennessee Valley Authority v. Hill, 437 U.S. 153, 194 (1978).
Therefore, it is respectfully RECOMMENDED, that the Plaintiff's Motion for Preliminary Injunctive Relief (DE #19, 11/13/02) be DENIED. The parties may serve and file written objections to this Report and Recommendation with the Honorable Judge K. Michael Moore, United States District Judge, within ten (10) days of receipt. See 28 U.S.C. § 636 (b)(1)(c); United States v. Warren, 687 F.2d 347, 348 (11th Cir. 1982).
DONE AND ORDERED.