for the eleventh circuit florida key deer, key largo cotton mouse

No. 05-16374-II

IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUIT

FLORIDA KEY DEER, KEY LARGO COTTON MOUSE, KEY LARGO WOODRAT,KEY TREE-CACTUS, LOWER KEYS MARSH RABBIT, SCHAUS’

SWALLOWTAIL BUTTERFLY, THE SILVER RICE RAT, THE STOCK ISLANDTREE SNAIL, NATIONAL WILDLIFE FEDERATION, FLORIDA WILDLIFE

FEDERATION, and DEFENDERS OF WILDLIFE,

Plaintiffs-Appellees,

v.

R. DAVID PAULISON, in his official capacity as Acting Under Secretary of EmergencyPreparedness and Response, Department of Homeland Security, and GALE NORTON, in

her official capacity as Secretary of the United States Department of the Interior,

Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF FLORIDA

________

BRIEF OF DEFENDANTS-APPELLANTS

MATTHEW J. MCKEOWN Deputy Assistant Attorney General Env’t & Natural Resources Div.

MARK A. BROWNELLEN J. DURKEEROBERT J. LUNDMAN Attorneys, United States Dept. of Justice P.O. Box 23795 (L’Enfant Station) Washington, D.C. 20026 (202) 514-2496

Key Deer v. Paulison, 05-16374-II

C 1 of 13

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

R. Alexander Acosta

Alejandro Agurcia

Denira Agurcia

Jennifer E. Albury

Joan H. Albury

Zane R. Albury

Joe M. Allbaugh

Joseph P. Andrea

Bruce Babbitt

Baker Botts LLP

Magistrate Judge Ted E. Bandstra

Seth M. Barsky

Peter H. Batty

Bayview Development, LLC

Christopher Clark Belland

Lawrence Benvenuti

Biosphere Properties, Inc.


C 2 of 13

Birch, Horton, Bittner and Cherot

M. Bradley Blaylock

Board of County Commissioners of Monroe County, Florida

Boat Inn, LLC

Boat Works Investments, LLC

Boathouse, LLC

Juan D. Bonachea, Jr.

Joan Borel

Larry Bradfish

Mark A. Brown

Michael D. Brown

Dale Bryeans

Douglas S. Burdin

Michael T. Burke

Buttonwood Enterprises, LLC

Callianasa Corporation

John Campbell

Campbell & Malafy

CB Schmitt Real Estate Company, Inc.


C 3 of 13

Cepheus Corporation

City of Marathon, Florida

Coco Plum, LLC

Coolidge Key Largo Equities Limited Partnership

Donna Cortina

John Cruden

Julie Dalsin

Mike Dalsin

Debra Daniels

Jane Daniels

William M. Daniels

Williams S. Daniels

D’Abros, Inc.

Amedio D’Ascanio

Lynn D’Ascanio

D’Ascanio Holdings Aviation, Inc.

D’Asign Developments, LLC

Teresa J. Davenport

Harriet Deal


C 4 of 13

Defenders of Wildlife

Jack Derovanesian

Eugenio DeSanctis

Michele DeSanctis

Dog Track Partnership

The Dolphin at Mariner’s Club

Driftwood, LLC

Drop Anchor Resort & Marina, LLC

Duck Key Marina, LLC

Dale Dulimba

Ellen Durkee

Earthmark Marina’s, LLC

Gregor K. Emmert, Sr.

Helen Emmert

Falcon Pass, Ltd.

Fat Deer Key Marina, LLC

Federal Emergency Management Agency

FG Key Haven, LLC First Florida Keys Properties, Inc.


C 5 of 13

Florida Wildlife Federation

Jordan Fried

David W. Frisbie

FRP Technologies, LLC

Steven Gieseler

Michael Halpern

Jane Harlan

Mark Harlan

Carl Hanson

Richard W. Harrison

Norman O. Hemming, III

Tina Henize

Hershoff & Lupino, LLP

Pamela Holbert

William P. Horn

Janice J. Hussey

Martin P. Hussey

William Robert Irvin

Thomas C. Jackson


C 6 of 13

Marcos Daniel Jimenez

Johns Lake Pointe II, LLC

Kelly A. Johnson

Johnson, Anselmo, Murdoch, Burke, Piper & McDuff, P.A.

Andrea P. Joseph

Edwin S. Kneedler

Key Cover Landings, LLC

Key Vaca, LLC

Keys RV/Mobile Home Condominium Association, Inc.

James Kilbourne

The Honorable James L. King

Knights Key, Inc.

John F. Kostyack

Barbara Kurutz

Stephen Kurutz

LargoMorada Limited Partnership

Tracy Larson

John Latvala

The Lujan Limited Partnership, LTD


C 7 of 13

Robert J. Lundman

James S. Lupino

Deborah McAfee

J. Daniel McAfee

Neal McAliley

Richard A. Malafy

Mandalay Resort, LLC

Marathon Self Storage, LLC

Mariner’s Club Homeowners Association, Inc.

Mariner’s Club Key Largo, Inc.

The Marlin at Mariner’s Club

Bradley Martin

Joy Martin

June Fay Mason

Matthew J. McKeown

MDJ Investments, LLC

Meleric Investments, Inc.

Andrew Mergen

Todd G. Messenger


C 8 of 13

MM 75.9 Trust

MM 81.1 Trust

MNM’s of the Keys, Inc.

Monroe County, Florida

Barbara Montoya

The Honorable K. Michael Moore

Henry Lee Morgenstern

Robert H. Morris

Donna Mullins

Fred Mullins

National Association of Home Builders

National Wildlife Federation

NHC-FL 16, L.P.

Northstar Resort Enterprises Corporation

Gale Norton

Ocean Conservancy

Ocean Key Associates, Ltd.

Ocean Sunrise Associates, LLC

Old Town Key West Development, Ltd.


C 9 of 13

Ernie Oskey

Meta Oskey

Pacific Legal Foundation

Pacifica Key Largo, LP

R. Davis Paulison

H. Richard Pender

Joseph R. Perella

PKIC Corporation

Gregory J. Poole, Jr.

Gregory James Poole, III

Mary Ann Poole

Sarah L. Poole

Prestige Island Properties Company

Rainbow Bend Resorts, Inc.

Rainbow Oil Company, Inc.

Debra Ramirez

John Ramirez

Lisa Richards


C 10 of 13

Riviera Drive-In Theater, Inc.

Riviera Enterprises, Inc.

Peg Romanik

Jessica Lyn Rothenberg

Paul Sabady

The Sailfish at Mariner’s Club

Mary Randolph Sargent

Adam M. Schachter

Carl Scheurman

Ellen D. Scheurman

Lois Schiffer

Patricia Schmidt

Brian C. Schmitt

Tamara M. Scrudders

Seaview Commons, LLC

Seaward, LLC

Robert B. Shillinger

Charles Shockey


C 11 of 13

Siemon & Larsen, P.A.

Brian M. Silverio

Silverio & Hall, P.A.

Slice of Paradise, LLC

Eileen Sobeck

Mark D. Solov

Melissa Spano

Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.

Malcolm L. Stewart

Frank Strafaci

Jill Strafaci

Edwin O. Swift

Joan R. Techet

Steven F. Techet

Caroline N. Thomes

Marc V. Thomes

Timothy Nicholas Thomes

Cheryl Tindall


C 12 of 13

William Tindall

Tortuga Beach Club, Inc.

United States of America

United States Department of Homeland Security

United States Department of the Interior

United States Department of Justice

United States Fish and Wildlife Service

Albert Vigil

Tom Ward

Amy Weinhouse

David J. Wesley

David J. White

White & Case, LLP

Jean E. Williams

Leo Williams

Marilyn Williams

Richard Williams

Kelly Wilson


C 13 of 13

Michelle Wisniewski

James L. Witt

Sue Ellen Wooldridge

W. Michael Young

Zane Gray Development Company

Brett Zimmermann

Harold Zimmermann

Judith Zimmermann

Keith Zimmermann

Todd Zimmermann

__________________________________Robert J. LundmanAttorney, Appellate SectionEnvironment & Natural Resources DivisionDepartment of JusticeP.O. Box 23795 (L’Enfant Plaza Station)Washington, D.C. 20026(202) 514-2496 (phone)(202) 353-1873 (fax)[email protected]

-i-

STATEMENT REGARDING ORAL ARGUMENT

Defendants-appellants submit that oral argument will benefit the Court. This

appeal presents issues of the interaction between the Endangered Species Act and

the National Flood Insurance Act that are new to this Court. The resolution of

these issues will likely have significant impacts on the administration of the two

statutes.

In addition, the district court has enjoined the Federal Emergency

Management Agency from issuing flood insurance in much of the Florida Keys.

This injunction – which defendants submit exceeded the district court’s authority –

should be vacated promptly. Accordingly, defendants respectfully request that oral

argument be scheduled for a date as soon as possible following the completion of

briefing.

-ii-

TABLE OF CONTENTS

PAGE

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Nature of the Case and Disposition Below . . . . . . . . . . . . . . . . . . . . . 3

B. Legal Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1. The Endangered Species Act . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2. The National Flood Insurance Act and Program . . . . . . . . . . . 6

C. Factual and Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . 9

D. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

I. ESA SECTION 7(a)(2) DOES NOT APPLY TO FEMA’S

PROVISION OF FLOOD INSURANCE BECAUSE FEMA LACKS

DISCRETION TO TAKE ACTION THAT INURES TO THE

BENEFIT OF LISTED SPECIES AND THE FLOOD INSURANCE

PROGRAM IS NOT A LEGAL CAUSE OF JEOPARDY . . . . . . . 22

A. FEMA Does Not Have Discretion Under the Flood Insurance

Program to Take Actions that Benefit Listed Species . . . . . . 23

-iii-

1. The regulation and case law require discretion to

take measures that will inure to the benefit of

listed species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

2. Congress did not authorize FEMA to limit the

availability of flood insurance . . . . . . . . . . . . . . . . . . . 26

3. FEMA’s authority to issue regulations does not create the

required discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

4. The ESA does not expand FEMA’s authority to

implement the flood insurance program . . . . . . . . . . . . 32

B. Plaintiffs Have Not Demonstrated that the Flood

Insurance Program May Legally Cause Jeopardy to the Listed

Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

II. FEMA REDUCES FLOOD INSURANCE RATES FOR

COMMUNITIES THAT IMPLEMENT HABITAT

CONSERVATION PLANS, AND THIS PROGRAM SATISFIES

ESA SECTION 7(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

A. The Plain Language of Section 7(a)(1) Grants Broad Discretion

to the Agencies to Implement Any Program that Benefits Listed

Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

-iv-

B. FWS’s Interpretation of Section 7(a)(1) is Due Chevron

Deference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

C. The APA Does Not Permit Review of Programmatic Section

7(a)(1) Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

III. THE ESA DOES NOT REQUIRE FEMA TO PERFORM ITS OWN

ANALYSIS OF FWS’s “REASONABLE AND PRUDENT

ALTERNATIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

IV. THE INJUNCTION REQUIRES FEMA TO TAKE ACTION THAT

IS INCONSISTENT WITH ITS AUTHORITY UNDER THE NFIA,

AND SHOULD BE VACATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

ADDENDUM OF STATUTES AND REGULATIONS

-v-

TABLE OF AUTHORITIES

Cases: PAGE

Alabama-Tombigbee Rivers Coalition v. Norton, 338 F.3d 1244

(11th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

American Forest & Paper Ass’n v. EPA, 137 F.3d 291 (5th Cir. 1998) . . . . . . . . 32

AT&T Broadband v. Tech Communications, Inc., 381 F.3d 1309

(11th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Barnhart v. Walton, 535 U.S. 212 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Bennett v. Spear, 520 U.S. 154 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Biodiversity Legal Found. v. Babbitt, 146 F.3d 1249 (10th Cir. 1998) . . . . . 16,46

Carson-Truckee Water Conservancy Dist. v. Clark, 741 F.2d 257

(9th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Cetacean Cmty. v. Bush, 386 F.3d 1169 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . 3

Loggerhead Turtle v. County Council of Volusia County, 148 F.3d 1231

(11th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

* Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837

(1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18,32,44,46

Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121 (D.D.C. 2001) . . . . . . . . . 43

Defenders of Wildlife v. EPA, 420 F.3d 946 (9th Cir. 2005) . . . . . . . . . . . . 24,33,38

-vi-

TABLE OF AUTHORITIES (cont.):

Cases: PAGE

Defenders of Wildlife v. Secretary, United States Dep’t of the Interior,

354 F. Supp. 2d 1156 (D. Or. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

* Department of Transportation v. Public Citizen,

541 U.S. 752 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34,35,36,37,38

Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d 386 (9th Cir. 2000) . . . . . . . . . . . . . 6

Florida Key Deer v. Stickney, 864 F. Supp. 1222 (S.D. Fla. 1994) . . . . . . . 9,25,30

Florida Key Deer v. Brown, 364 F. Supp. 2d 1345 (S.D. Fla. 2005) . . . 3,15,49,50

Florida Key Deer v. Brown, 386 F. Supp. 2d 1281 (S.D. Fla. 2005) 1,2,4,15,22,52

* Fund for Animals, Inc. v. Rice, 85 F.3d 535 (11th Cir. 1996) . . . . . . . . . 16,17,51

Ground Zero Ctr. for Non-Violent Action v. U.S. Dept. of Navy, 383 F.3d 1082

(9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Hawksbill Sea Turtle v. FEMA, 11 F. Supp. 2d 529 (D.V.I. 1998) . . . . . . . . . . . . 30

In re Operation of Missouri River Sys. Litig., 421 F.3d 618 (8th Cir. 2005) . . . . 24

In re Novak, 932 F.2d 1397 (11th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Kirkland v. National Mortgage Network, Inc., 884 F.2d 1367 (11th Cir. 1989) . . 1

* Lujan v. National Wildlife Fed’n, 497 U.S. 871 (1990) . . . . . . . . . . . 17,47,48,49

MCI Telecomm. Corp. v. BellSouth Telecomm. Inc., 298 F.3d 1269

(11th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

-vii-


Cases: PAGE

Marbled Murrelet v. Babbitt, 83 F.3d 1068 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . 38

Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766

(1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29

(1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

National Wildlife Fed’n v. Coleman, 529 F.2d 359 (5th Cir. 1976) . . . . . . . . . . . 39

National Wildlife Fed’n v. FEMA, 345 F. Supp. 2d 1151 (W.D. Wash. 2004) . . 52

National Wildlife Fed’n v. Norton, 332 F. Supp. 2d 171 (D.D.C. 2004) . . . . . . . 42

North Haven Bd. of Educ. v. Bell, 456 U.S. 512 (1982) . . . . . . . . . . . . . . . . . . . . 31

Northwest Envtl. Advocates v. EPA, 268 F. Supp. 2d 1255 (D. Or. 2003) . . . . . . 41

* Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) 17,20,47,48,49

Platte River Whooping Crane Trust v. FERC, 962 F.2d 27

(D.C. Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33,41

Porter v. Warner Holding Co., 328 U.S. 395 (1946) . . . . . . . . . . . . . . . . . . . . . . 53

Protect Our Water v. Flowers, 377 F. Supp. 2d 844 (E.D. Cal. 2004) . . . . . . 41,43

* Pyramid Lake Paiute Tribe v. United States Dep’t of the Navy,

898 F.2d 1410 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42,45,51

SEC v. ETS Payphones, Inc., 408 F.3d 727, 731 (11th Cir. 2005) . . . . . . . . . . . . 17

-viii-


Cases: PAGE

* Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir. 1995) . . . . . . . . . . . 23,24,28,33,41

Sierra Club v. Glickman, 156 F.3d 606 (5th Cir. 1998) . . . . . . . . . . . . . . . . . . . . 43

* Sierra Club v. Johnson, Nos. 03-10262, 03-10265, __ F.3d ___, 2006 WL

146230, at *2 (11th Cir. Jan. 20, 2006) . . . . . . . . . . . . . . . . . . . 16,17,18,32

Strahan v. Linnon, 967 F. Supp. 581 (D. Mass. 1997),

aff’d, 187 F.3d 623 (1st Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Turtle Island Restoration Network v. NMFS, 340 F.3d 969 (9th Cir. 2003) . 24,28

TVA v. Hill, 437 U.S. 153, 98 S. Ct. 2279 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . 25

STATUTES, RULES and REGULATIONS:

Administrative Procedure Act

* 5 U.S.C. § 706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16,17,47,48

Endangered Species Act

* Section 7(a)(1), 16 U.S.C. § 1536(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

* Section 7(a)(2), 16 U.S.C. § 1536(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

16 U.S.C. § 1333 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

16 U.S.C. § 1531(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

16 U.S.C. § 1532 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,42

-ix-

STATUTES, RULES and REGULATIONS (cont.):

PAGE

16 U.S.C. § 1536(b)(3)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,21,53

16 U.S.C. § 1538 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,37,38

16 U.S.C. § 1540(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

16 U.S.C. § 1540(g)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,16

National Flood Insurance Act

* 42 U.S.C. § 4001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,7,26,28

42 U.S.C. § 4011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

* 42 U.S.C. § 4012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,8,26,27

42 U.S.C. § 4014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

* 42 U.S.C. § 4022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,8,26,29

42 U.S.C. § 4023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

42 U.S.C. § 4028 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

42 U.S.C. § 4029 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

42 U.S.C. § 4101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

* 42 U.S.C. § 4102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27,28,29,31

42 U.S.C. § 4128 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,31

-x-


PAGE

Other Acts

42 U.S.C. § 5121 et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

43 U.S.C. § 1782(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

6 U.S.C. § 313(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1292(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Regulations

40 C.F.R. § 1508.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

44 C.F.R. § 60.1-60.26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

44 C.F.R. § 60.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

44 C.F.R. § 60.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

44 C.F.R. § 64.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

44 C.F.R. §§ 65.1-65.17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

50 C.F.R. § part 451 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

50 C.F.R. § 402.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

50 C.F.R. § 402.01(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

50 C.F.R. § 402.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26,38,53

-xi-


PAGE

* 50 C.F.R. § 402.03 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,23,24,25,33

50 C.F.R. § 402.11(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

50 C.F.R. § 402.14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

50 C.F.R. § 402.14(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

50 C.F.R. § 402.15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

* Interagency Cooperation – Endangered Species Act of 1973

as Amended, Final Rule, 51 Fed. Reg. 19926 (June 3, 1986) . . 4,26,45,46,50

Rules

Fed. R. App. P. 4(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1/ On December 5, 2005, the Clerk of the Court directed the parties to answer ajurisdictional question. Defendants submitted a response dated December 16,2005, that more fully explains the basis for the Court’s appellate jurisdiction. TheClerk of the Court found that it appeared that there is jurisdiction over this appealin a Memorandum dated February 1, 2006.

2/ “Doc.” refers to the district court’s docket report and the number of thedocument on that report. A copy of the docket report is at Record Excerpts tab 1.

(continued...)

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STATEMENT OF JURISDICTION

The district court had subject matter jurisdiction over plaintiffs’ claims

under the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-1544, pursuant to

16 U.S.C. §§ 1540(c), 1540(g)(1)(A), and 28 U.S.C. § 1331.

The Court of Appeals has appellate jurisdiction over the appeal from the

district court’s September 12, 2005, order (the “injunction-remand order”) for two

reasons.1/ First, the injunction-remand order is appealable under 28 U.S.C. § 1291

as a “final decision.” MCI Telecomm. Corp. v. BellSouth Telecomm. Inc., 298 F.3d

1269, 1271 (11th Cir. 2002). The district court’s earlier holdings are appealable as

well, as this is an appeal from a final order. See, e.g., Kirkland v. National

Mortgage Network, Inc., 884 F.2d 1367, 1370 (11th Cir. 1989) (holding that all

earlier orders are generally reviewable in appeal from final decision). Second, this

Court has jurisdiction over the appeal under 28 U.S.C. § 1292(a)(1) because the

district court granted an injunction in the September 12, 2005, order. Florida Key

Deer v. Brown, 386 F. Supp. 2d 1281 (S.D. Fla. Sept. 12, 2005) (Doc. 88, R.E. 4).2/

2/(...continued)“R.E.” refers to the Record Excerpts and the numbered tab of the cited document.

- 2 -

The injunction-remand order expressly incorporates the holdings and reasoning of

the earlier orders. 386 F. Supp. 2d at 1284-85, 1289-90.

The appeal is timely. The district court entered the injunction-remand order

on September 12, 2005. Defendants-appellants filed the notice of appeal on

November 10, 2005, (Doc. 291), within the 60-days provided for filing a notice of

appeal where an agency of the United States is a party. Fed. R. App. P. 4(a)(1).

STATEMENT OF THE ISSUES

1. Whether the Federal Emergency Management Agency (“FEMA”) has

a duty to consult and to avoid jeopardy to listed species under section 7(a)(2) of the

Endangered Species Act where (a) FEMA does not have discretion under the

National Flood Insurance Program to take action that inures to the benefit of listed

species and (b) the National Flood Insurance Program is not a legally sufficient

cause of jeopardy to listed species.

2. Whether Endangered Species Act section 7(a)(1) requires FEMA to

have a species-specific and county-specific conservation program for listed

species.

3. Assuming duties under section 7(a)(2) attach, whether FEMA’s

reliance on FWS’s biological opinion and “reasonable and prudent alternatives” to

3/ Plaintiffs in this case are three environmental organizations and eightendangered or threatened species found in the Florida Keys. The endangered andthreatened species lack standing. Cetacean Cmty. v. Bush, 386 F.3d 1169 (9th Cir.2004). The species’ lack of standing does not affect the standing of theorganizational plaintiffs, however. Cf. Loggerhead Turtle v. County Council ofVolusia County, 148 F.3d 1231 (11th Cir. 1998) (allowing plaintiffs, includinglisted species and two individuals, to amend complaint to add leatherback sea turtleas plaintiff where amendment had the effect of adding a new substantive claim).

Defendant R. David Paulison is the acting head of FEMA, which is now partof the Department of Homeland Security. 6 U.S.C. § 313(1). Defendant GaleNorton is the Secretary of the United States Department of the Interior, of which FWS is a part.

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satisfy its obligations under section 7(a)(2) of the Endangered Species Act without

performing its own substantive analysis was arbitrary and capricious.

4. Whether the district court can enjoin FEMA to provide flood

insurance to some individuals in an eligible community but not others, where

FEMA’s enabling statute does not grant the agency the authority to do so.

STATEMENT OF THE CASE

A. Nature of the Case and Disposition Below

Plaintiffs challenge FEMA’s and the United States Fish and Wildlife

Service’s (“FWS’s”) compliance with Endangered Species Act sections 7(a)(1) and

7(a)(2) with respect to FEMA’s provision of flood insurance in the Florida Keys.3/

In a March 29, 2005, order, the district court granted summary judgment for

plaintiffs. Florida Key Deer v. Brown, 364 F. Supp. 2d 1345 (S.D. Fla. 2005)

(Doc. 214, R.E. 5). In a September 12, 2005, order, the court enjoined FEMA

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from providing flood insurance for new development in the suitable habitat of the

endangered or threatened species in the Florida Keys pending remand to the

agencies. Florida Key Deer v. Brown, 386 F. Supp. 2d 1281 (S.D. Fla. 2005)

(Doc. 237, R.E. 4).

B. Legal Background

1. The Endangered Species Act

The Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-1544, seeks to

conserve endangered or threatened species and the ecosystems on which they

depend. 16 U.S.C. § 1531(b) (describing purposes of the ESA); see also, e.g.,

Bennett v. Spear, 520 U.S. 154, 157-58, 117 S. Ct. 1154, 1159 (1997). Section 4

of the ESA provides for the listing of species as “threatened” or “endangered,” and

the designation of “critical habitat” for such listed species. 16 U.S.C. § 1333. All

of the species at issue in this case fall under the jurisdiction of the Secretary of the

Interior, who has delegated her authority to the United States Fish & Wildlife

Service (“FWS”). 50 C.F.R. § 402.01(b); Interagency Cooperation – Endangered

Species Act of 1973 as Amended, Final Rule, 51 Fed. Reg. 19926, 19926 (June 3,

1986).

ESA section 7 imposes certain obligations on federal agencies. Section

7(a)(2) imposes limitations on agency action. It requires federal agencies to

“insure” in consultation with the appropriate consulting agency (here, FWS) that

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“any action authorized, funded, or carried out” by the agency “is not likely to

jeopardize the continued existence of any endangered species or threatened species

or result in the destruction or adverse modification of” designated critical habitat.

16 U.S.C. § 1536(a)(2). FWS’s regulations implementing the ESA provide

“Section 7 and the requirements of this part apply to all actions in which there is

discretionary Federal involvement or control.” 50 C.F.R. § 402.03.

At the conclusion of a section 7(a)(2) consultation, FWS issues a “biological

opinion” that “set[s] forth [FWS’s] opinion, and a summary of the information on

which the opinion is based, detailing how the agency action affects the species or

its critical habitat.” 16 U.S.C. § 1536(b)(3)(A); see also 50 C.F.R. § 402.14. If

“jeopardy or adverse modification [of critical habitat] is found, [FWS] shall

suggest those reasonable and prudent alternatives [“RPAs”] which [FWS] believes

would not violate subsection (a)(2) of this section and can be taken by the Federal

agency or applicant in implementing the agency action.” 16 U.S.C. §

1536(b)(3)(A). The “reasonable and prudent alternatives” must be actions that

“can be implemented consistent with the scope of the Federal agency’s legal

authority and jurisdiction.” 50 C.F.R. § 402.02.

ESA section 7(a)(1) provides as follows:

All other Federal agencies shall, in consultation with and with theassistance of [FWS], utilize their authorities in furtherance of thepurposes of this chapter by carrying out programs for the conservation

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of endangered species and threatened species listed pursuant to section1533 of this title.

16 U.S.C. §1536(a)(1).

ESA section 9 prohibits “take” of listed species, id. § 1538, which is defined

to include harming, harassing, or killing listed species, among other things, id. §

1532(19). The prohibition on take applies to all “person[s]” – i.e., both private

citizens and federal agencies. Id. § 1538(a).

2. The National Flood Insurance Act and Program

The National Flood Insurance Act of 1968 (“NFIA”), 42 U.S.C. § 4001 et

seq., has two primary goals: (1) to provide affordable flood insurance to the

general public, and (2) to reduce the risks and costs of flood damage. 42 U.S.C. §§

4011, 4014; Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d 386, 388 (9th Cir. 2000).

As Congress explained in its findings,

(1) from time to time flood disasters have created personal hardshipsand economic distress which have required unforeseen disaster reliefmeasures and have placed an increasing burden on the Nation’sresources; (2) despite the installation of preventive and protective works and theadoption of other public programs designed to reduce losses caused byflood damage, these methods have not been sufficient to protectadequately against growing exposure to future flood losses; (3) as a matter of national policy, a reasonable method of sharing therisk of flood losses is through a program of flood insurance which cancomplement and encourage preventive and protective measures; and (4) if such a program is initiated and carried out gradually, it can beexpanded as knowledge is gained and experience is appraised, thuseventually making flood insurance coverage available on reasonable

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terms and conditions to persons who have need for such protection.

42 U.S.C. § 4001(a). The program created by the Act is called the National Flood

Insurance Program and is administered by FEMA. See, e.g., id. § 4128

(authorizing director of FEMA to issue regulations as may be necessary to carry

out the purpose of the act).

Before insurance is provided within a community, the NFIA requires that the

community satisfy certain eligibility requirements.

The Director [of FEMA] shall make flood insurance available in onlythose States or areas (or subdivisions thereof) which he hasdetermined have—

(1) evidenced a positive interest in securing flood insurancecoverage under the flood insurance program, and

(2) given satisfactory assurance that by December 31, 1971,adequate land use and control measures will have been adopted for theState or area (or subdivision) which are consistent with thecomprehensive criteria for land management and use developed undersection 4102 of this title, and that the application and enforcement ofsuch measures will commence as soon as technical information onfloodways and on controlling flood elevations is available.

Id. § 4012. The statute also establishes that “no new flood insurance coverage

shall be provided under this chapter in any area (or subdivision thereof) unless an

appropriate public body shall have adopted adequate land use and control measures

(with effective enforcement provisions) which the Director finds are consistent

with the comprehensive criteria for land management and use under section 4102

of this title.” Id. § 4022(a).

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The NFIA sets forth a specific, four-pronged framework for FEMA to

follow in determining community eligibility criteria:

On the basis of such studies and investigations, and such otherinformation as he deems necessary, the Director shall from time totime develop comprehensive criteria designed to encourage, wherenecessary, the adoption of adequate State and local measures which,to the maximum extent feasible, will—

(1) constrict the development of land which is exposed to flooddamage where appropriate, (2) guide the development of proposed construction away fromlocations which are threatened by flood hazards, (3) assist in reducing damage caused by floods, and (4) otherwise improve the long-range land management and useof flood-prone areas,

and he shall work closely with and provide any necessary technicalassistance to State, interstate, and local governmental agencies, to encouragethe application of such criteria and the adoption and enforcement of suchmeasures.

Id. § 4102(c). FEMA’s rules set forth its community eligibility requirements at 44

C.F.R. §§ 60.1-60.26.

Communities may also choose to participate in a “community rating system

program.” 42 U.S.C. § 4022(b). The community rating system provides discounts

on flood insurance premiums in communities that establish additional floodplain

management regulations that exceed the minimum criteria set by the NFIA and

FEMA. Id. The rating system serves four purposes:

(A) to provide incentives for measures that reduce the risk of flood orerosion damage that exceed the criteria set forth in section 4102 ofthis title and evaluate such measures; (B) to encourage adoption of more effective measures that protect

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natural and beneficial floodplain functions; (C) to encourage floodplain and erosion management; and (D) to promote the reduction of Federal flood insurance losses.

Id.; see also Decl. Michael Robinson, Jan. 9, 2003 & Ex. A (Doc. 178).

C. Factual and Procedural Background

Plaintiffs filed this lawsuit in 1990, initially against FEMA only. Plaintiffs

claimed that the ESA required FEMA to consult with FWS about the impact of the

flood insurance program on the Key Deer, an endangered species, in the Florida

Keys. Doc. 1.

In response, FEMA made three primary arguments. First, FEMA argued

that plaintiffs lacked standing because plaintiffs could not satisfy the causation and

redressability prongs of constitutional standing. The nexus between the alleged

harm to the species here (loss of habitat) and FEMA’s action (providing insurance)

was too attenuated; the causal chain was both too extended and interrupted by third

parties’ independent decisions. Second, FEMA argued that plaintiffs failed to

identify a discrete aspect of the flood insurance program that caused harm to the

species and plaintiffs. Third, FEMA argued that it lacked sufficient discretion

under the NFIA to take an action that would benefit the listed species, as required

by 50 C.F.R. § 402.03. Doc. 31 at 6-40; Doc. 66 at 10-47.

In 1994, the district court held that plaintiffs had standing and that FEMA

had to consult with FWS. Florida Key Deer v. Stickney, 864 F. Supp. 1222 (S.D.

4/ The ten species addressed in the 1997 biological opinion were the Easternindigo snake, the Garber’s spurge, the Key deer, the Key Largo cotton mouse, theKey Largo woodrat, the Key tree-cactus, the Lower Keys marsh rabbit, the Schaus’swallowtail butterfly, the silver rice rat, and the Stock Island tree snail. Id. at 2.6.

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Fla. 1994) (Doc. 88, R.E. 6). The district court ordered FEMA to do so, and

retained jurisdiction over the suit. Id. at 1242. FEMA did not appeal this ruling at

that time.

FEMA consulted with FWS, and FWS issued its first biological opinion in

1997. Doc. 118, R.E. 7. The 1997 biological opinion assessed the impact of the

National Flood Insurance Program on the ten listed species in the Keys.4/ Id. at

2.2-2.6. In the biological opinion, FWS analyzed the following:

! The status of each of the ten species (id. at 2.6-2.31)

! The “environmental baseline” – i.e., “the status of threatenedand endangered species in the action area based on an analysisof the effects of previous actions” (id. at 3.1-3.44)

! The effects of the action – i.e., “the probable direct and indirecteffects of the NFIP on threatened and endangered species in theKeys” (id. at 4.1-4.20 (emphasis in original))

FWS concluded that the flood insurance program jeopardized nine of the ten listed

species in the Keys (all but the Eastern indigo snake) because the NFIP indirectly

contributed to greater development, which increased the risks that the listed species

faced. Id. at 2.6, 5.1. FWS, however, found that an RPA would avoid jeopardy.

Id. at 5.1.

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The 1997 RPA provided for FWS review of new development within the

suitable habitat of the listed species. Specifically, FEMA required Monroe County,

in order to maintain eligibility for the flood insurance program, to ensure that FWS

could review each new development within the species’ suitable habitats. Id. at

5.3. In order to accomplish this, the County conditioned the grant of a building

permit to a landowner on the completion of FWS review. Id. During the review,

FWS determined whether the project “would not” or “may adversely affect

threatened or endangered species or designated critical habitat.” Id. If FWS

concluded that the project would not affect the species or critical habitat, then FWS

would send a letter to the County to that effect. Id. If FWS concluded that the

project may adversely affect any species or critical habitat, then the County and

FWS would work with the landowner “to ensure compliance with the [ESA] (that

is, to make certain the landowner receives applicable Section 10 permits [that allow

“take” of listed species in certain circumstances] or, if other Federal permits are

required, to make certain the proposal has a completed Section 7 consultation).”

Id. The RPA required FEMA to evaluate the County’s compliance with this

procedure and review the County’s records. Id. If the County did not comply, the

RPA required FEMA to treat the violation “as a substantive deficiency pursuant to

44 CFR 60.3, 60.4, and 60.5,” and notify the County. Id. If the County failed to

“correct[] the deficiencies identified in FEMA’s notification letter,” then “FEMA

- 12 -

should” place the County in probation or suspend their participation in the flood

insurance program. Id. FEMA implemented the RPA. Doc. 185, R.E. 8

at 1, 39-40.

FWS also included a “discretionary” ESA section 7(a)(1) “conservation

recommendation” in the 1997 biological opinion that would improve upon

FEMA’s existing community-rating-system credit for communities that protect

areas providing habitat for rare or endangered species. Doc. 118, R.E. 7 at 5.5.

Specifically, FWS recommended that FEMA include credits for completion of a

comprehensive, county-wide Habitat Conservation Plan. FEMA implemented this

conservation recommendation. Doc. 185, R.E. 8 at 59; Decl. Michael Robinson,

Jan. 9, 2003, at 2-3, ¶¶ 4-6 (Doc. 178).

After issuance of the 1997 biological opinion, plaintiffs amended their

complaint. The amended complaint named the Department of the Interior as an

additional defendant and challenged the validity of the 1997 biological opinion

under section 7(a)(2). Doc. 119. The amended complaint also alleged that FEMA

had not complied with ESA section 7(a)(1). Id. The parties filed cross-motions for

summary judgment on the amended complaint. Docs. 122, 130.

The 1997 biological opinion required FEMA to re-initiate ESA section 7

consultation with FWS if Monroe County did not complete a habitat conservation

plan within four years. Doc. 118, R.E. 7 at 5.5. Since the County did not complete

5/ The 2003 biological opinion also assessed whether the flood insuranceprogram adversely affected the American crocodile, and concluded that it did not.Id. at 33-38, 55.

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such a plan by 2001, FEMA re-initiated consultation. FWS issued an amended

biological opinion in 2003 (Doc. 185, R.E. 8), before the district court ruled on the

pending cross-motions for summary judgment concerning the 1997 biological

opinion. As FWS explained in the amended opinion, the “opinion is being

amended as a result of new information gained from implementation of the

reasonable and prudent alternative (RPA) provided in the 1997 opinion and

because a county-wide Habitat Conservation Plan was not completed within four

years of the issuance of the 1997 biological opinion.” Id. at 1.

In the 2003 biological opinion, FWS updated the description of the species

at issue, re-assessed the environmental baseline, and further analyzed the effects of

the action on each species. Id. at 4-49. The 2003 biological opinion noted that

human population growth had “slowed significantly” from FWS’s projection and

assumption in the 1997 biological opinion, from a decade-long increase of 32.8%

to 2%. Id. at 38. The amended 2003 biological opinion reached essentially the

same jeopardy conclusion as in 1997. That is, it concluded that the flood insurance

program jeopardized eight of the ten listed species considered in 1997 (all but the

Eastern indigo snake and the Garber’s spurge).5/ Id. at 55. With respect to the

1997 RPA, FWS found that it was adequately protecting the listed species as

6/ FWS found that there had been 2,648 consultations with FWS byhomeowners and others who had applied for building permits in the Keys insuitable habitat for the species from 1998 through September 30, 2002. Id. at 39.In the majority of those consultations (2,606), FWS had concluded that the plannedproject was “not likely to adversely affect” (or “NLTAA”) the listed species. Id. For 30 projects where FWS expressed concerns about their impact on listedspecies, the projects were altered. Id. For these 30, FWS found that they were“not likely to adversely affect” the listed species after the changes were made. Id. “The modifications generally involved a change in location or a reduction in thefootprint of development that avoided adverse impacts.” Id. There were 12projects where FWS found adverse impacts on the listed species, and FWSrecommended that the landowner apply for an ESA section 10(a)(1)(B) permitallowing incidental take; none of these projects were initiated and no landownerapplied for a permit. Id. at 39-40.

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intended. Id. at 2-4, 39-40, 55-60.6/ Because FWS found the 1997 RPA was

working as intended, FWS included the same RPA in the 2003 biological opinion.

In the 2003 biological opinion, FWS also recommended that FEMA

continue to implement the “discretionary” section 7(a)(1) conservation

recommendation made in 1997. Id. at 59. The biological opinion noted that FEMA

had implemented a “two tiered system” that provides communities with credit if

they adopted and implemented a habitat conservation plan, and additional credit if

they implemented an FWS-approved habitat conservation plan under section

10(a)(1)(B) of the ESA. Id. FWS also recommended that FEMA nominate a staff

person to the Multi-species/Ecosystem Recovery Implementation Team, which

implements a South Florida-wide recovery plan for 68 listed species. Id.

Plaintiffs amended their complaint for a second time to challenge the 2003

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biological opinion and RPA. Doc. 187, R.E. 2. On cross-motions for summary

judgment (Docs. 188, 192), the district court granted judgment for plaintiffs on

March 29, 2005. Florida Key Deer v. Brown, 364 F. Supp. 2d 1345 (S.D. Fla.

2005) (Doc. 214, R.E. 5). The court found several deficiencies in FWS’s

biological opinion, including that the opinion did not evaluate thoroughly enough

the effect of the 1997 RPA on the listed species and that the RPA relied on

voluntary measures and provided for a “piecemeal” review of development

projects. 364 F. Supp. 2d at 1352-59. The court further held that FEMA was

required to perform an independent analysis of the 2003 RPA, regardless whether

FWS’s analysis in the biological opinion was adequate, and that FEMA violated

ESA section 7(a)(1) by failing to develop a conservation program specific to the

listed species in the Keys. Id. at 1358-61.

The court, however, did not order any relief at that time or enter a judgment,

but asked the parties to address the issue of remedy in further briefing. On

September 12, 2005, the district court enjoined FEMA from providing any

insurance for new developments in suitable habitat of the listed species in Monroe

County pending the district court’s approval of a new biological opinion and any

RPA in that opinion. Florida Key Deer v. Brown, 386 F. Supp. 2d 1281 (S.D. Fla.

2005) (Doc. 237, R.E. 4). The district court rejected defendants’ argument that its

injunction would be inconsistent with the NFIA because the statute did not provide

7/ See also, e.g., Sierra Club v. Johnson, Nos. 03-10262, 03-10265, __ F.3d___, 2006 WL 146230, at *2 (11th Cir. Jan. 20, 2006) (holding that, where astatute does not set forth an independent standard of review and decision beingchallenged is a final agency action, “we apply the deferential standard of review setforth in the [APA]”); Biodiversity Legal Found. v. Babbitt, 146 F.3d 1249, 1252(10th Cir. 1998) (“[I]n examining whether the Service’s actions violate the ESA,we rely on the standards of review provided in the APA . . . . Under the APA,administrative decisions involving the ESA are upheld unless they are ‘arbitrary,capricious, an abuse of discretion, or otherwise not in accordance with law.’”).

- 16 -

FEMA with the authority or discretion to provide insurance to some persons within

an eligible community but not to others. Id. at 1289-93. The district court relied

on its 1994 order that found that section 7(a)(2) applied to the flood insurance

program. Id. at 1289-90. The district court also remanded the action to FEMA and

FWS to comply with its orders within nine months. Id. at 1294. FWS and FEMA

appealed on November 10, 2005. Doc. 291.

D. Standard of Review

The Administrative Procedure Act (“APA”), 5 U.S.C. § 706, provides the

standard of review here. The APA standard applies to plaintiffs’ APA claims, as

well as to plaintiffs’ ESA claims brought pursuant to the citizen-suit provision of

the ESA, 16 U.S.C. § 1540(g)(1)(A). See, e.g., Fund for Animals, Inc. v. Rice, 85

F.3d 535, 541, 548 (11th Cir. 1996).7/

“On appeal, this court, in reviewing the administrative record, applies the

same arbitrary and capricious standard of review utilized by the district court.”

Fund for Animals, 85 F.3d at 541. To succeed on the merits, plaintiffs must show

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that the agencies’ actions are “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706(2). With respect to the

injunction, this Court “review[s] a trial court’s decision to grant [an] injunction

under the abuse of discretion standard”; “determinations of law are reviewed de

novo, while the findings of fact that support an injunction are reviewed for clear

error.” SEC v. ETS Payphones, Inc., 408 F.3d 727, 731 (11th Cir. 2005).

This APA standard of review is “exceedingly deferential.” Fund for

Animals, 85 F.3d at 541. Under the APA standard, this Court

give[s] deference to a final agency decision by reviewing for clearerror, and we cannot substitute our own judgment for that of theagency. Although the standard of review applied to final agencydecisions is deferential, the matter is a little more complicated thanthat. Under the arbitrary and capricious standard, we must considerwhether an agency’s decision “was based on a consideration of therelevant factors and whether there has been a clear error of judgment.”

Sierra Club v. Johnson, Nos. 03-10262, 03-10265, __ F.3d ___, 2006 WL 146230,

at *2 (11th Cir. Jan. 20, 2006) (citations omitted) (quoting Fund for Animals, 85

F.3d at 541). Moreover, under APA section 706, review is limited to discrete

agency actions; the APA does not authorize broad programmatic challenges to

agency action. See Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 61-

65, 124 S. Ct. 2373, 2378-80 (2004); Lujan v. National Wildlife Fed’n, 497 U.S.

871, 891-94, 110 S. Ct. 3177, 3190-91 (1990). The scope of review under the

arbitrary and capricious standard is narrow, and a court is not to substitute its

- 18 -

judgment for that of the agency. Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 2866 (1983).

In addition to the deference codified in the APA standard of review,

Chevron deference also applies here to certain issues of statutory interpretation

discussed below. As this Court has recently explained,

When we review an agency’s interpretation of a statute that theagency is responsible for administering, we apply a two-step test. First, we must determine “whether Congress has directly spoken to theprecise question at issue.” Then, if Congress’ intent is clear from thestatutory language, we must give effect to it. “[I]f the statute is silentor ambiguous with respect to the specific issue,” we must decidewhether the agency based its interpretation on a permissibleconstruction of the statute. To uphold [the agency’s] interpretation ofa statute, we “need not conclude that the agency construction was theonly one it permissibly could have adopted” or even that we wouldhave interpreted the statute the same way that the agency did.

Sierra Club v. Johnson, 2006 WL 146230, at *2 (citations omitted) (quoting

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43, 104 S.

Ct. 2778 , 2781-82 (1984)).

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SUMMARY OF THE ARGUMENT

I. ESA section 7(a)(2), as interpreted by FWS, requires consultation over

“actions funded, authorized, or carried out” by the agency only if the agency has

discretion to take action that inures to the benefit of listed species. If the agency

cannot take action to benefit listed species, consultation would be fruitless. FEMA

lacks the required discretion under the flood insurance program. Congress has

required FEMA to provide flood insurance to all comers who reside in eligible

communities, and has set detailed standards for FEMA that do not allow FEMA to

take into account wildlife and listed species concerns. Because FEMA lacks the

requisite discretion under the NFIA to limit eligibility for flood insurance based on

impacts to listed species, the consultation and substantive obligations under section

7(a)(2) do not apply.

Viewed from a different perspective, FEMA’s flood insurance program is

not the legal cause of jeopardy to the species. For section 7(a)(2) to apply, there

must be a causal connection between the agency action and the potential jeopardy

to the listed species. The FEMA conduct that is at issue here – i.e., the

implementation of the flood insurance program and issuance of individual

flood-insurance policies – is not a legally sufficient cause of jeopardy to the

continued existence of any listed species because FEMA does not have the

authority under the NFIA to take action to prevent such jeopardy.

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II. While ESA section 7(a)(1) provides that agencies “shall, in

consultation with and with the assistance of the Secretary, utilize their authorities

in furtherance of the purposes of this chapter by carrying out programs for the

conservation of [listed] species,” it does not require agencies to develop species-

specific and location-specific programs, as the district court held. Even assuming

that there is some ambiguity in section 7(a)(1), FWS’s interpretation of section

7(a)(1) – that it does not mandate particular actions and agencies have discretion in

determining how to satisfy it – is a permissible construction of the statute under

Chevron. Moreover, because the content of the duty to conserve is discretionary

and section 7(a)(1) does not provide any standards for a court to review, section

7(a)(1) lacks both the “clarity necessary to support judicial action” and “the

specificity requisite for agency action.” Norton v. Southern Utah Wilderness

Alliance, 542 U.S. 55, 66, 124 S. Ct. 2373, 2380-81 (2005). FEMA’s

conservation program – a program of incentives that rewards communities with

lower insurance rates if they take actions that benefit listed species – fully satisfies

section 7(a)(1).

III. Assuming section 7(a)(2) is applicable, the ESA does not require FEMA

to perform an independent analysis of the RPA suggested by FWS. Under the

ESA, FWS first determines whether the agency action will jeopardize listed

species, and if it concludes so, then determines whether there are “reasonable and

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prudent alternatives” that will avoid jeopardy. FEMA then has the option of

implementing the RPA, ignoring the RPA and proceeding at its own peril, or

petitioning for an exemption. FEMA chose to implement the RPA. While that

choice can be challenged under the APA, FEMA need not perform its own

independent analysis of the RPA before implementation.

IV. The district court’s injunction bars FEMA from providing flood

insurance in some areas of the Keys but not in others. Assuming that section

7(a)(2) applies to FEMA here, FEMA has no authority under the NFIA to provide

insurance to some individuals but not others within an eligible community. The

ESA does not provide FEMA with any additional authority beyond what Congress

granted FEMA in the NFIA. In fact, the ESA recognizes as much, in that it limits

an RPA to actions that “can be taken by the Federal agency or applicant in

implementing the agency action.” 16 U.S.C. § 1536(b)(3)(A). The district court

exceeded its authority and abused its discretion by issuing an injunction that is

inconsistent with the NFIA and the ESA.

8/ Although the district court rejected these arguments in its 1994 ruling, wemay properly raise them on appeal now, because the district court relied on its1994 ruling in its September 12, 2005, injunction-and-remand order from whichwe now appeal. 386 F. Supp. 2d at 1289-90 (R.E. 4).

- 22 -

ARGUMENT

I. ESA SECTION 7(a)(2) DOES NOT APPLY TO FEMA’S PROVISIONOF FLOOD INSURANCE BECAUSE FEMA LACKS DISCRETIONTO TAKE ACTION THAT INURES TO THE BENEFIT OF LISTEDSPECIES AND THE FLOOD INSURANCE PROGRAM IS NOT ALEGAL CAUSE OF JEOPARDY.

The district court erred in holding that section 7(a)(2), including the duty to

consult, applies to the flood insurance program. An agency is not required to

consult with FWS on every action. As we explain below, an agency must consult

only on actions where it has discretion to implement measures that inure to the

benefit of protected species. Because FEMA lacks such discretion, FEMA has no

obligation to consult with FWS about the flood insurance program. See Part A

below.

In addition, plaintiffs fail to demonstrate that the flood insurance program –

the action at issue – is a legally sufficient cause of any jeopardy to the species. For

there to be a legally sufficient cause, the agency must be able to take action to

prevent the harm. FEMA lacks the discretion and authority to do so. See Part B

below.8/

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A. FEMA Does Not Have Discretion Under the Flood InsuranceProgram to Take Actions that Benefit Listed Species.

1. The regulation and case law require discretion to takemeasures that will inure to the benefit of listed species.

ESA section 7(a)(2) requires federal agencies, “in consultation with and with

the assistance of [FWS], [to] insure that any action authorized, funded, or carried

out by such agency . . . is not likely to jeopardize the continued existence of any

[listed] species or result in the destruction or adverse modification of [critical]

habitat.” 16 U.S.C. § 1536(a)(2). ESA regulations promulgated in 1986 provide

that section 7’s requirements apply “to all actions in which there is discretionary

Federal involvement or control.” 50 C.F.R. § 402.03. This Circuit has recognized

that the regulation limits the scope of section 7(a)(2)’s consultation requirement:

“the consultation requirement is limited to those actions that require ‘discretionary

Federal involvement or control.’” Alabama-Tombigbee Rivers Coalition v. Norton,

338 F.3d 1244, 1247 (11th Cir. 2003) (quoting 50 C.F.R. § 402.03, but not

deciding issue of whether section 7(a)(2) applies). The courts applying the

regulation – with a single exception neither relevant nor controlling here – have

found that ESA section 7 requirements do not apply where an agency lacks

discretionary authority to take actions that inure to the benefit of listed species.

For example, the Ninth Circuit, in Sierra Club v. Babbitt, 65 F.3d 1502 (9th

Cir. 1995), held that section 7(a)(2) did not apply where the federal agency (the

9/ See also, e.g., Turtle Island Restoration Network v. NMFS, 340 F.3d 969,974 (9th Cir. 2003) (summarizing the law as follows: “This court has held that thediscretionary control retained by the federal agency must have the ability to inureto the benefit of a protected species. If no discretion to act is retained, thenconsultation would be a meaningless exercise. Stated another way, ‘where there isno agency discretion to act, the ESA does not apply’”; and holding that agency haddiscretionary authority to protect listed species); Ground Zero Ctr. for Non-ViolentAction v. U.S. Dept. of Navy, 383 F.3d 1082, 1092 (9th Cir. 2004).

A recent Ninth Circuit case has impermissibly attempted to jettison this lineof cases, holding that the regulation (§ 402.03) only requires that the action comewithin the agency’s “decisionmaking authority.” Defenders of Wildlife v. EPA,420 F.3d 946, 968-69 (9th Cir. 2005). This holding is flatly inconsistent with theSierra Club v. Babbitt and six Ninth Circuit cases that followed. A petition forrehearing en banc is pending.

- 24 -

Bureau of Land Management) retained the ability under a right-of-way agreement

to object to a privately built roadway in only three specific situations, none of

which related “to the conservation of the threatened spotted owl.” 65 F.3d at 1505,

1508 n.7. The court found that the Bureau’s lack of discretion to condition road

construction on the protection of owls barred application of section 7(a)(2),

explaining

where, as here, the federal agency lacks the discretion toinfluence the private action, consultation would be ameaningless exercise; the agency simply does not possess theability to implement measures that inure to the benefit of theprotected species.

Id. at 1509.9/ The Eighth Circuit has also recently observed in dicta that “the ESA

would not apply” in situations where an agency’s enabling statute did not permit

the agency to take steps benefitting listed species. In re Operation of Missouri

- 25 -

River Sys. Litig., 421 F.3d 618, 631 n.9 (8th Cir. 2005).

The Supreme Court’s decision in TVA v. Hill, 437 U.S. 153, 98 S. Ct. 2279

(1978), is not to the contrary. Hill, while stressing that the language of section

7(a)(2) is “extraordinarily broad,” did not go so far as to say that the statute

overrides limitations on the agency’s authority. The Supreme Court recognized

that the ESA might, “on occasion, require agencies to alter ongoing projects in

order to fulfill the goals of the Act.” 437 U.S. at 186. But the examples discussed

in support of that proposition all involved instances where the agency had existing

discretion. Id. at 184-88 (discussing (1) the Air Force altering bombing runs to

avoid jeopardy to whooping cranes, (2) the Park Service protecting grizzly bears

by supplying them excess elk carcasses, reducing clearcutting, and preventing

hunting, or (3) the Tennessee Valley Authority not closing the gates of the Tellico

Dam in order to protect the snail darter).

Finally, the district court here wrongly concluded that 50 C.F.R. § 402.03 is

limited to the issue of “geographical discretion,” rather than “discretion to

administer the federal activity.” 864 F. Supp. at 1239 (R.E. 6). The district court

apparently based this conclusion on the preamble to FWS’s final regulations,

which provides in relevant part:

This section [402.03], which explains the applicability of section 7,implicitly covers Federal activities within the territorial jurisdiction ofthe United States and upon the high seas as a result of the definition of

- 26 -

“action” in § 402.02. The explanation for the scope of the term“action” is provided in the discussion under § 402.01 above.

51 Fed. Reg. at 19937. The district court misread the preamble. The preamble

refers to “territorial jurisdiction” to explain an “implicit” aspect of 402.03, and not

the issue of agency discretion that is the explicit purpose of the text. No other

court has endorsed the concept of “geographical discretion” created by the district

court, and one court has flatly rejected it. Strahan v. Linnon, 967 F. Supp. 581,

620 (D. Mass. 1997), aff’d, 187 F.3d 623 (1st Cir. 1998)

2. Congress did not authorize FEMA to limit the availabilityof flood insurance.

In the NFIA, Congress made clear its intent that FEMA issue flood

insurance wherever communities have met minimum eligibility requirements. 42

U.S.C. § 4012(c) (The Director of FEMA “shall make flood insurance available . .

. .”) (emphasis added); see also id. § 4001 (purpose of flood insurance program is

to make flood insurance available on a nationwide basis). Moreover, Congress

specified the circumstances in which FEMA is to withhold insurance. See id. §

4022 (community must participate and agree to abide by floodplain management

criteria); id. §§ 4023, 4028, 4029 (releasing FEMA from its obligation to make

flood insurance available for properties declared to be in violation of local laws

restricting land use in flood-prone areas, as well as properties in the Coastal Barrier

Resource System and the Colorado River Floodway). With respect to the two

- 27 -

primary NFIA directives to issue flood insurance and to develop community

eligibility criteria, there is nothing in the statutory language that suggests FEMA

may consider wildlife concerns.

First, with respect to the directive to issue flood insurance, the mandatory

language of the NFIA requires FEMA to issue or underwrite flood insurance

without regard to wildlife. The statute provides that FEMA may condition or

withhold the issuance of flood insurance only if the community has not “given

satisfactory assurance” that it has implemented “adequate land use measures”

consistent with FEMA’s minimum criteria. Id. § 4012. The “land use measures”

are further defined in the statute and are all focused on land use in terms of flood

damage control, not wildlife conservation. Id. § 4102. The required “adequate

land use measures” is the sole condition FEMA may place on communities before

it must issue the policies to private parties. Id. § 4012. FEMA has no discretion

with respect to the provision of flood insurance once it determines that a

community has satisfied minimum eligibility criteria.

Second, with respect to the directive to develop criteria for determining

community eligibility, the NFIA enumerates the four factors to be considered.

FEMA may promulgate minimum land use criteria only to (1) constrict

development of land that is exposed to flood damage, (2) guide proposed

construction away from flood hazard areas, (3) assist in reducing damage caused

- 28 -

by flood, and (4) improve long-range land management and use of flood-prone

areas. Id. § 4102(c). The statutory language is devoid of any reference to wildlife,

much less listed species.

FEMA’s limited discretion under the flood insurance program is

indistinguishable from the cases finding section 7(a)(2) inapplicable due to an

agency’s lack of discretionary authority. As in Sierra Club v. Babbitt, where the

agency lacked discretion to influence the right-of-way project beyond three

enumerated factors, 65 F.3d at 1509, FEMA’s responsibilities under the NFIA are

cabined by non-discretionary factors or mandates that do not permit FEMA to take

action to benefit listed species. Because FEMA, like the agency in Sierra Club v.

Babbitt, “simply does not possess the ability to implement measures that inure to

the benefit of the protected species,” id., consultation under section 7(a)(2) is not

required. Unlike the express wildlife-conservation purposes stated in the statute at

issue in Turtle Island, 340 F.3d at 976-77, Congress did not create the flood

insurance program for species protection. The purposes of the NFIA, which are

described by Congress in the statute, do not mention anything about wildlife or

endangered or threatened species. See 42 U.S.C. § 4001(a) (titled “Congressional

findings and declaration of purpose”).

Nor do any of FEMA’s peripheral flood insurance program activities confer

discretion to take action to benefit listed species. The NFIA requires FEMA to

- 29 -

generate maps of the floodplain, but does not grant FEMA any discretion about

how to carry out the mapping task or any authority to consider wildlife or species

concerns in doing so. Specifically, the NFIA requires FEMA to “identify and

publish information with respect to all floodplain areas, including coastal areas

located in the United States,” 42 U.S.C. § 4101(a), and update the maps as

provided in the statute, id. § 4101(e)-(i). The mapping activity is based solely on

technical evaluation of the base flood elevation; FEMA is simply drawing a

topographic line around the floodplain. See, e.g., id. § 4104; 44 C.F.R. §§ 64.3,

65.1-65.17.

The only aspect of the flood insurance program under which FEMA may

have limited discretion to promote wildlife conservation measures is the

community rating system. Under this program, Congress requires FEMA to

provide discounts on flood insurance premiums in communities that choose to

establish additional floodplain management regulations that exceed FEMA’s

minimum criteria. 42 U.S.C. § 4022(b). Participation by any community is

voluntary. FEMA cannot dictate the content of regulations adopted by a

community, much less force their compliance. Id. In any event, plaintiffs here

have not targeted their challenge to the community rating system; they have made

no argument that the reduced insurance rates that can result from the system

10/ In any event, such an argument would make little sense because FEMA hasimplemented a credit in the community rating system that rewards communitieswith lower insurance rates if the community implements a habitat conservationplan. As we explain below, this program satisfies FEMA’s section 7(a)(1)obligation here.

11/ In contrast to the flood insurance program, FEMA has acknowledged that itsDisaster Relief Program, which is implemented under the Stafford Act, 42 U.S.C. §5121 et seq., and not the NFIA, is subject to section 7 because FEMA hasdiscretion in how it responds to each disaster. See, e.g., Hawksbill Sea Turtle v.FEMA, 11 F. Supp. 2d 529 (D.V.I. 1998).

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somehow results in jeopardy to listed species.10/ Instead, plaintiffs have challenged

the impact of FEMA’s provision of full-rate flood insurance in the Keys, and the

district court has required FEMA to consult on the entire flood insurance program.

Regardless whether the community rating system or any other aspect of the flood

insurance program, viewed in isolation, may appear to have discretionary elements,

FEMA lacks discretion to deny flood insurance or implement any measures that

would limit the availability of flood insurance based on the presence or absence of

listed species in the Keys. The flood insurance program is not a discretionary

federal action triggering consultation under the ESA.11/

3. FEMA’s authority to issue regulations does not create therequired discretion.

The district court here found that FEMA has discretion under the NFIA,

because the NFIA authorizes FEMA to “issue such regulations as may be

necessary to carry out the purposes of this Act.” 864 F. Supp. at 1239 (quoting 42

- 31 -

U.S.C. § 4128(a)) (R.E. 6). But relying on this provision alone simply begs the

relevant question – do the purposes of the NFIA include wildlife and protected

species protection?

As discussed above, the purposes of the NFIA do not include wildlife or

species-protection concerns. FEMA’s authority to issue regulations to carry out

the purposes of the NFIA does not authorize FEMA to issue regulations to carry

out the purposes of the ESA. The district court’s reliance on FEMA’s authority to

issue regulations about “land use” obscures the fact that the NFIA defines “land

use” in terms of flood protection, not in terms of wildlife concerns. See, e.g., 42

U.S.C. § 4102(c).

To the extent that there is any ambiguity as to the extent of FEMA’s

discretionary authority under the NFIA, the district court should have adhered to

the interpretation of FEMA, the agency charged by Congress with administering

the Act. This Court should defer to FEMA’s interpretation of longstanding

duration concerning the limited extent of its discretionary authority under the

NFIA. Barnhart v. Walton, 535 U.S. 212, 220, 122 S. Ct. 1265, 1270 (2002)

(holding that particular deference is normally due to agency interpretation of

“‘longstanding’ duration” (quoting North Haven Bd. of Educ. v. Bell, 456 U.S. 512,

12/ The district court appears to have deferred to FWS’s interpretation of theNFIA. FWS does not, however administer the NFIA and therefore itsinterpretation of that Act is not entitled to deference. Sierra Club v. Johnson, 2006WL 146230, at *2 (“When we review an agency’s interpretation of a statute thatthe agency is responsible for administering, we apply [the Chevron] two-step test.”(emphasis added)).

- 32 -

522 n.12, 102 S. Ct. 1912, 1918 (1982))).12/

4. The ESA does not expand FEMA’s authority to implementthe flood insurance program.

The weight of judicial authority has held that section 7(a)(2) does not

expand an agency’s authority. In American Forest & Paper Ass’n v. EPA, 137

F.3d 291, 298 (5th Cir. 1998), the Fifth Circuit rejected an attempt to condition the

transfer of Clean Water Act permitting authority to Louisiana on provisions

protecting listed species. The Court found that where a State meets the nine

criteria specified in the statute, approval is non-discretionary, and the agency

cannot condition approval on addressing endangered species concerns, stating

[if the agency] lacks the power to add additional criteria [under itsenabling statute], nothing in the ESA grants the agency the authorityto do so. Section 7 of the ESA merely requires EPA to consult withFWS or NMFS before undertaking agency action; it confers nosubstantive powers.

Id. at 297-98. The court further explained that “the ESA serves not as a font of

new authority, but as something far more modest: a directive to agencies to

channel their existing authority in a particular direction.” Id. at 299.

The District of Columbia Circuit reached the same conclusion in Platte

13/ Put another way, plaintiffs cannot skirt the required analysis of FEMA’sdiscretion under the NFIA to take actions that benefit listed species by citing to theESA as the source of that authority and discretion. Such reasoning is circular. Itwould render 50 C.F.R. § 402.03 meaningless because discretion under anagency’s enabling statute would not matter, as the ESA itself would supply thediscretion.

- 33 -

River Whooping Crane Trust v. FERC, 962 F.2d 27, 34 (D.C. Cir. 1992). The

court rejected a claim that the ESA provided authority for imposition of species-

protection terms in annual licenses for dams, where the act under which the dams

were licensed did not permit consideration of such terms. Id. at 32-34. The court

explained that the ESA “does not expand the powers conferred on an agency by its

enabling act.” Id. at 34; see also Sierra Club v. Babbitt, 65 F.3d at 1510 (same).

In Defenders of Wildlife, the Ninth Circuit held that the ESA itself provided

additional authority to the action agency. 420 F.3d at 964-66. This is in direct

conflict with the rulings of the Fifth and District of Columbia Circuits discussed

above, and is not grounded in the text of the ESA.13/ As previously mentioned

(supra at 24 n.9), this panel decision is subject to an en banc petition.

* * *

In sum, because FEMA’s administration of the flood insurance program in

the Keys is a non-discretionary action and FEMA lacks authority to take actions to

benefit listed species, no section 7(a)(2) duties attach.

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B. Plaintiffs Have Not Demonstrated that the Flood InsuranceProgram May Legally Cause Jeopardy to the Listed Species.

FEMA’s provision of flood insurance is not the legal cause of potential

jeopardy to the listed species. In Department of Transportation v. Public Citizen,

541 U.S. 752, 124 S. Ct. 2204 (2004), the Supreme Court assessed in what

circumstances a federal agency can be held to be a legal cause of environmental

harm under the National Environmental Policy Act (“NEPA”). The Supreme

Court held “that where an agency has no ability to prevent a certain effect due to its

limited statutory authority over the relevant actions, the agency cannot be

considered a legally relevant ‘cause’ of the effect.” 541 U.S. at 770. The Court

rejected plaintiffs’ broader theory of causation, and held that a broad “but for”

causation test that focuses on factual rather than legal or proximate causation was

inappropriate:

Respondents must rest, then, on a particularly unyielding variation of “but for” causation, where an agency’s action is considered a cause ofan environmental effect even when the agency has no authority toprevent the effect. However, a “but for” causal relationship isinsufficient to make an agency responsible for a particular effectunder NEPA and the relevant regulations. As this Court held inMetropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S.766, 774, 103 S. Ct. 1556[] (1983), NEPA requires “a reasonablyclose causal relationship” between the environmental effect and thealleged cause. The Court analogized this requirement to the “familiardoctrine of proximate cause from tort law.” Ibid. In particular,“courts must look to the underlying policies or legislative intent inorder to draw a manageable line between those causal changes thatmay make an actor responsible for an effect and those that

14/ Section 7(a)(2) also refers to actions “carried out” by the agency. Unlike“funded” and “authorized,” “carried out” refers to direct agency action – forexample, when the agency is building a dam.

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do not.” Id., at 774, n. 7.

Id. at 767. The Court went on to cite the proposition that “proximate cause

analysis turns on policy considerations of the ‘legal responsibility’ of actors.” Id.

(citing W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law

of Torts 264, 274-275 (5th ed. 1984)).

Section 7(a)(2)’s definition of “agency action” indicates that FEMA does not

have “legal responsibility” for either private development or harm to the listed

species. Section 7(a)(2) defines “agency action” as “any action authorized, funded,

or carried out by [a federal] agency.” 16 U.S.C. § 1536(a)(2). By referring

specifically to actions “authorized” and “funded” by federal agencies, Congress

identified two types of situations in which the nexus between federal and private

actions is sufficiently close that the private conduct can fairly be attributed, for

purposes of section 7(a)(2), to the federal government.14/ Private development

projects that are insured under the NFIA are neither “authorized” nor “funded” by

FEMA, if those terms are given their most natural reading. The express statutory

references to particular (and particularly direct) forms of federal involvement

suggest that section 7(a)(2) was not intended to apply to every federal action that in

some way increases the likelihood of species-harming voluntary private activities

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as a matter of fact. A potentially very broad range of federal actions might as a

practical matter make private actors more or less likely to engage in conduct that

harms listed species. For example, providing low income housing assistance in the

Keys or providing a tax deduction for mortgage interest might be a but-for cause of

increased development in the Keys. But these kinds of “federal actions” – like the

provision of flood insurance – are too attenuated from on-the-ground impacts to be

considered a legal cause of any harm to listed species.

In addition to its lack of “legal responsibility,” FEMA cannot “prevent a

certain effect due to its limited statutory authority over the relevant actions,” as

required by Public Citizen. 541 U.S. at 770. As discussed above, FEMA lacks the

discretion or authority to prohibit private development in the Florida Keys or to

take into account wildlife concerns. In issuing flood insurance, FEMA does not

require private landowners to engage in development, or in any particular form of

development. Conversely, FEMA’s approval is not a legal prerequisite to the

development of real property: a landowner is free to seek private, non-FEMA

insurance or to self-insure (to the extent that local law allows that option). The

most that can be said is that, as a matter of fact, the availability of federal flood

insurance may increase the likelihood that development will occur on tracts within

eligible communities in some circumstances. This indirect, but-for causal link to

species-injuring private conduct is an insufficient basis for bringing FEMA’s

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provision of flood insurance within the coverage of section 7(a)(2) of the ESA.

This attenuated connection is not the sort of proximate legal cause required by

Public Citizen.

This result is hardly surprising, as the underwriter of an insurance policy is

not generally treated as the legal cause of harms resulting from the conduct of the

insured. For example, a private insurer would not normally be said to have “taken”

a listed species (see 16 U.S.C. § 1538) simply by providing coverage to a

developer whose activities result in a taking. By the same token, FEMA’s issuance

of federal flood insurance – even if it is assumed to constitute an “agency action”

within the meaning of section 7(a)(2) – is not a legal cause of “jeopard[y] [to] the

continued existence of” listed species.

The Supreme Court’s causation analysis under NEPA in Public Citizen

applies equally to the ESA. Like the ESA, the NEPA imposes procedural

responsibilities on agencies where there are either “direct effects” or “indirect

effects” on the environment. 541 U.S. at 763-64. Specifically, NEPA applies

where there are “[i]ndirect effects, which are caused by the action and are later in

time or farther removed in distance, but are still reasonably foreseeable.” Id. at 764

(quoting 40 C.F.R. § 1508.8). The ESA regulations use very similar language.

The ESA regulations require consultation if there are “indirect effects,” which are

defined as “those that are caused by the proposed action and are later in time, but

15/ In full, the regulations provide that, prior to an agency requestingconsultation with the FWS, it should have “reason to believe that the prospectiveaction may affect a listed species or critical habitat.” 50 C.F.R. § 402.11(b). Theregulations direct an action agency to consider “the effects of the action as awhole.” 50 C.F.R. § 402.14. “Effects of the action” include both the direct andindirect effects of the action. “Indirect effects” are defined as “those that arecaused by the proposed action and are later in time, but still are reasonably certainto occur.” 50 C.F.R. § 402.02.

16/ This portion of Defenders of Wildlife, applying Public Citizen to the ESA, isnot the subject of the pending en banc petition.

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still are reasonably certain to occur.” 50 C.F.R. § 402.02.15/ The Ninth Circuit has

held that the causation analysis the Supreme Court applied in the NEPA context in

Public Citizen applies equally to the ESA. “‘[W]here an agency has no ability to

prevent a certain effect due to its limited statutory authority over the relevant

actions, the agency cannot be considered a legally relevant ‘cause’ of the effect.’”

Defenders of Wildlife, 420 F.3d at 963 (quoting Public Citizen, 541 U.S. at 770,

emphasis in original);16/ see also Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1075

(9th Cir. 1996) (holding that standards for major federal action under NEPA and

agency action under ESA are much the same).

Finally, if section 7(a)(2) is inapplicable to FEMA’s provision of flood

insurance, the ESA still protects listed species from injurious private development.

The “take” prohibition contained in section 9, 16 U.S.C. § 1538, applies to private

as well as federal actors, and any developer whose conduct causes “takes” of listed

species may be held liable under that provision. Section 7(a)(2), by contrast,

17/ This result is consistent with National Wildlife Fed’n v. Coleman, 529 F.2d359 (5th Cir. 1976). In Coleman, the Court found that there was a sufficientlyclose link between an agency’s oversight of construction of a highway and theassociated private development to necessitate consultation. The agency controlledthe placement of the 90-percent federally funded highway and interchanges, andcould have selected a location that would not have had any impact on theendangered species at issue. Id. at 362, 374. Under the circumstances, removal ofthe federal funding or re-routing the highway, both of which the agency could havedone, would effectively have eliminated the increased risk of private developmentin the area; the agency thus had the authority required by Public Citizen to preventthe environmental harm. Here, by contrast, FEMA does not have authority toblock the flood insurance program or “re-route” where flood insurance is provided.

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specifically addresses the danger that actions of the federal government will

jeopardize listed species. FEMA’s provision of flood insurance is not a legal cause

of potential jeopardy to the listed species.17/

II. FEMA REDUCES FLOOD INSURANCE RATES FORCOMMUNITIES THAT IMPLEMENT HABITAT CONSERVATIONPLANS, AND THIS PROGRAM SATISFIES ESA SECTION 7(a)(1).

Section 7(a)(1) does not require action agencies to develop species-specific

and location-specific programs to conserve the scores of listed species that might

be in the hundreds of jurisdictions where the agencies operate, contrary to the

district court’s holding. Section 7(a)(1) requires only that an agency implement

some conservation program. FEMA has done so here, as part of its community

rating system. FEMA implemented a “two tiered system” that provides

communities with credits and reduced insurance rates if they adopted and

implemented a habitat conservation plan, and additional credits and reduced rates if

18/ As one court has explained, “[t]he statute does not mention species-specificprograms. Rather, the agency may reasonably interpret its § 7(a)(1) obligations to

(continued...)

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they have implemented a FWS-approved habitat conservation plan under section

10(a)(1)(B) of the ESA. Doc. 185, R.E. 8 at 59 (2003 biological opinion); Doc.

118, R.E. 7 at 5.5 (1997 biological opinion); Decl. Michael Robinson, Jan. 9, 2003,

at 2-4, ¶¶ 4-11 (Doc. 178). That the program is national, and Monroe County is

currently not eligible, is irrelevant, because a species-specific and location-specific

program is not required, as explained below.

A. The Plain Language of Section 7(a)(1) Grants Broad Discretion tothe Agencies to Implement Any Program that Benefits ListedSpecies.

Section 7(a)(1) provides in relevant part as follows: “All other Federal

agencies shall, in consultation with and with the assistance of the Secretary [i.e.,

FWS], utilize their authorities in furtherance of the purposes of this chapter by

carrying out programs for the conservation of endangered species and threatened

species listed pursuant to section 1533 of this title.” 16 U.S.C. § 1536(a)(1). This

language does not mandate that agencies take specific “actions” or actions specific

to particular species. The language does not mandate where programs must occur.

The language does not mandate when or how quickly an agency must carry out its

programs. Instead, section 7(a)(1) requires only that agencies “carry[] out

programs.”18/

18/(...continued)extend no further than engaging in conservation programs that benefit threatenedspecies.” Northwest Envtl. Advocates v. EPA, 268 F. Supp. 2d 1255, 1273 (D. Or.2003).

19/ Section 7(a)(1)’s disavowal of a grant of any additional authority furtherevidences Congress’s intent not to impose a duty to pursue any particularconservation program. As the District of Columbia Circuit has explained, “thestatute directs agencies to ‘utilize their authorities’ to carry out the ESA’sobjectives; it does not expand the powers conferred on an agency by its enablingact.” Platte River, 962 F.2d at 34; see also, e.g., Sierra Club v. Babbitt, 65 F.3d at1510 (holding that section 7(a)(1) does not grant agencies any additionalauthority); Sierra Club v. Glickman, 156 F.3d 606, 616 n.5 (5th Cir. 1998) (“Ofcourse, this duty to consult and duty to conserve is tempered by the actualauthorities of each agency.”).

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The use of the word “programs” in section 7(a)(1), rather than “actions” as

in section 7(a)(2), reinforces the conclusion that agencies have significant

discretion in choosing how to satisfy section 7(a)(1). “By its terms, section 7(a)(1)

applies to agency programs, not individual agency actions. . . . [A]n agency may

reasonably interpret its section 7(a)(1) obligations to extend no further than

engaging in conservation programs that benefit listed species.” Protect Our Water

v. Flowers, 377 F. Supp. 2d 844, 870 (E.D. Cal. 2004) (emphasis added).19/

The ESA’s definition of the word “conservation” does not alter the plain

meaning of section 7(a)(1); it simply clarifies the purpose of section 7(a)(1) and

how long the duty will last. The statute defines “‘conserve,’ ‘conserving,’ and

‘conservation’” as follows: “to use and the use of all methods and procedures

which are necessary to bring any endangered species or threatened species to the

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point at which the measures provided pursuant to this chapter are no longer

needed.” 16 U.S.C. § 1532(3). This definition does not alter the plain import of

section 7(a)(1) – i.e., that an agency has broad discretion in carrying out a

conservation program.

The vast majority of courts that have addressed section 7(a)(1) have

concluded that agencies possess considerable discretion in choosing how to satisfy

its duty under that provision. For example, the Ninth Circuit “recognized that the

[agency] is to be afforded some discretion in ascertaining how best to fulfill the

mandate to conserve under section 7(a)(1).” Pyramid Lake Paiute Tribe v. United

States Dep’t of the Navy, 898 F.2d 1410, 1418 (9th Cir. 1990) (citing

Carson-Truckee Water Conservancy Dist. v. Clark, 741 F.2d 257, 262 (9th Cir.

1984)). The Ninth Circuit rejected plaintiff’s attempt to second guess the agency’s

program, and held that the agency need not adopt an alternative program that

plaintiff claimed would benefit listed species without harming the agency’s other

goals. Id. at 1416-19. A district court has held that it is “well settled” that

agencies have “broad discretion . . . under section 7(a)(1),” although the “discretion

is not so broad as to exclude total inaction.” National Wildlife Federation v.

Norton, 332 F. Supp. 2d 171, 187-88 (D.D.C. 2004) (holding that the agency

satisfied section 7(a)(1) by issuing an environmental impact statement that

reviewed key documents concerning conservation of the species and included draft

20/ See also, e.g., Protect Our Waters, 377 F. Supp. 2d at 869-70 (holding that anationwide program that was neither species-specific nor location-specific satisfiedsection 7(a)(1)); Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121, 135(D.D.C. 2001) (holding that “this court is not the proper place to adjudge anddeclare that defendants have violated the ESA as a matter of law by notimplementing the processes listed by [plaintiff]”).

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review criteria that the agency would use in assessing permit applications).20/

In holding that FEMA did not satisfy section 7(a)(1) because it failed to take

actions to benefit the listed species of the Keys at issue in this case, the district

court here relied almost entirely on Sierra Club v. Glickman, 156 F.3d 606 (5th

Cir. 1998). Sierra Club is readily distinguishable, and does not control here. In

Sierra Club, the agency had neither implemented any conservation program under

section 7(a)(1) nor had it consulted or informally discussed section 7(a)(1) with

FWS. Id. at 618. Moreover, the court stated: “the court conducting judicial review

must require the agency to show that it has considered the relevant factors and

followed the required procedures, but that, if the agency has done so, the court may

not substitute its judgment on the merits for the agency’s judgment.” Id. at 617.

Here, unlike in Sierra Club, plaintiffs have not alleged that FEMA failed to follow

the procedural requirements of section 7(a)(1); the record establishes that FWS

made a discretionary conservation recommendation to FEMA in the 1997

biological opinion and FEMA implemented the recommendation. Doc. 118, R.E. 7

at 5.5; Doc. 185, R.E. 8 at 59.

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* * *

In sum, the meaning of section 7(a)(1) is clear: an agency must carry out a

conservation program, but the timing, scope, and details of such a program are

properly left to the agency’s discretion. Because FEMA has such a program, the

district court erred in second-guessing whether there is another or better action that

FEMA should have chosen.

B. FWS’s Interpretation of Section 7(a)(1) is Due Chevron Deference.

Even assuming that there is ambiguity lurking in section 7(a)(1), FWS has

resolved the ambiguity and its interpretation of section 7(a)(1) is entitled to

Chevron deference. “To uphold [the agency’s] interpretation of a[n ambiguous]

statute, we ‘need not conclude that the agency construction was the only one it

permissibly could have adopted’ or even that we would have interpreted the statute

the same way that the agency did.” Sierra Club v. Johnson, 2006 WL 146230, at

*2 (quoting Chevron, 467 U.S. at 842-43).

FWS, in the 1986 preamble to amended ESA regulations, explains that

section 7(a)(1) both does not mandate any particular actions and grants agencies

discretion to implement a program of the agency’s design. Specifically, the

preamble interprets section 7(a)(1) as follows:

The Service will not, nor does it have the authority to, mandate how orwhen other Federal agencies are to implement their responsibilitiesunder section 7(a)(1) . . . . Section 7(a)(1) has a limited purpose under

21/ FWS was responding to a comment to the proposed rule requesting FWS to“ban” any federal actions that would “violate the requirement to conserveendangered species,” even if there was a “no jeopardy” determination. FWSresponded that the comment had misconstrued section 7(a)(1), and further stated,

[a]lthough there is no express legislative history directly weighing andcomparing the relative strengths of section 7(a)(1) with 7(a)(2), there can beno doubt that Congress considered the jeopardy standard of section 7(a)(2)as being the substantive cornerstone of section 7: “The term ‘is likely tojeopardize’ is used because the fundamental obligation of section 7(a) of theact is that Federal agencies insure their actions do not jeopardize thecontinued existence of an endangered or threatened species.” S. Rep. No.151, 96th Cong., 1st Sess. 4 (1979).

51 Fed. Reg. at 19934 (emphasis in the original).

The regulations themselves provide no further guidance on the meaning ofsection 7(a)(1) beyond what is in the preamble, see id. at 19929 (“The Servicenotes that it is beyond the scope of these regulations to address how other Federalagencies should implement and exercise their authority to carry out conservationprograms for listed species under section 7(a)(1).”), except that they address theissue of coordination between the action agencies and the consulting agency, see50 C.F.R. § 402.01 (“Such affirmative conservation programs must comply withapplicable permit requirements . . . for listed species and should be coordinatedwith the appropriate Secretary.”).

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the Act: to authorize Federal agencies to factor endangered speciesconservation into their planning processes, regardless of otherstatutory directives . . . . [T]he Act does not mandate particularactions to be taken by Federal agencies to implement 7(a)(1).

51 Fed. Reg. at 19934; see also Pyramid Lake, 898 F.2d at 1418 (“That some

discretion should be allowed is also evident from the regulations promulgated

under the Act.”).21/

The preamble interpretation is consistent with what the regulation says about

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FWS’s section 7(a)(1) role. The regulation governing formal consultations under

section 7(a)(2) contains a section entitled, “Conservation recommendations,”

which states, “[t]he Service may provide with the biological opinion a statement

containing discretionary conservation recommendations. Conservation

recommendations are advisory and are not intended to carry any binding legal

force.” 50 C.F.R. § 402.14(j). The agencies explained that this section “was

introduced in the proposed rule and explains the Service’s role in helping agencies

meet their section 7(a)(1) responsibilities.” 51 Fed. Reg. at 19934; see also Doc.

185, R.E. 8 at 59 (2003 biological opinion explaining that section 7(a)(1) programs

are discretionary).

Because the reasonable interpretation of a statute by the agency charged with

its administration is entitled to deference, Chevron, 467 U.S. at 844, this Court

should defer to the consulting agencies’ conclusion that section 7(a)(1) does not

impose duties on federal agencies to take particular conservation actions. See also,

e.g., Biodiversity Legal Found. v. Babbitt, 146 F.3d 1249, 1253 (10th Cir. 1998)

(“[C]ourts must defer to the Service’s interpretation of the ESA if Congressional

intent is ambiguous or nonexistent and the Service’s construction of the statute is a

permissible one.” (citing Chevron)); Pyramid Lake, 898 F.2d at 1414, 1418;

Defenders of Wildlife v. Secretary, United States Dep’t of the Interior, 354 F. Supp.

2d 1156, 1174 (D. Or. 2005) (“The Secretary’s interpretation of section 7(a)(1)

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deserves deference.” (citing Pyramid Lake and Chevron)).

C. The APA Does Not Permit Review of Programmatic Section7(a)(1) Challenges.

The Supreme Court’s analysis and holding in Norton v. Southern Utah

Wilderness Alliance, 542 U.S. 55, 124 S. Ct. 2373 (2004), that the APA precludes

broad programmatic attacks on agency programs or policies lends further support

to our contention that the district court erred by concluding that FEMA has not

done enough to discharge a section 7(a)(1) duty here. In Southern Utah

Wilderness Alliance, the Supreme Court held that a claim alleging a failure to act

may be maintained under APA section 706(1) only where an agency fails to take a

discrete agency action that it is legally required to take. The Court explained that

the APA “precludes . . . broad programmatic attack[s]” on agency programs or

policy. 542 U.S. at 64 (citing Lujan v. National Wildlife Fed’n, 497 U.S. 871, 110

S. Ct. 3177 (1990)). The APA provides for review of only “discrete agency action

that it is required to take.” Id. (emphasis in original). The Court described the

purpose of this APA limit as follows:

The principal purpose of the APA limitations we have discussed – andof the traditional limitations upon mandamus from which they werederived – is to protect agencies from undue judicial interference withtheir lawful discretion, and to avoid judicial entanglement in abstractpolicy disagreements which courts lack both expertise andinformation to resolve. If courts were empowered to enter generalorders compelling compliance with broad statutory mandates, theywould necessarily be empowered, as well, to determine whether

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compliance was achieved – which would mean that it wouldultimately become the task of the supervising court, rather than theagency, to work out compliance with the broad statutory mandate,injecting the judge into day-to-day agency management.

Id. at 66-67; see also, e.g., Lujan v. National Wildlife Fed’n, 497 U.S. at 891

(Under the APA, a party “cannot seek wholesale improvement of this program by

court decree, rather than in the offices of the Department or the halls of Congress,

where programmatic improvements are normally made.”). In Southern Utah

Wilderness Alliance, the Court found that language in the Federal Land Policy and

Management Act requiring the agency to manage Wilderness Study Areas “so as

not to impair the suitability of such areas for preservation as wilderness,” 43

U.S.C. § 1782(c), fell short of the “clarity necessary to support judicial action

under § 706(1).” 542 U.S. at 65-66.

Similar to the claim at issue in Southern Utah Wilderness Alliance, plaintiffs

here claim that FEMA violated section 7(a)(1)’s alleged mandatory duty to

implement measures specifically targeting the Key deer and other listed species in

the Keys. Like the statutory language in Southern Utah Wilderness Alliance,

section 7(a)(1) of the ESA “lack[s] the specificity requisite for agency action.” Id.

at 66. As we explained above, section 7(a)(1) does not mandate any particular

action, or impose discrete limits on the agency, or mandate a time-table. Instead,

section 7(a)(1) requires only that all agencies “utilize their authorities in

22/ The required level of “clarity necessary to support judicial action” appliesequally to APA sections 706(1) and (2). Southern Utah Wilderness Allianceaddressed a challenge brought under section 706(1); Lujan v. National WildlifeFederation addressed a challenge brought under section 706(2). As the Courtexplained in Southern Utah Wilderness Alliance, the characterization of the suit asone under 706(1) rather than 706(2) or vice versa does not change the analysis ofwhether the challenge is to a statute with the requisite clarity. 542 U.S. at 65.

In addition, plaintiffs’ section 7(a)(1) claim here accompanies a section7(a)(2) claim. If the section 7(a)(2) claim fails because FEMA lacks discretion andthere is no legally sufficient causal connection, then plaintiffs’ section 7(a)(1)claim would be left standing alone. At that point, the section 7(a)(1) claimbecomes even more clearly a “programmatic” attack that lacks even the tenuousconnection to an “action” that the accompanying section 7(a)(2) claim provides.

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furtherance of the purposes of this chapter by carrying out programs for the

conservation of [listed] species.” 16 U.S.C. § 1536(a)(1). As in Southern Utah

Wilderness Alliance, the only standards in section 7(a)(1)’s mandate are broad,

environment-protection ones, that lack the “clarity necessary to support judicial

action.”22/

III. THE ESA DOES NOT REQUIRE FEMA TO PERFORM ITS OWNANALYSIS OF FWS’s “REASONABLE AND PRUDENTALTERNATIVE.”

The district court re-writes the ESA by holding that FEMA could not rely on

the FWS’s RPA without performing a substantive analysis of its own. 364 F.

Supp. 2d at 1358-59 (R.E. 5). The ESA simply does not require such an analysis.

The district court does not cite to any provision of the ESA to support its holding,

23/ In addressing this issue, the district court initially, and correctly, noted thatthe ultimate section 7 responsibility rests with the action agency, here FEMA, andits decision to rely on the recommendations of the consulting agency must not bearbitrary and capricious. 364 F. Supp. 2d at 1358 (R.E. 5). The district courterred, however, in holding that FEMA is required to perform an independentanalysis of an RPA suggested by FWS. Id. at 1359 (“FEMA’s admitted failure toengage in any independent consideration of the sufficiency of the 2003 RPAsrenders its actions arbitrary and capricious.”).

24/ FEMA did not ignore the RPA. It implemented the 1997 and 2003 RPAs,and plaintiffs then challenged whether the RPA satisfied the ESA and APA. Thefinal decision on whether to implement an RPA or ignore it is FEMA’s decision;FWS cannot compel another agency to implement its RPA. If the agency proceedswithout implementing the RPA, however, it does so at the risk that a reviewingcourt will find that the agency should have followed FWS’s recommendation. 51Fed. Reg. at 19928.

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and there is none.23/ Under the ESA, FWS first determines whether the agency

action will jeopardize listed species, and then determines whether there are

“reasonable and prudent alternatives” that will avoid jeopardy. The agency then

has the option of implementing the RPA, ignoring the RPA and proceeding at its

own peril,24/ or petitioning for an exemption. The ESA regulations describe this

process:

Responsibilities of Federal agency following issuance of a biologicalopinion. (a) Following the issuance of a biological opinion, the Federal agencyshall determine whether and in what manner to proceed with theaction in light of its section 7 obligations and the Service’s biologicalopinion. (b) If a jeopardy biological opinion is issued, the Federal agency shallnotify the Service of its final decision on the action.(c) If the Federal agency determines that it cannot comply with therequirements of section 7(a)(2) after consultation with the Service, it

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may apply for an exemption. Procedures for exemption applicationsby Federal agencies and others are found in 50 CFR part 451.

50 C.F.R. § 402.15.

If the agency implements the RPA and proceeds with its action, then its

action – and FWS’s action – can be challenged under the ESA and the APA, as

plaintiffs have done in this case. Neither the ESA nor the APA, however, imposes

any duty on the agency to perform its own substantive analysis of the RPA. Fund

for Animals, Inc. v. Rice, 85 F.3d 535, 548 (11th Cir. 1996) (“[W]e hold that the

Plaintiffs have failed to show that the [agency] acted arbitrarily and capriciously by

relying on these Opinions when consultation with the F.W.S. is exactly what is

required by the relevant statutory scheme.”). If the biological opinion or the

administrative record documents adequately explain the basis for the RPA, the

action agency need not conduct its own separate analysis of the RPA.

The one case cited by the district court provides no support for the district

court’s holding. In Pyramid Lake, the Ninth Circuit held only that an agency’s

reliance on FWS’s biological opinion can be reviewed under the APA, not that the

agency automatically violates the APA and/or the ESA if it relies on a biological

opinion without performing its own analysis. 898 F.2d at 1415. The district

court’s holding that a separate analysis is required finds no support in either the

ESA or the case law, and should be reversed.

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IV. THE INJUNCTION REQUIRES FEMA TO TAKE ACTION THAT ISINCONSISTENT WITH ITS AUTHORITY UNDER THE NFIA, ANDSHOULD BE VACATED.

The district court enjoined FEMA from providing flood insurance in suitable

habitat for listed species in the Keys. 386 F. Supp. 2d at 1294 (R.E. 4). In doing

so, the court barred FEMA from providing flood insurance in some areas of the

Keys (in the suitable habitat for the species) but not in others (in the non-suitable

habitat). As we have explained above in Part I, FEMA lacks discretion to

discriminate among insurance applicants within an eligible community – i.e., the

NFIA does not authorize FEMA to provide insurance to some individuals but not

others within an eligible community. Nowhere does the NFIA authorize FEMA to

assess an individual’s eligibility for insurance, or set forth any standards or

guidance for such an analysis. In light of the statutory language and FEMA’s

longstanding position on this issue, one court has held that “FEMA has no

discretion when it comes to the provision of flood insurance to persons in

NFIP-eligible communities.” Nat’l Wildlife Fed’n v. FEMA, 345 F. Supp. 2d 1151,

1173 (W.D. Wash. 2004) (but holding that FEMA has discretion over floodplain

mapping, the community rating system, and community eligibility criteria).

Moreover, the ESA does not authorize FEMA to take the action required by

the district court’s injunction. The ESA does not grant additional authority to

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agencies, see supra part I.A.4., and it in fact limits RPAs to actions that “can be

taken by the Federal agency or applicant in implementing the agency action.” 16

U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.02. Even if the Court finds that FEMA

has some of the requisite discretion and authority under the NFIA, it does not have

the authority to provide insurance to some individuals within an eligible

community, but not others. The district court exceeded its authority and abused its

discretion by issuing an injunction that is inconsistent with the NFIA and the ESA.

See, e.g., AT&T Broadband v. Tech Communications, Inc., 381 F.3d 1309, 1316

(11th Cir. 2004) (holding that district court’s inherent authority is restricted where

statute does so “in so many words, or by a necessary and inescapable inference”

(quoting Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S. Ct. 1086, 1089

(1946))); In re Novak, 932 F.2d 1397, 1406 n.17 (11th Cir. 1991) (“A federal

court, however, may not take action under the guise of its inherent power when that

action either contravenes a statute or rule or unnecessarily enlarges the court’s

authority.”).

CONCLUSION

For the foregoing reasons, this Court should reverse the district court’s

rulings that ESA section 7 applies to the National Flood Insurance Program, vacate

the injunction, and remand to the district court with instructions to enter judgment

for defendants.

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Respectfully submitted,

MATTHEW J. MCKEOWN Deputy Assistant Attorney General Env’t & Natural Resources Div.

MARK A. BROWNELLEN J. DURKEEROBERT J. LUNDMAN Attorneys, U.S. Dept. of Justice P.O. Box 23795 (L’Enfant Station) Washington, D.C. 20026 (202) 514-2496

90-8-6-166February 2006

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7), I hereby certify that this brief was

prepared in WordPerfect 12.0; that it uses a 14-point proportionate type, Times

New Roman font; and that it contains 13,714 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

_________________________Robert J. LundmanAttorney, U.S. Dept. of Justice

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Brief of Defendants-Appellants is beingfiled in accordance with Federal Rule of Appellate Procedure 25(a)(2)(B), and hasbeen dispatched to the clerk by Federal Express for next-business-day delivery onthis 10th day of February, 2006, and that two true and correct copies of theforegoing Brief of Defendants-Appellants were sent on this 10th day of February,2006, by First Class United States Mail, to each of the following:

John F. KostyackRandy SargentNational Wildlife Federation 1400 16th St., N.W.Washington, DC 20036

David White449 Central Ave., Suite 200St. Petersburg, FL 33701

Henry Lee Morgenstern675 Lake George RoadSeville, FL 32190

Thomas C. JacksonBaker Botts LLPThe Warner1299 Pennsylvania Ave., N.W.Washington, DC 20004-2400

Michael T. BurkeJohnson, Anselmo, Murdoch, Burke, Piper & McDuff, P.A.2455 East Sunrise Boulevard, Suite 1000Ft. Lauderdale, FL 33304

Steven GieselerPacific Legal Foundation1320 S. Dixie Hwy. Ste 1105Coral Gables, FL 33146-2955

Robert J. Lundman

ADDENDUM OF STATUTES AND REGULATIONS

Index to Addendum: Addendum Page

Endangered Species Act, Section 7, 16 U.S.C. § 1536 1

Endangered Species Act Regulation, 50 C.F.R. § 402.02 3

Endangered Species Act Regulation, 50 C.F.R. § 402.03 4

National Flood Insurance Act, 42 U.S.C. § 4001 4





- 1 -

Endangered Species Act, Section 7, 16 U.S.C. § 1536, Interagency cooperation:

(a) Federal agency actions and consultations(1) The Secretary shall review other programs administered by him and

utilize such programs in furtherance of the purposes of this chapter. All otherFederal agencies shall, in consultation with and with the assistance of theSecretary, utilize their authorities in furtherance of the purposes of this chapter bycarrying out programs for the conservation of endangered species and threatenedspecies listed pursuant to section 1533 of this title.

(2) Each Federal agency shall, in consultation with and with the assistance ofthe Secretary, insure that any action authorized, funded, or carried out by suchagency (hereinafter in this section referred to as an "agency action") is not likely tojeopardize the continued existence of any endangered species or threatened speciesor result in the destruction or adverse modification of habitat of such species whichis determined by the Secretary, after consultation as appropriate with affectedStates, to be critical, unless such agency has been granted an exemption for suchaction by the Committee pursuant to subsection (h) of this section. In fulfilling therequirements of this paragraph each agency shall use the best scientific andcommercial data available.

(b) Opinion of Secretary(1) (A) Consultation under subsection (a) (2) of this section with respect to anyagency action shall be concluded within the 90-day period beginning on the dateon which initiated or, subject to subparagraph (B), within such other period of timeas is mutually agreeable to the Secretary and the Federal agency.

(B) In the case of an agency action involving a permit or license applicant,the Secretary and the Federal agency may not mutually agree to concludeconsultation within a period exceeding 90 days unless the Secretary, before theclose of the 90th day referred to in subparagraph (A)--

(i) if the consultation period proposed to be agreed to will end beforethe 150th day after the date on which consultation was initiated, submits to theapplicant a written statement setting forth--

(I) the reasons why a longer period is required,(II) the information that is required to complete the

consultation, and

(III) the estimated date on which consultation will becompleted; or

(ii) if the consultation period proposed to be agreed to will end 150 or

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more days after the date on which consultation was initiated, obtains the consent ofthe applicant to such period.The Secretary and the Federal agency may mutually agree to extend a consultationperiod established under the preceding sentence if the Secretary, before the close ofsuch period, obtains the consent of the applicant to the extension.(2) Consultation under subsection (a) (3) of this section shall be concluded withinsuch period as is agreeable to the Secretary, the Federal agency, and the applicantconcerned.(3) (A) Promptly after conclusion of consultation under paragraph (2) or (3) ofsubsection (a) of this section, the Secretary shall provide to the Federal agency andthe applicant, if any, a written statement setting forth the Secretary's opinion, and asummary of the information on which the opinion is based, detailing how theagency action affects the species or its critical habitat. If jeopardy or adversemodification is found, the Secretary shall suggest those reasonable and prudentalternatives which he believes would not violate subsection (a) (2) of this sectionand can be taken by the Federal agency or applicant in implementing the agencyaction.

(B) Consultation under subsection (a) (3) of this section, and an opinionissued by the Secretary incident to such consultation, regarding an agency actionshall be treated respectively as a consultation under subsection (a) (2) of thissection, and as an opinion issued after consultation under such subsection,regarding that action if the Secretary reviews the action before it is commenced bythe Federal agency and finds, and notifies such agency, that no significant changeshave been made with respect to the action and that no significant change hasoccurred regarding the information used during the initial consultation.(4) If after consultation under subsection (a)(2) of this section, the Secretaryconcludes that--

(A) the agency action will not violate such subsection, or offers reasonableand prudent alternatives which the Secretary believes would not violate suchsubsection;

(B) the taking of an endangered species or a threatened species incidental tothe agency action will not violate such subsection; and

(C) if an endangered species or threatened species of a marine mammal isinvolved, the taking is authorized pursuant to section 1371(a)(5) of this title;the Secretary shall provide the Federal agency and the applicant concerned, if any,with a written statement that--

(i) specifies the impact of such incidental taking on the species,(ii) specifies those reasonable and prudent measures that the Secretary

considers necessary or appropriate to minimize such impact,

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(iii) in the case of marine mammals, specifies those measures that arenecessary to comply with section 1371(a)(5) of this title with regard to such taking,and

(iv) sets forth the terms and conditions (including, but not limited to,reporting requirements) that must be complied with by the Federal agency orapplicant (if any), or both, to implement the measures specified under clauses (ii)and (iii).. . . .

Endangered Species Act Regulation, 50 C.F.R. § 402.02, Definitions:. . . .

"Action" means all activities or programs of any kind authorized, funded, orcarried out, in whole or in part, by Federal agencies in the United States or uponthe high seas. Examples include, but are not limited to: (a) actions intended toconserve listed species or their habitat; (b) the promulgation of regulations; (c) thegranting of licenses, contracts, leases, easements, rights-of-way, permits, orgrants-in-aid; or (d) actions directly or indirectly causing modifications to the land,water, or air.. . . .

"Biological opinion" is the document that states the opinion of the Service asto whether or not the Federal action is likely to jeopardize the continued existenceof listed species or result in the destruction or adverse modification of criticalhabitat.. . . .

"Conservation recommendations" are suggestions of the Service regardingdiscretionary measures to minimize or avoid adverse effects of a proposed actionon listed species or critical habitat or regarding the development of information.. . . .

"Effects of the action" refers to the direct and indirect effects of an action onthe species or critical habitat, together with the effects of other activities that areinterrelated or interdependent with that action, that will be added to theenvironmental baseline. The environmental baseline includes the past and presentimpacts of all Federal, State, or private actions and other human activities in theaction area, the anticipated impacts of all proposed Federal projects in the actionarea that have already undergone formal or early section 7 consultation, and theimpact of State or private actions which are contemporaneous with the consultationin process. Indirect effects are those that are caused by the proposed action and arelater in time, but still are reasonably certain to occur. Interrelated actions are those

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that are part of a larger action and depend on the larger action for their justification.Interdependent actions are those that have no independent utility apart from theaction under consideration.. . . .

"Jeopardize the continued existence of " means to engage in an action thatreasonably would be expected, directly or indirectly, to reduce appreciably thelikelihood of both the survival and recovery of a listed species in the wild byreducing the reproduction, numbers, or distribution of that species.. . . .

"Reasonable and prudent alternatives" refer to alternative actions identifiedduring formal consultation that can be implemented in a manner consistent with theintended purpose of the action, that can be implemented consistent with the scopeof the Federal agency's legal authority and jurisdiction, that is economically andtechnologically feasible, and that the Director believes would avoid the likelihoodof jeopardizing the continued existence of listed species or resulting in thedestruction or adverse modification of critical habitat.. . . .

Endangered Species Act Regulation, 50 C.F.R. § 402.03, Applicability:

Section 7 and the requirements of this Part apply to all actions in which there isdiscretionary Federal involvement or control.

National Flood Insurance Act, 42 U.S.C. § 4001, Congressional findings anddeclaration of purpose:

(a) Necessity and reasons for flood insurance programThe Congress finds that (1) from time to time flood disasters have created

personal hardships and economic distress which have required unforeseen disasterrelief measures and have placed an increasing burden on the Nation's resources; (2)despite the installation of preventive and protective works and the adoption ofother public programs designed to reduce losses caused by flood damage, thesemethods have not been sufficient to protect adequately against growing exposure tofuture flood losses; (3) as a matter of national policy, a reasonable method ofsharing the risk of flood losses is through a program of flood insurance which cancomplement and encourage preventive and protective measures; and (4) if such aprogram is initiated and carried out gradually, it can be expanded as knowledge is

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gained and experience is appraised, thus eventually making flood insurancecoverage available on reasonable terms and conditions to persons who have needfor such protection.

(b) Participation of Federal Government in flood insurance program carried out byprivate insurance industry

The Congress also finds that (1) many factors have made it uneconomic forthe private insurance industry alone to make flood insurance available to those inneed of such protection on reasonable terms and conditions; but (2) a program offlood insurance with large-scale participation of the Federal Government andcarried out to the maximum extent practicable by the private insurance industry isfeasible and can be initiated.

(c) Unified national program for flood plain managementThe Congress further finds that (1) a program of flood insurance can

promote the public interest by providing appropriate protection against the perils offlood losses and encouraging sound land use by minimizing exposure of propertyto flood losses; and (2) the objectives of a flood insurance program should beintegrally related to a unified national program for flood plain management and, tothis end, it is the sense of Congress that within two years following the effectivedate of this chapter the President should transmit to the Congress for itsconsideration any further proposals necessary for such a unified program,including proposals for the allocation of costs among beneficiaries of floodprotection.

(d) Authorization of flood insurance program; flexibility in programIt is therefore the purpose of this chapter to (1) authorize a flood insurance

program by means of which flood insurance, over a period of time, can be madeavailable on a nationwide basis through the cooperative efforts of the FederalGovernment and the private insurance industry, and (2) provide flexibility in theprogram so that such flood insurance may be based on workable methods ofpooling risks, minimizing costs, and distributing burdens equitably among thosewho will be protected by flood insurance and the general public.

(e) Land use adjustments by State and local governments; development ofproposed future construction; assistance of lending and credit institutions; relationof Federal assistance to all flood-related programs; continuing studies

It is the further purpose of this chapter to (1) encourage State and localgovernments to make appropriate land use adjustments to constrict the

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development of land which is exposed to flood damage and minimize damagecaused by flood losses, (2) guide the development of proposed future construction,where practicable, away from locations which are threatened by flood hazards, (3)encourage lending and credit institutions, as a matter of national policy, to assist infurthering the objectives of the flood insurance program, (4) assure that anyFederal assistance provided under the program will be related closely to allflood-related programs and activities of the Federal Government, and (5) authorizecontinuing studies of flood hazards in order to provide for a constant reappraisal ofthe flood insurance program and its effect on land use requirements.

(f) MudslidesThe Congress also finds that (1) the damage and loss which results from

mudslides is related in cause and similar in effect to that which results directlyfrom storms, deluges, overflowing waters, and other forms of flooding, and (2) theproblems involved in providing protection against this damage and loss, and thepossibilities for making such protection available through a Federal or federallysponsored program, are similar to those which exist in connection with efforts toprovide protection against damage and loss caused by such other forms offlooding. It is therefore the further purpose of this chapter to make available, bymeans of the methods, procedures, and instrumentalities which are otherwiseestablished or available under this chapter for purposes of the flood insuranceprogram, protection against damage and loss resulting from mudslides that arecaused by accumulations of water on or under the ground.

National Flood Insurance Act, 42 U.S.C. § 4011, Authorization to establishand carry out program:

(a) Authorization and establishmentTo carry out the purposes of this chapter, the Director of the Federal

Emergency Management Agency is authorized to establish and carry out a nationalflood insurance program which will enable interested persons to purchaseinsurance against loss resulting from physical damage to or loss of real property orpersonal property related thereto arising from any flood occurring in the UnitedStates.

(b) Additional coverage for compliance with land use and control measuresThe national flood insurance program established pursuant to subsection (a)

of this section shall enable the purchase of insurance to cover the cost of

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implementing measures that are consistent with land use and control measuresestablished by the community under section 4102 of this title for--

(1) properties that are repetitive loss structures;(2) properties that are substantially damaged structures;(3) properties that have sustained flood damage on multiple occasions, if the

Director determines that it is cost-effective and in the best interests of the NationalFlood Insurance Fund to require the implementation of such measures; and

(4) properties for which an offer of mitigation assistance is made under--(A) section 4104c of this title (Flood Mitigation Assistance Program);(B) section 4102a of this title (Repetitive Loss Priority Program and

Individual Priority Property Program);(C) the Hazard Mitigation Grant Program authorized under section

5170c of this title;(D) the Predisaster Hazard Mitigation Program under section 5133 of

this title; and(E) any programs authorized or for which funds are appropriated to

address any unmet needs or for which supplemental funds are made available.The Director shall impose a surcharge on each insured of not more than $75

per policy to provide cost of compliance coverage in accordance with theprovisions of this subsection.

(c) Participation and risk sharing by insurersIn carrying out the flood insurance program the Director shall, to the

maximum extent practicable, encourage and arrange for--(1) appropriate financial participation and risk sharing in the program by

insurance companies and other insurers, and(2) other appropriate participation, on other than a risk-sharing basis, by

insurance companies and other insurers, insurance agents and brokers, andinsurance adjustment organizations,

in accordance with the provisions of subchapter II of this chapter.

National Flood Insurance Act, 42 U.S.C. § 4012, Scope of program andpriorities:. . . .(c) Availability of insurance in States or areas evidencing positive interest insecuring insurance and assuring adoption of adequate land use and controlmeasures

The Director shall make flood insurance available in only those States or

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areas (or subdivisions thereof) which he has determined have--(1) evidenced a positive interest in securing flood insurance coverage under

the flood insurance program, and(2) given satisfactory assurance that by December 31, 1971, adequate land

use and control measures will have been adopted for the State or area (orsubdivision) which are consistent with the comprehensive criteria for landmanagement and use developed under section 4102 of this title, and that theapplication and enforcement of such measures will commence as soon as technicalinformation on floodways and on controlling flood elevations is available.

National Flood Insurance Act, 42 U.S.C. § 4022, State and local land usecontrols:

(a) Requirement for participation in flood insurance program(1) In generalAfter December 31, 1971, no new flood insurance coverage shall be

provided under this chapter in any area (or subdivision thereof) unless anappropriate public body shall have adopted adequate land use and control measures(with effective enforcement provisions) which the Director finds are consistentwith the comprehensive criteria for land management and use under section 4102of this title.. . . .(b) Community rating system and incentives for community floodplainmanagement

(1) Authority and goalsThe Director shall carry out a community rating system program, under

which communities participate voluntarily--(A) to provide incentives for measures that reduce the risk of flood or

erosion damage that exceed the criteria set forth in section 4102 of this title andevaluate such measures;

(B) to encourage adoption of more effective measures that protectnatural and beneficial floodplain functions;

(C) to encourage floodplain and erosion management; and(D) to promote the reduction of Federal flood insurance losses.

(2) IncentivesThe program shall provide incentives in the form of credits on premium rates

for flood insurance coverage in communities that the Director determines haveadopted and enforced measures that reduce the risk of flood and erosion damage

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that exceed the criteria set forth in section 4102 of this title. In providing incentivesunder this paragraph, the Director may provide for credits to flood insurancepremium rates in communities that the Director determines have implementedmeasures that protect natural and beneficial floodplain functions.

(3) CreditsThe credits on premium rates for flood insurance coverage shall be based on

the estimated reduction in flood and erosion damage risks resulting from themeasures adopted by the community under this program. If a community hasreceived mitigation assistance under section 4104c of this title, the credits shall bephased in a manner, determined by the Director, to recover the amount of suchassistance provided for the community.

(4) ReportsNot later than 2 years after September 23, 1994, and not less than every 2

years thereafter, the Director shall submit a report to the Congress regarding theprogram under this subsection. Each report shall include an analysis of thecost-effectiveness of the program, any other accomplishments or shortcomings ofthe program, and any recommendations of the Director for legislation regarding theprogram.. . . .

National Flood Insurance Act, 42 U.S.C. § 4102, Criteria for landmanagement and use:

(a) Studies and investigationsThe Director is authorized to carry out studies and investigations, utilizing to

the maximum extent practicable the existing facilities and services of other Federaldepartments or agencies, and State and local governmental agencies, and any otherorganizations, with respect to the adequacy of State and local measures inflood-prone areas as to land management and use, flood control, flood zoning, andflood damage prevention, and may enter into any contracts, agreements, or otherappropriate arrangements to carry out such authority.

(b) Extent of studies and investigationsSuch studies and investigations shall include, but not be limited to, laws,

regulations, or ordinances relating to encroachments and obstructions on streamchannels and floodways, the orderly development and use of flood plains of riversor streams, floodway encroachment lines, and flood plain zoning, building codes,building permits, and subdivision or other building restrictions.

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(c) Development of comprehensive criteria designed to encourage adoption ofadequate State and local measures

On the basis of such studies and investigations, and such other informationas he deems necessary, the Director shall from time to time develop comprehensivecriteria designed to encourage, where necessary, the adoption of adequate State andlocal measures which, to the maximum extent feasible, will--

(1) constrict the development of land which is exposed to flood damagewhere appropriate,

(2) guide the development of proposed construction away from locationswhich are threatened by flood hazards,

(3) assist in reducing damage caused by floods, and(4) otherwise improve the long-range land management and use of

flood-prone areas,and he shall work closely with and provide any necessary technical

assistance to State, interstate, and local governmental agencies, to encourage theapplication of such criteria and the adoption and enforcement of such measures.

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