Water Keeper Alliance v. United States Department of Defense

United States Court of Appeals
For the First Circuit

No. 01-2057

WATER KEEPER ALLIANCE; NATURAL RESOURCES DEFENSE COUNCIL;
ALIANZA DE MUJERES VIEQUENSES; MARTA I. MELENDEZ;
SANDRA I. MELENDEZ; MIRIAM SOBA; CARMEN O. VALENCIA;
CABALLISTAS POR LA PAZ; JOSE M. EMERIC; COMITE PRO RESCATE Y
DESARROLLO DE VIEQUES; ROBERT RABIN; ANTONIO CORCINO;
MARIA O. NAVARRO; GRUPO DE APOYO TECNICO PROFESSIONAL AL
DESARROLLO SUSTENTABLE DE VIEQUES; JOSE RIVERA SANTANA;
REINALDO CAMACHO; CARLOS J. ASENCIO RIVERA; RADAMES TIRADO;
LUIS ACEVEDO,

Plaintiffs, Appellants,

1199-SEIU NEW YORK’S HEALTH AND HUMAN SERVICES UNION;
JUAN R. FERNANDEZ; VIEQUES WATER KEEPER; VICTOR EMERIC;

Plaintiffs,

v.

UNITED STATES DEPARTMENT OF DEFENSE; DONALD H. RUMSFELD,
SECRETARY OF DEFENSE; THE DEPARTMENT OF NAVY; ROBERT B. PIRIE,
SECRETARY OF THE NAVY; THE SECRETARY OF THE INTERIOR GAIL
NORTON,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
 Robert F. Kennedy, Jr., with whom Scott A. Edwards, Maria
Jimenez Colon, Celina Romany, and Foster Maer, were on brief,
for appellants.
Kathryn E. Kovacs, Attorney, U.S. Department of Justice,
with whom David C. Shilton, Attorney, U.S. Department of
Justice, Wayne Hettenbach, Attorney, U.S. Department of Justice,
Stephen G. Bartell, Attorney, U.S. Department of Justice, Eileen
T. McDonough, Attorney, U.S. Department of Justice, John C.
Cruden, Acting Assistant Attorney General, U.S. Department of
Justice, Guillermo Gil, United States Attorney, Isabel Munoz
Acosta, Assistant United States Attorney, Marc Swartz, U.S.
Department of the Navy, Office of General Counsel, and Cathleen
Reynolds, U.S. Department of the Navy, Office of General
Counsel, were on brief, for appellees.

November 13, 2001
 STAHL, Senior Circuit Judge. Plaintiffs-appellants,

Water Keeper Alliance et al. ("Water Keeper"), appeal the denial

of their motion for preliminary injunction to stay Department of

Navy (the "Navy," one of several defendants-appellees) military

exercises on the island of Vieques off Puerto Rico. Water Keeper

alleges violations by the Navy of certain procedural

requirements under section 7 of the Endangered Species Act

("ESA"), 16 U.S.C. § 1536. The district court found that Water

Keeper had failed to show a strong likelihood of success on its

ESA theory, that its showing of potential irreparable harm had

not been strong, and that the balance of harms, as well as the

interest of the public, weighed in favor of denying the motion.

Since the denial of Water Keeper's motion for a preliminary

injunction, the district court has additionally determined that

it lacked jurisdiction over the ESA claims because Water Keeper,

prior to bringing suit, failed to provide adequate 60-day notice

as required by the citizen suit provisions of the ESA. See ESA

§ 11(g)(2)(A), 16 U.S.C. § 1540(g)(2)(A). We hold that notice

was adequate for the purposes of the particular ESA claim on

appeal here, but affirm on the merits the district court's

denial of Water Keeper's motion for a preliminary injunction.

I. Statutory Framework

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 The current appeal takes place against the background

of a complex statutory framework that we examine at the outset

of our opinion. The ESA directs federal agencies to insure that

agency action "is not likely to jeopardize the continued

existence of any endangered species or threatened species or

result in the destruction or adverse modification of habitat of

such species." ESA § 7(a)(2), 16 U.S.C. § 1536(a)(2). This

substantive requirement is backed up by a scheme of procedural

requirements that set up a consultation process between the

agency (in this case the Navy) and the National Marine Fisheries

Service ("NMFS") and the U.S. Fish and Wildlife Service ("FWS")

(jointly, the "Services")1 to determine whether endangered

species or critical habitat are jeopardized by proposed agency

action and whether this adverse impact may be avoided or

minimized. See ESA § 7, 16 U.S.C. 1536.

1 Under the ESA, the agency consults with the "Secretary,"
defined as the "the Secretary of the Interior [to whom the FWS
reports] or the Secretary of Commerce [to whom the NMFS
reports]." ESA § 3(15); 16 U.S.C. § 1533(15). Under the
regulations, the agency consults with the "Director." The
"Director" is defined as "the Assistant Administrator for
Fisheries for the National Oceanic and Atmospheric
Administration [under which the NMFS is housed], or his
authorized representative; or the Fish and Wildlife Service
regional director, or his authorized representative, for the
region where the action would be carried out." 50 C.F.R. §
402.02. The consultation function is carried out in practice by
the FWS and the NMFS. The agency conducts separate consultations
with the FWS and the NMFS.

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 Under the ESA, "[e]ach Federal agency shall review its

actions at the earliest possible time to determine whether any

action may affect listed species or critical habitat." 50

C.F.R. § 402.14(a). Although the determination of possible

effects is ultimately the agency's responsibility, see 51 Fed.

Reg. 19949, in making this determination, the agency may consult

with the Services through "informal consultation." The term

simply describes discussions and correspondence between the

Services and the agency designed to assist the agency in

determining whether its proposed action is likely to impact

listed species or critical habitat. Id. § 402.13. If, at the

conclusion of the informal consultation, the Services issue

written concurrences that a "proposed action is not likely to

adversely affect any listed species or critical habitat," the

agency may proceed with the action without further consultation

between the parties. Id. § 402.14(b)(1).

However, where the proposed agency action rises to the

level of a "major construction activity" the determination as to

whether agency action may affect listed species or critical

habitat cannot be made through informal consultation alone, but

must be based on a "biological assessment." Id. § 402.12(b)(1);

see also 51 Fed. Reg. 19948 (noting that the biological

assessment may be conducted simultaneously with informal

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consultation or without any informal consultation). A "major

construction activity" is "a construction project (or other

undertaking having similar physical impacts) which is a major

Federal action significantly affecting the quality of the human

environment as referred to in the National Environmental Policy

Act [NEPA, 42 U.S.C. 4332(2)(C)]. 2 50 C.F.R. § 402.02. The

biological assessment is a study that "evaluate[s] the potential

effects of the action on listed and proposed species . . . and

determine[s] whether any such species or habitat are likely to

be adversely affected by the action . . . ." 50 C.F.R. §

402.12(a). If, following completion of the biological

assessment, the Services issue written concurrences that the

"proposed action is not likely to adversely affect any listed

species or critical habitat," the consultation is terminated.

Id. at § 402.14(b).

If, on the other hand, based on either informal

consultation or a biological assessment, the Services are

2 The referenced paragraph of NEPA, in turn, does not define
"a major Federal action significantly affecting the quality of
the human environment" in substantive terms but rather specifies
that an environmental impact statement must accompany a proposal
for such action. 42 U.S.C. § 4332(2)(C)(i). As discussed in
Section V infra, courts have found that whether an agency is
required to prepare a biological assessment depends on whether
it is required to prepare an environmental impact statement
under NEPA. See Hawksbill Sea Turtle v. FEMA, 11 F. Supp. 2d
529, 544 (D.V.I. 1998).

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unwilling to concur that the agency action is unlikely to impact

protected species and habitat, or if the agency independently

concludes that its actions may affect listed species or critical

habitat, the agency is required to initiate "formal

consultation." See id., § 402.14(a)&(b)(1). Formal consultation

is initiated by the written request of the agency describing the

action and the manner in which it may affect listed species and

critical habitat. Id. § 402.14(c). Significantly, "formal

consultation shall not be initiated by the Federal agency until

any required biological assessment has been completed and

submitted to the [Services] in accordance with § 402.12." Id.

§ 402.14(c). Nonetheless, formal consultation may take place

without a biological assessment if the action is not a major

construction activity.

After a period of review and discussion, formal

consultation culminates in the Services' issuance of biological

opinions advising the agency "whether the action is likely to

jeopardize the continued existence of a listed species or result

in the destruction or adverse modification of critical habitat,"

and, if so, whether "reasonable and prudent alternatives" exist

to allow the agency to comply with the ESA. 50 C.F.R. §

402.14(h); see also ESA § 7(b)(3)(A), 16 U.S.C. § 1536(b)(3)(A).

If the Services conclude that the action, or the implementation

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of any reasonable and prudent alternatives, comply with the ESA,

the Services must also issue an "incidental take statement" that

specifies the amount or extent of the authorized taking of the

species. ESA § 7(b)(4), 16 U.S.C. § 1536(b)(4); 50 C.F.R. §

402.14(i).

With the basics of the statutory framework in place,

we next consider the application of the ESA to the Navy in

relation to its training exercises on Vieques.

II. Background

The Navy has used the island for military exercises

since 1941, including ship-to-shore and aerial bombing with live

ammunition. Thirteen endangered and threatened species live on

the island of Vieques and in surrounding water, and, as a

result, in 1980 and 1981 respectively, pursuant to the ESA and

after formal consultation, the NMFS and the FWS issued

biological opinions regarding the effects of Navy exercises on

the listed species and critical habitat. Both Services found no

jeopardy to any listed species or critical habitat from naval

exercises on Vieques.

Beginning in 1995, the NMFS and the FWS asked the Navy

to reinitiate "formal consultations" with the Services to

reexamine the effect of the military exercises on the endangered

and threatened species of the island. The Services explained

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that new information regarding the listed species had been

obtained since 1981, that dead or injured species had been found

after training exercises (the original biological opinion did

not authorize any takings pursuant to ESA section 7(b)(4), 16

U.S.C. § 1536(b)(4)), and that reinitiation was typical after

five years. In January 2000, after a period of informal

consultation, the Navy agreed to initiate formal consultation

with FWS and NMFS. The Navy further indicated its willingness

to prepare a biological assessment in anticipation of formal

consultation, despite the fact that, in its own determination,

it was not required to do so under the regulations. (See 50

C.F.R. § 402.12(b)(1); 51 Fed. Reg. 19945, contemplating

voluntary preparation of a biological assessment to assist in

the determination of whether formal consultation is required.)

On January 31, 2000, in the same month that the Navy agreed to

reinitiate formal consultation with the Services concerning its

use of the Vieques range, the President issued an Executive

Order restricting the use of the Vieques training range to no

more than 90 days per year and using only non-explosive

ordnance. 65 Fed. Reg. 5729 (Feb. 24, 2000). These

restrictions were put in place pending a referendum by the

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citizens of Vieques on the future of Navy exercises on the

island.3

The Navy has clarified that the biological assessment

it agreed to prepare would "address continuing operations of the

Vieques Inner Range assuming the referendum regarding the Navy's

future use of the Range passes . . . ."4 Indeed, the Navy

completed and submitted this biological assessment to the

Services in January 2001 and formal consultation between the

parties is currently proceeding. However, the Navy further

informed the Services that, pending the completion of formal

consultation for long-term use of the range, it would continue

to conduct periodic training exercises on Vieques in compliance

with the conditions of the Executive Order. The NMFS and the

FWS initially agreed to engage in informal consultation with the

Navy on an exercise-by-exercise basis for the interim period and

issued concurrences of no likely adverse effect for the May and

June exercises, thereby exempting the Navy from the requirement

to enter formal consultation with regard to these exercises.

3
The referendum, scheduled for November 2001, gives the
citizens of Vieques a choice between allowing naval training,
with live ordnance, to go forward indefinitely in return for a
$50 million infrastructure development package, and requiring
that the Navy leave the island by May of 2003.
4
Letter from J.K. Moran, Rear Admiral, U.S. Navy to Sam
Hamilton, Regional Director, FWS, R. Doc. 1 Ex. 22 (June 13,
2000).

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 After June 2000, the FWS changed its position and

informed the Navy that it would require "interim formal

consultation" for all exercises during the interim period of

August 2000 to December 2001. The Navy agreed and, on July 12,

2000, provided FWS with a "consultation package" covering the

planned training exercises through 2001. On July 27, 2000, the

FWS issued a biological opinion reviewing the effects of the

proposed interim exercises on the endangered and threatened

species and finding that the exercises were not likely to

jeopardize the continued existence of listed species or result

in the destruction of critical habitat. FWS issued an

incidental take statement with reasonable and prudent measures

to ensure that any take would be minimized. Biological Opinion,

R. Doc. 12, Ex. 24 (July 27, 2000). For its part, the NMFS

continued to evaluate each interim exercise informally on an

individual basis and has issued written concurrences for each

exercise, finding no likelihood of adverse impact.

The issue on appeal here grows out of the interim

formal consultations between the Navy and the FWS concerning the

Navy's training activities on Vieques from August 2000 to

December 2001. The ESA includes a citizen suit provision "to

enjoin any person, including the United States and any other

governmental instrumentality or agency" for a violation of the

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ESA or issued regulations. ESA § 11(g)(1)(A), 16 U.S.C. §

1540(g)(1)(A). Invoking standing under the citizen suit

provision, Water Keeper argues that the Navy's interim exercises

on Vieques constitute a "major construction activity," that the

Navy was therefore required to prepare a biological assessment

directed at the effects of the interim training exercises, and

that, contrary to the Navy's assertions, the July 12th

consultation package did not satisfy this requirement. Water

Keeper contends that the process by which the Navy received the

go-ahead from the FWS to carry out exercises on Vieques from

August 2000 to December 2001 was therefore procedurally flawed

and the Navy's activities must be enjoined pending compliance

with the ESA procedural requirements.5

5
In the underlying case, Water Keeper also has alleged
violations of the Resource Conservation and Recovery Act, 42
U.S.C. § 6903, violations of the Equal Protection Clause, and
illegal takings of endangered species in violation of section 9
of the ESA, 16 U.S.C. § 1538. Water Keeper has further argued
that the biological opinion issued by the FWS on July 27 was
"arbitrary and capricious" under the Administrative Procedure
Act, 5 U.S.C. § 706(2)(A), in part because it was prepared
without the benefit of the biological assessment. Water Keeper
raised this legal theory in support of its motion for a
preliminary injunction and it was considered by the district
court (although determined not likely to succeed) as well as
briefed by the appellees in this appeal. However, Water Keeper
appears to have abandoned this theory, at least for the purposes
of its appeal from the denial of the motion for a preliminary
injunction, by not briefing the issue. Additionally, Water
Keeper's counsel unequivocally stated during oral argument that
the only issue on appeal was the claim against the Navy for
failure to prepare a biological assessment. We accordingly do

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 It is important to note that Water Keeper's argument

is a narrow one. As discussed above, the Navy has submitted a

biological assessment to the Services regarding the long-term

use of Vieques for naval exercises and formal consultation is

proceeding. Water Keeper is not contesting the legality of the

formal consultation addressing the long-term use of Vieques, nor

is it contesting the exercise-by-exercise informal consultation

between the Navy and the NMFS for the interim use of the island.

Water Keeper's sole focus, at least for purposes of this appeal,

is alleged procedural violations in the consultations between

the Navy and the FWS for exercises from August 2000 to December

2001. Consequently, Water Keeper's request for injunctive

relief, if granted, would only stay Navy exercises through

December 2001. III. District Court Proceedings

The district court denied Water Keeper's motion for a

preliminary injunction. Water Keeper Alliance v. U.S. Dep't of

Defense, No. 00-2295, R. Doc. 74 (D.P.R. June 9, 2001)

(hereinafter "Water Keeper I"). The court assumed that the Navy

was required to prepare a biological assessment, but held that

the appellees were likely to succeed on the argument that, for

not consider the claim against the FWS. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("issues adverted to in
a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived").

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the interim exercises, the consultation package met the

requirements of the biological assessment. Id. at 5-8. The

district court further found that Water Keeper's showing of

potential irreparable harm had not been strong. Id. at 12-13.

Finally, the court held that the balance of equities favored the

defendants, who pointed to concrete national security concerns

over the more abstract harm to species asserted by Water Keeper,

and that the public interest would consequently be harmed by a

grant of preliminary injunctive relief. Id. at 13-16.

Water Keeper filed a timely appeal challenging the

denial of its request for preliminary injunctive relief. We

denied Water Keeper's request for a stay of planned exercises

pending a decision on the appeal which was expedited.

Complicating our review, the district court has since

dismissed Water Keeper's ESA claims, apparently essentially the

same claims that are on appeal, for lack of adequate notice.

The citizen suit provision of the ESA requires sixty days notice

of intent to bring suit. ESA § 11(g)(2)(A), 16 U.S.C. §

1540(g)(2)(A). The court found that Water Keeper's Notice of

Intent to Sue, R. Doc. 55, Ex. A (May 16, 2000) ("Notice"), did

not include the claims upon which it sought relief. It did so

because the Notice did not (indeed could not have, since it

predated it) reference the July 2000 biological opinion, which

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was the culmination of the formal consultation for the interim

exercises, as the basis of its grievance. Water Keeper Alliance

v. U.S. Dep't of Defense, No. 00-2295, R. Doc. 85 (D.P.R. July

17, 2001) at 15-25 (hereinafter "Water Keeper II"). Appellants

have filed a motion for reconsideration of the ESA dismissal

and, in the alternative, for a certification of interlocutory

appeal. That motion is pending.

We briefly consider the notice question in Section IV

and find that notice was adequate as to the ESA claim against

the Navy. We then devote the bulk of our discussion, under

Section V, to an examination of the motion for a preliminary

injunction on its merits.

IV. Notice

Although the certification for interlocutory appeal on

the adequacy of notice is still pending, appellees correctly

note that we have jurisdiction to consider adequacy of notice as

a matter that is intertwined with the issues on appeal. See

Xerox Fin. Servs. Life Ins. Co. v. High Plains Ltd. P'ship, 44

F.3d 1033, 1038 (1st Cir. 1995) (holding that, because the

consideration of the preliminary injunction was "colorably

dependent" on the denial of defendant's Rule 60(b) motion, this

denial was also reviewable on appeal); Alloyd Gen. Co. v.

Building Leasing Co., 361 F.2d 359, 363 (1st Cir. 1966) ("Our

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jurisdiction embraces a consideration of such questions as are

basic to and underlie the order supporting the appeal.").

We have previously read the 60-day notice requirement

in environmental statute citizen suits strictly. See Garcia v.

Cecos Int'l, Inc. 761 F.2d 76, 78-82 (1st Cir. 1985) (Resource

Conservation and Recovery Act); Massachusetts v. United States

Veterans Admin., 541 F.2d 119 (1st Cir. 1976) (Clean Water Act);

cf. Maine Audubon Soc'y v. Purslow, 907 F.2d 265 (1st Cir. 1990)

(finding that district court did not abuse its discretion when

it sanctioned counsel for bringing ESA suit before 60 days after

notice of intent to sue had been given). The notice provision

provides agencies with an opportunity to resolve the dispute and

take any necessary corrective measures before a resort to the

courts, Southwest Ctr. for Biological Diversity v. U.S. Bureau

of Reclamation, 143 F.3d 515, 520 (9th Cir. 1998), and we are

not in disagreement with the district court that the notice must

adequately inform the agency of the exact grievances against it,

if it is to fulfill this purpose. Nevertheless, we find that

Water Keeper did in fact provide adequate notice as to the

narrow claim at issue here -- the Navy's failure to conduct a

biological assessment.

The district court held that Water Keeper could not

bring an ESA claim against the FWS for alleged deficiencies in

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the July 2000 biological opinion, without specifically

referencing that opinion in its Notice. Water Keeper II at 18-

25. However, the court did not consider the adequacy of the

notice for purposes of the ESA claim against the Navy. The May

2000 Notice, sent before the Navy and the FWS entered formal

consultations for the interim period, admittedly does not notify

the Navy that Water Keeper disputes its July 2000 determination

to bypass a biological assessment in favor of a consultation

package. But the letter does take issue with the fact that the

Navy has been conducting military activities on Vieques for some

years without the benefit of a biological assessment

incorporating new scientific evidence.6 To say that the Navy was

not on notice that Water Keeper would object to the failure to

prepare a biological assessment for its interim activities, when

the Notice makes it clear that Water Keeper intended to

challenge an ongoing delinquency in the preparation of a

biological assessment, would be setting the bar for adequacy of

6
Water Keeper states that "[u]nder § 7(c)(1) of ESA each
Federal agency shall conduct a biological assessment for
identifying any endangered species or threatened species . . .
." Notice of Intent to Sue, R. Doc. 55 Ex. A (May 16, 2000) at
5. Water Keeper additionally posits that "[s]ince th[e] 1981
biological assessment, scientists have compiled new information
indicating that the Navy's activities may be destroying
individuals and injuring their chances for survival . . . .
[Through its refusal to reinitiate consultation] the Navy has
violated . . . § 7(c)(1) of ESA." Id. at 6.

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notice too high. We therefore find that notice was sufficient

for purposes of the ESA challenge against the Navy.

V. Denial of Motion for Preliminary Injunction

A. Standard of Review

Under this circuit's formulation, trial courts follow

a four-part framework in determining whether the grant or denial

of preliminary injunctive relief is appropriate. The district

court considers: first, the likelihood that the party requesting

the injunction will succeed on the merits; second, the potential

for irreparable harm if the injunction is denied; third, the

hardship to the nonmovant if enjoined compared to the hardship

to the movant if injunctive relief is denied; and fourth, the

effect of the court's ruling on the public interest. Ross-

Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16 (1st

Cir. 1996).

The standard of review for an appellate court reviewing

the grant or denial of a preliminary injunction is abuse of

discretion. Ross-Simons, 102 F.3d at 16. This deferential

standard, however, applies to "issues of judgment and balancing

of conflicting factors," and we still review rulings on abstract

legal issues de novo and findings of fact for clear error.

Cablevision of Boston, Inc. v. Public Improvement Comm'n of the

City of Boston, 184 F.3d 88, 96 (1st Cir. 1999) (quoting Ocean

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Spray Cranberries, Inc. v. Pepsico, Inc., 160 F.3d 58, 61 n.1

(1st Cir. 1998)).

We consequently review the district court's legal

findings under the "likelihood of success" prong de novo. In

contrast, we review the district court's judgment calls,

applying appropriate standards, under the remaining three prongs

for abuse of discretion.

B. Likelihood of Success

De novo review of a district court judgment requires

that we view the case from the same position as the district

court. See Environmental Protection Info. Ctr. v. The Simpson

Timber Co. 255 F.3d 1073, 1078 (9th Cir. 2001). The citizen

suit provision of the ESA, § 11(g), 16 U.S.C. § 1540(g), does

not incorporate a standard for judicial review. What standard

of review applies depends on the question being asked. Although

circuit courts often look to the standard of review set out in

the Administrative Procedure Act (APA), 5 U.S.C. § 706, those

circuits which have considered the issue have adopted standards

of review based on the relevant portions of the APA governing

what the agency has done (or failed to do). For instance, in

Biodiversity Legal Foundation v. Babbitt, 146 F.3d 1249 (10th

Cir. 1998), the court applied APA § 706(1) (stating that "[t]he

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reviewing court shall -- (1) compel agency action unlawfully

withheld or unreasonably delayed") to review FWS's refusal to

make a preliminary finding on a listing decision. See id. at

1252 (stating that "our review . . . focuses on . . . whether

the Service's resulting failure to make a 90-day finding on the

. . . petition is agency action unlawfully withheld"). In other

cases, where the court is reviewing, for example, the Forest

Service's timber management plan, or the Forest Service's

approval of a plan to drill in the wild, the arbitrary or

capricious standard of § 706(2)(A) has been applied. See Sierra

Club v. Glickman, 67 F.3d 90, 95 (5th Cir. 1995); Cabinet

Mountains Wilderness v. Peterson, 685 F.2d 678, 685-86 (D.C.

Cir. 1982). In still other cases, such as where a party

challenges FWS's refusal to reinitiate consultation, § 706(2)(D)

("without observance of procedure required by law") is applied.

Environmental Protection Info. Ctr., 255 F.3d at 1078, 1085.

Even in cases citing to § 706(2)(A), it may be the "otherwise

not in accordance with law" clause, rather than the "arbitrary,

capricious" clause that governs. See id. at 1078.

This circuit has little discussion in caselaw on the

standard of review of various issues which may arise under the

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ESA. This case, an expedited preliminary injunction appeal,

does not require us to resolve those issues. Even if we were to

view Water Keeper's arguments under the most favorable standard

of review to them -- essentially as legal issues of statutory

construction, and without Chevron7 deference to the agency --

Water Keeper has not shown probability of success.

As discussed in Section II supra, the requirement of

a biological assessment is triggered if the agency action is a

major construction activity. The relationship between a major

construction activity, a biological assessment and formal

consultation is a complicated one, deserving some more detailed

explanation at this point. Formal consultation may not be

initiated before a required biological assessment is completed,

50 C.F.R. § 402.14(c); that is not to say, however, that a

biological assessment is always required for formal consultation

to proceed. What triggers the requirement of a biological

assessment is that the action is a major construction activity,

Id. § 402.12(b), and not that the agency and Services have

determined that they must enter formal consultation. Hence, the

agency and the Services may conduct formal consultation without

7
Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837
(1984).

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a biological assessment if the action in question is not a major

construction activity. Conversely, the preparation of a

biological assessment does not automatically push the parties

into formal consultation, but rather, formal consultation

follows only if a biological assessment shows that the action

"may affect listed species or critical habitat." See id. §

402.14 (a)&(b).

The Navy and the FWS had reached an understanding,

discussed in Section III supra, that they were conducting formal

consultations for the interim period of August 2000 to December

2001; indeed the formal consultations concluded in the issuance

of a biological opinion and an incidental take statement. The

formal consultations were procedurally flawed if they were

initiated before "any required biological assessment had been

completed . . ." (emphasis added). Id. § 402.14(c). Our

first point of inquiry therefore is whether the interim

activities constituted a "major construction activity"

triggering the statutory requirement of a biological assessment.

Id. § 402.12(b)(1). The district court did not address the

first of these questions, but instead appears to have assumed

that the interim training activities constituted a major

construction activity under 50 C.F.R. § 402.12 (b)(1). See

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Water Keeper I at 6. We believe that the question is more

difficult than the district court acknowledges.

A "major construction activity" is defined as a project

that "is a major Federal action significantly affecting the

quality of the human environment as referred to in the National

Environmental Policy Act [NEPA, 42 U.S.C. § 4332(2)(C)]." 50

C.F.R. § 402.02. NEPA requires the preparation of an

environmental impact statement for "major Federal actions

significantly affecting the quality of the human environment."

42 U.S.C. § 4332 (2)(C). Appellees argue that, by implication,

agency action can constitute a major construction activity, only

if it necessitated the preparation of an environmental impact

statement. Because no environmental impact statement was

prepared for the Navy's interim training activities on Vieques,

appellees contend, the training activities from July 2000 to

December 2001 do not constitute a "major construction activity"

requiring a biological assessment. See Hawksbill Sea Turtle v.

FEMA, 11 F. Supp. 2d 529, 544 (D.V.I. 1998). Appellees further

point to the interim nature of the training activities in

question as well as the fact that they are conducted with inert

ordnance to argue that they do not rise to the level of an

action significantly affecting the quality of the human

environment.

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 Water Keeper counters that the NEPA regulations permit

the agency, once a comprehensive environmental impact statement

is in place, to rely on smaller-scale environmental assessments

for "an action included within the entire program or policy." 40

C.F.R. § 1502.20. Water Keeper points out that the Navy's

activities on Vieques were previously determined to be major

federal actions subject to an environmental impact statement,

see Romero-Barcelo v. Brown, 478 F. Supp. 646, 704 (D.P.R.

1979), aff'd in part, vacated in part on other grounds, 643 F.2d

835 (1st Cir. 1981), rev'd on other grounds, 456 U.S. 305

(1982), and argues that the interim activities have not

necessitated the preparation of a new environmental impact

statement because they fell into the exception created by the

regulations for actions that are part of a larger program.

In considering a request for a preliminary injunction, we

need not determine the outcome on the merits "with absolute

assurance." Ross-Simons, 102 F.3d at 16; Narragansett Indian

Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir. 1991). We cannot say

that Water Keeper has shown a probability at this stage that the

Navy violated the ESA because it concluded that the interim

activities -- for which no environmental impact statement had

been prepared and which were arguably materially different from

previous naval exercises in their short term nature and use of

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only inert ordnance -- did not constitute a major construction

activity necessitating a biological assessment.8

But even assuming that the Navy's activities did necessitate

the preparation of a biological assessment, Water Keeper has not

shown that the consultation package was not the functional

equivalent of a biological assessment. In reaching the same

conclusion, the district court focused on the fact that the

contents of a biological assessment are discretionary, see 50

C.F.R. § 402.12(f), and that the Navy's consultation package

contained much of the discretionary content of a biological

assessment, including a list of endangered and threatened

species, description of the species' habitats, reasons for their

decline, action taken to protect the species, results of aerial

surveys, and a list of restrictions on military exercises.

Water Keeper I at 8.

Of course the discretionary nature of the contents of the

biological assessment should not detract from the fact that it

is prepared in fulfillment of section 7(a)(2) of the ESA, 16

U.S.C. § 1536(a)(2), see also 50 C.F.R. 402.14(d), and that it

8Although the regulations are not entirely clear as to who
decides whether an agency action is a major construction
activity (i.e. the agency or the Services), the Services'
explanatory comments suggest that the Navy would make this
determination: "The biological assessment process begins when a
Federal agency decides that its action is a major construction
activity . . . ." 51 Fed. Reg. 19946.

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consequently must "use the best scientific and commercial data

available." We are unable, however, to find that Water Keeper

is likely to succeed on the argument that the Navy did not use

the best scientific and commercial data available. Water

Keeper's contentions to this end essentially boil down to the

fact that the Navy did not consult two available studies on

brown pelicans, an omission that is not sufficient to find the

consultation package inadequate, at least at this preliminary

stage. Water Keeper's additional assertion that the Navy could

not have possibly relied on the best scientific and commercial

data available, given that it had not completed many of the

studies that would be incorporated in a future biological

assessment for the long-term use of the island, has more

analytical appeal. However, the very fact that these studies

were not completed means that they were not available at the

time of the preparation of the consultation package. We cannot

say that the decision by the Navy and the FWS to proceed with

the formal consultation on the interim training exercises before

the completion of the long term studies violated the ESA's

procedural requirements.

We therefore hold that the district court was correct in

finding that Water Keeper was unlikely to succeed on the merits.

We review the next three prongs in the standard for preliminary

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injunction for abuse of discretion, as discussed above, and

accordingly decide them with relative speed.

C. Potential for Irreparable Harm

To be entitled to preliminary injunctive relief, appellants

must demonstrate that they will otherwise suffer irreparable

harm. The district court found that Water Keeper's showing of

irreparable harm was insufficient. We agree.

Water Keeper first contends that a procedural violation of

the ESA itself constitutes irreparable injury. It is true that

the ESA restricts the equity power of the court as to findings

of irreparable injury. See Tennessee Valley Auth. v. Hill, 437

U.S. 153 (1978). But Water Keeper’s argument is misplaced and

ignores context. On the facts of this case, Water Keeper has

not shown that the statute entitles it to insist on the

procedure of no action taking place until a biological

assessment has been filed with the Service. Here, there is a

serious question as to whether the Navy was required to prepare

a new biological assessment and whether what the Navy submitted

was not the functional equivalent of a biological assessment.

This context places the case outside of Hill and outside of the

reach of Massachusetts v. Watt, 716 F.2d 946 (1st Cir. 1983).

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 As a result, the district court correctly required that

Water Keeper show potential for irreparable harm "apart from the

harm that they argue is inherent in a procedural violation of

the ESA's consultation requirements . . . ." Water Keeper I at

12. Furthermore, the court did not abuse its discretion when

it determined that Water Keeper's assertions concerning

irreparable harm stemming from the "death of even a single

member of an endangered species" were insufficient to justify

granting injunctive relief. Id. at 12. In support of its

position of irreparable harm, Water Keeper can only point to

vague concerns as to long-term damage to the endangered species

expressed by FWS and NMFS.9 In the absence of a more concrete

showing of probable deaths during the interim period and of how

these deaths may impact the species, the district court's

conclusion that Water Keeper has failed to show potential for

irreparable harm was not an abuse of discretion.

D. Balance of Relevant Impositions & Public Interest

In response to the claimed danger to endangered species

asserted by Water Keeper, the Navy argues that the loss of

Vieques as a training ground will adversely affect military

9
See Letter from NMFS, Southeast Regional Office to Captain
J.K. Stark Jr., USN, Commanding Officer, U.S. Naval Station, R.
Doc. 1 Ex.19 (July 1, 1999). Letter from FWS to Rear Admiral
J.K. Moran, Department of the Navy, Commander Navy Region
Southeast, R. Doc. 1, Ex 20 (June 15, 2000).

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preparedness. Water Keeper correctly contends that, by enacting

the ESA, Congress has already determined that the "'balance of

hardships and the public interest tips heavily in favor of

protected species.'" Strahan v. Coxe, 127 F.3d 155, 171 (1st

Cir. 1997) (quoting National Wildlife Fed'n v. Burlington N.

R.R., 23 F.3d 1508, 1510 (9th Cir. 1994)). See also Tennessee

Valley Auth., 437 U.S. at 184-185 (finding that the ESA "reveals

a conscious decision by Congress to give endangered species

priority over the 'primary missions' of federal agencies").

While these precedents direct us to give the endangerment of

species, as alleged by Water Keeper, the utmost consideration,

we do not think that they can blindly compel our decision in

this case because the harm asserted by the Navy implicates

national security and therefore deserves greater weight than the

economic harm at issue in Strahan.10

10Water Keeper argued, for the first time during oral
argument, that the appropriate place for appellees' military
preparedness argument is not the balancing of harms under a
preliminary injunction, but the national security exception
under ESA § 7(j): "Notwithstanding any other provision of this
chapter, the [Endangered Species Committee, see 16 U.S.C. § 1536
(e)] shall grant an exemption for any agency action if the
Secretary of Defense finds that such exemption is necessary for
reasons of national security." 16 U.S.C. § 1536(j). Water
Keeper has forfeited this argument by not properly raising it in
its brief. Except in extraordinary circumstances, a court of
appeals will not consider an issue raised for the first time at
oral argument. See Piazza v. Aponte Roque, 909 F.2d 35, 37 (1st
Cir. 1990).

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 Water Keeper argues in response that military preparedness

will not be affected to the extent that appellees allege. Water

Keeper first points out that the Navy statements on which the

district court relied in determining the harm to national

security assumed that the training exercises utilized live

ordnance, whereas the Navy was utilizing inert ordinance,

arguably creating a less realistic and thus less instructional

simulation of battle. Second, Water Keeper contends that

alternative sites can provide the same training opportunities as

Vieques. While acknowledging that these arguments could have

some merit, the district court determined on the whole that the

Navy's evidence in support of its contentions was more reliable

and additionally cautioned against substituting judicial

judgment for agency judgment in considerations of how and where

the Navy should train. The court did not abuse its discretion

in coming to this conclusion.

E. Effect on the Public Interest

The effect of a preliminary injunction on the public

interest is directly tied to its impact on both military

preparedness and the endangered and threatened species. For the

same reasons laid out above, the district court did not abuse

its discretion in finding that the public interest weighed in

favor of denying a preliminary injunction. We also note that

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the two Services charged with protecting the endangered species

have not objected to the interim exercises or the process used

by the Navy.

VI. Conclusion

For the reasons stated above, we find that Water Keeper's

request for preliminary injunctive relief was properly denied.

Affirmed.

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