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
-4-
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.
-5-
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
-6-
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).
-7-
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
-8-
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
-9-
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
-10-
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).
-11-
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
-12-
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
-13-
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").
-14-
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
-15-
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
-16-
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
-17-
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.
-18-
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
-19-
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
-20-
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
-21-
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).
-22-
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
-23-
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.
-24-
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
-25-
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.
-26-
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
-27-
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).
-28-
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).
-29-
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).
-30-
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
-31-
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.
-32-