Miccosukee Tribe of Indians of Florida v. United States
566 F.3d 1257, 39 Envtl. L. Rep. (Envtl. Law Inst.) 20097, 68 ERC (BNA) 1929 (2009)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Under the Endangered Species Act, an incidental take statement must quantify the permissible take in numerical terms of individuals unless it is impractical to do so. An agency's decision to use a habitat-based surrogate must be justified, and the trigger for re-consultation must be rationally related to the threats faced by the species.
Facts:
- The U.S. Army Corps of Engineers (Corps) manages water flow in the Everglades through a system of canals and gates, including the S-12 gates.
- The endangered Cape Sable seaside sparrow lives south of the S-12 gates and requires low water levels for nesting.
- The endangered Everglade Snail Kite, a hawk, lives north of the S-12 gates in an area that includes Miccosukee tribal land; its habitat and food source are threatened by high water levels.
- To protect the sparrow from flooding, the Corps implemented an "Interim Plan" that closed the S-12 gates for at least 60 days during the sparrow's breeding season.
- This action caused water to back up north of the gates, flooding the kite's critical habitat.
- The Fish & Wildlife Service (FWS) issued a 2006 biological opinion concluding that the Interim Plan would not jeopardize the kite's existence, despite causing habitat degradation.
- The FWS also issued an incidental take statement permitting harm to the kite, which used a rapid drop in water level, not a numerical count of birds, as the trigger for re-consultation.
Procedural Posture:
- The Miccosukee Tribe filed a lawsuit against the Fish & Wildlife Service in the U.S. District Court for the Southern District of Florida.
- Following the issuance of a new biological opinion in 2006, the Tribe filed a second amended complaint challenging that opinion as a violation of the Endangered Species Act.
- Both parties filed cross-motions for summary judgment in the district court.
- The district court granted summary judgment in favor of the government, upholding the 2006 biological opinion and its incidental take statement.
- The Miccosukee Tribe, as appellant, appealed the district court's decision to the U.S. Court of Appeals for the Eleventh Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does an incidental take statement issued under the Endangered Species Act violate the Act if it uses habitat markers instead of numerical counts to quantify permissible take where counting is practical, and its trigger for re-consultation is not rationally related to the primary threat facing the species?
Opinions:
Majority - Carnes, Circuit Judge
Yes, an incidental take statement violates the Endangered Species Act under these circumstances. While the court affords substantial deference to the Fish & Wildlife Service's (FWS) scientific conclusion that the Interim Plan would not jeopardize the Snail Kite, the accompanying incidental take statement is legally deficient. The legislative history of the Endangered Species Act reveals a clear congressional intent that incidental take be specified with a numerical limit where possible. Here, the FWS failed to demonstrate that it was impractical to count the birds, particularly since annual population counts were already being conducted. Therefore, the use of a habitat marker (water level) as a surrogate was improper. Furthermore, the chosen trigger for re-consultation—a rapid drop in water level of more than 1.7 feet—was arbitrary and capricious because it was unrelated to the primary threat identified in the biological opinion itself, which was sustained high water. This means no amount of high-water damage or resulting kite deaths would trigger a mandatory re-evaluation of the plan.
Analysis:
This decision reinforces the high judicial deference given to agency scientific expertise in determining whether an action jeopardizes a species under the Endangered Species Act. However, it establishes a significant check on agency discretion in formulating incidental take statements. The ruling clarifies that agencies cannot default to using habitat-based surrogates for take limits; they must first demonstrate and explain why using a numerical count of individuals is impractical. This precedent strengthens procedural requirements for incidental take statements, forcing agencies to provide more rigorous justifications and ensuring that re-consultation triggers are logically connected to the actual threats faced by the species, thereby enhancing the protective power of the Act.
