Florida Key Deer v. Paulison

Apr 1: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 05-16374. The Federal Emergency Management Agency (FEMA) and the U.S. Fish and Wildlife Service (FWS) appealed an adverse summary judgment and grant of injunctive relief. The district court found that FEMA and the FWS failed to comply with section 7 of the Endangered Species Act, with regard to FEMA’s administration of the National Flood Insurance Program (NFIP) in the Florida Keys. FEMA and the FWS maintain that section 7(a)(2) of the Endangered Species Act does not apply to FEMA’s provision of flood insurance and that FEMA has, in any event, fully complied with section 7. The Appeals Court affirmed the decision of the district court.

The case began in 1984 when in 1984, the FWS determined that FEMA’s administration of the NFIP in the Florida Keys potentially jeopardized the existence of the Florida Key deer by effectively authorizing the development that pushed the Key deer to the brink of extinction. In 1989, however, FEMA refused the FWS’s request for formal consultation, asserting that the ESA did not apply to the NFIP. In 1990, the plaintiffs, “Wildlife Organizations,” filed suit seeking an injunction requiring FEMA to comply with section 7(a)(2) of the ESA by formally consulting with the FWS about the impact of its administration of the NFIP on the Key deer. The Wildlife Organizations adopted the FWS’s argument that the NFIP encouraged new development that threatened the meager population of 250–300 Key deer with extinction.

Subsequently, FEMA consulted with the FWS regarding the impact of the NFIP on the Key deer and nine other endangered or threatened species. In 1997, the FWS issued its opinion, which found, among other things, that the NFIP, as administered in the Florida Keys, jeopardized the continued existence of the Key deer and eight other listed species. In accordance with its regulations and the ESA, the FWS recommended “reasonable and prudent alternatives” (“1997 RPAs”) to the manner in which FEMA administered the NFIP to avoid placing the Key deer and other listed species in jeopardy. The Wildlife Organizations eventually amended their complaint and added FWS as a defendant and challenging the adequacy of the 1997 RPAs and their accompanying conservation recommendations.

On March 29, 2005, the district court granted the Wildlife Organizations’ motion for summary judgment, finding that FEMA had not satisfied its obligation under section 7(a)(1) to carry out programs to conserve species and that neither FEMA nor the FWS had satisfied their obligations under section 7(a)(2). On September 12, 2005, the district court enjoined FEMA from providing any insurance for new developments in the suitable habitat of the listed species.

FEMA and FWS challenged the district court’s grant of summary judgment and injunctive relief, arguing that: (1) section 7(a)(2) of the ESA does not apply to FEMA’s administration of the NFIP; (2) section 7(a)(2) of the ESA does not require FEMA to perform an independent analysis of the FWS’s proposed “reasonable and prudent alternatives” before adopting them; (3) section 7(a)(1) of the ESA does not require agencies to develop species- and location-specific programs for the conservation of listed species; and (4) the district court exceeded its authority by issuing an injunction that is allegedly inconsistent with the ESA and the NFIA.

In affirming the district court decision the Appeals Court addressed each of the issues and determined that section 7(a)(2) applies to FEMA’s administration of the NFIP; said that FEMA adopted the RPAs the same day that the FWS proposed them and therefore did not perform an independent analysis; does require programs for the conservation of listed species and FEMA's program is "insignificant in its impact"; and the injunction at issue here does not require FEMA to act inconsistently with the command of the NFIA to issue flood insurance in otherwise eligible communities

Wildlife Organizations included the National Wildlife Federation (NWF), Florida Wildlife Federation and Defenders of Wildlife. The groups praised the decision and issued a release stating, “This is a significant victory for the Florida Key Deer and all of America’s endangered species. The court has sent a clear message that our federal government cannot subsidize development in sensitive coastal and floodplain habitats without taking into account the needs of the endangered species that live there. FEMA’s effort to place itself outside the reach of the Endangered Species Act, our nation’s most important wildlife law, has been soundly rejected.”

Access the complete opinion (click here). Access a release from NWF (click here).