Rare species need more protection, judge rules
BY LAURIE KARNATZ
Citizen Staff
The efforts of two
federal agencies to protect endangered species in the Florida Keys are
inadequate, a federal judge ruled this week.
U.S. District Judge K.
Michael Moore found that a court-mandated agreement between the Federal
Emergency Management Agency and the U.S. Fish and Wildlife Service to
ensure the welfare of the species is "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law ..."
"What this means is
federal courts are not buying the argument advanced by [the Wildlife
Service] and FEMA that what they are doing to ensure [endangered species
protection] is adequate and enough," said David White, who filed the
original lawsuit and continues as attorney of record in the case.
The ruling is based on a
1990 lawsuit filed against FEMA by the National Wildlife Federation.
Moore
ruled in 1994 that the agency's National Flood Insurance Program, by
providing insurance to properties in endangered species habitat and thus
encouraging development, violated the Endangered Species Act. The ruling
required FEMA work with the Wildlife Service to address the issue.
"This is a very important
case for endangered species and the flood insurance program," White
said. "This is the exact intended result of the [federal] Endangered
Species Act: To identify where federal agencies are working at cross
purposes and to bring them together to resolve those inconsistencies."
In 1997, the two agencies
agreed to a plan that required oversight of permitting in the Keys by
the Wildlife Service. Since then, Monroe County has relied on
information provided by the Wildlife Service to determine whether
prospective builders must seek federal approval for their projects.
At the time the plan was
implemented, it caused consternation among some builders because it
added another layer of government oversight to the already complex
county building process.
According to court
documents, a 2003 biological opinion issued by the Wildlife Service
"failed to evaluate" whether FEMA's insurance program was "continuing to
jeopardize" the endangered species, thereby violating once again the
Endangered Species Act.
In addition, the judge
found that agencies were relying in many cases on what amounted to
voluntary compliance by property owners to save species habitat. Moore
found "unpersuasive" FEMA's arguments that failure to comply with the
requirements could result in the county's suspension from participation
in the flood insurance program.
Moore wrote the plan
"does nothing to compel landowners to adhere to recommendations by [the
Wildlife Service]. Indeed, the record indicates that some landowners
entirely disregarded" the requirements for habitat protection.
Moore also wrote that "if
the court were to adopt FEMA's argument it would mean that a federal
agency could fulfill its [responsibilities under the Endangered Species
Act] by implementing a voluntary national program that has no effect on
the specific species affected by the agency's actions."
Henry Morgenstern,
another attorney who worked on the case, lauded the judge's ruling as
one that will finally force a real solution to the issue.
"The procedure they're
using now [requires] a lot of paperwork. We were never in favor of this.
It was a terrible idea from the start," Morgenstern said. "Landowners
hated it, the agencies hated it, environmentalists hated it because it
doesn't accomplish the protection that's supposed to be given. Fish and
Wildlife did it anyway, we think for political reasons, because it
didn't stop development.
"Now they're going to
have to come up with a better way."
The ruling will have
national effects because any community served by FEMA's flood insurance
program that also has endangered species habitat will be subject to
whatever new plan is developed, White and Morgenstern said.
In the Keys, the ruling
will affect property located in habitat for any of following species
native to the Keys: Key deer, Key Largo cotton mouse, Key Largo wood
rat, Lower Keys marsh rabbit, Schaus' swallowtail butterfly, silver rice
rat, Stock Island tree snail and the Keys tree cactus.
County Growth Management
Director Tim McGarry said Wednesday he didn't know what effect Moore's
decision would have on the Keys.
"And until federal
agencies respond, we're kind of in the dark," he said.
County
Attorney
Richard Collins, in an email to county staff and officials, on Wednesday
wrote, "You may want to be prepared for what I anticipate to be a major
headache for us."
lkarnatz@keysnews.com
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