Medina County Environ. Action v. Surface Transp. , 602 F.3d 687 ( 2010 )

REVISED MAY 6, 2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 6, 2010
No. 09-60108
Lyle W. Cayce
Clerk
MEDINA COUNTY ENVIRONMENTAL ACTION ASSOCIATION
Petitioner
v.
SURFACE TRANSPORTATION BOARD; UNITED STATES OF AMERICA;
UNITED STATES FISH AND WILDLIFE SERVICE
Respondents
Petition for Review of a Decision of the
United States Surface Transportation Board
Before KING, BARKSDALE, and ELROD, Circuit Judges.
KING, Circuit Judge:
The petitioner, the Medina County Environmental Action Association
(MCEAA), seeks review of a Construction and Operation Exemption Decision
(the Decision) entered by one of the respondents, the Surface Transportation
Board (STB). The Decision granted an exemption under 49 U.S.C. § 10502 that
allows the intervenor, Southwest Gulf Railroad Co. (SGR), to construct and
operate a seven-mile rail line and rail loading loop to service a proposed
limestone quarry in Medina County, Texas, without meeting the prior approval
No. 09-60108
requirements imposed by 49 U.S.C. § 10901.1 MCEAA petitions this court
directly for review of the Decision, as it may under 28 U.S.C. §§ 2321(a), 2342(5).
At issue is whether the STB and the second respondent, the United States
Fish and Wildlife Service (FWS),2 complied with their obligations under § 7 of
the Endangered Species Act (ESA) to ensure that the proposed rail was “not
likely to jeopardize the continued existence of any endangered species” before
approving the exemption. 16 U.S.C. § 1536(a)(2). Specifically, MCEAA
challenges the respondents’ finding that the proposed rail and its “cumulative
effects” are not likely to jeopardize the continued existence of the endangered
golden-cheeked warbler, which is known to exist in Medina County, and of
certain endangered karst invertebrates, which are known to exist in neighboring
Bexar County. Also pending is MCEAA’s motion to supplement the
administrative record. For the reasons discussed below, we deny MCEAA’s
petition for review of the Decision and deny the motion to supplement.
I. Background
A. The Proposed Quarry and Rail
In 1999, Vulcan Construction Materials, LP (Vulcan), not a party to this
case, entered into long-term leases for three contiguous pieces of property in
north central Medina County, north of the unincorporated settlement of Quihi,
1
Section 10901 requires that a party file a public application and obtain the STB’s
certification that the proposed project is not “inconsistent with the public convenience and
necessity” before constructing a railroad line. 49 U.S.C. § 10901(c). Section 10502 permits an
exemption from the authorization requirements if the STB determines that the proposed rail
“is not necessary to carry out the [government’s] transportation policy” goals and either the
transaction or service is of limited scope or the project does not create a need “to protect
shippers from the abuse of market power.” 49 U.S.C. § 10502(a). Neither of these statutes is
central to the disposition of this case.
2
The United States of America is named as a third respondent.
2
No. 09-60108
Texas. Vulcan intends to develop this combined 1,760-acre tract as a limestone
quarry in a phased approach. In “Phase One,” Vulcan will develop the
southernmost 640 acres of the site, approximately twenty percent of the total
land area. The development will include a quarry pit, fuel storage area, plant
maintenance facility, and production facility. Vulcan has indicated that it may
quarry the rest of the site in up to four additional phases over the course of the
next 50 years if there is market demand, but at present it has no specific plans
for further development. SGR, which is owned by Vulcan’s parent company,
Vulcan Materials Co., seeks to build a seven-mile rail line and loading loop on
the Phase One area and easements to the south that would connect the quarry
with the Union Pacific Railway main line, along U.S. 90 at Dunlavy, Texas.3
MCEAA, a Texas non-profit corporation, was formed in 2000 to oppose the
construction and operation of the quarry. Its members consist primarily of
individuals in Quihi, Texas, who live or own land adjacent to or near the site of
the proposed quarry and rail.4
3
Although the present plans only involve connecting the quarry to the main line, SGR
asserts that ultimately it intends to “hold itself out as a common carrier . . . to provide service
to other industries that might locate along the line in the future.”
4
MCEAA asserts direct standing based on its mission “to protect the flora and fauna
of the Quihi area” and to “preserve the quality of life that has been a part of Medina County’s
heritage.” MCEAA also asserts standing on behalf of its members on two bases. First,
MCEAA asserts that its members have enjoyed observing golden-cheeked warblers in the area
and will be harmed if the warblers are harmed or driven away by the quarry. Second, MCEAA
contends that the activities at the proposed quarry will drive the warblers onto its members’
own properties. Because the ESA imposes on private landowners a prohibition against
harming endangered species, 16 U.S.C. §§ 1532, 1538, MCEAA argues that the presence of
warblers on its members’ properties would prevent them from clearing and developing their
land for ranching and farming. The respondents do not dispute that MCEAA has standing to
pursue this petition for review, and MCEAA’s contentions as to esthetic and pecuniary harm
are in fact sufficient to support standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 563
(1992); Tex. Democratic Party v. Benkiser, 459 F.3d 582, 586–87 (5th Cir. 2006).
3
No. 09-60108
Among the numerous challenges that MCEAA raised in opposition to the
proposed quarry is that the quarry could threaten the endangered golden-
cheeked warbler. In an effort to avoid this possibility, Vulcan began a voluntary
consultation in 2000 with the FWS, seeking to structure the development of the
quarry in compliance with § 9 of the ESA, which makes it “unlawful for any
person subject to the jurisdiction of the United States to . . . take any
[endangered] species within the United States.” 16 U.S.C. § 1538(a)(1)(B).
“Take” means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
or collect, or to attempt to engage in any such conduct.” Id. § 1532(19). “Harm,”
in turn, includes “significant habitat modification or degradation [that] actually
kills or injures wildlife by significantly impairing essential behavioral patterns,
including breeding, feeding or sheltering.” 50 C.F.R. § 17.3. The ESA imposes
strict penalties for § 9 violations, including criminal penalties of up to one year
in prison and a $50,000 fine per violation and civil penalties of up to $25,000 per
violation. 16 U.S.C. § 1540(a), (b). Citizens may also bring civil suits to enjoin
violators or to compel the FWS to enforce the statute against violators.
Id. § 1540(g). If a proposed project is likely to result in “take” of a species or
habitat, an applicant may petition the FWS under § 10 of the ESA for a permit,
under “such terms and conditions as [the FWS] deems necessary or appropriate,”
that allows the project to proceed with some degree of “take.” Id. § 1539(a)(2)(B).
On April 16, 2001, at Vulcan’s request, officials from FWS’s Austin field
office accompanied a geologist for Vulcan to the proposed quarry site to study the
potential for the project to harm the golden-cheeked warbler. Vulcan proceeded,
with the FWS’s advice and guidance, to conduct intensive surveys of the Phase
One area but found no warblers and little or no habitat that would support
4
No. 09-60108
warblers. Vulcan also conducted preliminary “screening” surveys on the rest of
the 1,760-acre tract and again found no warblers, although the northern portion
of the tract did contain some suitable habitat. Vulcan submitted the results of
these surveys in a report to the FWS in October 2001. The report also described
four additional phases for potential development to occur over the next twenty
to fifty years, but indicated that there were not yet any specific development
plans for those phases. Vulcan stated that it would begin conducting intensive
surveys of future phases a minimum of three years before commencing
development. The FWS responded to the report by letter on March 20, 2002,
expressing approval of the survey work and the phased approach.5
Vulcan published another report in August 2003 that described the results
of intensive surveys of the Phase One area conducted in 2002 and 2003. As in
the prior report, Vulcan reported that no golden-cheeked warblers were found
and that the potential warbler habitat within the Phase One area was “poor to
marginal.” The report did disclose, however, that one warbler had been heard
calling on one occasion from the northeast of the Phase One site in 2003. On
October 17, 2003, the FWS provided feedback on the report by letter, noting that
5
The FWS stated in the March 20, 2002, letter when expressing approval for the
phased approach that “[t]ypically the [FWS] requires that adequate assessments for
endangered species be conducted for all phases or segments for a particular project up front,
before any habitat destruction or ‘take’ of endangered species is authorized on any part of the
project.” MCEAA contends that this sentence shows that the FWS unlawfully “permitted”
Vulcan to proceed with a phased approach rather than surveying the entire quarry at the
outset. But this misconstrues the sentence and the facts. At that time, the FWS was involved
with the project only because Vulcan had voluntarily requested its advice. By that sentence,
the FWS meant only that ordinarily, the FWS will not grant a permit under § 10 of the ESA
to engage in “take” until a survey of the entire proposed project has been conducted. Vulcan
had not yet sought (and has not, to this court’s knowledge, since sought) a permit under § 10.
Whether or not the FWS should have permitted a phased approach (and MCEAA points to no
statute or regulation suggesting that a § 10 permit cannot be issued after only a phased
survey) is not relevant unless and until Vulcan seeks such a permit.
5
No. 09-60108
the report’s conclusions as to the absence of warblers on the property were
consistent with the observations of its own field agents, who had toured portions
of the property just two days earlier.
B. Evaluation of the Proposed Rail for the § 10901 Exemption
On February 27, 2003, SGR petitioned the STB for an exemption under 49
U.S.C. § 10901 to construct a seven-mile rail line and loading loop, to be located
in the Phase One area and on easements to the south, to service the proposed
quarry. The STB quickly determined that SGR met the statutory requirements
for exemption and granted conditional approval, contingent upon a
determination that the approval would not violate the STB’s obligations under
§ 7 of the ESA. Section 7 imposes an affirmative duty on federal agencies to
ensure that their “actions” are “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.” 16 U.S.C. § 1536(a)(2).6 An
agency “action” includes “the granting of licenses, contracts, leases, easements,
rights-of-way, permits, or grants-in-aid” to private parties. 50 C.F.R. § 402.02.
Because granting the exemption that SGR sought would qualify as an “action”
under the regulations, the STB was required to assess the § 7 ramifications of
the proposed rail. The STB’s approval was not required for any other action
associated with the proposed quarry, and the parties have not pointed to any
other aspect of the proposed quarry that required or will require approval under
§ 7.
6
The ESA regulations define “jeopardize the continued existence of” as “engag[ing] in
an action that reasonably would be expected, directly or indirectly, to reduce appreciably the
likelihood of both the survival and recovery of a listed species in the wild by reducing the
reproduction, numbers, or distribution of that species.” 50 C.F.R. § 402.02.
6
No. 09-60108
1. The STB’s Informal Consultation with the FWS
In assessing whether the proposed rail was “likely to jeopardize”
endangered or threatened species or their habitats, the STB was required to
consult with the FWS. 16 U.S.C. § 1536(a)(2).7 The STB initiated an “informal
consultation”8 with the FWS on March 31, 2003. In the first step of an informal
consultation, the agency must determine whether an endangered or threatened
species, or “critical habitat”9 for such species, may be present in the vicinity of
the proposed action. Id. § 1536(c)(1); 50 C.F.R. § 402.13(a). If no such species
or critical habitat may be present, no further consultation is required; if they
may be present, then the informal consultation proceeds to the second step. 50
C.F.R. § 402.13.10
7
The statute states that the agency conducting a § 7 analysis must consult with the
Secretary of the Interior. 16 U.S.C. §§ 1532(15), 1536(a)(2). The FWS is a bureau of the
Department of the Interior, tasked with conducting § 7 consultations. For ease of reference,
throughout this opinion, statutory references to “the Secretary” are treated as references to the
FWS.
8
An “informal consultation” is “an optional process that includes all discussions,
correspondence, etc., between the [FWS] and the Federal agency . . . designed to assist the
Federal agency in determining whether formal consultation or a conference is required.” 50
C.F.R. § 402.13. As here, most consultations between a federal agency and the FWS begin as
informal consultations. If the agency and FWS do not agree after informal consultation that
the proposed action is not likely to adversely affect listed species, then a formal consultation
is required. Id. § 402.14.
9
“Critical habitat” is defined as “the specific areas within the geographical area
occupied by the species . . . on which are found those physical or biological features . . .
essential to the conservation of the species and . . . which may require special management
considerations or protection.” 16 U.S.C. § 1532(5)(A)(i).
10
See also U.S. Fish & Wildlife Service, Endangered Species Program, Consultations
with Federal Agencies: Frequently Asked Questions, at
http://www.fws.gov/Endangered/consultations/sec7_faq.html#2 (last visited Mar. 15, 2010).
7
No. 09-60108
On April 22, 2003, the FWS informed the STB that the endangered golden-
cheeked warbler was listed in FWS records as being present in Medina County,11
although no designated critical habitat for the warbler (or for any other species)
was listed in the vicinity of the proposed action. The FWS indicated that most
of the area around the proposed rail had previously been cleared for agriculture
and did not offer supportive habitat for the warbler, but that a small portion of
land near the proposed loading loop had not been cleared and might provide such
habitat. The FWS requested that the STB conduct a habitat assessment and
bird surveys in the area of the entire proposed action. In a subsequent letter,
the FWS also informed the STB that certain endangered karst invertebrate
species,12 though not listed as present in Medina County, were listed in FWS
records as being present in neighboring Bexar County. These listed karst
invertebrates depend on the Edwards Aquifer, a large karst aquifer that spans
several counties, including Medina County, and that receives some recharge
water from the site of the proposed quarry. The FWS was concerned that these
listed karst invertebrates could be adversely impacted if the proposed action
tainted groundwater at the quarry site or damaged karst features on the
property connected to the Edwards Aquifer. The FWS urged the STB to consider
11
The black-capped vireo was also listed as being present in Medina County, but
MCEAA does not assert that the proposed rail has the potential to jeopardize the continued
existence of this species.
12
Karst is a type of land formation formed by the dissolution of soluble rocks, including
limestone and dolomite. Karst invertebrates are capable of surviving only in karstic caves or
rock. The listed karst invertebrate species described in the FWS letter include the Comal
Springs dryopid beetle, the Comal Springs riffle beetle, the Fountain darter, the Peck’s cave
amphipod, and the San Marcos gambusia. The FWS also recommended that the STB assess
impacts on three other endangered or threatened species that rely on the Edwards Aquifer and
its associated springs, including the San Marcos salamander, the Texas blind salamander, and
Texas wild rice. MCEAA has not raised any challenge as to these three species.
8
No. 09-60108
the effects of the proposed action on groundwater, to survey the site for karst
features, and to evaluate, if karst features were present, the possible impact of
the proposed action on those features.
Because the golden-cheeked warbler was listed as being present in Medina
County and because there was potential for the proposed action to affect the
habitat of listed karst invertebrates in neighboring Bexar County, the informal
consultation proceeded to the second step, in which the STB was required to
conduct a “biological assessment” of the effects of the proposed action. 16
U.S.C. § 1536(c)(1). The particular contents of a biological assessment “are at
the discretion of the Federal agency[,] . . . depend[ing] on the nature of the
Federal action,” but “may” include “[a]n analysis of the effects of the action on
the species and habitat, including consideration of cumulative effects, and the
results of any related studies.” 50 C.F.R. § 402.12(f). “Effects of the action” are
“the direct and indirect effects of an action on the species or critical habitat,
together with the effects of other activities that are interrelated or
interdependent with that action.” Id. § 402.02. “Indirect effects,” in turn, are
“those that are caused by the proposed action and are later in time, but still are
reasonably certain to occur.” Id. “Interrelated actions” are “those that are part
of a larger action and depend on the larger action for their justification.” Id.
“Cumulative effects” are “those effects of future State or private activities, not
involving Federal activities, that are reasonably certain to occur within the
action area of the Federal action subject to consultation.” Id.
The ESA regulations permit an agency to conduct a biological assessment
as part of an “Environmental Impact Statement” (EIS) prepared in compliance
9
No. 09-60108
with the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq.13
50 C.F.R. § 402.12(g). The STB opted to do so in this case. In preparing an EIS
to comply with NEPA, an agency must consider, among other things, the
“cumulative impacts” of the proposed action, defined as:
the impact on the environment which results from the incremental
impact of the action when added to other past, present, and
reasonably foreseeable future actions regardless of what agency
(Federal or non-Federal) or person undertakes such other actions.
Cumulative impacts can result from individually minor but
collectively significant actions taking place over a period of time.
40 C.F.R. § 1508.7 (emphasis added). In assessing the proposed action, the
STB’s review of “cumulative impacts” (“reasonably foreseeable future actions”)
under NEPA encompassed its review of “cumulative effects” (actions “reasonably
certain to occur”) under the ESA. See Interagency Cooperation—Endangered
Species Act of 1973, as Amended; Final Rule, 51 Fed. Reg. 19,926, 19,933, 1986
WL 93097 (June 3, 1986) (codified at 50 C.F.R. Part 402) (characterizing
13
NEPA is a procedural statute that requires a federal agency contemplating a “major
Federal action[ ] significantly affecting the quality of the human environment” to take
environmental considerations into account in its decisionmaking process. 42 U.S.C.
§ 4332(2)(C). NEPA provides that “all agencies of the Federal Government shall”:
include in every recommendation or report on proposals for legislation and other
major Federal actions significantly affecting the quality of the human
environment, a detailed statement by the responsible official on—
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should
the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man’s environment
and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which
would be involved in the proposed action should it be implemented.
Id.
10
No. 09-60108
“cumulative impact” review as requiring a broader inquiry that encompasses a
“cumulative effects” review).14 MCEAA does not allege a NEPA violation.
As part of the EIS, the STB15 and an independent, third-party consultant,
URS Corporation, conducted walking and aerial surveys of the various proposed
routes for the seven-mile rail line and the site for the proposed loading loop. No
golden-cheeked warblers were found. Almost no suitable warbler habitat was
found, although the area just south of the proposed loading loop was dispersed
woodland composed largely of juniper and oaks that the STB concluded had “low
potential” to support warblers. The surveys also inspected the proposed rail
routes and the Phase One area for karst features. The surveys revealed some
karst features, but none that provided habitat for any endangered or threatened
species.
2. The EIS Documents
The STB ultimately prepared three EIS documents for the proposed rail.
The STB circulated the first, a “Draft Environmental Impact Statement” (Draft
EIS), for notice and comment on November 5, 2004. The Draft EIS assessed the
14
In its official comments to the ESA § 7 regulations, the FWS explained that NEPA’s
provisions are only procedural (requiring federal agencies to make environmental
considerations part of the decision-making process), while the § 7 provisions of the ESA are
substantive (an agency cannot take an action unless it is in compliance with the statute). 51
Fed. Reg. at 19,933. The FWS reasoned that a narrower standard was necessary because
“[o]therwise, in a particular situation, the jeopardy prohibition could operate to block
‘nonjeopardy’ actions because future, speculative effects occurring after the Federal action is
over might, on a cumulative basis, jeopardize a listed species. Congress did not intend that
Federal actions be precluded by such speculative actions.” Id. MCEAA does not contend that
the STB’s analysis of cumulative impacts under NEPA was deficient.
15
The EIS was actually conducted by the STB’s Section of Environmental Analysis
(SEA) and later adopted by the STB. For ease of reference, survey and analytic work
conducted by the SEA is referred to throughout this opinion as having been conducted by the
STB.
11
No. 09-60108
possible environmental impacts of four alternative routes for the rail and
concluded that none was likely to adversely affect the golden-cheeked warbler
or listed karst invertebrates. The FWS concurred with the Draft EIS on May 19,
2005. On December 8, 2006, in response to concerns raised by MCEAA and
others, the STB circulated for notice and comment a “Supplemental
Environmental Impact Statement” (Supplemental EIS) that analyzed three
additional proposed rail routes and concluded that these, too, were not likely to
adversely affect any listed species. The FWS concurred with the Supplemental
EIS on July 24, 2006. The STB issued a “Final Environmental Impact
Statement” (Final EIS) on May 30, 2008, that incorporated large portions of the
Draft EIS and Supplemental EIS and set forth additional research and
conclusions. The FWS concurred with the Final EIS on September 11, 2008.16
The EIS documents concluded that the proposed action was not likely to
jeopardize the continued existence of the golden-cheeked warbler or any karst
invertebrates. The conclusions in the EIS documents were drawn from the
16
The FWS briefly withheld its concurrence from the Final EIS. On July 15, 2008, after
reviewing the Final EIS, the field supervisor from the FWS field office wrote to the STB
indicating that an FWS field officer had made a site visit to the quarry and was concerned that
the proposed rail “might fall within a relatively large swatch of oak–juniper woodland that may
support breeding pairs” of golden-cheeked warblers. A subsequent conversation with the STB,
however, revealed that the field officer had visited one of the northernmost portions of the
1,760-acre quarry tract, far from the proposed rail and the Phase One area. The STB clarified
to the FWS that thorough surveys had been conducted of the proposed rail and Phase One
areas both by STB and Vulcan and pointed out that the FWS had already concurred on several
occasions that the proposed rail would not adversely affect the golden-cheeked warbler. After
this confusion was addressed, the FWS officially concurred with the Final EIS’s determination
that the proposed action was not likely to adversely affect the golden-cheeked warbler or karst
features. MCEAA urges the July 15, 2008, letter as a basis for concluding that FWS has
lingering objections to the methodology and conclusions in the EIS. The letter does not provide
such a basis.
12
No. 09-60108
results of the STB’s own surveys and from the reports that Vulcan prepared in
2001 and 2003 with the advice and guidance of the FWS.
In concluding that the proposed action was not likely to jeopardize the
continued existence of any listed species, the EIS documents specifically
considered the cumulative impacts of the construction and operation of Phase
One of the quarry. The STB declined to assess the rest of the proposed quarry
in its cumulative impacts analysis, concluding that no other development was
“reasonably foreseeable.” The STB concluded in the EIS documents that the
proposed rail and the cumulative impact of the Phase One quarry activities were
not likely to adversely affect the golden-cheeked warbler because no warblers
had been found in the proposed action area, because little suitable habitat
existed in that area, and because Vulcan had announced plans to set aside the
portions of the site containing the most suitable habitat, including a 200-foot-
wide border around the entire quarry, as a “buffer zone.” The STB also
concluded that the proposed rail and the cumulative impact of the Phase One
quarry activities were not likely to adversely affect karst invertebrates, despite
the fact that a number of karst features were present on the property. The EIS
documents reflect the STB’s conclusion that any danger that these activities
might pose to groundwater and karst features would be adequately mitigated
under a Water Pollution Abatement Plan (WPAP) that Vulcan was required by
the Texas Commission on Environmental Quality (TCEQ) to implement as a
condition of operating the quarry. The STB also noted that no listed species had
been found in any of the karst features present in the Phase One area.
The EIS documents also contain the STB’s assessment of the
environmental impact of what the STB referred to as the “no-action” alternative.
SGR contended that if the proposed rail project were not approved, Vulcan would
13
No. 09-60108
proceed with Phase One of the quarry project using trucks to remove the
limestone. SGR estimated that 1,700 truck runs per day, 850 loaded outbound
and 850 unloaded inbound, would be required to service the approximately 5
million tons of limestone aggregate per year that SGR projected the quarry
would produce in the “reasonably foreseeable future.” SGR estimated that the
same work could be accomplished by just four rail trips per day, two loaded
outbound and two unloaded inbound. The STB credited these estimates after
considering detailed submissions from SGR. In the Draft EIS, the STB noted
that the no-action alternative would displace approximately 125 acres of
brushland, which carried “the potential for greater displacement of wildlife
habitat and populations” than the proposed rail routes. The STB also noted in
the Draft EIS that the no-action alternative had greater potential than a rail
line to increase “impervious cover” (ground that water cannot penetrate) which
in turn could make the land less conducive to the development of karst features,
although again, the threat would “likely be minimal.” In the Final EIS, the STB
extensively analyzed the physical and economic feasibility of the no-action
alternative and concluded that “based on all the information available to date . . .
truck transport of the limestone from [Vulcan’s] quarry to the [Union Pacific] rail
line would be feasible.” It also found that “the available information shows that
[Vulcan] could (and would) transport the limestone by truck if the rail line were
not built.”
These findings as to the no-action alternative, which MCEAA does not
seriously contest, highlight an important point that is easily lost in the technical
and regulatory complexities of this case: Because the STB’s approval was not
required for any other action associated with the proposed quarry, because no
other aspect of the proposed quarry required approval under § 7, and because
14
No. 09-60108
the quarry would go forward with or without the proposed rail, the implications
of the STB’s decision were relatively narrow. The STB could grant the
exemption, in which case development of the quarry would proceed with rail
service; or deny the exemption, in which case quarry development would still
proceed with service by truck—an alternative that all parties agree would be
more environmentally invasive. This court’s sole task in evaluating the
MCEAA’s petition is to determine whether the choice that STB made was
arbitrary and capricious. 5 U.S.C. § 706(2)(A).
The EIS documents also included detailed studies of the amounts of noise
and vibration that the construction and operation activities would produce. The
main purpose of the analysis was to determine whether and to what extent the
noise and vibration would affect offsite residences and cultural resources, such
as prehistoric sites. The STB predicted that there was potential for adverse
noise impact from the construction and operation of the rail, but proposed
numerous mitigation measures that would decrease disruption. It also noted
that the no-action alternative would produce more disruptive noise than any of
the rail alternatives. The STB also analyzed the cumulative impact of noise
from the quarry. Noise from the quarry is expected to include a once-daily, low-
frequency “thump” from blasting and factory noise from the production facility.
The STB concluded that this noise “would not materially contribute to” the rail
noise. The STB also predicted that there would be no adverse vibration effects
from the construction and operation of the rail. The STB speculated that pile
driving from the rail construction could have adverse vibration effects on nearby
water wells, but again listed mitigation measures that would minimize these
effects. The STB further found that no vibration from the quarry operations
would propagate outside the quarry boundary and therefore concluded that there
15
No. 09-60108
would be no adverse cumulative impacts from the quarry operations. The STB
did not specifically discuss whether and to what degree the predicted levels of
noise and vibration might have on the golden-cheeked warbler or listed karst
invertebrates.
3. The Decision
The STB issued its Decision approving the 49 U.S.C. § 10502 exemption
on December 17, 2008. The Decision adopted the environmental findings set out
in the Final EIS and specified that the exemption was contingent upon SGR’s
agreement to fulfill 91 environmental mitigation conditions, including measures
addressing biological resources. One such mitigation condition was that SGR
was required to consult with a “karst feature specialist” and “implement
appropriate mitigation measures” if it discovered any karst features during
construction. The Decision also cited with approval the facts that Vulcan had
promised the TCEQ that it would establish, as part of its WPAP, “naturally
vegetated corridors and buffer zones,” including a 200-foot-wide vegetation
buffer around the perimeter of the site; and that Vulcan had promised not to
clear land during the warblers’ breeding season, as part of a voluntary
commitment to the FWS.
Although the STB’s involvement with the proposed quarry ended with its
grant of the exemption for the rail, the FWS’s involvement is ongoing. At
Vulcan’s request, the FWS is continuing to work with Vulcan in an advisory
capacity to ensure that Vulcan’s actions at the quarry do not violate Vulcan’s
obligations under § 9 of the ESA. Although Vulcan’s consultation and
cooperation are voluntary, the penalties for violations of § 9—prison time, fines
of up to $50,000 per violation, and the threat of citizen suits—provide powerful
incentives for Vulcan to heed the FWS’s advice.
16
No. 09-60108
C. MCEAA’s Asserted Bases for Relief
On February 13, 2009, MCEAA timely filed a petition to appeal the STB’s
Decision, naming the STB and FWS as respondents. At issue is whether the
STB, in granting the § 10502 exemption, reached an arbitrary and capricious
conclusion that the activity that it was authorizing was “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.”
16 U.S.C. § 1536(a)(2). Also at issue is whether the FWS, with which the STB
was required to consult in rendering decision under § 7, id., complied with its
own § 7 obligations by concurring in the STB’s determination that no such
jeopardy was likely to occur. MCEAA’s chief argument is that the STB and FWS
should have assessed the potential for jeopardy posed by the entire 1,760-acre
tract, not just the proposed rail and Phase One area. MCEAA also contends that
the analysis that the STB conducted failed to assess the effects of noise and
vibration on the warbler population; gave inadequate consideration to the
threats posed to karst invertebrates; and improperly relied on certain
unenforceable mitigation conditions. Also pending is MCEAA’s motion to
supplement the administrative record with material that it contends the STB
and FWS should have considered before rendering their decisions.
II. The Standard of Review
We review the STB’s and FWS’s determinations as to § 7 of the ESA under
the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et seq.; see also Sierra
Club v. Glickman, 67 F.3d 90, 95 (5th Cir. 1995). The APA prescribes a narrow
and highly deferential standard. This court may not overturn the agencies’
decisions unless they were “arbitrary, capricious, an abuse of discretion, or
17
No. 09-60108
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “Under this
standard, we must assure ourselves that the agency considered the relevant
factors in making the decision, its action bears a rational relationship to the
statute’s purposes, and there is substantial evidence in the record to support it;
but, we cannot substitute our judgment for that of the agency.” Pub. Citizen,
Inc. v. U.S. E.P.A., 343 F.3d 449, 455 (5th Cir. 2003). Where an agency’s
particular technical expertise is involved, we are at our most deferential in
reviewing the agency’s findings. Marsh v. Or. Natural Res. Council, 490 U.S.
360, 376–77 (1989). When specialists express conflicting views, an agency must
have discretion to rely on the reasonable opinions of its own qualified experts
even if, as an original matter, we might find contrary views more persuasive.
Id. at 378. “We will uphold an agency’s actions if its reasons and policy choices
satisfy minimum standards of rationality.” Pub. Citizen, 343 F.3d at 455.
“Absent evidence to the contrary, we presume that an agency has acted in
accordance with its regulations.” Sierra Club v. U.S. Army Corps of Eng’rs, 295
F.3d 1209, 1223 (11th Cir. 2002) (citing Nicholson v. Brown, 599 F.2d 639, 649
(5th Cir. 1979)). The petitioner has the burden of proving that the agency’s
determination was arbitrary and capricious. Hartford Cas. Ins. Co. v. F.D.I.C.,
21 F.3d 696, 704 (5th Cir. 1994).
III. Analysis
A. Whether the Scope of the Biological Assessment Rendered the
Decision Arbitrary and Capricious
MCEAA argues that the STB’s Decision was arbitrary and capricious
because it relied on a biological assessment that assessed only the proposed rail
and Phase One area. MCEAA contends that to satisfy § 7 of the ESA and the
accompanying regulations, the STB and FWS should have analyzed the effects
18
No. 09-60108
of the proposed development of the entire 1,760-acre tract before concluding that
the proposed rail was not likely to jeopardize the continued existence of the
golden-cheeked warbler. The respondents counter that the scope of the
biological assessment was appropriate because it encompassed only those actions
associated with the proposed rail that were reasonably certain to occur.
The ESA § 7 regulations leave the contents of a biological assessment
(which here was conducted as part of the EIS) to the discretion of the evaluating
agency. The biological assessment “may” include “[a]n analysis of the effects of
the action on the species and habitat, including consideration of cumulative
effects, and the results of any related studies.” 50 C.F.R. § 402.12(f)(4). The
“effects of the action” include direct and indirect effects, “together with the
effects of other activities that are interrelated or interdependent with that
action.” 50 C.F.R. § 402.02. MCEAA contends that the proposed development
of the entire tract should have been evaluated as an “interrelated action,” a
“cumulative effect,” and an “indirect effect” of the proposed rail.17
17
MCEAA also argues that the entire quarry tract should have been considered as part
of the “environmental baseline” of the proposed rail project. An “environmental baseline
includes the past and present impacts of all Federal, State, or private actions and other human
activities in the action area . . . and the impact of State or private actions which are
contemporaneous with the consultation in process.” 50 C.F.R. § 402.02. The proposed
development of the 1,760-acre tract is not a “past,” “present,” or “contemporaneous” activity
and therefore should not be treated as part of the environmental baseline. In any event, it is
unclear why MCEAA would want the projected activity to be considered as part of the
environmental baseline, as it is against this baseline that interrelated actions, cumulative
effects, and indirect effects are to be measured. Id.
MCEAA also accuses the respondents of failing to consider the WPAP as a “related
study,” as it may under 50 C.F.R. § 402.12(f)(4). There is no basis for this contention—the EIS
documents show that the STB carefully considered the WPAP, particularly for the mitigation
requirements relating to groundwater and karst features that it imposes on Vulcan.
19
No. 09-60108
1. The Proposed Development of the Entire Tract is Not an
“Interrelated Action”
MCEAA first contends that the biological assessment should have
evaluated the proposed development of the entire tract because the entire
proposed quarry is an “interrelated action” with the proposed rail. The ESA
regulations define an interrelated action as being “part of a larger action and
depend[ing] on the larger action for [its] justification.” Id. Our circuit has not
yet interpreted the term “interrelated action,” but the FWS’s Endangered
Species Consultation Handbook clarifies that the “larger action” is the proposed
action for which the agency has been called upon to grant approval:
It is important to remember that interrelated . . . activities are
measured against the proposed action. That is, the relevant
inquiry is whether the activity in question should be analyzed with
the effects of the action under consultation because it is interrelated
to . . . the proposed action. Be careful not to reverse the analysis by
analyzing the relationship of the proposed action against the other
activity.
See U.S. Fish & Wildlife Service, Section 7 Consultation Handbook at 4-26
(1998) (emphasis in original) (hereinafter “FWS Handbook”).18 The FWS’s
comments to the regulations further indicate that “the ‘but for’ test should be
used to assess whether an activity is interrelated with . . . the proposed action.”
51 Fed. Reg. at 19,932. The Ninth Circuit, the only circuit to have interpreted
the term, has adopted this definition. See Sierra Club v. Marsh, 816 F.2d 1376,
1387 (9th Cir. 1987) (“The test for interrelatedness . . . is ‘but for’ causation: but
for the [proposed action], these activities would not occur.” (citing 51 Fed. Reg.
at 19,932)). Although interpretations contained in agency manuals and
18
The FWS Handbook is available at:
http://www.fws.gov/endangered/pdfs/Sec7/handbook/CH4.PDF (last visited Mar. 15, 2010).
20
No. 09-60108
comments are not entitled to the highest level of deference, a court may
nevertheless defer to an agency’s interpretation of its own regulation, depending
upon “the thoroughness evident in its consideration, the validity of its reasoning,
its consistency with earlier and later pronouncements, and all those factors
which give it power to persuade, if lacking power to control.” United States v.
Mead Corp., 533 U.S. 218, 227–30 (2001) (internal quotation marks omitted).
Applying this standard, we conclude that the FWS’s interpretation is a
reasonable construction of the regulation and entitled to deference. We adopt
this interpretation.
MCEAA contends that the proposed development of the entire tract is an
“interrelated action” with the proposed rail because “[t]he rail line has no
independent utility without all of the phases of the quarry.” But this contention
reverses the relevant analysis.19 The “larger action” is the proposed rail, the
activity that the STB was called upon to approve. The issue, for purposes of
determining whether proposed development of the entire tract was an
interrelated action, is whether, but for the proposed rail, development of the
tract as a quarry would occur. If development of the tract would not depend on
the proposed rail, then the tract does not qualify as an interrelated action. The
STB specifically found, after considering detailed submissions by SGR, that
Vulcan feasibly could operate the quarry without a rail, using trucks to remove
the limestone. The STB also found that Vulcan likely would take this course if
the rail exemption were not granted. The respondents’ refusal to consider the
19
This contention is also contradicted by explicit findings by the STB that the railroad
was in fact feasible even when considering only the output of the quarry for the “reasonably
foreseeable future.”
21
No. 09-60108
proposed development of the entire tract as an “interrelated action” did not
render the Decision arbitrary and capricious.
2. The Proposed Development of the Entire Tract is Not a
“Cumulative Effect”
MCEAA next argues that the proposed development of the entire tract
should have been evaluated as one of the “cumulative effects” of the proposed
rail. The ESA regulations define “cumulative effects” as “those effects of future
State or private activities, not involving Federal activities, that are reasonably
certain to occur within the action area of the Federal action subject to
consultation.” 50 C.F.R. § 402.02. MCEAA contends that “[o]nce the rail line is
in place, it is certain that production from all phases of the quarry will use it
over the remainder of the quarry’s operation.” The respondents counter that
only Phase One is “reasonably certain to occur.” The proposed phases of later
development, the respondents contend, are simply too speculative to allow the
agencies to conduct a meaningful review. The respondents point out that
although Vulcan has suggested a five-phase course of development, it has not
“explicitly la[id] out any plan for [later] phases of development or operations”
and has not specified when such development might occur, except that if it does
occur, it will do so in the next twenty to fifty years. The respondents also note
that future development “will likely depend on economic conditions, which are
of course beyond the control or predictive ability of either the [FWS] or STB.”
The Endangered Species Handbook explains that “[i]ndicators of actions
‘reasonably certain to occur’ may include”:
approval of the action by State, tribal or local agencies or
governments (e.g., permits, grants); indications by State, tribal or
local agencies or governments that granting authority for the action
is imminent; project sponsors’ assurance the action will proceed;
22
No. 09-60108
obligation of venture capital; or initiation of contracts. The more
State, tribal or local administrative discretion remaining to be
exercised before a proposed non-Federal action can proceed, the less
there is a reasonable certainty the project will be authorized.
Speculative non-Federal actions that may never be implemented are
not factored into the “cumulative effects” analysis. At the same
time, “reasonably certain to occur” does not require a guarantee the
action will occur. The action agency and the Services should
consider the economic, administrative, and legal hurdles remaining
before the action proceeds.
FWS Handbook at 4-30.
Our circuit has not interpreted the term “reasonably certain to occur,” but
it has interpreted the “reasonably foreseeable” standard for assessing
cumulative impacts under NEPA, 40 C.F.R. § 1508.7, a standard that applies in
a broader set of circumstances but encompasses the “cumulative effects”
standard under the ESA—actions “reasonably certain to occur” are also
“reasonably foreseeable.” See 51 Fed. Reg. at 19,933. Our case law shows that
even the broader “reasonably foreseeable” standard requires a substantial
degree of certainty before a cumulative impacts analysis will be required. In
Gulf Restoration Network v. United States Department of Transportation, 452
F.3d 362 (5th Cir. 2006), for example, we concluded that the federal agency’s
decision was not arbitrary and capricious when the agency had refused to
consider, as part of its cumulative impacts analysis for a liquefied underwater
natural gas facility, three similar facilities that were proposed to be built in the
same area. Applications for federal regulatory approval of these facilities had
been filed, and we acknowledged that these applications contained substantial
detail about the potential scope of the projects. We nevertheless deferred to the
agency’s conclusion that until final approval was granted on those applications,
there was “insufficient certainty about the [facilities’] future construction and
23
No. 09-60108
environmental consequences to include [them] in the cumulative impact
calculus.” Id. at 369. We noted that the applications could ultimately be denied
or approved contingent upon substantial modifications, and that even if
approved, the projects might not go forward because of financing issues. Id. at
371–72.
As the petitioner, MCEAA has the burden of showing that the proposed
development of the entire tract should have been treated as a cumulative effect
because its development as a quarry is reasonably certain to occur. MCEAA
argues that development of the entire tract is reasonably certain to occur
because Vulcan has entered into long-term leases for it. But the fact of the long-
term leases is not tantamount to a reasonable certainty that financial incentives
will exist in the future to develop the land—certainly not in any way sufficiently
specific for the respondents to conduct a meaningful scientific assessment of the
development’s effects.
MCEAA also argues, for the first time in its reply brief, that a map that
Vulcan submitted to the TCEQ as part of its proposed WPAP shows specific
plans for development of the entire tract. The map identifies karst features on
the property and shows where those features are in relation to proposed quarry
pits over the entire tract. We need not address this argument, as it is raised for
the first time in a reply brief, see Alaniz v. Zamora–Quezada, 591 F.3d 761, 777
(5th Cir. 2009) (citing Peteet v. Dow Chem. Co., 868 F.2d 1428, 1437 (5th Cir.
1989)), but in any event, this argument is not persuasive. SGR clarified at oral
argument that the TCEQ required a review of the proposed plans for the entire
tract before awarding regulatory approval to begin quarry activities on the site,
24
No. 09-60108
and that the plans submitted merely reflected Vulcan’s best guess about how the
tract would be developed, if it were developed.
MCEAA also overlooks one significant contingency to the development of
future quarry phases: If golden-cheeked warblers or karst invertebrates are
found to live on this land, then Vulcan will be obligated under § 9 to avoid any
“take,” which may in turn preclude or inhibit development of the land. In this
respect, time may work in the MCEAA’s favor: warblers may move on to the
unsurveyed portions of the property before any survey work is done. There is
every indication that if future surveys reveal the presence of warblers, Vulcan’s
§ 9 obligations will be strictly enforced—the FWS is monitoring Vulcan in an
ongoing capacity, and the MCEAA may bring a citizens’ suit to enforce
compliance. 16 U.S.C. § 1540(g).
The STB’s and FWS’s refusal to consider the proposed development of the
entire tract as a “cumulative effect” of the proposed rail did not render the
Decision arbitrary and capricious. As in Gulf Restoration, MCEAA has not
shown that the future phases of the quarry are free from regulatory and
financial contingencies such that their occurrence would be reasonably
foreseeable, much less reasonably certain. We are persuaded that the
respondents’ refusal to consider the proposed development of the entire tract as
a “cumulative effect” of the proposed rail did not render the Decision arbitrary
and capricious.
3. The Proposed Development of the Entire Tract is Not an
“Indirect Effect”
Finally, MCEAA contends that the proposed development of the entire
tract should have been evaluated as an “indirect effect” of the proposed rail. The
ESA regulations define “indirect effects” as “those that are caused by the
25
No. 09-60108
proposed action and are later in time, but still are reasonably certain to occur.”
50 C.F.R. § 402.02. MCEAA cites National Wildlife Federation v. Coleman, 529
F.2d 359 (5th Cir. 1976), in support of this contention, but Coleman is readily
distinguishable. Coleman involved the proposed expansion of Interstate 10
through a stretch of designated critical habitat for the Mississippi sandhill
crane, a federally-listed subspecies. Despite the presence of a listed species and
critical habitat in the action area, the Federal Highway Administration (FHA)
approved the project without ever initiating a consultation with the FWS. The
FWS in fact opposed the project on the grounds that the project would jeopardize
the continued existence of the cranes. Id. at 372–73. Our court reversed the
FHA’s approval and remanded with directions that the agency properly consult
with the FWS and consider, as an “indirect effect” of the action, the effects of
future private development along the highway, which the FWS urged “always
accompanies the construction of a major highway.” Id. at 373 (emphasis
added).20 In the present case, by contrast, the STB concluded after extensive
analysis that the proposed action was not likely to jeopardize any listed species
and the FWS concurred in that conclusion. And, as discussed in the above
analysis as to cumulative effects, the STB and FWS reasonably determined that
the development of the remaining phases of the quarry is not “reasonably certain
to occur”—the same standard applicable to “indirect effects.” The record, in sum,
does not support the conclusion that the STB’s and FWS’s refusal to consider the
20
MCEAA also cites Coleman for the proposition that § 7 requires consideration of the
“total impact” of a proposed project. This term is found nowhere in the statute or governing
regulations. Read in context, it is clear that this court’s admonition in Coleman that “[t]he
relevant consideration is the total impact of the highway on the crane” meant simply that the
agency should have considered the indirect effects of the highway. 529 F.2d at 373.
26
No. 09-60108
proposed development of the entire tract as an “indirect effect” rendered the
Decision arbitrary and capricious.
The complexities of the regulatory arguments on this issue also obscure a
fundamental point: The STB has no authority to stop development of the
quarry, which the evidence shows could and would be developed regardless of
whether the rail were built. The STB had two choices: Grant the exemption and
allow the rail—the environmentally preferable alternative—to go forward, or
deny the exemption, in which case quarry development would progress, serviced
by a more environmentally disruptive fleet of trucks. We cannot say that the
STB abused its discretion in choosing the former.
B. Whether the Effects Analysis Rendered the Decision Arbitrary
and Capricious
MCEAA also contends that the respondents’ analysis of the effects and
cumulative effects of the proposed rail and Phase One on listed species and karst
formations was so inadequate as to render the Decision arbitrary and
capricious.21
MCEAA first complains that the portions of the EIS documents that
considered the environmental effects of noise and vibration from the construction
and operation of the rail line, and the cumulative impact of noise and vibration
from the quarry, were conclusory in nature and did not specifically assess what
effect these would have on listed species. MCEAA also argues that the EIS
documents should have assessed the effect that lighting from the quarry’s
21
MCEAA also complains that these analyses were not performed on the remainder of
the 1,760-acre tract, but we have already concluded that the STB and FWS were not required
to analyze that portion of the tract in granting the exemption.
27
No. 09-60108
projected round-the-clock operation would have on listed species.22 The
respondents counter that the analysis was thorough and that the absence of
analysis specific to listed species does not render the Decision arbitrary and
capricious. We agree. The noise and vibration analysis, far from being
conclusory, is detailed and methodical, projecting decibel and vibration levels for
each of the proposed actions, assessing which residences and other structures
would be affected, and proposing extensive mitigation measures. As for the
absence of analysis specific to listed species, all of the survey evidence available
to the STB and FWS showed that no listed species were present in the areas
where the noise and vibrations were to occur—rendering analysis of effects of
noise, vibration, and light on those species superfluous, if not impossible.
Furthermore, the STB found, and MCEAA does not dispute, that whatever
adverse noise and vibration effects the proposed rail posed, the effects from the
no-action alternative would be worse. Even if the STB could have done more
analysis—and the record does not show that more was required—MCEAA has
not shown that the noise and vibration analysis rendered the Decision arbitrary
and capricious. See Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100
F.3d 1443, 1448 (9th Cir. 1996) (deferring to agency judgment despite “gaps and
imperfections” in the administrative record).
MCEAA also argues that the STB’s analysis of the proposed action’s effects
on listed karst invertebrates was inadequate. According to MCEAA, despite the
fact that karst features were identified on the quarry property, these features
22
MCEAA also argues that the EIS failed to consider the effects that land clearing in
the proposed rail and Phase One areas would have on listed species. This is false. The EIS
documents noted the portions of the proposed rail and Phase One area that contained suitable
habitat for warblers and considered how much of that habitat would be displaced by the
proposed actions at the site.
28
No. 09-60108
were not surveyed, and the STB has “conclude[d] without any analysis that
Vulcan’s proposed mitigation will be sufficient.” Neither of these criticisms is
supported by the record. As MCEAA has acknowledged in other parts of its
briefing, Vulcan produced detailed surveys and maps of the karst features on the
entire tract as part of its WPAP. The STB found, after conducting a biological
analysis of the proposed rail and Phase One areas, that the mitigation measures
required by the TCEQ as a condition of approval of the WPAP would adequately
address any danger that these activities might pose to groundwater and karst
features, or to the listed karst invertebrates that rely on them. In addition, one
mandatory condition of the Decision was that SGR consult with a “karst feature
specialist” and “implement appropriate mitigation measures” if it discovered any
additional karst features during rail construction. MCEAA’s critique of the
STB’s analysis of the effects on karst invertebrates lacks support in the record
and does not show that the Decision was arbitrary and capricious.
Finally, MCEAA argues that the STB and FWS improperly premised their
approvals of the proposed action on two mitigation measures that MCEAA
contends are “unenforceable” and insufficient to mitigate the effects of the
proposed action. The first such measure is Vulcan’s commitment to maintaining
a 200-foot-wide vegetated buffer along the perimeter of the site. The second is
Vulcan’s commitment to clear land only outside the golden-cheeked warblers’
breeding season. MCEAA’s criticisms of these measures lack merit. The 200-
foot-wide vegetated buffer is mandatory and enforceable as part of Vulcan’s
commitments to the TCEQ under the WPAP. And although Vulcan’s
commitment only to clear land outside the warblers’ breeding season is part of
Vulcan’s voluntary program of cooperation with the FWS to avoid violating § 9,
the possible penalties and threat of citizen suits give Vulcan every incentive to
29
No. 09-60108
adhere to this commitment. The STB’s and FWS’s conclusions that these
mitigating measures would provide meaningful protection to listed species are
the type of technical determinations to which we accord particular deference.
See Marsh, 490 U.S. at 376–77. MCEAA has not shown that the respondents’
reliance on these mitigation measures in support of their conclusions as to
jeopardy rendered the Decision arbitrary and capricious.
C. The Motion to Supplement
MCEAA has moved to supplement the administrative record with two
documents that contain information that MCEAA contends the agencies should
have considered before reaching their determinations.23 MCEAA argues that by
failing to consider the type of information contained in these documents, the
agencies failed to consider the “best scientific and commercial data” in rendering
their decision, as § 7 of the ESA requires. See 16 U.S.C. § 1536(a)(2). The
documents at issue discuss the impacts of surrounding private developments on
the population of golden-cheeked warblers at the United States Army’s Camp
Bullis Military Reservation in Bexar County, which is located approximately
thirty-five miles from the proposed quarry. The first document is a 2005 Final
Programmatic Biological Opinion that was prepared by the FWS regarding the
§ 7 implications of Camp Bullis’s Military Mission and Associated Land
Management Practices and Endangered Species Management Plan. The
document notes that one of the “surrounding pressures” on warblers was
“development around Camp Bullis that result[ed] in destruction of habitat and
23
MCEAA also attached two additional documents to its motion to supplement—a
November 13, 2008, PowerPoint presentation compiled by the Department of the Army and
a May 15, 2009, email from a Department of the Army Officer to MCEAA. Nowhere in
MCEAA’s briefing does it describe these documents or state whether (and if so, why) these
documents should supplement the record. We therefore do not consider these documents.
30
No. 09-60108
a reduction in the amount of available habitat.” The second document is a series
of Field Season Reports that the Army submitted to the FWS between 2000 and
2008. These reports contain the results of surveys performed of Camp Bullis’s
warbler population and show an increase in the population of singing male
warblers during those years.
When reviewing an agency action under the APA, we review “the whole
record or those parts of it cited by a party.” 5 U.S.C. § 706. The record consists
of the order involved, any findings or reports on which that order is based, and
“the pleadings, evidence, and other parts of the proceedings before the agency.”
FED. R. APP. P. 16(a). Supplementation of the administrative record is not
allowed unless the moving party demonstrates “unusual circumstances
justifying a departure” from the general presumption that review is limited to
the record compiled by the agency. Am. Wildlands v. Kempthorne, 530 F.3d 991,
1002 (D.C. Cir. 2008). Supplementation may be permitted when:
(1) the agency deliberately or negligently excluded documents that
may have been adverse to its decision, . . .
(2) the district court needed to supplement the record with
“background information” in order to determine whether the agency
considered all of the relevant factors, or
(3) the agency failed to explain administrative action so as to
frustrate judicial review.
Id. (internal quotation marks and citations omitted). MCEAA contends that
supplementation is appropriate in this case because the FWS deliberately or
negligently failed to consider the findings in its own 2005 Biological Opinion and
the survey documents it received as to the effects of development on warbler
habitat before concurring with the STB’s findings in the Final EIS. The STB
and FWS oppose supplementation, arguing that this is not the type of
31
No. 09-60108
extraordinary circumstance that merits supplementation and that there is no
reason why they should have considered these documents.
The information that MCEAA urges from the proffered documents can be
reduced to a simple proposition: When the golden-cheeked warbler’s habitat is
marginalized or destroyed by what MCEAA refers to as the “edge effects” of
development—for example, land clearing, noise, lighting, and vibration—the
warbler will move, if possible, to an area where the habitat is better. All of the
survey evidence available to the STB and FWS, however, showed that there were
no listed species in the proposed rail and Phase One area—rendering any
analysis of whether the rail and quarry activities would drive them out of that
area superfluous. Furthermore, the EIS documents discussed the quality and
extent of potential habitat in the proposed rail and Phase One areas and gave
extensive consideration to how construction and operations could proceed while
best preserving the small amount of “low quality” habitat present in the Phase
One area. The documents with which MCEAA proposes to supplement the
administrative record do not contain information potentially adverse to the
Decision and do not set out additional factors that the STB and FWS failed to
consider. Accordingly, we deny the motion to supplement the administrative
record.24
MCEAA’s petition also attached an affidavit by John Kennerly, a
landowner to the north of the 1,760-acre tract, dated January 12, 2009. This
24
MCEAA also casts its motion to supplement as a motion to direct the FWS to
“complete” the administrative record with these documents, which were in the FWS’s
possession but not in connection with this case. Because we conclude that these documents do
not contain information potentially adverse to the Decision or set out additional factors that
the STB and FWS failed to consider, we deny the motion and need not address whether the
FWS could otherwise be compelled to add the documents at issue to the administrative record.
32
No. 09-60108
affidavit was not part of the administrative record and MCEAA has not moved
to supplement the administrative record with this document. Accordingly, we
do not consider Kennerly’s affidavit in the disposition of this case.
IV. Conclusion
For the foregoing reasons, MCEAA’s petition for review of the Decision and
motion to supplement are DENIED.
33