Opinion
Case No. 99-2899-CIV-MOORE/O'SULLIVAN, Case No. 00-0033-CIV-MOORE/SULLIVAN
June 28, 2001
REPORT AND RECOMMENDATION
THIS CAUSE came before the Court on Plaintiffs/Counter-Defendants' Motion for Preliminary Injunctive Relief (Case No. 99-2899, DE #108, Case No. 00-33, DE #101) filed on March 28, 2001. This motion was referred to the undersigned by the Honorable K. Michael Moore pursuant to 28 U.S.C. § 636(b)(1)(A). Oral argument was heard on May 7, 2001. Upon a review of the motion, the responses thereto, the court file, the administrative record, oral argument and applicable law, the undersigned respectfully recommends that Plaintiffs/Counter Defendants' Motion be DENIED.
Including the response filed by Proposed Intervenors, the Miccosukee Tribe of Indians of Florida, et al. (Case No. 99-2899, DE #119, 4/20/01).
INTRODUCTION
This is a challenge to the implementation of a hydrological model in accordance with the Endangered Species Act of 1973 ("ESA"), 87 Stat. 884, as amended, 16 U.S.C. § 1531 et seq., which concerns the management and operation of the Central and South Florida Project (the "CSF Project") by the United States Army Corps of Engineers (the "Corps"), and the projects impact on the nonmigratory Cape Sable Seaside Sparrow ("Sparrow"). The question for decision is whether the Fish Wildlife Service ("Service") has the final say regarding how water is managed in the CSF Project in light of the perilous state of the endangered Sparrow.
Ammodramus Maritima Mirabilis.
In September 1999, several environmental groups in Case No. 99-2899 filed a Complaint For Declaratory and Injunctive Relief seeking to enjoin the Corps from allegedly jeopardizing the continued existence of the Sparrow through its management and operation of the CSF Project in violation of the ESA. On March 28, 2001, plaintiffs moved for a preliminary injunction to compel the Corps to implement certain water management practices recommended by the Service in order to arrest the alleged unauthorized takings of and jeopardy to the endangered Sparrow pending the Court's ruling on its complaint. Since the filing of the preliminary injunction motion, the Service and the Corps have resolved the non-hydrologic issues relating to fire prevention and the removal of exotic vegetation, as well as to the water management issues for four of the six Sparrow sub-populations. Therefore, the only remaining issue before the Court relates to the Corps water management in Sparrow sub-populations "E" and "F."
FACTS
Found only in the Florida Everglades, the Sparrow was listed as an endangered species pursuant to the ESA in 1967, 32 Fed. Reg. 4001 (1967). The number of Sparrows has declined by roughly half in the last decade, so that only approximately 3, 500 individuals remain. These Sparrows are currently found in six sub-populations scattered along the edges of Shark River Slough and Taylor Slough in Everglades National Park (the "Park") and adjacent Big Cypress National Preserve. The Sparrow's preferred nesting habitat is mixed "marl" prairies, often including "muhly grass," which enable ground movements by the Sparrows between moderately dense clumped grasses. Water levels on the marl prairies must be low or non-existent during the Sparrow's breeding season, which begins in March and ends with the onset of the wet season, usually in July. The water level in the Sparrow's nesting habitat is critical to successful reproduction in part because the Sparrow has very specific requirements for nest placement that render it particularly sensitive to small changes in water level.
As delegate for the Secretary of the Interior, the Fish Wildlife Service is the federal agency charged with implementing the ESA as regards the Sparrow. As part of a recovery plan issued in 1999, the Service determined that, "[b]ecause the [S]parrow's habitat is primarily dependent upon proper hydrological conditions for its restoration and maintenance, improving the [S]parrow's habitat through changes in the current CSF Project operations will be the highest priority recovery action for this subspecies." Complaint ¶ 47.
First authorized by Congress in 1948, the CSF Project is a multi-purpose water management project designed to provide water supply, flood control, and protection of fish, wildlife and natural resources, among other purposes, in south Florida. It consists of thousands of miles of levees, canals and reservoirs and scores of water control structures. As part of the CSF Project, the Corps regulates the volume, timing, quality, distribution and flow of surface and groundwater throughout the Everglades including Shark and Taylor Slough. The Corps operates the CSF Project along with its local sponsor, the South Florida Water Management District ("SFWMD"). The CSF Project collects water in state-owned Everglades habitat known as water conservation areas ("WCAs"), located north of and hydrologically upgradient from the Park. The Corps, along with the SFWMD, operates the CSF Project components pursuant to water regulation schedules. A water regulation schedule is a guideline that water managers use in regulating the inflow and outflow of water from the project component through water control structures. They are designed to maintain desired water levels in WCAs and project canals based on existing water levels and the time of year. See generally, A.R. 648 at 7-2, ¶¶ 3 at 3-17 to 3-18.
The Corps is the federal agency charged with responsibility over federal flood control projects, including the CSF Project.
Congress authorized defendants in the 1984 Supplemental Appropriations Act to experiment with different methods of delivering water to the Park. Pursuant to this authorization, known as the "Experimental Program of Water Deliveries to Everglades National Park" (the "Experimental Program"), defendants operated seven "tests" of different methods of delivering water during the 1980s and 1990s for the purpose of gaining knowledge about how to improve hydrology of the Park.
Supplemental Appropriations Act of 1984, Pub.L. No. 98-181, § 451(d)(5). 97 Stat. 1229 (1983).
In 1989, Congress also authorized the Modified Water Deliveries Project, which calls for the construction of new water control structures to the north of the Park so that flows can be better distributed between northeast and northwest Shark Slough. To do that, Congress authorized the public acquisition of approximately 100,000 acres of property in eastern Shark Slough for addition to the Park, 16 U.S.C. § 410r-5 — 410r-8, and the construction of water control features around an "Eight and a Half Square Mile Area" to mitigate adverse impacts on private property there that could result from the modification of water deliveries. Id. § 410r-8(c). Some of the water control structures have been completed, and the United States is in the process of condemning thousands of acres of land in the East Everglades. In re Condemnation Actions for East Everglades Park Expansion Project (S.D. Pa.) (pending before Judge Nesbitt). The full operational implementation of this project has been delayed, however, and it appears revised plans call for this project to not be completed until 2008. Plaintiffs' Ex. Y at 9.
See the Everglades National Park Protection and Expansion Act of 1989, Pub.L. No. 101-229, § 7731(a), 103 Stat. 2106 (1989).
In 1995, the Service issued a biological opinion concluding that the survival of the Sparrow was in jeopardy. On February 19, 1999, after an almost four-year process that included extensive consultation between the Service and defendants, the Service issued a second and final biological opinion for Test 7 ("Biological Opinion"). In it, the Service concluded that the Corps water management practices jeopardize the continued existence of the Sparrow and adversely modifies the Sparrows' critical habitat. The Biological Opinion presents a reasonable and prudent alternative ("RPA") which the Service believes can be implemented which would avoid the likelihood of jeopardizing the continued existence of the Sparrow and adverse modification of critical Sparrow habitat. The major provisions of the RPA call on the Corps to ensure that there are at least 60 consecutive days of water levels below 6.0 feet on a gauge in the western Sparrow habitat, to divert progressively greater percentages of flow into the Park from northwest to northeast Shark Slough culminating with flows consistent with the Modified Water Deliveries Project, and to raise water stages in canals along the eastern boundary of the Park consistent with Test 7 Phase II of the Experimental Program. A.R. 223 at 78, A.R. 570. The Corps accepted the Biological Opinions final goal of implementing the Modified Water Deliveries Project but expressed concern that full implementation of the RPA without consideration of localized water conditions could potentially increase water levels on private property in the "Eight and a Half Square Mile Area," cause adverse environmental impacts outside of the Park, and raise potential legal issues. See, e.g., A.R. 214, 346, 570.
Test 7 Phase II is a set of canal and water control structure operations in the South Dade Conveyance System formulated in 1995 as part of the Experimental Program. A.R. 647 at EA-8 to EA-9. It is largely a set of water management operations that react to rainfall and antecedent water conditions and does not define a specific water depth or length of flooding. A.R. 647 at EA-8.
The Corps therefore spent most of 1999 attempting to develop a plan that would avoid jeopardy to the Sparrow while meeting other water-related needs of the region. A.R. 491 at 2. The Service provided the Corps with significant guidance in countless meetings, memoranda, and correspondence on how to meet its responsibilities pursuant to the ESA. In December 1999, the Corps issued an "Interim Structural and Operational Plan for Hydrologic Compliance" with the Cape Sable Seaside Sparrow Biological Opinion for the Year 2000 ("ISOP 2000") which was developed to achieve the hydrologic equivalent of the RPA. At the same time, the Corps also started development of an Interim Operation Plan or "LOP" that would serve as a more long-term interim strategy until completion of the Modified Water Deliveries Project.
Plaintiffs' Ex. V at FWS 0000560-61, A.R. 2787 at 59. F.D. Ex. C, ¶¶ 18-27.
The proposed LOP is to have two phases, with Phase I being the current ISOP 2001. See generally, A.R. 2787 at 1-74.
In March 2000, the Corps issued an Environmental Assessment containing the results of hydrological modeling that indicated that the ISOP 2000 would achieve the hydrological equivalent of the RPA. See A.R. 655 at EA-6 to EA-7. The Service eventually agreed to defer to the Corps' hydrological expertise for the 2000 breeding season in its formulation of alternative means to accomplish the biological opinion's general water management targets. March 2001 letter at F.D. Ex. F. When Corps was unable to get the IOP in place for 2001, it proceeded with "ISOP 2001," which the agency described as "largely the same as ISOP 2000," and which is the current operating plan. Plaintiffs' Ex. AA at 5.
The Service's Regional Director stated that "the Service concurs with the Corps' conclusion that the ISOP is designed to meet the year 2000 requirements of the biological opinion, including the RPA." A.R. 618.
In February 2001, the Corps issued a draft Environmental Impact Statement that contained additional hydrological modeling of the ISOP 2001, which showed that the ISOP 2001 would meet or exceed the RPA targets, A.R. 2787 at 58-59. However, at a meeting on August 28, 2000, the Corps apparently agreed that current ISOP operations were not meeting RPA targets for sub-populations E and F. Plaintiffs Ex. FF at EWS 0004202. Plaintiffs claim that by failing to comply with the RPA as to sub-populations E and F, the Corp is subject to ESA Section 9 takings liability.
Claiming that the Corps is violating the ESA, plaintiffs ask this Court to order the implementation of five things. The first three requests ask the Court to require implementation of the fire and vegetation management provisions of the RPA. See Case No. 99-2899. DE #1108 at 20 ¶ I-III. Those issues, as discussed above, have already been resolved by the agencies. F.D. Ex. F. The last two requests relate to hydrology. Plaintiffs ask the Court to order the implementation of "Test 7 Phase II canal level stages in the South Dade Conveyance System and continue until such time as final relief is granted." Id. ¶ IV. Plaintiffs also ask the Court to order the Corps to "take all necessary immediate steps to ensure that during the year 2001 a minimum of 45% of the regulatory release in any given week . . . crossing Tamiami Trail enters the Park east of the L-67 Extension into Northeast Shark Slough." Id. ¶ V. The plaintiffs charge that the defendants' current water management practices pursuant to their ISOP is resulting in unauthorized takings of the Sparrow and they seek declaratory and injunctive relief regarding these specific water management practices.
STANDARD OF REVIEW
The standard of review applicable in this case is provided by the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, which states that a court may set aside agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(a). As the Eleventh Circuit carefully explains in Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir. 1996), this standard is exceedingly deferential. While the inquiry must be "searching and careful," the court's review of the substantive agency' decision is narrow and limited in scope. The reviewing court must first determine whether the agency acted within the scope of its authority, and next whether the decision reached was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. When specialists express conflicting views, an agency has discretion to rely on the reasonable opinions of its own qualified experts, but a court must carefully review the record and satisfy itself that the agency has considered all relevant factors in making its decision and that the conclusion itself does not represent clear error in judgment. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989), Environmental Coalition of Broward County, Inc. v. Myers, III, 831 F.2d 984, 986 (11th Cir. 1987).
PRELIMINARY INJUNCTION
16 U.S.C. § 1536(A) authorizes injunction actions against any person who is alleged to be in violation of the ESA or its implementing regulations. To prevail on such a motion, plaintiffs must establish four elements: 1) substantial likelihood of success on the merits; 2) immediate and irreparable injury absent injunctive relief; 3) threatened harm to the plaintiffs that outweighs any injury the injunction would cause to the nonmovant; and 4) no adverse effect to the public interest. South Dade Land Corp. v. Sullivan, 853 F. Supp. 404, 406 (S.D. Fla. 1993) (citing United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir. 1983)). A plaintiff seeking temporary injunctive relief must establish all four of the elements required for issuance of a preliminary injunction. Id. at 410 (citing United States v. Metropolitan Dade County, 815 F. Supp. 1475, 1477 (S.D. Fla. 1993)).
In cases arising under Section 7 of the ESA. the Supreme Court found that Congress has altered the district courts' exercise of traditional equitable discretion as to the balancing of harms and the weight of the public interest. TVA v. Hill, 437 U.S. 153, 193-94 (1978), see Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531, 543 n. 9 (1987). For such claims, the "balance of hardships and the public interest tip heavily in favor of the endangered species," Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir. 1987) (citations omitted). However, the plaintiffs still must meet their burden of showing both likelihood of success on the merits and irreparable harm. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-N (1982). With this standard in mind, the Court first turns to an evaluation of the plaintiffs' likelihood of success on the merits of their claims.
Endangered Species Act Claims
The heart of the Endangered Species Act lies in Section 7, 16 U.S.C. § 1536, which sets forth certain requirements for all federal agencies whose activities may impact endangered species or their critical habitats. All federal agencies must ensure that any action they authorize, fund, or carry out is not likely to jeopardize a listed species or adversely modify its critical habitat, § 1536(a)(2). If an agency determines that a proposed action may adversely affect such a species, it must formally consult with the Fish and Wildlife Service, as delegate of the Secretary, which then provides it with a written statement (the Biological Opinion) explaining how the proposed action will affect the species or its habitat, § 1536(b)(3)(A). If the Service concludes that such action will result in jeopardy or adverse habitat modification, the Biological Opinion must outline any "reasonable and prudent alternatives" that the Service believes will avoid that consequence, § 1536(a)(2), (b)(3)(A). When the Service offers RPAs, it also issues a written statement (known as the Incidental Take Statement) specifying the terms and conditions under which an agency may take the species, § 1536(b)(4).
Regulations implementing the consultation procedures are codified at 50 C.F.R. Part 402.
16 U.S.C. § 1536(a)(2), 50 C.F.R. § 402.14 (1995).
Reasonable and prudent alternatives are "alternative actions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the action, that can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction, that is economically and technoligically feasible, and that the Director believes would avoid the likelihood of jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat." 50 C.F.R. § 402.02.
Following the issuance of a Biological Opinion, the action agency determines whether and in what manner to proceed with the action in light of its Section 7 obligations and the Service's Biological Opinion. 50 C.F.R. § 402.15(a) (1999). Should a difference of opinion arise as to a given project, the responsibility for decision after consultation is not vested in the Service but in the agency involved. National Wildlife Federation v. Coleman, 529 F.2d 359 (5th Cir., 1976). Previously, the Service acknowledged that "the RPA provides general water management targets necessary to avoid jeopardy to the Sparrow," and that "the Corps has considerable flexibility in deciding how to meet those targets." A.R. 618, F.D. Ex. F. Now, however, plaintiffs argue that the Corps, by not taking the Service's formal advise as provided in the RPA, places the Corps, de facto, in a state of ESA violation. Plaintiffs cite to two Ninth Circuit cases which state that the Corps has no option but to follow the Service's RPA if the Biological Opinion concludes that the proposed action is likely to jeopardize a protected species. See Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988) and NRDC v. Houston, 146 F.3d 1118 (9th Cir. 1998). The Court finds these opinions to be in conflict with the legislative history behind the regulations governing interagency cooperation and Supreme Court case law.
The Service has repeatedly recognized that the Corps is entitled to deference in fashioning hydrological measure designed to meet the RPA targets. See e.g., A.R. 618, 844, F.D. Ex. F.
The general comments provided in the Federal Register regarding proposed Section 7 regulation changes clearly and unambiguously demonstrate that the Service never contemplated assuming the role of forcing another agency to follow its RPAs:
One commenter questioned the ultimate authority of the Service to issue binding procedural regulations under Section 7. In no way does the Service intend to use the consultation procedures of Section 7 to establish substantive policy for Federal agencies. The Service performs strictly an advisory function under Section 7 by consulting with other Federal agencies to identify and help resolve conflicts between listed species and their critical habitat and proposed actions. As part of its role, the Service issues biological opinions to assist the Federal agencies in conforming their proposed actions to the requirements of Section 7. However, the Federal agency makes the ultimate decision as to whether its proposed action will satisfy the requirements of Section 7(a)(2). The Service recognizes that the Federal agency has the primary responsibility for implementing Section 7's substantive command, and the final rule does not usurp that function . . . Once mandatory consultation has taken place, however, the ultimate responsibility for determining agency action in light of Section 7 still rests with the particular Federal agency that was engaged in consultation. In this fashion, a standardized consultation process is established which preserves ultimate agency administrative control over its activities or programs. (Emphasis supplied.)51 Fed. Reg. 19, 928 (June 3, 1986).
Regulations. promulgated pursuant to an express delegation of legislative authority, are to be given controlling weight unless found to be arbitrary, capricious, or contrary to statute. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).
This is not to say that the Service's opinion is insignificant. Indeed, the U.S. Supreme Court has stated that the Service's "advisory function" in reality "has a powerful coercive effect on the action agency." Bennett v. Spear, 520 U.S. 154, 169 (1997). The Court in Bennett explained, "the action agency must not only articulate its reasons for disagreement (which ordinarily requires species and habitat investigations that are not within the action agency's expertise), but that it runs a substantial risk if its (inexpert) reasons turn out to be wrong." Id. The Court goes on to state. however, that "[t]he action agency is technically free to disregard the Biological Opinion and proceed with its proposed action, but it does so at its own peril (and that of its employees), for "any person" who knowingly "takes" an endangered or threatened species is subject to substantial civil and criminal penalties, including imprisonment." Id. at 170 (citations omitted).
In the case sub judice the circumstances are significantly different than those contemplated by the Supreme Court in Bennett v. Spear. In this case, the action agency is by no means inexpert. The U.S. Army Corps of Engineers has operated the CSF Project to provide flood control, water supply, and otherwise serve the water-related needs of south Florida for over half a century and its hydrological expertise in this area has repeatedly been recognized by the Service.
The question presented for review in this case is a classic example of a factual dispute, the resolution of which implicates substantial agency expertise. Here dueling federal agencies each claim they know best whether certain water management practices are equivalent to the RPA recommendations. Because analysis of the documents requires a high degree of technical expertise, this Court must defer to the informed discretion of the responsible agency. However, the Court should not defer to an agency without carefully reviewing the record and satisfying itself that the agency has made a reasoned decision based on the relevant factors. Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989). The district court is required to determine whether the Corps' decision was reasonably supported by the information before it. This does not require that all of the data support the agency's decision. "It is enough that the Corps considered all relevant facts and that there is credible evidence in the record to support its action." Environmental Coalition of Broward County, Inc. v. Myers, III, 831 F.2d 984 (11th Cir. 1987) (citing Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-286 (1974).
Dispute Regarding Sub-populations E and F
This is a technical dispute between the agencies regarding whether the Corps has met the RPA's hydrological targets for Sparrow sub-populations E and F. The RPA calls for two hydrological measures. First, it calls for the Corps to implement actions that would produce hydroperiods and water levels equal to or greater than those that would be produced by implementing the exact provisions of Test 7, Phase 11. A.R. 223 at 80. Second, the RPA calls on the Corps to ensure that at least 45% of all regulatory water releases crossing Tamiami Trail enter the Park to the east of the L-67 Extension levee. A.R. 223 at 80-81. In attempting to determine whether the Corps' conclusions are reasonably supported, the Court is faced with RPA requirements that do not have measurable targets. The requirements listed above are set forth as equivalent stages and hydroperiods that would be produced by a set of water management operations. It is apparently impossible to directly measure the target in any given year because the target varies with hydro-meteorological conditions. These targets can only be predicted by a computer model that takes into account the hydro-meteorological conditions for each year. Because there are no directly measurable targets for subpopulations E and F, the Corps and Service have used a computer modeling process to simulate the RPA targets. Some disagreement exists as to the sufficiency of the hydrologic model used by the Corps to determine the hydrologic effects of ISOP 2001.
"Hydroperiod" is a duration of time water is above a reference level, usually the ground elevation in a given area.
Test 7, Phase II is designed to raise water levels in the vicinity of a portion of the Park's eastern boundary. primarily north and west of the L-31W canal, by allowing water levels to rise in the L-31W canal without limit during the wet season and taking other steps. A.R. 647 at EA-8 to EA-9, EA-21 App. E (ENP Report).
The "regulatory release" is a portion of the surface water that flows from WCA 3A into the Park, as defined by a hydrological calculation. Water is released from WCA 3A into the Park largely based on a rainfall formula, which is an equation which sends water to the Park based on recent local rainfall. See A.R. 647 at C-3. When water levels in WCA 3A rise high enough, normally during the wet season, additional water is sent to the Park over and above the amount identified in the rainfall formula. The "regulatory release" is that additional portion of the flow from WCA 3A. Id. at C-4. Since water levels can vary dramatically in WCA 3A from year to year based on rainfall, the regulatory releases in a dry year can amount to relatively little water, while in a wet year regulatory releases could amount to a great deal of water. A.R. 335, A.R. 2787 at 23.
The RPA called for "at least 30%" of the regulatory release to go east of the L-67 Extension levee in 2000, at 45% in 2001, and at least 60% in 2002. A.R. 223 at 80-81. This aspect of the RPA culminates in a requirement that the Corps "complete full operational implementation of the Modified Water Deliveries Project by December 2003. Id. at 82.
As explained by the Corps' Hydraulic Engineer, Dr. Richard Punnett, in his declaration, in order to determine whether the Corps is meeting or exceeding water levels produced by Test 7 Phase II and the 45% regulatory release provision, hydrologists must calculate what water levels would be had those operations been in effect, and then compare them to the water levels produced by the ISOP. F.D. Ex. C, ¶ 15. Since there are hundreds of potential variables that can affect water levels, hydrologists commonly use complex computerized models that project the effect of different operational criteria. Id. ¶¶ 15-15. Also, since rainfall is a key input to these models, and rainfall in the future cannot be predicted with any certainty, the models compare operations based on data over a thirty year period from 1965 to 1995 to determine the relative performance of different operations. Id. ¶ 16.
A court may consider evidence outside the administrative record as necessary to explain agency action. GTE Sylvania Inc. v. Consumer Product Safety Comm'n, 404 F. Supp. 352, 367 (D. Del. 1975). In this complex case seeking a preliminary injunction, Dr. Punnett's Declaration at F.D. Ex. C, helps the Court understand the issues more clearly. See Steven Stark and Sarah Wald, Setting No Records: The Failed Attempts to Limit the Record in Review of Administrative Action, 36 Admin. L. Rev. 333, 345 (1984).
In this case, Dr. Punnett used the South Florida Water Management Model ("SFWMM"), to compare the performance of the ISOP to the RPA targets of Test 7 Phase II and the 45% regulatory release requirement. The results of that modeling show that in Sparrow subpopulation F, the ISOP produces water levels and hydropenods that exceed the levels that would result from Test 7 Phase II and delivery of 45% of the regulatory releases east of the L-67 Extension. The modeling also shows that for sub-population E, the ISOP produces hydroperiods and water levels that are essentially the same as Test 7 Phase II operations and 45% regulatory release deliveries. See id. ¶¶ 20, 23.
Dr. Punnett claims he used the SFWMM Model, instead of the Service's recommended MODBRANCH computer, because the SFWMM Model is "widely accepted as the best available tool for analyzing both regional and subregional scale structural and operational changes to the complex water management system in south Florida." Id. ¶ 16. Dr. Punnett states the SFWMM Model is the best model for the evaluation of RPA alternatives because
(1) it is the only hydrologic model available with the necessary rules of operation;
(2) it was developed explicitly for the South Florida hydrologic basin;
(3) is jointly used by DOI, SFWMD, and the Corps to address many hydrologic issues because of the extensive post processing routines available to evaluate specific concerns;
(4) it was used to determine the ecosystem restoration components for the Comprehensive Everglades Restoration Plan (the congressionally authorized, $8 billion plan);
(5) it was used to develop the plan for both the Modified Water Deliveries and C-111 projects;
(6) it was used by the Experimental Deliveries Program that included the Test 7 Phase I evaluation; and
(7) earlier modeling efforts using the SFWMM were referenced in the Biological Opinion.
Dr. Punnett does not agree with the Service's recommended use of the MODBRANCH computer code to determine whether the Corps had achieved the targets identified in the RPA claiming that the MODBRANCH computer
(1) is a groundwater model without overland flow equations;
(2) does not account for interactions with the CSF system operations;
(3) requires code modifications that have not been completed or peer reviewed;
(4) does not have the ability to run period-of-record analysis; and
(5) takes a few days to evaluate a single alternative.
Id. ¶¶ 17.
The record before the Court indicates that there is a factual disagreement among technical experts regarding the efficacy of the ISOP. On judicial review, the role of the Court is not to attempt to become a tie-breaking technical expert. See e.g., Druid Hills Civic Ass'n v. Federal Hwy. Admin., 772 F.2d 700, 711 (11th Cir. 1985) (noting that district court "could not designate itself as a `super professional transportation analyst'" in case involving technical disagreements regarding traffic studies) cert. denied, 488 U.S. 819 (1988). Indeed, "[b]ecause analysis of the relevant documents `requires a high level of technical expertise,' [the Court] must defer to the "informed discretion of the responsible federal agencies." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377 (1989) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976)). The fact that there is a conflict among the agencies does not lessen the deference owed to the Corps. See North Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1539 (11th Cir. 1990). "When specialists express contrary views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Marsh, 490 U.S. at 378. The role of the Court in this circumstance is to determine whether the Corps was arbitrary and capricious in its reliance on its own hydrological expertise. Id. at 377.
In this case, the Corps is relying on a Ph.D. hydrologist using a widely accepted and used regional hydrological model for south Florida that has been peer reviewed and calibrated. The Service itself has used a version of the same model, and its use is supported by independent hydrologists at the SFWMD. On several occasions, the Service has stated that it deferred to the Corps' hydrological expertise in developing measures to meet the hydrological targets in the RPA. See e.g., A.R. 618, 844, F.D. Ex. F.
In the courts, the burden is upon the plaintiffs to establish by a preponderance of the evidence that the ISOP was inadequate and that the decision to proceed was arbitrary and capricious. Sierra Club v. Morton, 510 F.2d 813, 818 (5th Cir. 1975), Sierra Club v. Callaway, 499 F.2d 982, 992 (5th Cir. 1974), Environmental Defense Fund. Inc. v. Corps of Engineers of the U.S. Army, 492 F.2d 1123, 1131 (5th Cir. 1974). Plaintiffs have not done this. Under the law of this Circuit, the relevant inquiry is whether the Corps' decision to proceed with ISOP 2001 "was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Coleman, 529 F.2d at 372 (quoting Citizens to Perserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). Plaintiffs here have not demonstrated that the Corps failed to consider the relevant factors or made a clear error of judgment.
Accordingly, the Court concludes that the Corps' position that it is meeting the RPA targets for sub-populations E and F is based on substantial technical analysis and is not arbitrary and capricious. Furthermore, the Corps' use of the SFWMM model to establish the ISOP's effect on sub-populations E and F is reasonable and it was not arbitrary and capricious for the Corps' to avoid relying on the competing MODBRANCH model.
Therefore, the plaintiffs fail in the first inquiry required for a preliminary injunction: success on the merits. Upon the plaintiffs' failure to meet its burden of establishing one of the four required elements, the Court need not review the remaining components of the test. See e.g., Lucero v. Operation Rescue, 954 F.2d 624, 627 (11th Cir. 1992) (denial of preliminary injunction appropriate when movant failed to show substantial likelihood of success on the merits); Zardui-Ouintana v. Richard, 768 F.2d 1213, 1216 (11th Cir. 1985) (abuse of discretion to grant injunctive relief when movant failed to establish a substantial likelihood of success on the merits).
CONCLUSION
In accordance with the foregoing it is hereby
RECOMMENDED that Plaintiffs Motion for Preliminary Injunction be DENIED.
The parties may serve and file written objections to this Report and Recommendation with the Honorable Judge K. Michael Moore, United States District Judge, within ten (10) days of receipt. See 28 U.S.C. § 636(b)(1)(c); United States v. Warren, 687 F.2d 347, 348 (11th Cir. 1982).