Case Law Details
Sierra Club v. US Fish and Wildlife Service
Project Description:
The project would widen 18 miles of State Route 29. In 2016, the U.S. Fish and Wildlife Service (USFWS) issued a biological opinion that concluded the project would adversely impact the Florida panther (an endangered species) but was not likely to jeopardize the species’ continued existence. Exercising authority assigned by the Federal Highway Administration, the Florida Department of Transportation (FDOT) issued a categorical exclusion (CE) for the project in 2017. In June 2020, FDOT rescinded the CE because construction funding was not anticipated for at least ten years.
2020 WL 4815814, 2020 WL 6161488
2020 WL 4815814, 2020 WL 6161488
U.S. District Court – Florida
10/21/2020
SR 29
Highway
Case Summary
The plaintiffs filed a lawsuit in January 2020, alleging that FDOT violated NEPA and that USFWS violated the Endangered Species Act. FDOT and USFWS filed a motion to dismiss the claims challenging the SR 29 project as moot. In support of their motion, the agencies submitted internal and inter-agency communications indicating that FDOT rescinded the CE in June 2020 and that USFWS no longer considered the biological opinion “to be operative.” In August 2020, the court ruled that the claims were not moot because the agencies did not demonstrate that the project had been unambiguously terminated and would not recur. The agencies then submitted to the court additional evidence to support their argument that the plaintiffs’ claims challenging the SR 29 project were moot: a letter from the USFWS field supervisor (the same official who had signed the biological opinion) formally withdrawing the biological opinion; an affidavit from FDOT’s director of environmental management stating that he officially rescinded the CE and that the project was not authorized to advance without completion of a new environmental document; and a public notice published in a newspaper stating that the CE was rescinded effective June 2020. Based on this new evidence, in October 2020, the court ruled that the claims were moot because it was clear that the agencies withdrew their challenged decisions and canceled the project.
Key Holdings
Mootness
The court explained that when a defendant claims that its voluntary conduct has made a case moot, the defendant has a high burden of “showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” In a ruling on August 19, 2020, the court held that the agencies did not meet this burden. Based on additional evidence submitted by the agencies, in a ruling on October 21, 2020, the court concluded that the agencies met this burden and the claims challenging the SR 29 project were moot.
August 19, 2020 Order. In its initial order, the court ruled that the plaintiffs’ claims challenging the SR 29 project were not moot because it was not “absolutely clear” that the CE and biological opinion had been “unambiguously terminated.” In support of their motion to dismiss the claims, the agencies submitted internal and inter-agency communications about the CE and biological opinion: an internal FDOT email requesting rescission of the CE because construction funding was not anticipated for at least ten years; a letter from FDOT’s director of environmental management rescinding the CE; and an email from USFWS to FDOT stating that USFWS did not consider the biological opinion to be operative. The court held that these documents provided a reasonable basis to believe that the agencies’ challenged conduct would be reinstated if the lawsuit were terminated: “Defendants have simply delayed the project’s implementation, and the need for this road project remains. . . . Defendants have never said they would not continue with the current plans for SR 29, just that they would do so ten years down the road.”
October 21, 2020 Order. Following the court’s initial order, the agencies submitted additional evidence to the court: a letter from the USFWS field supervisor (the same official who had signed the biological opinion) formally withdrawing the biological opinion; an affidavit from FDOT’s director of environmental management stating that he officially rescinded the CE and that the project was not authorized to advance without completion of a new environmental document; and a public notice published in a newspaper stating that the CE was rescinded effective June 2020. The court determined that these documents “unambiguously terminate[d] the project.” The USFWS letter demonstrated that the biological opinion had been withdrawn and that a new biological opinion (which the plaintiffs could challenge in court) would be required if FDOT moved forward with the SR 29 project in the future. The affidavit and public notice concerning the CE’s rescission demonstrated that the project was not authorized to advance without completion of a new environmental document.
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