Litigation Procedure

Motion to Amend Complaint.  The plaintiffs sought to add USFWS as a defendant and to add claims alleging that the Corps and USFWS violated the ESA. Specifically, the new claims alleged that USFWS prepared a flawed biological opinion, that the Corps relied on a flawed biological opinion, and that USFWS should have engaged in formal consultation with the Corps with respect to the project’s effects on two protected bird species. The plaintiffs asserted that the grounds for adding USFWS and the ESA claims did not become apparent until they had an opportunity to review the administrative record, which the Corps filed in September 2020. The court held, however, that this assertion was undercut by the plaintiffs’ original complaint: The original complaint described USFWS’s involvement in the Section 404 permit application process, alleged that the biological opinion’s assessment of effects on the eastern indigo snake was flawed, and alleged that the analysis of effects on protected bird species in the environmental assessment and the biological opinion was inadequate. The court concluded that the plaintiffs could have sued USFWS and alleged the ESA claims when they originally filed their lawsuit. For this reason, the court held that the plaintiffs’ delay of ten months to add the ESA claims was unreasonable. In addition, the court held that allowing the plaintiffs to add the ESA claims would harm Pasco County by delaying the case and extending uncertainty surrounding the project, which was already well under construction.