Case 4:05-cv GTE Document 25 Filed 12/08/2005 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DIVISION

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1 Case 4:05-cv GTE Document 25 Filed 12/08/2005 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DIVISION NATIONAL WILDLIFE FED N, ARKANSAS WILDLIFE FED N PLAINTIFF v. No.4:05-CV-1278 GTE Francis J. HARVEY, in his official capacity as Acting Secretary of the U.S. Dep t of the Army, and Gale NORTON, in her official capacity as Secretary of the U.S. Department of the Interior DEFENDANTS. FEDERAL DEFENDANTS ANSWER TO PLAINTIFFS FIRST SUPPLEMENTAL COMPLAINT COME NOW, the Federal Defendants, Francis J. Harvey, in his official capacity as Acting Secretary of the U.S. Department of the Army, and Gale Norton, in her official capacity as Secretary of the Interior, and, by and through counsel, in response to Plaintiffs Complaint for Declaratory and Injunctive Relief, hereby respond, state, and aver as follows: NATURE OF THE ACTION 1. Defendants admit the allegations in sentence one of Paragraph 1, with the qualification that logging of bottomland forest habitat is not the only contributing factor. In response to the allegations in Paragraph 2, Defendants state that while there are audio recordings of possible ivory-billed woodpecker ( IBWO ), but the presence of the IBWO on the White River National Wildlife Refuge has not been confirmed. Defendants admit the remaining allegations in Paragraph Defendants admit the allegations in the first sentence of Paragraph 2, but deny that the Project will withdraw over 158 billion gallons annually. Defendants admit the allegations in the second sentence of Paragraph 2.

2 Case 4:05-cv GTE Document 25 Filed 12/08/2005 Page 2 of The allegations in the first sentence purport to characterize the Corps 1999 Environmental Impact Statement ( EIS ) for the Grand Prairie Area Demonstration Project ( the Project ), which is the best evidence of its content; to the extent the allegations are inconsistent with that document; they are denied. In response to the second sentence, Defendants admit that an IBWO has been located in the Cache River National Wildlife Refuge, but deny the remainder of the allegations as Plaintiffs characterization of the EIS. 4. Defendants deny the allegations in the first three sentences of Paragraph 4. Subparagraphs a, b, and c of Paragraph 4 contain Plaintiffs characterization of their claims, which Defendants deny. 5. The first two sentences of Paragraph 5 constitute Plaintiffs characterization of their case, to which no response is required. To the extent a response is required, the allegations are denied. Defendants deny the allegations in the third sentence of Paragraph 5. JURISDICTION AND VENUE 6. The allegations in Paragraph 6 contain conclusions of law, to which no response is required. To the extent a response is required, the allegations are denied. 7. The allegations in Paragraph 7 contain conclusions of law, to which no response is required. To the extent a response is required, the allegations are denied. 8. In response to the allegations in Paragraph 8, Defendant United States Army Corps of Engineers ( the Corps ) admits that it received a letter on September 8, 2005 addressing Plaintiffs intent to sue for alleged violations of Endangered Species Act ( ESA ) 2

3 Case 4:05-cv GTE Document 25 Filed 12/08/2005 Page 3 of 12 7(a)(2), but denies that the Corps work on the GDADP has violated or is currently violating the ESA. PARTIES 9. Defendants lack sufficient knowledge to admit or deny the allegations in Paragraph Defendants lack sufficient knowledge to admit or deny the allegations in Paragraph Defendants admit the allegations in the first two sentences of Paragraph 11. The statement in the third sentence characterizes Plaintiffs complaint and does not require a response. 12. Defendants admit the allegations in the first two sentences of Paragraph 12. The statement in the third sentence characterizes Plaintiffs complaint and does not require a response. STANDING 13. Defendants lack sufficient knowledge to admit or deny the allegations in the first sentence of Paragraph 13. Defendants deny the allegations in the second through fourth sentences of Paragraph 13. FACTUAL BASIS FOR PLAINTIFFS CLAIMS A. The ivory-billed woodpecker 14. Defendants admit the allegations in the first three sentences of Paragraph 14. In response to the allegations in sentence four of Paragraph 14, Defendants deny that logging of bottomland forest habitat is the sole factor in the decline and disappearance of the IBWO. 15. Defendants admit the allegations in Paragraph Defendants admit the allegations in Paragraph 16. 3

4 Case 4:05-cv GTE Document 25 Filed 12/08/2005 Page 4 of 12 B. The Grand Prairie irrigation project 17. Defendants partially admit the allegations in the first sentence of Paragraph 17, but aver that the alluvial aquifer has served as a source of not only irrigation water, but also industrial and residential water. In response to the allegations in the second sentence of Paragraph 17, Defendants admit that the aquifer is predicted to run dry in the next four to nine years. 18. Defendants admit the allegations in the first and second sentence of Paragraph 18, but deny that the Project will withdraw over 158 billion gallons annually. In response to the allegations in the third sentence, Defendants admit that the 2004 EA anticipates 102 acres of wetland impacts, but denies that 113 acres of upland hardwood forests will be destroyed. Defendants further aver that impacts will be mitigated with the reforestation of 182 wetland acres and 198 upland forest acres. 19. Defendants admit the allegations in the first sentence of Paragraph 19. The second and third sentences in Paragraph 19 purport to characterize the Corps 1999 EIS, which is the best evidence of its contents; to the extent that the allegations are inconsistent with that document, they are denied. Defendants further aver that the second sentence is a mischaracterization of the conclusion of the EIS, which determined that because of the beneficial effects of the project on the aquifer, the Project will probably prevent or slow the desiccation of groundwater wetlands along the White River. EIS at With respect to the fourth sentence in Paragraph 19, Defendants admit that an IBWO has been located in the Cache River National Wildlife Refuge, but deny the remainder of the allegations as Plaintiffs characterizations. 4

5 Case 4:05-cv GTE Document 25 Filed 12/08/2005 Page 5 of Defendants admit the allegations in Paragraph 20, but aver that the Corps was unaware of the presence of the ivory billed woodpecker ( IBWO ) until FWS s announcement of rediscovery of the species on April 28, In response to the allegations in Paragraph 21, Defendants admit that the pumping station is currently under construction and that the IBWO is present within the larger ecosystem, but deny that the IBWO has been confirmed in the project area. 22. Defendants deny Plaintiffs characterization that the woodpecker was living in an area directly across the White River from the Grand Prairie project area, as the initial sighting and several other confirmed sightings were approximately 14 miles from the pump station project area. Defendants admit the remaining allegations in Paragraph Defendants admit the allegations in Paragraph The allegations in Paragraph 24 purport to characterize FWS s June 8, 2005 letter, which is the best evidence of its content; to the extent the allegations are inconsistent with that document, they are denied. Defendants deny the remaining allegations in Paragraph In response to the allegations in Paragraph 25, Defendants admit that the Corps suspended construction on the Project s pump station, and resumed construction later. 26. The allegations in Paragraph 26 purport to characterize a New York Times article, which is the best evidence of its content; to the extent the allegations are inconsistent with that document, they are denied. Furthermore, Defendants deny that the presence of the IBWO on the White River National Wildlife Refuge has been confirmed. STATUTORY FRAMEWORK A. Endangered Species Act 5

6 Case 4:05-cv GTE Document 25 Filed 12/08/2005 Page 6 of The allegations in sentence one of Paragraph 27 purport to characterize the legal opinion set forth in Babbitt v. Sweet Home Chapter of Cmtys. For a Great Oregon, 515 U.S. 687, 698 (1995), a document which is the best evidence of its contents; to the extent that the allegations are inconsistent with that document, they are denied. Defendants admit the allegations in sentence two of Paragraph 27. FWS admits that it has jurisdiction over the IBWO. With respect to the remaining allegations in sentence three of Paragraph 26 purport to characterize the implementing regulations of the ESA, which are the best evidence of their contents; to the extent that the allegations are inconsistent with the regulation, they are denied. 28. The allegations in Paragraph 28 purport to characterize the ESA, which is the best evidence of its contents; to the extent that the allegations are inconsistent with the statute, they are denied. 29. The allegations in Paragraph 29 purport to characterize the ESA, which is the best evidence of its contents; to the extent that the allegations are inconsistent with the statute, they are denied. 30. The allegations in Paragraph 30 purport to characterize the ESA and its implementing regulations, which are the best evidence of their contents; to the extent that the allegations are inconsistent with the statute and the regulations, they are denied. 31. The allegations in Paragraph 31 purport to characterize the implementing regulations of the ESA and the Consultation Handbook, which are the best evidence of their contents; to the extent that the allegations are inconsistent with the regulation, they are denied. 32. The allegations in Paragraph 32 purport to characterize the implementing regulations of 6

7 Case 4:05-cv GTE Document 25 Filed 12/08/2005 Page 7 of 12 the ESA, which are the best evidence of their contents; to the extent that the allegations are inconsistent with the statute and the regulations, they are denied. 33. The allegations in Paragraph 33 purport to characterize the ESA and its implementing regulations, which are the best evidence of their contents; to the extent that the allegations are inconsistent with the statute and the regulations, they are denied. 34. The allegations in Paragraph 34 purport to characterize the ESA, which is the best evidence of its contents; to the extent that the allegations are inconsistent with the statute, they are denied. B. Administrative Procedure Act 35. The allegations in Paragraph 35 purport to characterize the Administrative Procedure Act, which is the best evidence of its contents; to the extent that the allegations are inconsistent with that statute, they are denied. 36. The allegations in Paragraph 36 consist of legal conclusions, to which no response is required. To the extent a response is required, Defendants admit that federal district courts are authorized to review final agency action[s] for which there is no other adequate remedy in a court and hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. 704, 706(2), 706(2)(A). 37. The allegations in Paragraph 37 consist of a conclusion of law to which no response is required. To the extent a response is required, Defendants deny the allegations in Paragraph 37, and aver that there is no final FWS action reviewable by this Court. 38. The allegations in Paragraph 38 consist of a conclusion of law, to which no response is 7

8 Case 4:05-cv GTE Document 25 Filed 12/08/2005 Page 8 of 12 required. To the extent a response is required, Defendants deny the allegations. C. National Environmental Policy Act 39. The allegations in Paragraph 39 purport to characterize the legal opinion set forth at Calvert Cliffs Coord. Com. v. United States, 449 F.2d 1109, 1112 (D.C. Cir. 1971), and the regulation set forth at 40 C.F.R , which are the best evidence of their content; to the extent that the allegations are inconsistent with those documents, they are denied. 40. The allegations in Paragraph 40 purport to characterize NEPA, a statute which is the best evidence of its contents; to the extent the allegations are inconsistent with that statute, they are denied. 41. The allegations in Paragraph 41 purport to characterize NEPA, a statute which is the best evidence of its contents; to the extent the allegations are inconsistent with that statute, they are denied. 42. The allegations in Paragraph 42 purport to characterize the implementing regulations of NEPA, which are the best evidence of their contents; to the extent the allegations are inconsistent with the regulations, they are denied. 43. The allegations in Paragraph 43 purport to characterize the implementing regulations of NEPA, which are the best evidence of their contents; to the extent the allegations are inconsistent with the regulations, they are denied. 44. The allegations in Paragraph 44 purport to characterize the implementing regulations of NEPA, which are the best evidence of their contents; to the extent the allegations are inconsistent with the regulations, they are denied. 8

9 Case 4:05-cv GTE Document 25 Filed 12/08/2005 Page 9 of 12 COUNT ONE FWS Violations of ESA 7(a)(2) and APA 706(2)(A) 45. Defendants hereby incorporate by reference their responses to Paragraphs Defendants deny the allegations in Paragraph 46. COUNT TWO Corps Violations of ESA 7(a)(2) and APA 706(2)(A) 47. Defendants hereby incorporate by reference their responses to Paragraphs Defendants deny the allegations in Paragraph 48. COUNT THREE Corps Violation of NEPA 102(2)(E) 49. Defendants hereby incorporate by reference their responses to Paragraphs Defendants admit the allegations in Paragraph 50, but aver that the Corps was unaware of the presence of the IBWO until FWS s announcement of rediscovery of the species on April 28, Defendants deny the allegations in Paragraph 51. COUNT FOUR (ALTERNATIVE CLAIM) Corps Violation of ESA 7(d) 52. Defendants hereby incorporate by reference their responses to Paragraphs Defendants deny the allegations in Paragraph 53. PRAYER FOR RELIEF The remainder of Plaintiffs Complaint consists of Plaintiffs Prayer for Relief, to which no response is required. To the extent a response may be deemed to be required, Defendants 9

10 Case 4:05-cv GTE Document 25 Filed 12/08/2005 Page 10 of 12 deny that Plaintiffs are entitled to the relief requested in their Complaint (Paragraphs A-H) or to any relief whatsoever. GENERAL DENIAL Defendants deny any allegations of the Complaint, express or implied, that are not expressly admitted, denied, or qualified herein. AFFIRMATIVE DEFENSES 1. This Court lacks subject-matter jurisdiction over some or all of Plaintiffs claims. 2. Plaintiffs claims are not ripe for judicial review. WHEREFORE, Defendants deny that Plaintiffs are entitled to the relief prayed for, or to any relief whatsoever, and request that this action be dismissed with prejudice, that judgment be entered for Defendants, that the Court grant Defendants their costs of suit, and that the Court order such other and further relief as the Court may allow. Respectfully filed this 8th day of December, H. E. (BUD) CUMMINS United States Attorney FLETCHER JACKSON Assistant U.S. Attorney AR Bar #63027 P.O. Box 1229 Little Rock, AR (501) SUE ELLEN WOOLDRIDGE Acting Assistant Attorney General 10

11 Case 4:05-cv GTE Document 25 Filed 12/08/2005 Page 11 of 12 U.S Department of Justice Environment & Natural Resources Division /s/ Devon Lehman McCune DEVON LEHMAN McCUNE Trial Attorney (CO Bar No ) Natural Resources Section Benjamin Franklin Station, P.O. Box 0663 Washington DC (202) (tel.) (202) (fax) JEAN E. WILLIAMS, Section Chief Bridget Kennedy McNeil BRIDGET KENNEDY McNEIL, Trial Attorney (CO Bar No ) Wildlife & Marine Resources Section Benjamin Franklin Station, P.O. Box 7369 Washington, D.C Ph: (202) Fx: (202) Of Counsel Ann Cornett, District Counsel David E. Sirmans, District Counsel, U.S. Corps of Engineers, Memphis District Delores Young, Regional Solicitor s Office U.S. Department of the Interior 11

12 Case 4:05-cv GTE Document 25 Filed 12/08/2005 Page 12 of 12 CERTIFICATE OF SERVICE I hereby certify that on this 8th day of December, 2005, I electronically filed the foregoing FEDERAL DEFENDANTS ANSWER TO PLAINTIFFS FIRST SUPPLEMENTAL COMPLAINT with the Clerk of Court using the ECF/CM system, which will generate an electronic Notice of Filing on: John Kostyack kostyack@nwf.org Richard H. Mays rhmays@ix.netcom.com Mary Randolph Sargent sargent@nwf.org Pursuant to the Court s mailing information for this case, listed on the ECF system, no parties require manual noticing. _Bridget Kennedy McNeil 12