____________________________________

SAVE THE MANATEE CLUB,
500 North Maitland Avenue
Maitland, Florida 32751,

HUMANE SOCIETY OF THE
UNITED STATES,
2100 L Street, N.W.
Washington, D.C. 20037,

DEFENDERS OF WILDLIFE,
1101 Fourteenth Street, N.W.,
Suite 1400
Washington, D.C. 20005,

SIERRA CLUB,
85 2nd Street,
San Francisco, CA 94105,

ANIMAL WELFARE INSTITUTE,
P.O. Box 3650,
Washington, D.C. 20007,

INTERNATIONAL WILDLIFE
COALITION,
70 East Falmouth Highway
East Falmouth. Massachusetts 02536,

UNITED STATES PUBLIC INTEREST
RESEARCH GROUP,
218 D Street, S.E.
Washington, D.C. 20003,

INTERNATIONAL FUND FOR ANIMAL
WELFARE,
411 Main Street,
Yarmouth Port, MA 02675,

FLORIDA AUDUBON SOCIETY,
1331 Palmetto Avenue,
Winter Park, Florida 32789,

FLORIDA DEFENDERS OF THE
ENVIRONMENT,
4424 N.W. 13th Street
Suite C-8
Gainesville, Florida 32609-1885,

AUDUBON SOCIETY OF SOUTHWEST
FLORIDA,
P.O. Box 61041
Ft. Myers, Florida 33906-1041,

RESPONSIBLE GROWTH
MANAGEMENT COALITION,
P.O. Box 1046
Estero, Florida 33928,

ENVIRONMENTAL CONFEDERATION
OF SOUTHWEST FLORIDA,
P.O. Box 366457
Bonita Springs, Florida 34136,

CITIZENS ASSOCIATION OF BONITA
BEACH,
4450 Bonita Beach Road 10-118,
Bonita Springs, Florida 34135,

FLORIDA PUBLIC INTEREST
RESEARCH GROUP,
704 West Madison Street
Tallahassee, Florida 32304,

BISCAYNE BAY FOUNDATION,
1024 Almeria Avenue
Coral Gables, FL 33134,

SANIBEL-CAPTIVA AUDUBON
SOCIETY,
P.O. Box 957,
Sanibel, Florida 33957,

THE PEGASUS FOUNDATION,
27 Merrimack Street
Concord, New Hampshire 03301,

PATRICK M. ROSE,
JUDITH VALLEE,
FRAN STALLINGS,

Plaintiffs,

v.

LT. GENERAL JOE N. BALLARD,
Chief of Engineers,
Army Corps of Engineers
20 Massachusetts Ave., N.W.,
Washington, D.C. 20314-1000,

LOUIS CALDERA,
Acting Secretary, United States Department
of the Army,
101 Army Pentagon
Washington, D.C. 20310-0101,

JAMIE RAPPAPORT CLARK,
Director, United States Fish and
Wildlife Service,
1849 C Street, N.W.,
Washington, D.C. 20240,

BRUCE BABBITT ,
Secretary, U.S. Department of the Interior,
1849 C Street, N.W.
Washington, D.C. 20240,

Defendants.

____________________________________

1. This case challenges defendants’ failure to comply with the Endangered Species Act of 1973, as amended, ("ESA"), 16 U.S.C. §§ 1531, et seq., the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq., the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. § 1361 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, in connection with the issuance of hundreds of federal permits that have cumulatively caused the killing and maiming of endangered Florida manatees, as well as the destruction and despoilation of the manatee’s critical habitat.

2. This Court has jurisdiction over this action pursuant to 16 U.S.C. § 1540(g) and 28 U.S.C. § 1331.

3. Plaintiff Save the Manatee Club ("SMC") is a nonprofit organization of over 40,000 members throughout the country. Its purpose is to promote public awareness and education, to sponsor research, rescue and rehabilitation efforts, and to advocate and take appropriate legal action for manatees and their habitat. SMC has participated in, and is currently participating in, various legal and administrative challenges on behalf of its members to defend and otherwise support actions to protect manatees.

4. SMC is filing this action on its own behalf and on behalf of its members in an effort to protect their recreational, aesthetic, scientific, conservation, and other concrete interests in manatees in Florida. A substantial number of SMC’s members regularly use and enjoy Florida waters for a variety of purposes pertaining to manatees, including observation of, and recreation relating to, manatees. Many of SMC’s members travel in an effort to see manatees at viewing areas in the winter. In addition, many members boat, dive, or canoe with the purpose of observing manatees and their habitat. Examples of SMC members who engage in such activities and whose interests are represented in this action by SMC are P.J. Condrey, who views manatees at Homosassa & Crystal Rivers in Citrus County; Katie Danner, who views manatees at Glidden Park in St. Lucie County; Joan and Bob Dixon, who view and photograph manatees at Haulover Canal in Brevard County, Crystal River in Citrus County, Upper St. Johns River in Duval County, Caloosahatchee River and Pine Island Sound in Lee County, the Canal off the South Fork of the St. Lucie River, the St. Lucie River, Bessey Creek, and the Port Mayaca Locks on St. Lucie Canal in Martin County, Buttonwood Sound in Monroe County, Taylor Creek in St. Lucie County, and Blue Spring in Volusia County; Judy Marshall, who views and photographs manatees at Haulover River and Indian River in Brevard County; Joanne and Pat Maio, who view manatees at the Indian River in Brevard County, the Indian River at Sebastian Inlet in Indian River County, and Blue Spring and St. Johns River in Volusia County; Ruth Myles, who views manatees at the New River in Broward County; Terry Nearing, who views and photographs manatees at Blue Spring and St. Johns River in Volusia County; and Patty and Rob Reed, who view and photograph manatees at Haulover Canal and Turkey Creek in Brevard County, Crystal River in Citrus County, Marco Island in Collier County, Tampa Electric Company in Hillsborough County, Matlacha Pass in Lee County, Riveria Beach in Palm Beach County, Glidden Park in St. Lucie County, and Blue Spring, St. John River and Lake Monroe in Volusia County. The ability of SMC and its members to engage in these activities is directly harmed and threatened by the defendants’ violations of federal law, which are resulting in the deaths and injuries of manatees, and the destruction of manatee habitat in areas enjoyed by SMC and its members.

5. Plaintiff Humane Society of the United States ("HSUS") is a non-profit, tax-exempt corporation organized and existing under the laws of the Commonwealth of Delaware, with offices in Washington, D. C. and Gaithersburg, Maryland. HSUS is the largest animal protection organization in the U.S., with over 7.3 million members and contributors (hereinafter "members"), approximately 200,000 of whom reside in the state of Florida. HSUS is committed to the goal of protecting, conserving, and enhancing the nation's wildlife and wildlands, and fostering the humane treatment of all animals. In furtherance of its goals and objectives, HSUS and its members have demonstrated a strong interest in the preservation, enhancement, and humane treatment of manatees. Many members of HSUS are directly and adversely affected by defendants’ permitting actions, which result in the harassment, injury, and killing of manatees, and the destruction of manatee habitat. In particular, many HSUS members reside on the coasts of Florida where manatees live, and often observe them and enjoy their presence. Many other HSUS members visit Florida and expect and attempt to view manatees in their natural habitat as part of their vacation experience. The ability of HSUS and its members to engage in these activities is injured by defendants’ failure to comply with the ESA, NEPA, MMPA, and the APA because, by violating these statutes, the defendants are hastening the extinction, and preventing the recovery, of manatees.

6. Plaintiff Defenders of Wildlife ("DOW") is a national nonprofit membership organization dedicated to the protection of all native wild animals and plants in their natural communities. DOW is dedicated to preserving wildlife and emphasizing appreciation and protection for all species in their ecological role within the natural environment. DOW brings this action on its own institutional behalf, and also on behalf of its over 380,000 members, some of whom regularly have engaged in, and will continue to engage in, educational, recreational, and scientific activities in those portions of Florida where manatees are located, and who enjoy observing and looking for manatees. These members' interests in observing, studying and appreciating manatees are injured by the federal defendants' failure to comply with the ESA, NEPA, MMPA, and the APA because, by violating these statutory provisions, the defendants are preventing the recovery, and hastening the extinction, of the manatee.

7. Plaintiff Sierra Club is a national environmental protection organization with over 500,000 members in all fifty states. Among the purposes of the Sierra Club are to explore, enjoy, and protect the wild places and animals on earth. The Sierra Club conducts an outings program to enable its members to explore and enjoy the natural environment and enlists its members to advocate for the protection of the earth’s wild places. The Sierra Club has formed a Florida Chapter consisting of over 20,000 members residing within the State of Florida. Many of these members have joined the Sierra Club because of its outings program and the opportunities such a program offers for wildlife observation, particularly the manatee. The Florida Chapter outings program includes canoe and kayak trips which provide opportunities to see and observe manatees. Sierra Club brings this action on its own institutional behalf, and on behalf of its Florida chapter and other members, who regularly have engaged in, and will continue to engage in, educational, recreational and scientific activities in those portions of Florida where defendants’ permitting activities harm manatees, and who enjoy observing and looking for manatees. The ability of Sierra Club and its members to engage in these activities with regard to the manatee is injured by the federal defendants' failure to comply with the ESA, NEPA, MMPA, and the APA, because, by violating these statutes, the defendants are hastening the extinction, and preventing the recovery, of the manatee.

8. Plaintiff Animal Welfare Institute ("AWI") is a non-profit charitable organization founded in 1951 to reduce the sum total of pain and fear inflicted on animals by humans. One of many goals of AWI is the preservation of species threatened by extinction. In this litigation, AWI represents over 800 members throughout the State of Florida, many of whom regularly observe, photograph, study, and otherwise enjoy Florida manatees for professional and/or personal interest. In addition, AWI members from outside of Florida travel there to observe, photograph, and study manatees for conservation, educational, professional, aesthetic, and scientific purposes. The ability of AWI and its members to engage in these activities is injured by the federal defendants' failure to comply with the ESA, NEPA, MMPA, and the APA, because, by violating these statutes, the defendants are hastening the extinction, and preventing the recovery, of the manatee.

9. Plaintiff International Wildlife Coalition ("IWC") is a federally recognized tax-exempt non-profit charitable corporation. Based in East Falmouth, Massachusetts, IWC concentrates on educational and conservation issues involving whale and marine wildlife protection policy. IWC has a total membership of approximately 70,000 individuals in the United States, United Kingdom, Canada, Brazil, and other countries. IWC has 2,162 members in Florida, some of whom regularly observe, photograph, study, and otherwise enjoy manatees in their natural habitat. Since November 1996, IWC has routinely disseminated information to its members and other members of the public educational articles, photographs, and original artwork on manatees in Florida and elsewhere. The ability of IWC and its members to engage in such activities with regard to the manatee is injured by the federal defendants' failure to comply with the ESA, NEPA, MMPA, and the APA, because, by violating these statutes, the defendants are hastening the extinction, and preventing the recovery, of the manatee.

10. Plaintiff U.S. Public Interest Research Group ("U.S. PIRG") is a nonprofit corporation with approximately 200,000 members across the nation, including 127 members in Florida. U.S. PIRG is a national educational and issue advocacy group, which represents the State PIRGs, including plaintiff Florida PIRG, whose Citizen Lobby has 10,000 members in the State of Florida. U.S. PIRG and Florida PIRG are actively engaged in education, research, lobbying, and citizen organizing to encourage environmental protection, including the preservation of endangered species and the habitats on which they depend. U.S. PIRG and Florida PIRG bring this action on their own institutional behalf, and also on behalf of their members who have engaged in, and will continue to engage in, educational, recreational, and scientific activities in those portions of Florida where manatees are located, and who enjoy observing, looking for, and studying manatees. The ability of U.S. PIRG, Florida PIRG and their members to engage in these activities is injured by the federal defendants' failure to comply with the ESA, NEPA, MMPA, and the APA, because, by violating these statutes, the defendants are hastening the extinction, and preventing the recovery, of the manatee.

11. Plaintiff International Fund for Animal Welfare ("IFAW") is a non-profit organization with its headquarters in Massachusetts and ten other offices around the globe. With over two million members, IFAW uses law, science, and the media as advocacy tools to improve the welfare of wild and domestic animals worldwide. Much of IFAW's work involves the protection of marine mammals, birds, and reptiles and their habitats around the world, including those in the waters adjacent to the eastern United States. IFAW has approximately 15,500 current members residing in Florida, many of whom observe, photograph, and otherwise enjoy manatees. In addition, IFAW's non-Florida members travel to Florida in order to observe, photograph, and study manatees. The ability of IFAW's members to engage in these activities is directly and adversely affected by the defendants' failure to comply with NEPA, ESA, and the MMPA.

12. Plaintiff Florida Audubon Society ("FAS") is the state’s oldest environmental group, comprised of over 35,000 members, and local chapters throughout Florida. FAS is a non-profit Florida corporation incorporated for, among other purposes, the protection of wildlife and wildlife habitat, the protection of natural ecosystems, and preservation of water quality. The members and chapters of FAS -- including plaintiff Audubon Society of Southwest Florida and plaintiff Sanibel-Captiva Audubon Society -- use the waters of Florida inhabited by the endangered manatee for nature study, scientific research, recreation, and other lawful resource based activities. Continued human-induced mortality of the manatee in these waters adversely affects the substantial interests of the FAS, its chapters, and its members, by depriving them of the ability to study, observe, photograph and otherwise benefit from the presence of the manatee in the aquatic environment.

13. Florida Audubon Society, its chapters, and its members have been active in efforts to protect the manatee and its habitat from destructive activities through efforts to protect wetland ecosystems and to prevent inappropriate development in Florida’s inshore waters, including the designated critical habitat of the manatee. FAS owns several parcels of real property which are located within and adjacent to the designated critical habitat of the manatee. These properties are managed as wildlife sanctuaries for the purpose of protecting wildlife species, including the manatee. The failure of federal regulatory agencies to protect the manatee, including through the issuance of ACOE permits allowing development in manatee habitat, has the direct impact of harming or damaging the property interests of FAS, and frustrates the organization’s goal of managing these properties as wildlife sanctuaries. Examples of these properties are a 38 acre riverfront wildlife sanctuary in Putnam County known as the Pepe Wildlife Sanctuary, and a 60 acre property in Brevard County known as the Turkey Creek Wildlife Sanctuary. Both of these properties are being adversely affected, and will continue to be adversely affected, by the failure of the federal defendants to comply with their obligations under the ESA, MMPA, and NEPA.

14. Plaintiff Florida Defenders of the Environment ("FDE") is a Florida non-profit organization established in 1971 to advocate for protection and restoration of Florida’s natural environment. A principal goal of FDE’s work has been restoration of manatee habitat on the Ocklawaha River. FDE’s 2,000 members and supporters regularly use waters that are habitat for manatees and observe, study, photograph, and enjoy manatees in their natural environment. The violations of federal law by the defendants are resulting in deaths and injuries to manatees in areas used by FDE and its members, directly affecting their ability to engage in these activities.

15. Plaintiff Responsible Growth Management Coalition ("RGMC") was incorporated in 1988 to promote responsible growth management in Southwest Florida through informed citizen participation. RGMC represents civic and environmental groups, homeowner groups, and individuals with a membership of approximately 200. RGMC tracks development permits, ordinances, zoning variances, and other land-use decisions in order to provide input at critical decision points. Of special concern to RGMC are the effects of uncontrolled growth on endangered and threatened species, particularly the manatee. Members of RGMC live in or directly adjacent to manatee habitat, and their interests in observing, photographing, and otherwise enjoying manatees -- as well as in preserving the natural features of the communities in which they live -- are directly impaired by defendants’ violations of law.

16. Plaintiff Environmental Confederation of Southwest Florida ("ECOSWF") was organized in 1969 as a five county coalition to protect conservation interests in Southwest Florida. Thirty-three organizations were charter members. Since that time, ECOSWF has grown and now encompasses groups in western Florida from Hillsborough County through Collier County and a substantial portion of central Florida. One of the priorities of ECOSWF is the stewardship of Florida’s wildlife, including the manatee. In addition to playing a networking role for regional environmental groups, ECOSWF has participated, on behalf of its member groups and individuals, in numerous initiatives to protect wildlife. In one such effort, ECOSWF is actively opposing development on the eastern shore of Estero Bay, which would be very detrimental to manatee survival and recovery.

17. Plaintiff Citizens Association of Bonita Beach ("CABB") was organized in 1985 in order to focus on conservation of the beaches and coastal waters of southwest Florida. The organization has approximately 1500 members, many of whom regularly look for, observe, and otherwise enjoy manatees in coastal waters of southwest Florida. The ability of CABB’s members to engage in these activities -- as well as to protect beaches and coastal areas -- is undermined by defendants’ violations of the ESA, MMPA, and NEPA.

18. Plaintiff Biscayne Bay Foundation ("BBF") was formed in 1996 and is a non-profit private conservation organization whose mission is to preserve and protect Biscayne Bay and to support Biscayne National Park for all generations. At this time, the organization has approximately 500 members in Florida. It is the goal of the Foundation to protect the Bay from further deterioration while also educating the community about the Bay and its resident wildlife, including the manatee. A substantial number of BBF members reside on the coast of Florida and near Biscayne Bay, and regularly observe, photograph, and study manatees for conservation, educational, aesthetic, and scientific purposes. The ability of BBF members to pursue these activities, and thus enjoy all that Biscayne Bay has to offer, is directly impaired by manatee deaths and injuries, and degradation of manatee habitat, resulting from defendants’ violations of federal law.

19. Plaintiff Pegasus Foundation is a private independent foundation which is committed to animal protection, environmental preservation, and public education, and which subscribes to the philosophy that all forms of life warrant respect. Since 1997, the Pegasus Foundation has been extensively involved in efforts to conserve the Florida manatee, including by disseminating extensive information regarding the species and the threats to its continued existence.

20. Plaintiff Patrick Rose is the Director of Government Relations for plaintiff SMC, where he has worked since 1996. He has worked professionally as a manatee researcher and biologist to study and conserve manatees since 1977. He has regularly observed, photographed, dived in the habitat of, and otherwise enjoyed manatees in numerous locations in Florida for more than thirty years. His ability to engage in these activities is directly undermined by defendants’ violations of law, since they result in many more manatees being killed and injured than would otherwise be the case, and also cause the degradation of manatee habitat in specific areas where Mr. Rose engages in recreational and professional pursuits.

21. Plaintiff Judith Vallee has been the Executive Director of Save the Manatee Club (SMC) since 1985. She has worked actively on manatee protection issues since 1982, first as a local activist and then with the local chapter of the Audubon Society as a volunteer before her employment with SMC. Ms. Vallee sits on the Manatee Technical Advisory Council, which advises the state of Florida on manatee protection issues. Ms. Vallee routinely disseminates information regarding manatee conservation to SMC members and other members of the public. She also regularly visits manatees at Blue Spring State Park and at Homosassa Springs State Wildlife Park. Her ability to engage in these activities is directly undermined by defendants’ violations of law, since they result in many more manatees being killed and injured than would otherwise be the case, and also cause the degradation of manatee habitat in specific areas where Ms. Vallee engages in recreational and professional pursuits.

22. Plaintiff Dr. Fran Stallings is Co-Chairman of plaintiff SMC and a member of the Board of Directors of plaintiffs Responsible Growth Management Coalition and Environmental Confederation of Southwest Florida. In his professional capacity, Dr. Stallings advocates for manatee conservation in many forums, including legal and administrative proceedings. He routinely disseminates information to the public regarding manatee conservation issues. He also regularly goes boating for the purpose of viewing manatees and makes regular flights over Southwest Florida for the purpose of observing manatees and their habitat. Dr. Stallings’ ability to engage in these activities is directly undermined by defendants’ violations of law, since they result in many more manatees being killed and injured than would otherwise be the case, and also cause the degradation of manatee habitat in specific areas where Dr. Stallings engages in recreational and professional pursuits.

23. In addition to the injuries set forth in ¶¶ 3-22, plaintiffs are also injured as a result of defendants’ failure to analyze the cumulative effects of their permitting actions on manatees, as required by NEPA and the ESA, because, as a result of these violations, plaintiffs and their members are being deprived of vital information concerning the manatee which would otherwise be available to the public, and which the plaintiff organizations would disseminate to the public as part of their organizational missions.

24. Defendant Lt. Gen. James Ballard is the Chief of Engineers of the Army Corps of Engineers ("ACOE"), which has issued the permits resulting in death and injury to manatees.

25. Defendant Louis Caldera is the Acting Secretary of the Army, and is ultimately responsible for all regulatory and permitting actions undertaken by the Army Corps of Engineers.

26. Defendant Jamie Rappaport Clark is the Director of the United States Fish and Wildlife Service, which has primary responsibility for implementing the Endangered Species Act.

27. Defendant Bruce Babbitt is the Secretary of the Interior, and is ultimately responsible for implementing the Endangered Species Act.

A. The Endangered Species Act

28. Congress enacted the ESA with the express purpose of providing both "a means whereby the ecosystems upon which endangered and threatened species depend may be conserved, [and] a program for the conservation of such endangered species and threatened species . . . ." 16 U.S.C. § 1531(b). The duties the Act imposes on the Secretary of the Interior have been delegated to the Director of the Fish and Wildlife Service ("FWS" or "the Service"). 50 C.F.R. § 402.01(b).

29. The ESA protects plant and animal species which are listed as "endangered" or "threatened." A species is "endangered" if it "is in danger of extinction throughout all or a significant portion of its range . . . ." 16 U.S.C. § 1532(6). Once listed, species are entitled to a number of critical protections under the Act.

30. The ESA requires that the Service take affirmative steps to protect and recover listed species, including that the Service formally designate "critical habitat" for listed species. Id at § 1533(a)(3). The Service must also "develop and implement . . . 'recovery plans' . . . for the conservation and survival of" listed species. Id. at § 1533(f)(1). Such plans must, for each species, incorporate "objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of [section 4 of the ESA], that the species be removed from the list" of endangered and threatened species. Id. at § 1533(f)(1)(B)(ii).

31. Section 9 of the ESA makes it unlawful for "any person subject to the jurisdiction of the United States" to "take" listed species. 16 U.S.C. § 1538(a)(1); 50 C.F.R. §§ 17.21, 17.31. The term "take" is broadly defined to include "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or [ ] attempt to engage in any such conduct." 16 U.S.C. § 1532(19). "Harm" has been further defined by FWS regulations to include "significant habitat modification or degradation where it actually kills or injuries wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." 50 C.F.R. § 17.3. The FWS’s regulations define "harass" to include an "act or omission which creates the likelihood of injury by annoying [the species] to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding, or sheltering." Id.

32. Section 7 of the ESA requires that all federal agencies "shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes [of the ESA] by carrying out programs for the conservation of" listed species. 16 U.S.C. § 1536(a)(1). The ESA defines "conservation" to include "all methods and procedures which are necessary to bring any [listed] species ... to the point at which the measures provided [in the ESA] are no longer necessary." Id. at § 1532(3).

33. Section 7 also requires that, "in consultation with and with the Assistance of the [Service]," each federal agency shall "insure that any action authorized, funded or carried out by such agency . . . . is not likely to jeopardize the continued existence of any" listed species. Id. at

§ 1536(a)(2). Under the regulations implementing this consultation process, each federal agency is required to determine whether its activities "may affect" a listed species, and thus whether it is required to consult with the FWS concerning those effects. 50 C.F.R. § 402.14(a). Once it is determined that an action "may affect" a listed species, the action agency must engage in "formal consultation" with the Service unless the FWS concurs in writing that the action is "not likely to adversely affect" the species. Id.

34. In this formal consultation process, the action agency must provide the Service with "the best scientific and commercial data available . . . for an adequate review of the effects" the action may have on listed species. 50 C.F.R. § 402.14(d). The Service in turn must review the information received and all other relevant information, evaluate the status of the listed species, and issue a "biological opinion" detailing "how the agency action affects the species," 16 U.S.C. § 1536(b)(3)(A), and in particular, whether the action is "likely to jeopardize" the continued existence of the species. 50 C.F.R. §§ 402.14(g), (h).

35. In assessing the impact of an agency’s actions on a species, the Service is required to "[e]valuate the effects of the action and cumulative effects on the listed species . . . ." Id. at § 402.14(g)(3). The effects to be considered include both the effects of the action itself, and of all other activities that "are interrelated or interdependent with that action . . . ." Id. at § 402.02.

36. If, after the conclusion of the consultation process, the Service concludes that the action is likely to jeopardize a listed species, and therefore will violate Section 7, the Service "shall suggest those reasonable and prudent alternatives which," if implemented, would prevent such a violation. 16 U.S.C. § 1536(b)(3)(A). In addition, if the action will result in a "take" of a listed species, the action may not go forward unless the Service provides an "incidental take" statement, which allows the agency to "take" a limited number of the species, if the action agency undertakes certain other conservation measures on behalf of the species. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(I).

37. If the Service issues an incidental take statement as part of a biological opinion, that statement must specify the "impact of such incidental taking on the species"; specify those "reasonable and prudent measures that the [FWS] considers necessary or appropriate to minimize such impact"; and "set forth the terms and conditions" that must be complied with by the federal agency "to implement the measures" necessary to minimize the impact of the taking. 16 U.S.C. § 1536(b)(4)(I-iii). In addition, "if an endangered or threatened species of a marine mammal is involved," the Service cannot permit incidental take by an agency unless the taking is "authorized pursuant to section 1371(a)(5)" of the MMPA, and the incidental take statement "specifies those measures that are necessary to comply" with the regulations imposed under the MMPA. Id. at §§ 1536(b)(4)(C), (iv).

B. The National Environmental Policy Act

38. The National Environmental Policy Act ("NEPA") requires all agencies of the federal government to prepare a "detailed statement" regarding all "major federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). This statement, known as an Environmental Impact Statement ("EIS"), must describe (1) the "environmental impact of the proposed action," (2) any "adverse environmental effects which cannot be avoided should the proposal be implemented," (3) alternatives to the proposed action, (4) "the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity," and (5) any "irreversible or irretrievable commitment of resources which would be involved in the proposed action should it be implemented." 42 U.S.C. § 4332.

39. The Council on Environmental Quality ("CEQ") -- an agency within the Executive Office of the President -- has promulgated regulations implementing NEPA which are "binding on all federal agencies." See 40 C.F.R. §§ 1500.3. These regulations require that an agency must either prepare an EIS or an Environmental Assessment ("EA"), which is used to determine whether the environmental impact of the agency’s action may be "significant" and hence require the preparation of an EIS. Id. at § 1501.4.

40. Among the factors to be considered in determining whether an agency must prepare an EIS are whether a project will take place in "ecologically critical areas" and whether listed species will be impacted. Id. at §1508.27. In addition, the agency must consider "the degree to which the action is related to other actions with . . . cumulatively significant impacts." Id. at § 1508.27(b)(7). Such cumulative impacts include "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) undertakes such other actions." Id. at § 1508.7.

41. Where an agency prepares an EA, the regulations require that the EA discuss both the need for the proposed action and alternatives to it, address the environmental impacts of both the proposal and the alternatives, and "provide sufficient evidence and analysis for determining whether to prepare" an EIS. Id. at § 1508.9. Moreover, in evaluating alternatives, the agency must "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. § 4332(2)(E).

C. Marine Mammal Protection Act

42. The MMPA prohibits the "taking" of all marine mammals, including the manatee. 16 U.S.C. §§ 1371(a), 1362(6). To "take" a marine mammal under the MMPA includes to "harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill, any marine mammal." Id. at § 1362(13).

43. Section 101(a)(5) of the MMPA allows the Secretary of Commerce or the Secretary of the Interior to authorize, upon application, the taking of "small numbers of marine mammals" which is "incidental" to the carrying out of lawful activities, other than commercial fishing, in a particular geographic region. Id. at § 1371(a)(5)(A)(I). All individuals and organizations, including federal and state agencies, are required to obtain a "small take permit" under section 101(a)(5) before undertaking any activity which will incidentally take marine mammals such as the manatee.

44. To authorize the incidental taking of marine mammals under section 101(a)(5), the Secretary of Commerce or Interior must issue regulations, in accordance with the notice and comment procedures of the Administrative Procedure Act, specifically applying to the activity that will cause the incidental take. 16 U.S.C. § 1371(a)(5)(A). Among other matters, these regulations must set forth: (1) the Secretary’s finding that the total taking requested will have a "negligible impact" on the species; (2) measures to minimize adverse impacts on the species and its habitat, with particular attention to breeding locations and other areas of significance to the species; and (3) specific requirements for monitoring and reporting the number of animals incidentally taken. Id. at § 1371(a)(5)(I-ii).

45. The Secretary of the Interior, through the FWS, has issued regulations implementing the incidental take authorization requirements of section 1371(a)(5) of the MMPA. 50 C.F.R. § 18.27 et seq. In addition to the statutory criteria set forth in ¶ 44, the implementing regulations provide that incidental taking may only be authorized where the FWS has determined, based on the best scientific evidence available, that the "impact resulting from the specified activity . . . cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival." 50 C.F.R. § 18.27(c).

A. The Florida Manatee

46. The West Indian manatee (Trichecus manatus) is one of the most endangered marine mammals in coastal waters of the United States. It is a very large animal with dark gray, wrinkled skin, paddle-like forelimbs, no hind limbs, and a large flat tail. Adult manatees average about 11.5 feet in length and 2,200 pounds in weight, but may reach lengths of up to 15 feet and weigh as much as 3,570 pounds.

47. In the southeastern U.S., manatees are largely restricted to Florida and Georgia. This group constitutes a separate subspecies called the Florida manatee (T. manatus latirostris) which is present in Florida waters along the Atlantic coast and the Gulf of Mexico coast of Florida.

48. The Florida manatee lives in fresh, brackish and marine habitats. Their preferred food is submergent, emergent, and floating sea grasses and other vegetation. During the winter, manatees are concentrated in peninsular Florida because of cold temperatures further north. During the summer months, manatees expand their range into Georgia and the panhandle of Florida.

49. For more than thirty years, the federal government has recognized that the manatee is in danger of extinction. The government first recognized the manatee as an endangered species in 1967 pursuant to the Endangered Species Preservation Act of 1966. When the ESA was passed in 1973, the manatee was one of the first species formally listed as being endangered. Only approximately 2400 Florida manatees survive in the wild at the present time. 50. In accordance with section 4 of the ESA, in 1976, the FWS designated formal "critical habitat" for the manatee. 50 C.F.R. § 17.95. The designation includes specifically enumerated coastal areas, rivers, and other water ways in Florida and along the Florida coast.

51. The FWS has issued a Recovery Plan for the manatee, which was most recently revised in 1996. According to that Plan, the "major threats to Florida manatees are collisions with watercraft, which account for 25 percent of known manatee deaths in Florida annually, and destruction and degradation of habitat caused by widespread development throughout much of the species’ Florida range." Florida Manatee Recovery Plan at 4. The Recovery Plan further states that "[i]ncreases in direct human-caused mortality and habitat destruction are two of the consequences of the rapid growth in Florida’s human population," and that "[a]s long as this trend continues, the long term survival of manatees in the U.S. is in serious jeopardy." Id.

52. The greatest source of human-related manatee mortality is collisions with watercraft. Manatees are slow-moving animals who feed on water plants in shallow coastal waters, rivers, and springs. They must surface to breathe every few minutes, making them particularly susceptible to boat strikes.

53. Since the Florida Department of Environmental Protection and the FWS began a carcass recovery program in 1974, at least 30% of the documented manatee deaths have been caused by human activity and, of these, deaths from watercraft account for nearly 80% of the total. According to a 1998 Annual Report prepared by the FWS, between 1976 and 1998, the number of manatee deaths caused by watercraft strikes increased by an average of 7.1 percent per year. From 1985 through 1989, the average number of manatee deaths per year was 39.6; from 1990 through 1994, the average number of such deaths increased to 44.4 per year; and from 1995 through 1999, the average number of such deaths increased still further to over 59 manatee deaths per year resulting from watercraft strikes. Most of the increase in total manatee mortality over the last two decades is attributable to increases in watercraft-related deaths and perinatal deaths.

54. In 1998, at least 67 manatees were killed in waters of the U.S. as a result of collisions with boats -- the highest number of watercraft-related mortalities ever recorded for a single year until that time -- and 243 total manatees deaths were documented. In 1999, a new record for manatee deaths from boat collisions was set, with at least 82 manatees dying from that cause -- a 24% increase from 1998 -- and 268 manatees dying in Florida waters from all causes.

55. According to the FWS’s 1998 annual report, the "status of the manatee population is, at best, marginally stable," and "[i]f adult mortality can not be significantly reduced, it is likely that the manatee population will remain at risk of a decline towards extinction." That report further states that "[i]ntensive coastal development is perhaps the greatest long-term threat to the Florida manatee," and that the species’ "survival depends not only on maintaining the integrity of ecosystems and habitat sufficient to support a sustainable manatee population, but also on our ability to reduce watercraft-related mortality." Id.

56. According to an April 1999 Biological Opinion issued by the FWS, a "10 percent mortality rate may be a critical threshold for the survival and recovery of the manatee." FWS, Biological Opinion Regarding App. No. 199301994 (IP-MN), Collier County (April 2, 1999). The FWS further stated that "[o]ver the past four years, annual manatee mortalities have approached or exceeded ten percent of the total population." Id.

57. Since the single "largest source of human-related manatee mortality is collisions between manatees and watercraft," the Manatee Recovery Plan concludes that "such causes of mortality must be reduced to, and maintained, at low levels" if the manatee is ever to be recovered from endangered status, and hence be removed from the list of endangered or threatened species.

58. In addition to killing manatees outright, boat collisions injure, maim, and harass many manatees which manage to survive. According to the Manatee Recovery Plan, "[m]any, if not most, living manatees [] bear scars or wounds from vessel strikes."

59. During the last ten years, the U.S. Army Corps of Engineers ("ACOE") has issued over 200 permits authorizing harmful construction activities in essential manatee habitat, including over 170 such activities in areas formally designated by the FWS as "critical habitat" of the manatee. ACOE has issued these permits pursuant to section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, and section 404 of the Clean Water Act, 33 U.S.C. § 1344.

These permits have greatly increased and facilitated boat usage in manatee habitat, by authorizing the construction of thousands of docks, marinas, access ramps, wet slips, and other forms of development which increase and facilitate boat use of particular areas that are critical to the manatee’s survival and recovery. Exhibit A to this Complaint enumerates many of the recent ACOE permits which increased and facilitated boat use in manatee habitat. Exhibit B sets forth permits which have specifically authorized harmful construction activities in formally designated critical habitat.

60. Because of the adverse effects of its permitted activities on manatees, ACOE has engaged in formal consultation with the FWS regarding many of these activities, including those identified in Exhibits A and B. As a result of these consultations, the FWS has issued many Biological Opinions making clear that the Corps permits are having serious deleterious effects on manatees, both by directly contributing to manatee deaths and injuries from the increased use of watercraft, and by directly destroying and degrading manatee habitat.

61. Examples of FWS Biological Opinions expressly linking Corps permits to manatee collisions with boats and degradation of manatee habitat include: FWS Biological Opinion Regarding App. No. 199200701 (IP-AM), Lee County, at 11 (Aug. 17, 1998) (stating that the FWS is "extremely concerned about this area of the Caloosahatchee River due to the high incidence of watercraft-related manatee mortality"); FWS Biological Opinion regarding App. No. 199603542, Martin County, at 7, 9, 10 (Dec. 31, 1997) (stating that "the increase in the number of manatee deaths results from increases in the number of powerboats using areas frequented by manatees"); FWS Biological Opinion Regarding App. No. 199403812(IP-JG), Lee County, at 10 (July 10, 1995) (stating that "[a]n increase in the number of powerboats at the RBC proposed boat dock will increase the density of boat traffic in the area, thus increasing the likelihood of manatee/watercraft collisions"); FWS, Biological Opinion regarding App. No. 199403166 (LP-CB), Palm Beach County (March 1, 1996) ("The proposed action will result in eliminating seagrasses presently on the submerged site. Thus, we believe[] that dredging in seagrasses is ‘likely to adversely affect’ designated critical habitat for this species"); FWS, Biological Opinion Regarding App. No. 199200701 (IP-AM), Lee County, at 7, 11, 12 (Sept. 9, 1998) (the "action area serves as a warm-water refugia for 71 percent of the southwest Florida manatee population and, therefore, is an important component of the manatees’ survival and recovery in the foreseeable future," and the FWS "anticipate[s] that boat traffic to the project site will increase since the applicant is proposing to construct a business to be patronized by the public").

62. FWS biological opinions make clear that the increased watercraft traffic and habitat degradation associated with Corps-permitted projects are having an especially deleterious effect on manatee breeding success, by contributing to both the direct loss of "mature reproductive females" and a "consistently high" "frequency of perinatal deaths (i.e., stillborn and newborn calves)." FWS Draft Biological Opinion Regarding App. No. 199502803 (IP-RM), Palm Beach County, at 7-8 (May 14, 1997); FWS Biological Opinion Regarding App. No. 199200701 (IP-AM), Lee County, at 11 (Sept. 9, 1998) ("In addition to direct collisions with boats, secondary effects would include such stresses as disruption of normal breeding behavior, disruption of cow-calf bonding, and interference with migration routes and patterns in portions of the Caloosahatchee River. An increase in these effects would increase the probability of unsuccessful mating and perinatal mortality").

63. Although ACOE has permitted construction activities that have greatly increased the concentration of watercraft in manatee habitat, and have also destroyed and impaired manatee habitat in other ways, ACOE has never received an "incidental take" authorization from the FWS pursuant to sections 7 or 10 of the ESA. Neither the Secretary of the Interior, nor the Secretary of Commerce, has issued a "small take permit" to ACOE pursuant to section 1371(a)(5)(A)(I) of the MMPA.

64. Although the FWS has acknowledged in several biological opinions that ACOE’s permitting actions have greatly increased the probabilities of manatees being killed, injured, and harassed by boats, the FWS has never authorized these or any other forms of "incidental take."

65. In one recent biological opinion regarding a project that would result in 25 more "wet slips" in manatee habitat, the FWS stated that "incidental take is anticipated but not authorized for the manatee for the proposed action." FWS Biological Opinion Regarding App. No. 198101695. (IP-JG), Charlotte County, at 11 (Aug. 29, 1996). In other biological opinions, the FWS has specified that it "is not including an incidental take authorization for marine mammals at this time because the regulations required for incidental take of marine mammals . . . for this activity have not been issued under Section 101(a)(5) of the Marine Mammal Protection Act and/or its 1994 Amendments." FWS Biological Opinion Regarding App. No. 199703878 (LP-TM), Martin County, at 11 (Jan. 28, 1998).

66. In a September 20, 1999 Memorandum, the FWS’s Florida State Supervisor issued "Guidance on ESA and Manatee Mortality From Marina, Boat Ramp, and Boat Slip Developments in Florida," which again made clear that "‘incidental take’ of manatees result[s] from increased boat use of Florida’s inland and coastal waters as a result of new boat slips authorized through Federal permits." According to this guidance, ACOE permits for "[b]oat slip developments increase the risk of manatee-boat collisions, and other behavioral disruptions, by providing increased boat access to manatee habitat." The guidance further indicated that "cumulatively the addition of slips over time results in increased boat use, and in some cases, changes in boat travel patterns," and that, "[t]hus far in 1999, the Service has reviewed 30 development projects statewide which propose to add more than 2,000 slips to Florida waters inhabited by manatees."

67. In the absence of intervention by this Court, ACOE will continue to issue permits for projects which further increase boat traffic in manatee habitat, and otherwise destroy and degrade manatee habitat, without obtaining any "incidental take" authorization from the FWS, and in the absence of any "small take" regulations or permits issued pursuant to section 101(a)(5) of the MMPA.

68. Since the FWS has determined that the survival and recovery of the manatee depends on reducing annual manatee mortalities from boats, and since ACOE’s permitting actions in manatee habitat are increasing, rather than reducing, annual manatee mortalities, the ACOE’s permitting activities are, in cumulative effect, jeopardizing the Florida manatee with extinction.

69. The ACOE has issued permits for many projects, including those set forth in Exhibit B, which have the direct effect of impairing critical habitat which has been formally designated for the manatee. Examples include ACOE Permit No. 199200701 (IP-AM) (Lee County, CSL & G Development); Permit No. 199604867 (IP-AM) (Lee County, Stardial Investments); Permit No. 199501158 (IP-CC) (Lee County, R & L Transfer); Permit No. 199403812 (IP-JG) (Lee County, Riverside Beach Condos); Permit No. 199403166 (Palm Beach County, Devos); Permit No. 199505268 (IP-AM) (Collier County, Mirage); Permit No. 199300940 (Palm Beach County, Jupiter Ltd.); Permit No. 199201311 (Citrus County, Paul Mantey); Permit No. 199200485 (Matin County, Martin County Parks Department); Permit No. 90-IPE-04245 (Collier County, Naples Sailing & Yacht); Permit No. 199400024 (Duval County, Pablo Creek Marina). In cumulative effect, activities authorized by ACOE permits have destroyed or impaired substantial critical habitat for the manatee.

70. Despite the adverse impacts of its permitting decisions on manatees and their critical habitat, ACOE has never, in consultation with the FWS, developed a program for the conservation of manatees, as required by section 7(a)(1) of the ESA. ACOE has also repeatedly refused to adopt, as permit conditions, specific conservation recommendations set forth in the FWS’s Biological Opinions on particular projects. Examples include: ACOE, Memorandum for Record Regarding Permit No. 199604867 (IP-AM) (Stardial Investments, Inc., Lee County) (July 11, 1997), at 11 (declining to adopt FWS conservation recommendations regarding the enforcement of speed regulations and manatee protection measures within Estero bay); ACOE, Memorandum for Record Regarding Permit No. 199403812 (IP-AW) (Riverside Beach Condominium, Lee County) (August 16, 1995), at 8 (declining to adopt FWS conservation recommendations regarding the enforcement of speed regulations, the establishment of idle/no wake zones, the establishment of a monitoring program regarding manatee impacts, and the prohibition of fishing at the dock of the proposed facility); ACOE, Memorandum for Record Regarding Permit No. 199302233 (IP-EJ) (Diplomat Yacht Club, Broward County) (June 15, 1994), at 6 (refusing to adopt FWS recommendation to limit motorboat slips in connection with the project because the Corps did not believe that the limitation on boat slips has "an empirical biological basis"); Memorandum for Record Regarding Permit No. 199330581 (LP-MZ) (Mariner Pointe, Broward County) (July 23, 1993) (refusing to adopt FWS recommendation on limitation of wet slips designated for powerboats because applicant objected "for economic reasons").

71. ACOE has never entered into formal consultation with the FWS pursuant to section 7(a)(2) of the ESA regarding whether the cumulative effect of all ACOE permitting activities is jeopardizing the continued existence of the Florida manatee and/or destroying or adversely modifying the manatee’s critical habitat.

72. ACOE has never prepared an Environmental Impact Statement analyzing the cumulative significant effects of its permitting decisions, including those enumerated in Exhibits A and B, on the manatee and its critical habitat. Nor has ACOE ever comprehensively addressed the effects of its permitting decisions, together with those of other federal, state, local, and private actions, in any Environmental Assessment it has prepared in connection with its permitting decisions. ACOE’s NEPA documents have instead ignored such cumulative effects entirely or summarily dismissed them with little or no analysis. Examples include: EA for Permit No. 199200701, Modification # 2 (IP-AM) (Lee County, CSL & G Development) (Oct. 6, 1998), at 8; EA Regarding Permit No. 199604867 (IP-AM) (Lee County, Stardial Investments) (July 11, 1997), at 11.

73. ACOE has never prepared a NEPA document which analyzes reasonable programmatic alternatives to the agency’s current practice of, every year, authorizing projects which increase boat traffic in critical manatee habitat, and which are, in cumulative effect, destroying and degrading critical manatee habitat.

74. The FWS has failed to issue a Recovery Plan for the manatee which establishes objective, measurable recovery criteria which, when met, would result in a determination that the species should be removed from the list of endangered and threatened species. The 1996 Florida Manatee Recovery Plan -- the most recent Recovery Plan for the species -- sets forth no such criteria with regard to any of the specific threats confronting the species or its critical habitat.

75. While acknowledging that "[m]arinas, boat ramps and other boating facilities increase local boat traffic," and that "[i]ncreasing numbers of manatees killed by boats and tremendous increases in boat traffic are the most important problem presently faced by manatees in Florida," the 1996 Recovery Plan sets forth no objective, measurable criteria by which to assess whether and when those threats to manatees have been sufficiently ameliorated to warrant removing the manatee from the list of endangered and threatened species. While recognizing that manatees’ survival "will depend on maintaining the integrity of ecosystems and habitat sufficient to support a sustainable manatee population," the Recovery Plan sets forth no objective, measurable criteria by which to assess present or threatened destruction, modification or curtailment of the manatee’s habitat or range.

76. Although the 1996 Manatee Recovery Plan acknowledges that "[m]arinas, boat ramps, and other boating facilities increase local boat traffic," and that "[i]ncreasing numbers of manatees killed by boats and tremendous increases in boat traffic are the most important problem presently faced by manatees in Florida," the FWS has failed to implement recovery actions which are adequate to lower the number of manatee deaths and injuries from collisions with boats, or even to prevent such deaths and injuries from climbing each year.

77. Under the ESA, a federal agency may not proceed with an action if the FWS determines that it will "jeopardize the continued existence" of an endangered species or "result in the destruction or adverse modification" of the species’ critical habitat. 16 U.S.C. § 1536(a)(2). In making these determinations, the FWS must "use the best scientific and commercial data available." Id.

78. The FWS has adopted a pattern, practice, and policy of issuing Biological Opinions regarding Corps-permitted projects which, while conceding that there is a direct correlation between increasing boat traffic and escalating manatee mortalities, nonetheless conclude that new Corps-permitted projects which facilitate further development and boat traffic in manatee habitat do not jeopardize the continued existence of the manatee. Examples of such opinions are: FWS, Biological Opinion Regarding App. No. 199801842 (IP-SB), Collier County (June 21, 1999); FWS, Biological Opinion Regarding App. No. 199301994 (IP-MN), Collier County (April 2, 1999); FWS, Biological Opinion Regarding App. No.4-1-97-F-602, Martin County (Jan. 28, 1998); FWS, Biological Opinion Regarding App. No. 199200701 (IP-AM), Lee County (Aug. 17, 1998); FWS, Biological Opinion regarding App. No. 199603542, Martin County (Dec. 31, 1997); FWS, Bio. Op. Regarding App. No. 199403812 (IP-JG), Lee County (July 10, 1995); FWS, Bio. Op. Regarding App. Nos. 199602058 (IP-EB), 199700352 (IP-IS), Brevard County (Oct. 3, 1997). Additional examples of such Biological Opinions are listed in Exhibit C.

79. The FWS has adopted a pattern, practice, and policy of issuing Biological Opinions regarding Corps-permitted projects which, while conceding that the projects will increase boat traffic in the manatees’ critical habitat and will otherwise impair manatees’ ability to use such habitat, including by destroying seagrasses and other submerged aquatic vegetation on which manatees depend for their survival, nonetheless conclude that the projects will not result in the destruction or adverse modification of such critical habitat. Examples of such opinions include: FWS, Biological Opinion regarding App. No. 199301994 (IP-MN), Collier County (April 2, 1999); FWS, Biological Opinion regarding App. No. 199801842 (IP-SB), Collier County (June 21, 1999); FWS, Biological Opinion regarding App. No. 199403166 (LP-CB), Palm Beach County (March 1, 1996); FWS, Biological Op. regarding App. No. 199200701 (IP-AM), Lee County (Sept. 9, 1998); FWS, Biological Opinion regarding App. No. 199603542 (LP-TM), Martin County (Dec. 31, 1997); FWS, Biological Opinion regarding App. No. 199703878 (LP-TM), Martin County (Jan. 28, 1998); FWS, Biological Opinion Regarding Application No. 199501158(IP-CC), Lee County (June 14, 1996). Additional examples of such Biological Opinions are listed in Exhibit C.

80. Despite issuing many "no jeopardy" Biological Opinions every year regarding the impacts of Corps-permitted projects on the manatee, the FWS has never prepared an analysis of whether the cumulative effects of Corps-permitted projects are likely to jeopardize the manatee with extinction and/or destroy or adversely modify the species’ critical habitat. The FWS has failed to undertake this analysis as part of the section 7 consultation process because of an agency regulation, which narrowly defines "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 (emphasis added). Examples of FWS Biological Opinions which rely on this regulation to avoid full scrutiny of the cumulative effects of all past, pending, and likely future Corps-permitted activities include: FWS Biological Opinion regarding App. No. 199700522 (IP-SB), Collier County (Oct. 9, 1997); FWS Biological Opinion regarding App. No. 199200701 (IP-AM), Lee County (Sept. 9, 1998); FWS Biological Opinion regarding App. No. 199505268 (IP-SA), Collier County (Sept. 26, 1997); FWS Biological Opinion regarding App. No. 198101695 (IP-G), Charlotte County (Aug. 29, 1996); FWS Biological Opinion regarding App. No. 199404286 (IP-AW), Dade County (Sept. 28, 1994); FWS Biological Opinion regarding App. No. 199131125 (LP-CS), Collier County (Dec. 20, 1991).

81. The FWS has never prepared an Environmental Impact Statement or Environmental Assessment in connection with any of its Biological Opinions concerning the impacts of Corps-permitted projects on the manatee. As a consequence, the FWS has never prepared any NEPA document that analyzes the cumulative effects of its "no jeopardy" opinions on the manatee’s prospects for survival and recovery.

82. In February 1997, the FWS issued revised "Guidance to the Corps of Engineers, Jacksonville District, and the [Florida] Department of Environmental Protection Regarding ‘May Affect’ Determinations for the Manatee in Florida." This "guidance" significantly limited the circumstances under which "formal consultation" would even be conducted regarding Corps-permitted actions increasing boat traffic and habitat loss in manatee habitat.

83. The FWS has relied on this "guidance" to make "not likely to adversely affect" determinations -- and hence to allow projects to proceed without the preparation of Biological Opinions -- with regard to projects which increase boat traffic in manatee habitat, including formally designated critical habitat. Examples of such determinations are: FWS, Not Likely to Adversely Affect Determination Regarding App. No. 199802565, Indian River County (June 11, 1999); FWS, Not Likely to Adversely Affect Determination regarding App. No. 199901664 (IP-AM), Lee County (June 14, 1999); FWS, Not Likely to Adversely Affect Determination regarding App. No. 199708184 (IP-SB), Collier County (March 8, 1999); FWS, Not Likely to Adversely Affect Determination regarding App. No. 199803190 (IP-AM), Collier County (Nov. 20, 1998); FWS, Not Likely to Adversely Affect Determination regarding App. No. 199805879 (IP-SB), Collier County (June 21, 1999); FWS, Not Likely to Adversely Affect Determination regarding App. No. 199803122 (LP-IS), Indian River County (Sept. 3, 1998); FWS, Not Likely to Adversely Affect Determination regarding App. No. 199800213 (LP-TA), St. Lucie County (Oct. 15, 1998); FWS, Not likely to Adversely Affect Determination regarding App. No. 199707711(IP-SB), Collier County (Oct. 9, 1998); FWS, Not Likely to Adversely Affect Determination regarding App. No. 199102150 (IP-AM), Collier County (Nov. 17, 1998); FWS, Not Likely to Adversely Affect Determination regarding App. No. 199801010 (LP-CC) (Nov. 20, 1998); FWS, Not Likely to Adversely Affect Determination regarding App. No. 199803521 (LP-JC), Monroe County (Aug. 7, 1998); FWS, Not Likely to Adversely Affect Determination regarding App. No. 199400572 (LP-EJ) (Nov. 23, 1998).

84. The FWS has never prepared an Environmental Impact Statement or an Environmental Assessment in connection with its February 1997 "guidance" regarding the circumstances under which it would engage in formal consultation with the Corps concerning Corps-permitted projects in manatee habitat.

85. On September 20, 1999, the State Supervisor for the FWS transmitted to FWS Field Offices and other agency personnel in Florida "Guidance on ESA and Manatee Mortality from Marina, Boat Ramp, and Boat Slip Developments in Florida" which "will provide direction until the manatee recovery plan is revised." While acknowledging that "[b]oat slip developments increase the risk of manatee-boat collisions, and other behavioral disruptions, by providing increased boat access to manatee habitat," this "Guidance" set forth no detailed plan for eliminating or reducing boat-related impacts on manatees. Instead, the "Guidance" stated that it is "necessary to maintain . . . the level of manatee protection and speed zone enforcement that is currently occurring throughout Florida," and which has allowed a record number of manatees to be killed through collisions with boats. According to the Guidance, this "current" level of "manatee protection" will be accomplished by asking those who obtain federal permits to construct harmful developments in manatee habitat to make a financial "contribution" to a "Manatee Conservation Fund," which may be used for a variety of purposes, including "seminars and presentations" on manatees.

86. The September 1999 guidance provides that federally-permitted projects for which a financial contribution is made to a "Manatee Conservation Fund" will be deemed by the FWS as "not likely to adversely affect" manatees for the purpose of section 7 consultations, irrespective of the number of new boats in manatee habitat associated with the project, whether the project is taking place in formally designated critical habitat, or the cumulative effects of the project on manatees along with other federally-permitted projects. The FWS has in fact relied on such "contributions" to bypass formal consultation with regard to Corps-permitted projects which increase boat traffic in the manatee’s critical habitat. Examples include: FWS, Not Likely to Adversely Affect Determination regarding App. No. 199802565 (IP-IS), Indian River County (June 11, 1999); FWS, Not Likely to Adversely Affect Determination regarding App. No. 199805879 (IP-SB), Collier County.

87. The public was afforded no opportunity to comment on FWS’s September 1999 "Guidance." The FWS did not prepare an Environmental Impact Statement or an Environmental Assessment in connection with the Guidance.

88. By letter dated May 20, 1999, in accordance with section 11(g) of the ESA, 16 U.S.C. § 1540(g), plaintiffs sent a formal Notice of Intent to Sue to ACOE, as well as to the Director of the FWS and the Secretary of the Interior. Despite extensive discussions between plaintiffs and representatives of defendants and other federal officials following the transmittal of this notice letter, defendants have not taken the steps necessary to bring themselves into compliance with federal law, or to significantly curtail the harms to manatees and their habitat caused by ACOE’s permitting activities.

89. ACOE has violated sections 7(b)(4) and 9 of the ESA, 16 U.S.C. §§ 1536(b)(4), 1538, and the ESA’s implementing regulations, by issuing hundreds of federal permits for actions which, in cumulative effect, result in the "take" of manatees -- including by causing the killing, wounding, injuring, harming, and harassment of manatees, as well as by destroying and degrading manatee habitat -- without having ever received an "incidental take" authorization from the FWS.

90. ACOE has violated section 7(a)(1) of the ESA, 16 U.S.C. § 1536(a)(1), by failing, in consultation with the FWS, to develop and carry out a program for the conservation of the manatee.

91. ACOE has violated the procedural mandate of section 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2), by failing to engage in consultation with the FWS regarding whether the cumulative effect of ACOE’s permitting activities is to jeopardize the continued existence of the Florida manatee and/or to destroy or adversely modify the manatee’s critical habitat. Defendants have violated the substantive mandate of section 7(a)(2) by issuing hundreds of federal permits authorizing construction activities which, in cumulative effect, are jeopardizing the continued existence of the manatee, and are "result[ing] in the destruction or adverse modification" of the species’ critical habitat.

92. FWS has violated section 4(f) of the ESA by failing to issue a Recovery Plan for the manatee which incorporates any "objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of [the ESA], that the species be removed from the list" of endangered and threatened species. 16 U.S.C. § 1533(f)(1)(B)(ii). FWS has failed to "implement" the Florida Manatee Recovery Plan, as required by section 4(f) of the ESA, 16 U.S.C. § 1533(f)(1), by failing to adopt measures necessary to minimize watercraft-related deaths and injuries.

93. FWS has violated section 7(a)(2) of the ESA by issuing numerous Biological Opinions concerning Corps-permitted projects in manatee habitat, including those Opinions set forth in ¶¶ 78-80 and Exhibit C, without ever analyzing whether the cumulative effect of past, pending, and likely future ACOE-permitted activities "jeopardizes the continued existence" of manatees, or "result[s] in the destruction or adverse modification" of the species’ critical habitat. 16 U.S.C. § 1536(a)(2).

94. FWS’s pattern, practice, and policy of issuing Biological Opinions which concede that Corps-permitted projects are increasing the amount of boat traffic in manatee habitat, but which nonetheless conclude that such projects do not "jeopardize the continued existence" of manatees violates the mandate of section 7(a)(2), including the requirement that the FWS’s Biological Opinions be based on the "best scientific and commercial data available," 16 U.S.C. § 1536(a)(2), and is otherwise arbitrary, capricious, and contrary to law, in violation of the APA. 95. FWS’s pattern, practice, and policy of issuing Biological Opinions which concede that Corps-permitted projects are increasing the amount of boat traffic in, and otherwise degrading, formally designated critical habitat of the manatee, but which nonetheless conclude that such projects do not "result in the destruction or adverse modification" of such critical habitat violates the mandate of section 7(a)(2), including the requirement that the FWS’s Biological Opinions be based on the "best scientific and commercial date available," and is otherwise arbitrary, capricious, and contrary to law. 16 U.S.C. § 1536(a)(2).

96. As applied to consultations concerning Corps-permitted projects in manatee habitat, including those projects delineated in ¶¶ 61-65, 78-80 and Exhibits A-C, the FWS’s regulation which defines "cumulative effects" so as to exclude "Federal activities[] that are reasonably certain to occur within the action area" violates section 7(a)(2) of the ESA and is otherwise arbitrary, capricious, and contrary to law, in violation of the APA.

97. FWS’s February 1997 and September 1999 Guidance -- which authorize, and have been applied so as to allow, the Corps to bypass formal consultation with regard to projects that are harming manatees and their critical habitat, and which direct FWS personnel to obtain financial "contributions" in exchange for adverse impacts to manatees -- are contrary to section 7 of the ESA and the Act’s implementing regulations, and are otherwise arbitrary, capricious, and contrary to law, in violation of the APA.

98. ACOE’S failure to prepare an EIS, or any other NEPA document, fully analyzing the cumulative impacts of ACOE’s permitting decisions on manatees and their habitat, including those decisions set forth in Exhibits A and B, violates NEPA, 42 U.S.C. § 4332(c), and the CEQ's implementing regulations, and is arbitrary, capricious, and an abuse of discretion, in violation of the APA, 5 U.S.C. § 702(2)(A).

99. FWS’s failure to prepare an EIS, or any other NEPA document, fully analyzing the cumulative effects of FWS’s "no jeopardy" and "no adverse modification of critical habitat" Biological Opinions, including those listed in ¶¶ 78-80 and Exhibit C, violates NEPA and the CEQ’s implementing regulations, and is arbitrary, capricious, and an abuse of discretion, in violation of the APA. FWS has also violated NEPA by failing to prepare an EIS or any other NEPA document in connection with the Service’s February 1997 Guidance and September 20, 1999 Guidance.

100. ACOE’S issuance of permits resulting in the incidental take of manatees, including those permits set forth in Exhibits A and B, violates section 101 of the MMPA and that statute’s implementing regulations, and is arbitrary, capricious, and an abuse of discretion, in violation of the APA, since no regulations or permits authorizing such take have been issued pursuant to section 101(a)(5)(A) of the MMPA.

101. The FWS’s September 20, 1999 "Guidance" -- which sets forth a binding "direction" to FWS personnel regarding the conduct of section 7 consultations with respect to the manatee -- was issued in violation of 5 U.S.C. § 553, because the public was afforded no advance notice and opportunity for comment on the "Guidance."

Wherefore, plaintiffs respectfully request that the Court issue an Order:

(1) declaring that defendants have violated the ESA, NEPA, MMPA, and APA;

(2) preliminarily and permanently enjoining defendants from authorizing any additional activities which have the effect of further increasing boat traffic in the manatees’ essential habitat, until (a) the FWS has issued an "incidental take" authorization for such permits in accordance with the requirements of the ESA and the MMPA, and (b) defendants have completed a comprehensive EIS which analyzes the cumulative impacts of ACOE-permitted and other activities on manatees and their habitat;

(3) compelling defendants to prepare a comprehensive EIS which analyzes the cumulative impacts of Corps-permitted activities, together with other federal, state, local, and private actions, and which sets forth, as required by NEPA, a range of alternatives for reducing manatee mortalities and injuries and the degradation of manatee habitat;

(4) compelling ACOE to establish, according to a schedule approved by the Court, a conservation program for the manatee and its habitat which (a) satisfies the requirements of section 7(a)(1) of the ESA, and (b) redresses the adverse effects of defendants’ past unlawful actions on the manatee;

(5) compelling FWS to adopt "objective, measurable" recovery criteria for the manatee, and to implement the Manatee Recovery Plan by taking steps necessary to minimize watercraft-related deaths and injuries, including through the designation of Manatee Protection Areas, as authorized by 50 C.F.R. §§ 17.100-17.108;

(6) setting aside the FWS’s February 1997 and September 1999 "Guidance" as contrary to the ESA, NEPA, and APA;

(7) awarding plaintiffs their attorneys’ fees and costs;

(8) granting plaintiffs such other relief as the Court may deem just and proper.

Respectfully submitted,

Eric R. Glitzenstein
(D.C. Bar No. 358287)

Katherine A. Meyer
(D.C. Bar No. 244301)

Daniel R. Vice
(D.C. Bar No. Pending)

Meyer & Glitzenstein
1601 Connecticut Ave., N.W.
Suite 700
Washington, D.C. 20009
(202) 588-5206

January 13, 2000 Attorneys for Plaintiffs