## Facts

- Environmental organizations sued federal officials under the Endangered Species Act (ESA) and the Administrative Procedure Act (APA) over FEMA’s administration of the National Flood Insurance Program (NFIP) in the Florida Keys.
- Plaintiffs brought claims on behalf of eight listed species in the Keys, alleging that NFIP flood insurance facilitated residential and commercial development in flood-prone areas that overlapped with sensitive habitat.
- In earlier litigation, the court required FEMA to consult with the U.S. Fish and Wildlife Service (FWS) under ESA § 7(a)(2).
- In 1997, FWS issued a Biological Opinion concluding FEMA’s NFIP administration in the Keys was jeopardizing listed species, identifying habitat loss from construction as the principal threat, and stating that further habitat loss would permanently reduce available land for the species.
- FWS proposed “reasonable and prudent alternatives” intended to avoid jeopardy while allowing FEMA to continue the NFIP; FEMA adopted those alternatives.
- In 2003, FEMA and FWS reinitiated consultation, reflecting continuing concerns about ESA compliance and impacts to listed species.
- Plaintiffs sought a permanent injunction barring FEMA from issuing flood insurance for new development in specified habitat areas in Monroe County, Florida.

## Issues

1. Whether FEMA’s NFIP implementation involved sufficient discretion to constitute “agency action” subject to ESA § 7(a)(2) duties and judicial restraint.
2. Whether plaintiffs satisfied the requirements for a permanent injunction, including irreparable harm and the balance of hardships and public interest under the ESA.

## Decision

- The court granted plaintiffs’ motion for a permanent injunction in significant part.
- The court held it had authority under the ESA and APA to restrain FEMA’s implementation of the NFIP where continued implementation facilitated jeopardy to listed species.
- The court rejected FEMA’s contention that the NFIP’s statutory structure eliminated agency discretion and therefore insulated FEMA from ESA-based injunctive relief.
- The court ordered restrictions on FEMA’s issuance of new NFIP flood-insurance coverage in designated habitat areas in Monroe County until ESA-compliant measures were completed to ensure NFIP implementation would not jeopardize the species.

## Legal Principles

- ESA § 7(a)(2) requires federal agencies to ensure that agency actions they authorize, fund, or carry out are not likely to jeopardize listed species or adversely modify critical habitat.
- A federal benefit program may qualify as “agency action” when the agency exercises discretionary control over how the program is implemented in ways that affect listed species.
- A Biological Opinion finding jeopardy, coupled with findings that additional habitat loss would be permanent, supports a showing of likely and irreparable harm for injunctive relief.
- In ESA cases, once jeopardy or unlawful harm to listed species is shown, the balance of hardships and public interest weigh heavily in favor of protecting the species rather than economic or private development interests.
- Courts may use equitable relief to prevent ESA violations by limiting an agency’s program implementation, including restricting issuance of benefits that stimulate development in sensitive habitat.

## Conclusion

The court permanently restricted FEMA’s issuance of NFIP flood insurance for new development in specified Florida Keys habitats, holding that FEMA retained enough implementation discretion to trigger ESA § 7 duties and that the record showed ongoing, irreparable habitat loss risk warranting injunctive relief despite competing development interests.


Florida Key Deer v. Brown, 386 F. Supp. 2d 1281 (S.D. Fla. 2005)