## Facts

- South Florida was historically covered by freshwater wetlands known as the Everglades.
- In 1948, Congress authorized the U.S. Army Corps of Engineers to build and operate a flood-control and water-management project in the Everglades region.
- Two listed species were affected by Everglades water levels: the Cape Sable seaside sparrow (which needs low water during nesting and has a short lifespan) and the Everglade snail kite (which depends on water conditions that support apple snails and has designated critical habitat in the Everglades, including areas on or near Miccosukee tribal lands).
- During the 1980s and 1990s, the Corps conducted multi-year “tests” that varied water releases through structures including the S-12 gates to evaluate restoration and management options.
- During Test Seven in 1995, large releases through the S-12 gates were associated with a sharp decline in the sparrow population.
- In 1998, the Corps changed water releases to reduce flooding in sparrow habitat. FWS issued a biological opinion stating that continued flooding through the S-12 gates risked extinction of the sparrow, while warning that holding back water north of the gates could harm the kite’s habitat.
- The Corps and FWS developed and implemented the Interim Operational Plan for the Protection of the Cape Sable Seaside Sparrow (IOP), which reduced flows through the S-12 gates to protect sparrow nesting conditions.
- Implementation of the IOP caused water to back up into areas used by the kite, including portions of kite critical habitat on Miccosukee lands.
- In 2006, FWS issued a new ESA § 7 biological opinion analyzing the IOP’s effects on the kite and its critical habitat and concluding that continuing the IOP would not jeopardize the kite or destroy/adversely modify its critical habitat; the opinion relied in part on the kite’s longevity, adult survival, and the size of its designated critical-habitat area.
- The Miccosukee Tribe sued under the ESA and APA, alleging the 2006 biological opinion’s conclusions were arbitrary and capricious. The district court granted summary judgment for the federal defendants, and the Tribe appealed.

## Issues

1. Whether FWS’s 2006 biological opinion concluding the IOP would not jeopardize the Everglade snail kite was arbitrary and capricious under the APA and inconsistent with ESA § 7.
2. Whether FWS’s 2006 biological opinion concluding the IOP would not destroy or adversely modify the kite’s designated critical habitat was arbitrary and capricious under the APA and inconsistent with ESA § 7.
3. Whether FWS failed to use the “best scientific and commercial data available” by relying on disputed assumptions and analyses about kite survival, habitat effects, and population response.

## Decision

- The Eleventh Circuit affirmed the district court’s grant of summary judgment to the federal defendants.
- The court held that FWS’s 2006 biological opinion was not arbitrary and capricious under the APA.
- The court upheld FWS’s no-jeopardy finding for the Everglade snail kite, concluding the agency considered the record and explained why the IOP’s localized habitat effects did not amount to jeopardy to the species as a whole.
- The court upheld FWS’s no-adverse-modification finding for designated critical habitat, accepting FWS’s evaluation of effects across the full critical-habitat area rather than treating harm in particular locations as automatically dispositive.
- The court rejected claims that FWS violated the ESA’s “best available data” requirement, explaining that the statute does not require the agency to eliminate scientific uncertainty or conduct new studies when it reasonably explains its conclusions from the available record.

## Legal Principles

- Under the APA, a court sets aside an agency action only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
- In ESA § 7 consultation disputes, courts generally defer to an agency’s scientific judgments if the agency considered the relevant factors and provided a reasoned explanation connecting the record to its conclusions.
- The ESA’s “best scientific and commercial data available” standard requires reasonable use of available information; it does not require new research or perfect certainty before the agency may act.
- A “jeopardy” analysis focuses on whether the action is likely to appreciably reduce the likelihood of the species’ survival and recovery in the wild, not whether the action causes harm in some locations.
- An “adverse modification” analysis may consider the value of designated critical habitat to the conservation of the species across the habitat designation as a whole, and may uphold agency conclusions that the action does not significantly diminish that value.

## Conclusion

The Eleventh Circuit affirmed summary judgment for the federal defendants, holding that FWS reasonably concluded in its 2006 ESA § 7 biological opinion that the Interim Operational Plan designed to protect the Cape Sable seaside sparrow would not jeopardize the Everglade snail kite or destroy/adversely modify the kite’s designated critical habitat, and that the opinion satisfied APA review and the ESA’s best-available-data requirement.


Miccosukee Tribe of Indians of Florida v. United States, 566 F.3d 1257 (2011)