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. e du/thir dc ir c uit_1997/225Filed September 22, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 96

- 7661

HAWKSBILL SEA TURTLE; GREEN SEA TURTLE

(CHELONIA MYDAS); VIRGIN ISLANDS TREE BOA

(EPICRATES MONENSIS GRANTI); JEFFREY WEISS;

DAVID A. BRENER; ALAIN M. BR IN; GARY E. BRIN;

ROBERT COCKAYNE; SALLY COCKAYNE; ROBIN

COCKAYNE; FRANK DALY; ANNETTE DALY; JOAN E.

DELUGO; DOROTHY DRUMMEY; EASTWIND

ASSOCIATION; JANET EGBERT; W. HOUSTON EVAN, II;

WALTER FEDDERSEN; DEBORAH FOSTER; RICHARD

FOSTER; JOHN FREEMAN; PAT RICIA FREEMAN; BONNIE

GRAY; SANFORD GRISHMAN; LISA GAYE HALL; IVERINE

HEDRINGTON; HARRY ILLINGWORTH; KIMBERLY JONES;

GREGORY JOSEPH; SUSAN KARDYS; NELSON KELLER;

ANDREA KING; CRAIG LUCAS; ANDREW MARON; CATHY

MARON; PAUL V. MAYNARD, M.D.; ROSALYN MOSS;

WILLIAM MOSS; JO NORTON; LARRY NORTON; DR.

MAXINE A. NUNEZ; EDMOND G. RAWSON, III; SUSAN

RAWSON; ROBERT M. PETERSEN; PAIGE SANTIAGO

PASSANO; MAXINE LAVITT; JOSEPH SELFRIDGE; ERIC

SOLDIEW; ELLEN STEWART; CLARE TYSON; JOHN T.

WAGNER; DELORES WAGNER; R USSELL WHITE

v.

FEDERAL EMERGENCY MANAGEMENT AGENCY,

An Agency of the United States of America;

WITT, JAMES LEE; DEPARTMENT OF INTERIOR,

An Agency of the United States of America;

BABBIT, BRUCE, Secretary of the Interior

THE HAWKSBILL SEA TURTLE (ERETMOCHELYS

IMBRICATA); THE GREEN SEA TURTLE (CHELONIA

MYDAS); THE VIRGIN ISLANDS TREE BOA (EPICRATES

MONENSIS GRANTI); A. JEFFREY WEISS; DAVID A.

BRENER; ALAIN M. BRIN; GARY E. BRIN; ROBERT

COCKAYNE; SALLY COCKAYNE; ROBIN COCKAYNE;

FRAN K DALY; ANNETTE DALY; JOAN E. DELUGO;

DOROTHY DRUMMEY; EASTWIND ASSOCIATION; JANET

EGBERT; W. HOUSTON EVANS, II; JANE FEDDERSEN;

WALTER FEDDERSEN; DEBORAH FOSTER; RICHARD

FOSTER; JOHN FREEMAN; PATRICIA FREEMAN; BONNIE

GRAY; SANFORD GRISHMAN; LISA GAYE HALL; IVERINE

HEDRINGTON; HARRY ILLINGWORTH; KIMBERLY JONES;GREGORY JOSEPH; SUSAN KARDYS; NELSON KEELER;

ANDREA KING; CRAIG LUCAS; ANDREW MARON; CATHY

MARON; PAUL V. MAYNARD, M.D.; ROSALYN MOSS;

WILLIAM MOSS; JO NORTON; LARRY NORTON; DR.

MAXINE A. NUNEZ; EDMOND G. RAWSON, III; SUSAN

RAWSON; SHARON J. PETERSEN; ROBERT M.

PETERSEN; PAIGE SANTIAGO

- PASSANO; MAXINE

LAVITT

- SAWYER; JOSEPH SELFRIDGE; ERIC SOLDIEW;

ELLEN STEWART; CLARE TYSON; JOHN T. WAGNER;

DELORES WAGNER; RUSSELL WHITE,

Appell ants

On Appeal From the District Court

of the Virgin Islands (Division of

St. Thomas and St. John)

(D.C. Civ. No. 96

- cv

- 00114)

Argued April 8, 1997

Before: BECKER, ROTH, and WEIS, Circuit Judges.

(Filed September 22, 1997)

2

A. JEFFREY WEISS, ESQUIRE

(ARGUED)

A.J. Weiss & Associates

4002 Raphune Hill Road, Suite 3

Charlotte Amalie, St. Thomas

U.S. Virgin Islands 00802

JAMES DOUGHERTY, ESQUIRE

709 3rd Street, S.W.

Washington, D.C. 20024

Attorneys for Appellants

LOIS J. SCHIFFER, ESQUIRE

Assistant Attorney General

JAMES A. HURD, JR., ESQUIRE

United States Attorney

STANLEY L. de JO NAGH, ESQUIRE

Assistant United States Attorney

St. Thomas V.I. 00802

J. CAROL WILLIAMS, ESQUIRE

MARK A. BROWN, ESQUIRE

M. ALICE THURSTON, ESQUIRE

PETER A. APPEL, ESQUIRE

(ARGUED)

MARTIN W. MATZEN, ESQUIREAttorneys, Department of Justice

P.O. Box 23795

L'Enfant Plaza Station

Washington, D.C. 20026

LOIS E. PILGRIM, ESQUIRE

(ARGUED)

Housing Authority of the Virgin

Islands

402 Annas Retreat, P.O. Box 7668

Charlotte Amalie, St. Thomas

U.S. Virgin Islands 00801

3

JORDAN S. FRIED, ESQUIRE

DAVID A. TRISSELL, ESQUIRE

Office of General Counsel

FEMA

Washington, D.C. 20472

SEAN SKAGGS, ESQUIRE

Department of the Interior

Office of the Regional Solicitor

Southeast Region

Atlanta, GA 30303

Attorneys for Appellees

OPINION OF THE COURT

BECKER, Circuit Judge.

This appeal from an order of the district court denying

injunctive relief under the Endangered Species Act ("ESA"),

16 U.S.C. S 1536 et seq., presents a number of interesting

questions under the ESA and under the law of col lateral

estoppel. The plaintiffs, who include (by their popular

names) the Hawksbill Sea Turtle, the Green Sea Turtle, and

the Virgin Islands Tree Boa, which are endangered or

threatened species, and also a number of individuals who

own real property and reside in the vicinity of Vessup Bay

in the east end of St. Thomas (the habitat of these species),

filed suit to enjoin the construction of a temporary housing

project in nearby Estate Nazareth. The project was a

hurried response to the devastation wrought by Hurricane

Marilyn, which struck St. Thomas in December 1995 and

displaced many people from their homes. The gravamen of

the complaint is that the project would cause harm to the

turtles and the Tree Boa species in violation of the ESA.

T his is the plaintiffs' second lawsuit. In theirfirst action,see Virgin Islands Tree Boa v. Witt, 918 F. Supp. 879 (D.V.I.

1996), plaintiffs alleged that the Federal Emergency

Management Agency ("FEMA"), the United States Fish and

Wildlife Service ("FW S"), and instrumentalities of the Virgin

Islands Territorial Government had violated the ESA as well

4

as the National Environmental Policy Act ("NEPA") because

they had failed to follow specific procedures which are

designed to ensure that the relevant governmental actors

had adequately considered the risks that the housing

project threatened to inflict on the Tree Boa and the marine

environment of Vessup Bay during the planning and

construction phase.

Th e case was assigned to Judge Finch, who held an

evidentiary hearing held in late January 1996. In a written

opinion, Judge Finch found that there was no clear

evidence that Tree Boas actually inhabited the project site

or that the project site was the source of sedimentation

run

- off into Vessup Bay. Also satisfying himself as to the

adequacy of FEMA's proposed mitigation measures, he

concluded that defendants had satisfied their duties under

the ESA and NEPA, and denied plaintiffs' request for

prel iminary injunctive relief. With respect to plaintiff's ESA

claims, Judge Finch did not address the substantive

requirements of S 9 of the Act, holding only that with

respect to the procedural requirements of S 7, the

defendants had engaged in the requi site consultation

process so as to "fulfill their duty to safeguard the future of

the Tree Boa." Judge Finch alternatively found that he felt

compelled to dismiss the ESA claims for failure to satisfy

the statute's notice requirements, and we affirmed. See

Virgin Islands Tree Boa v. Witt, 82 F.3d 408 (3d Cir. 1996)

(table).

Plaintiffs then discontinued that action and instituted the

present action, which is against the federal defendants

only, still seeking to enjoin the construction and occupati on

of the housing project. See Hawksbill Sea Turtle v. FEMA,

939 F. Supp. 1195 (D.V.I. 1996). In the new action,

plaintiffs sought injunctive relief only under the ESA,

alleging that, in providing the temporary housing shelters,

defendants had violate d the procedural requirements of S 7

and the substantive requirements of S 9, thereby causing

irreparable harm not only to the endangered Tree Boa but

also to the endangered Hawksbill Sea Turtle and the

threatened Green Sea Turtle. Judge Brotman, to wh om the

matter was reassigned following Judge Finch's recusal, held

a hearing in early August 1996 and received substantial5

evidence in addition to that taken by Judge Finch,

including new and qualitatively dif ferent evidence that was

favorable to plaintiffs.

At the threshold, Judge Brotman decided that, with

regard to the turtles, plaintiffs had not satisfied the

requirements of the ESA that notice be given to the

appropriate cabinet officer, which is a prerequisite to their

right to sue. Additionally, Judge Brotman gave preclusive

effect to the factual findings made by Judge Finch in the

previous action, relying extensively on Judge Finch's

finding that FEMA's mitigation measures were adequate to

pr otect the Tree Boa and the marine environment of Vessup

Bay. Then, basing his decision almost entirely on Judge

Finch's findings and not on the significant new evidence

that he had received, Judge Brotman concluded that

plaintiffs had not shown a likel ihood of success on the

merits of their ESA claims or irreparable harm to the

species they sought to protect because "[w]ith the

mitigation measures in place, the temporary housing

project at Estate Nazareth will not affect adversely the Tree

Boa, the Hawksbill Turtle, the Green Sea Turtle, or these

animals' habitats." Id. at 1210. He denied preliminary

injunctive relief, and plaintiffs now appeal.

As an initial matter, this appeal requires us to determine

whether satisfaction of S 11 of the ESA, 16 U.S.C. S 1540(g),

is a prerequisite to plaintiffs' suit with respect to the turtles

because the plaintiffs failed to notify the Secretary of

Commerce of their intent to sue sixty days before filing this

action. Under the ESA and the regulations pro mulgated

thereunder, the Secretary of Commerce must be notified of

claims concerning endangered sea turtles in a marine

habitat. The plaintiffs had given notice of their suit only to

the Secretary of the Interior, whom the ESA and its

regulations requ ires to be notified of claims concerning

harm to sea turtles in a terrestrial habitat. Plaintiffs submit

that the duplicitous notice requirements are not only

fatuous, particularly with respect to the Hawksbill Sea

Turtle which occupies both habitats a nd surely does not

know when it crosses from the jurisdiction of the Secretary

of Commerce to that of the Secretary of the Interior, but

also extraordinarily difficult to decipher given the

complexity of the regulatory scheme.

6

We acknowledge the difficulty that the public must havein understanding the highly technical nature of the

statutory scheme, quite forcefully elucidated in Judge

Roth's dissent. However, S 11 and its accompanying

regulations still m ust be given effect, and as we read them,

they mandate that, with respect to the turtles, notice to the

Secretary of Commerce was required before filing suit.

Plaintiffs, who were represented by counsel at all times,

failed to comply with this requirem ent. On this basis, the

district court noted that, even if plaintiffs could establish

sufficient evidence to merit the issuance of injunctive relief

as to the Hawksbill and Green Sea Turtles, "this court

would dismiss these claims for failure to comply with the

ESA's notice requirement." 939 F. Supp. at 1203. Although

the district court did not formally dismiss plaintiffs' claims

with respect to the sea turtles, it should have done so.

We next consider plaintiffs' challenges to the district

court 's denial of injunctive relief. The foremost

consideration here is whether Judge Brotman erred in

giving preclusive effect to Judge Finch's factual findings in

determining whether to grant injunctive relief to the

plaintiffs. Plaintiffs assert that, be cause a preliminary

injunction proceeding is not "final," findings made in the

course of such a proceeding are not entitled to preclusive

effect. They also contend that, with respect to their ESA

claims, because Judge Finch provided alternative holding s

in support of his decision, any findings relating to those

claims are dicta and cannot support collateral estoppel.

Additionaly, they claim that, since the issues actually

litigated in the first proceeding pertained to NEPA

violations, not ESA viola tions, there were not identical

issues present here and hence there is no basis for

preclusion. Finally, plaintiffs submit that, irrespective of the

operative statutory authority, Judge Brotman was

presented with new and qualitatively different evidenc e

from that which was before Judge Finch, so that Judge

Finch's findings of fact were limited to the time of the first

hearing and could not appropriately be given preclusive

effect.

We do not agree that factual findings established in

cognate prio r litigation can never be given preclusive effect.

7

However, because Judge Finch's findings made with respect

to plaintiffs' ESA claims were clear dicta, they can not

support the application of collateral estopp el. To be sure,

some factual findings, made with respect to the NEPA

claims, might have merited the application of collateral

estoppel had they been addressed to a contemporaneous

ESA claim. However, plaintiffs' second suit presented a newand signifi cantly different factual setting, such that Judge

Finch can not be said to have decided the same issues as

were presented by plaintiffs' second action. More

specifically, in the six months that lapsed between the two

proceedings, plaintiffs discovered quantitatively different

evidence of live, injured, and dead Tree Boas near the

project site, in contrast to Judge Finch's findings that no

Tree Boas existed on the project site. This finding had

driven his conclusion that the mitigation measures were

adequate to "safeguard the future of the Tree Boa."

Under these circumstances, it was incumbent upon

Judge Brotman to ground his findings on the new evidence.

We also note that, in making his findings, Judge Finch had

credited the defendants' repres entation that the housing

project was temporary in nature, and he reviewed

mitigation measures that were designed for a project of six

months duration. However, by the time of the evidentiary

hearing before Judge Brotman, the project had been under

co nstruction for eight months, and defendants had

represented to the court that the project was now expected

to last up to eighteen months past the completion of

construction. In sum, Judge Brotman erred when he

decided that Judge Finch's findings barred relitigation of

the factual issues presented by plaintiffs' claims.

This result is buttressed by the impact of the current

serious adverse financial condition of the Virgin Islands

Housing Authority ("VIHA"). It is now clear that the project

is in limbo, as there are insufficient funds to continue

construction or to take it down.1 These pragmatic factors

_________________________________________________________________

1. See The Virgin Islands Daily News, July 1, 1997 (reporting the

statement of VIHA Director Conrad Francois at a Senate Hearing that the

agency is nearly bankrupt; that it owes $1.4 million for the estate

Nazareth Temporary Emergency Housing Project (due to FEMA's refusal

to release funds pending audit); that the Authority ha s delayed work on

42 units at Estate Nazareth; and that another 60 units are not anywhere

near completion (despite a waiting list for the units)).

8

combined with the significance of the new evidence before

Judg e Brotman further counsel the need for a new and

unconstricted look at plaintiffs' claims.

For the foregoing reasons, we will reverse the order of the

district court and remand to the district court for

reconsideration of plaintiffs' motion for a pre liminary

injunction with respect to the Tree Boa in light of all

relevant evidence available to it. As this matter must comebefore the district court for final hearing, we suggest to the

district court that it consolidate the preliminary injunction

h earing and final hearing pursuant to Fed. R. Civ. P. 65,

and in view of the distressed situation of the project, that

it list the matter for an early hearing.2

_________________________________________________________________

2. The defendants addit ionally contend that the Hawksbill Sea Turtle, the

Green Sea Turtle, and the Tree Boa, all of which are named plaintiffs in

the present action, lack standing to sue under the ESA. There are two

groups of plaintiffs in the present action: the protected a nimals and the

humans who own real property and reside in the vicinity of the Estate

Nazareth housing project. It is not disputed that the human plaintiffs

have standing to sue under the ESA, and therefore we need not consider

the standing to sue of th e animals named as plaintiffs. See Watt v.

Energy Action Educational Foundation, 454 U.S. 151 (1981); Arlington

Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264, & n.9

(1977). (We note in passing, however, that the standing to sue of the

a nimals protected under the ESA is far from clear.

In several cases, standing has been extended without significant

analysis to members of protected species that have allegedly been

injured. See Palila v. Hawaii Dep't of Land and Natural Resources, 852

F.2d 1106, 1107 (9th Cir. 1988) (the Loxioides bailleui "has legal status

and wings its way into federal court as a plaintiff in its own right");

see

also Marbled Murrelet v. Babbit, 83 F.3d 1068 (9th Cir. 1996); Mt.

Graham Red Squirrel v. Yeutter, 93 0 F.2d 703 (9th Cir. 1991); Northern

Spotted Owl v. Hodel, 716 F. Supp. 479 (W.D. Wash. 1988); Northern

Spotted Owl v. Lujan, 758 F. Supp. 621 (W.D. Wash. 1991); Cabinet

Mountains Wilderness/Scotchman's Peak Grizzly Bears v. Peterson, 685

F.2d 678 (D.C . Cir. 1982). Additionally, in Marbled Murrelet v. Pacific

Lumber Co., 880 F. Supp. 1343 (N.D. Cal. 1995), the district court

determined, without resort to the authorizing provision of the ESA, that

because of its protected status under the ESA, the Mar bled Murrelet

"ha[d] standing to sue in its own right." Id. at 1346 (citations omitted);

see also Loggerhead Turtle v. County Council of Volusia County, Florida,

896 F. Supp. 1170, 1177 (M.D. Fla. 1995) (same).

9

I. Facts & Procedural History

The underlying facts are set forth in detail in Virgin

Islands Tree Boa, 918 F. Supp. at 884

- 91, and Hawksbill

Sea Turtle, 939 F. Supp. at 1197

- 99. For present purposes,

we make only the following general account.

A . The Estate Nazareth Project

In September 1995, Hurricane Marilyn struck the Virgin

Islands, displacing hundreds of people from their homesand causing extensive property damage. Indeed, five

months after the hurricane, many low

- income residents of

St. Thomas were still living in emergency shelters or in

condemned homes. President Clinton declared the Virgin

Islands a disaster area, and FEMA made funds available to

the Virgin Islands Housing Authority for a housing project,

which would consist o f prefabricated structures sufficient to

house 550 people. VIHA reviewed several sites and selected

an area of 8.5 acres at Estate Nazareth, which is adjacent

to Vessup Bay. As originally planned, the project would be

__________________________________ _______________________________

On the other hand, in two reported cases in which the naming of an

animal as a party was explicitly challenged, the courts, in thoughtful

opinions, concluded that a protected animal did not have standing to

bring suit. See Citizens to End Animal Suffering & Exploitation, Inc. v.

New England Aquarium, 836 F. Supp. 45, 49

- 50 (D. Ma. 1993) (granting

defendants' motion to remove dolphins name from caption of case

because they lacked standing to sue under the Marine Mamma l

Protection Act); Hawaiian Crow v. Lujan, 906 F. Supp. 549, 551

- 52 (D.

Haw. 1991) (holding that Hawaiian Crow was not a "person" with

standing to sue under S 11 of ESA). In reaching this conclusion, these

courts analyzed the language of section 11 of the ESA. The provision

expressly authorizes citizen suits brought by "any person," 16 U.S.C.

S 1540(g)(1), and the Act defines the term "person" to mean "an

individual, corporation, partnership, trust, association, or any other

private entity." 16 U.S. C. S 1532(13). Accordingly, the courts reasoned

that Congress's use of the term "person" as defined in S 1523(13) does

not include the non

- "private," un

- "associated" animal. Moreover, Judge

Wolf observed that if Congress "intended to take the extraordin ary step

of authorizing animals ... to sue, they could, and should, have said so

plainly." Citizens to End Animal Suffering and Exploitation, 836 F. Supp.

at 49.

10

temporary, as the displaced persons would live on the

project site only until VIHA repaired their permanent

housing. VIHA expected the number of persons residing at

Estate Nazareth to decrease rapidly in the first six months.

In preparation for the Estate Nazareth project, FEMA

prepared a Final Environmental Assessment Report (the

"EA"), in which it analyzed any effects the project might

have on the environment, discovering in the process that

the project site may be a prime habitat of the endangered

Virgin Islands Tree Boa (Epicrates monens is granti). FEMA,

in consultation with FWS and the local Division of Fish And

Wildlife ("DFW"), developed certain mitigation measures

intended to avoid significant harm to the Tree Boa species.

The measures included hand clearing of brush prior to the

operation of any machinery on site, and collection andtransfer of any snakes found. The procedure of looking for

Tree Boas, which are nocturnal animals, would involve

examining the rocks and brush where the snakes take

refuge during the day. The EA a lso proposed the restoration

of habitat following dismantling of the project.

FEMA also recognized that Vessup Bay was a "sensitive

habitat," which would receive the run

- off from the housing

project. Although the EA failed to mention the Hawksbill

a nd Green Sea Turtles specifically, both are endangered or

threatened species that have habitats in the Bay. The EA

described measures designed to mitigate the effects of

sedimentation and sewage run

- off, including sewage

control, land clearing guidelin es, and prevention of soil

erosion. The EA was issued on November 16, 1995. On the

same day, FEMA issued a Finding of No Significant Impact,

in which it expressed its conclusion that the mitigation

measures provided for in the EA would compensate for a ny

significant environmental impacts that might occur.

On December 4, 1995, construction of the Estate

Nazareth housing project began. The site was cleared in the

manner designated by the Tree Boa mitigation measures

provided for in the EA. No Tree Boas were found. Mitigation

measures intended to retard soil erosion were also

instituted. Following rain showers in mid

- January 1996,

sediment began to appear in Vessup Bay. In the course of

construction, VIHA performed mitigation measures in

11

addition to those recommended by the EA, including laying

down gravel and installing silt fences, in order to prevent

further runoff into the Bay.

To date, construction of thirty

- eight buildings has been

completed , thirty

- one of which are occupied. Forty two

units are nearly ready for occupancy but another sixty are

far from completion. Although originally intended to last six

months, as FEMA has now described the project, it will last

no more than eighteen mon ths from the date of completion

or occupation.

B. The First Action

In the first action, eighty

- six St. Thomas residents and

property owners, together with the Virgin Islands Tree Boa

as a named plaintiff, brought suit against FEMA, the FWS,

the G overnor of the Virgin Islands, the Commissioner of the

Virgin Islands Department of Planning and Natural

Resources, the Executive Director of VIHA, and VIHA,

seeking to enjoin the construction and occupation of thehousing project on the grounds that t he defendants had

violated various federal and territorial laws. Only the claims

based on the ESA and NEPA are relevant here; Judge Finch

rejected the others as infirm as a matter of law, and those

rulings are not appealed. Plaintiffs asserted that FEM A and

FWS had failed to fulfill their duties under the ESA. Virgin

Islands Tree Boa, 918 F. Supp. at 892. More specifically,

plaintiffs claimed that in the course of defendants'

construction of the housing project, defendants had failed

to conserve th e protected species, as required byS (7)(a)(1),3

or to ensure through consultation with various agencies

and the preparation of a "biological assessment" that the

project would not jeopardize the continued existence of the

_____________________________ ____________________________________

3. Section 7(a)(1) of the ESA provides:

Federal agencies shall, in consultation with and with the

assistance

of the Secretary, utilize their authorities in furtherance of the

purpose of this chapter by carrying out programs for the

conservation of endangered species and threatened species listed

pursuant to section 1533 of this title.

16 U.S.C. S 1556(a)(1) (1985).

12

Tree Boa and s ea turtles, as required by S 7(a)(2) and S 7(c)(1).4

Additionally, plaintiffs alleged that construction and

occupation of the temporary housing project effectuates a

"taking" of the Tree Boa and sea turtles in violation of S 9(a)

of the ESA.5 Finally, plaintiffs complained that FEMA had

prepared an Environmental Assessment ("EA") instead of a

more detailed Environmental Impact Statement ("EIS") in

violation of NEPA.

Judge Moore granted a temporary restraining order to the

plaintiffs and then recu sed himself. Judge Finch was then

assigned the case, and from January 29 through 31, 1995,

he held an evidentiary hearing on plaintiffs' motion for a

preliminary injunction. Plaintiffs' expert on the Tree Boa

and their habitat, Dr. Peter Tolson, testif ied that the Estate

_________________________________________________________________

4. Section 7(a)(2) of the ESA provides:

Each federal agency shall, in consultation with and with the

assistance of the Secretary, insure that any ac tion authorized,

funded, or carried out by such agency ... is not likely to

jeopardize

the continued existence of any endangered species or threatenedspecies or result in the destruction or adverse modification of

habitat o f such species which is determined by the Secretary ... to

be critical, unless such agency has been granted an exemption for

such action.

16 U.S.C. S 1536(a)(2).

Section 7(c)(1) of the ESA provides:

To facilitate compliance with the requirements of[section

1536(a)(2)]

each Federal agency shall ... request of the Secretary information

whether any species which is listed or proposed to be listed may be

present in the area of ... proposed action. If the S ecretary

advises,

... such agency shall conduct a biological assessment for the

purpose of identifying any endangered species or threatened species

which is likely to be affected by such action ... .

16 U.S.C. S 1536(c)(1).

5. Section 9(a)(1)(B) provides in pertinent part:

[I]t is unlawful for any person subject to the jurisdiction of the

United States to take any [endangered or threatened species of fish

or wildlife listed pursuant to S 1533 of this t itle] within the

United

States or the territorial sea of the United States.

16 U.S.C. S 1538(a)(1)(B).

13

Nazareth housing project is a prime habitat for the Tree

Boa, and that construction of the proje ct has jeopardized

and will continue to jeopardize the existence of the Tree

Boa by reducing its habitat and increasing the chances that

Tree Boas will be killed by humans and feral animals. He

testified that, at the time of the hearing, the latest sig hting

of a Tree Boa of which he was aware was in the Fall of

1995, before Hurricane Marilyn. Plaintiffs also presented

evidence that the increased sedimentation in Vessup Bay

would damage the sea grass beds on which the turtles

depended for food.

D efendants adduced testimony that efforts to locate Tree

Boa conducted during the day on the Estate Nazareth

project site had failed to demonstrate the Tree Boa's

existence there. Additionally, defendants presented evidence

of FEMA's mitigation efforts, as proposed and implemented

as of that stage in the project. With regard to the

sedimentation build

- up in Vessup Bay, defendantsdeveloped evidence that the run

- off came from an

alternative source, id. at 899, and that mitigation efforts

would reduce the possibility that run

- off would carry soil

into Vessup Bay.

Based on this evidence, Judge Finch entered an order

denying the motion for a preliminary injunction. With

respect to the Tree Boa, Judge Finch noted that the court

could not find that the snakes did in fact live at the project

site. Id. at 892. Additionally, he found that, "[w]hile some

question remains about the adequacy of the mitigation

measures as they existed in early January of this year," the

project provided for adequate mit igation of potential adverse

effects on the Tree Boa and its habitat, and that "people

already living nearby, cars traveling through the area, and

animals pose enough threat that the temporary addition of

at most 550 people ... poses no significant inc rease in the

dangers already facing the Tree Boa." Id. at 891. Based on

these factual findings, the judge concluded that FEMA had

complied with NEPA's procedural requirements when it

conducted the EA. Id. at 898.

Addressing plaintiffs' ESA claims, J udge Finch held that

FEMA had conducted the "Section 7 consultation" with

FWS necessary to ensure that it did not take an action that

14

jeopardized the "continued existence of the Tree Boa." Id. at

901

- 02. With out specifically addressing plaintiffs' S 9 claim,

Judge Finch noted that, even if the plaintiffs could succeed

on the merits, he would have to dismiss their ESA claims

for failure to provide notice to the Secretary of Commerce

and the defendants, as t he statute and its implementing

regulations require.

With respect to plaintiffs' ESA claims regarding the

Hawksbill and Green Sea Turtles, Judge Finch noted that,

because plaintiffs had failed to allege that any harm had

occurred or would occur to e ither species of turtle or to the

grasses upon which the turtles feed, the claims were not

properly before the court. Id. at 892, n.23, & 899

- 900.

Judge Finch determined as a matter of fact that, even if

they had brought viable claims with respect to t he turtles,

plaintiffs had failed to "prove sufficiently that the Estate

Nazareth Project was the source of any run

- off into Vessup

Bay." Id. at 900. The plaintiffs appealed to this Court and

we affirmed. Virgin Islands Tree Boa v. Witt, 82 F.3d 408

( 3d Cir. 1996) (table).

C. The Second ActionBefore the case in front of Judge Finch could proceed to

a final hearing, the plaintiffs voluntarily dismissed that

action under Fed. R. Civ. P. 41(a). Forty

- seven of the

original property owners then jo ined with five additional

property owners and two new animal species

-- the

Hawksbill Sea Turtle and the Green Sea Turtle

-- as named

plaintiffs, and moved for a temporary restraining order in

the District Court for the District of Columbia. Pursuing

claims under the ESA only, plaintiffs alleged that, in the

course of construction of the housing project, defendants

had violated S (7)(a)(1) and (2), S 7(c)(1), and S 9. The district

court denied plaintiffs' request for temporary injunctive

relief and transferred the case to the District Court of the

Virgin Islands.

Judge Brotman, to whom the case was reassigned after

Judge Finch recused himself, held an evidentiary hearing

on August 7 and 8, 1996 on plaintiffs' application for a

preliminary inj unction. Plaintiffs presented an affidavit from

15

Dr. Tolson in which he reiterated his belief that the project

site was a prime habitat for Tree Boas and that

development of the site has had and will continue t o have

detrimental effects on the Tree Boa population and its

habitat. More specifically, he testified that the Tree Boa

population would be threatened by an influx of feral

predators and human predators, that habitat near the

project site cannot supp ort Tree Boas fleeing the cleared

project site, and that as more Tree Boas die, there will be

a concomitant reduction in the genetic viability of the

species, and thus a further risk to its survival.

Dr. Tolson also stated that in the brief period si nce

February 1996 there had been six documented sightings of

Tree Boas within one half mile of the project site, in

contrast to the thirty

- eight sightings reported since the

early 1970's. This translates to .85 Tree Boa sightings per

month since const ruction on the Estate Nazareth, as

compared to an average of .13 per month in the period

before construction. Plaintiffs also presented the affidavit of

a lay witness, who testified to observing a live Tree Boa

within one half mile of the Estate Nazare th project on two

occasions in late spring 1996 (after Judge Finch's

evidentiary hearing), and a dead Tree Boa in June.

Judge Brotman denied the requested preliminary

injunction. He first determined that Judge Finch'sfindings

of fact relevant to the action before him, which essentially

were that "[w]ith the mitigation measures in place," the

housing project "does not and will not adversely affect" theTree Boa, the Hawksbill Sea Turtle, the Green Sea Turtle,

or these animals' habitat," would "be conclusive of the

factual issues underlying plaintiffs' present request for

injunctive relief." 939 F. Supp. at 1207

- 08. Judge Brotman

concluded, based for the most part on Judge Finch's

findings and not on the evidence before him, that plaintiffs

had failed to demonstrate that they were likely to succeed

on the merits of their S 9 claims or that the protected

species were likely to suffer irreparable harm absent

injunctive relief. Id. at 1210

- 11 & n.27. With respect to the

turtles, Judge Brotman n oted that, even if plaintiffs had

demonstrated that injunctive relief was merited, the court

would have to dismiss the action for failure to comply with

16

the notice requirements of the ESA. Id. at 1203. Finally

, Judge Brotman concluded that defendants had carried out

programs for the conservation of the Tree Boa, the

Hawksbill Sea Turtle, and the Green Sea Turtle, and had

insured that the housing project was not likely to adversely

modify these species' hab itats, as required for success

under S 7(a)(1) and (2). Id. at 1210.

II. Notice to the Secretary of Commerce

As a threshold matter, this appeal requires us to

determine whether, because plaintiffs failed to notify the

Secretary of Commerce in addi tion to the Secretary of the

Interior of their intent to sue sixty days beforefiling this

action, they failed to provide proper notice as required by

16 U.S.C. S 1540(g)(2)(A), and thereby required the district

court to dismiss their claims with respec t to the turtles.

Plaintiffs contend that they satisfied the notice

requirements by providing the Secretary of the Interior and

the FWS with the requisite sixty days written notice (each

of which had ample opportunity to redress the alleged

violations of the ESA). We disagree.

Section 11(g) of the ESA authorizes persons to commence

civil suits in order to compel compliance with the Act, but

"prohibits" any citizen suit "prior to sixty days after written

notice of the violation has been given to t he Secretary, and

to any alleged violator." ESA S 11(g)(2)(A)(i), 16 U.S.C.

S 1540(g)(2)(A)(i). The ESA defines "Secretary" to mean "the

Secretary of the Interior or the Secretary of Commerce as

program responsibilities are vested pursuant to the

prov isions of the Reorganization Plan Numbered 4 of 1970."

ESA S 3(15), 16 U.S.C. S 1532(15). The Reorganization Plan,

in turn, assigns to the Secretary of Commerce certain

enumerated functions formerly under the supervision of the

Secretary of the Interio r. See Reorg. Plan 4 (1970), 5 U.S.C.App. 1 (1996).6

_________________________________________________________________

6. These functions include:

(a) All functions vested by law in the Bureau of Commercial

Fisheries of the Departme nt of the Interior or its head, together

with

all functions vested by law in the Secretary of the Interior or the

Department of the Interior which are invested through the Bureau

or are primarily related to the Bureau, ...

Reorg. Plan No. 4 (1970), 5 U.S.C. App. 1.

17

The Department of Commerce and the Department of the

Interior share jurisdiction over the implementation of the

ESA. See 50 C.F.R. S 402.02(b) (1995) (addressing

interagen cy cooperation in implementing the ESA).

Moreover, under 50 C.F.R. S 221, which implements, in

part, the ESA, see 50 C.F.R. S 221.1 (1995); see also 50

C.F.R. 217.1

- 2 (1995) (noting scope of regulations as

implementing statutes enforced by the Departme nt of

Commerce), the two departments actually share jurisdiction

over the turtles.

50 C.F.R. S 222 explicitly provides that the species of fish

and wildlife at issue here are under the jurisdiction of the

Secretary of Commerce. 50 C.F.R. S 222.23 (l isting Atlantic

Hawksbill Sea Turtles and Green Sea Turtles). Similarly,

the Commerce Department's National Marine Fisheries

Service "has sole jurisdiction for sea turtles while the

turtles are in the water." 50 C.F.R. S 222.23(a); see also 50

C.F.R. 1 227.4 (1995) (stating that the Secretary of

Commerce maintains jurisdiction over the Green Sea

Turtle). Once the turtles are on land, however, S 222.23(a)

states that the Department of the Interior's U.S. Fish and

Wildlife Service has jurisdiction. T hus, when the turtles are

swimming in the bay, Commerce bears regulatory

responsibility, and when the turtles return to the beach,

the regulatory baton passes to Interior. The parties agree

that the boundary between land and sea is the mean high

water mark. Only the protected species of fish and wildlife

not listed in S 222.23, including the Tree Boa, are under

the sole jurisdiction of the Secretary of Interior. 50 C.F.R.

S 217.2.

In the present action, plaintiffs allege that the housing

project will harm the marine and land habitat of the turtles,

thereby forcing the turtles to abandon "their traditional

shelter and nesting sites in and around Vessup Bay." Thealleged harm to the turtles cannot be viewed as occurring

solely or primarily on l and. Plaintiffs allege that the

construction of the housing project has and will continue to

result in increased sedimentation run

- off into Vessup Bay.

This sedimentation apparently blocks the sunlight

necessary for the growth of the sea grass on which the

turtles feed and promotes the growth of algae, which

18

smothers the sea grass beds. This "degrades and ultimately

kills those grasses... and will cause the[ ] turtles to either

abandon this habitat or star ve." Plaintiff's Appellate Brief

at 20.

The regulations implementing the ESA instruct that the

Secretary of Commerce, in addition to the Secretary of the

Interior, has jurisdiction over the turtles named in

plaintiffs' present action. Providing noti ce to the responsible

Secretary(ies), which the relevant regulations indicate to be

both the Secretary of Commerce and the Interior, is a

prerequisite to suit. See Hallstrom v. Tillamook County, 493

U.S. 20, 31 (1989) (holding that compliance with anal ogous

notice provision of the Resource Conservation and Recovery

Act ("RCRA"), was a "mandatory condition precedent" to

suit); Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1072 (9th

Cir. 1996) (notice requirement of the ESA is

"jurisdictional"); Protect Our Eagles Trees (POETs) v. City of

Lawrence, Kansas, 715 F. Supp. 996 (D. Kan. 1989)

(dismissing ESA and Clean Water Act ("CWA") claims for

failure to comply with jurisdictional sixty

- day notice

requirements); see also Public Interest Group of N.J. I nc. v.

Windall, 51 F.3d 1179, 1189 n.15 (3d Cir. 1995) (noting

that an analogous provision in the CWA was a

jurisdictional prerequisite to suit).

Accordingly, and unfortunately for the plaintiffs, their

failure to notify the Secretary of Commerce of their

intention to sue sixty days prior to suit failed to satisfy the

Act with respect to the claims regarding the turtles. Thus,

although the district court did not formally dismiss the

plaintiffs' claims with respect to the turtles, it should have

done so. See Owen Equip. & Erection Co. v. Kroger, 437

U.S. 365 (1978) (noting that the limits upon federal

jurisdiction must be neither disregarded nor evaded); see

also Charles Alan Wright, Arthur R. Miller, & Edward H.

Cooper, Federal Practice & Pro cedure: Jurisdiction 2d S 3522

at 62 (1987) ("[I]t would not simply be wrong but indeed

would be ... unconstitutional" if the federal courts "were to

entertain cases not within their jurisdiction.").

Plaintiffs argue incorrectly that, because the Dep artmentof the Interior and not the Commerce Department had been

active in the consultation process with FEMA, and because

19

they had notified the Secretary of the Interior of their intent

to file suit, they sa tisfied the Act's notice requirements for

all practical purposes and should be allowed to proceed

with a viable claim in the district court. The Supreme

Court, faced with an analogous notice provision under the

RCRA, made clear that, where plaintiffs' fail to fully comply

with the notice requirement, the court must dismiss the

underlying suit. Hallstrom, 492 U.S. at 23.

In Hallstrom, petitioners had given notice of their

intention to file suit to the alleged violator but had not

notified the EPA. The Supreme Court held that, even

though the EPA had expressed no interest in taking action

against the alleged violator, so that notice to the agency

could be of no practical effect, the unambiguous language

of the notice provision prohibited the dis trict court from

giving that language "a flexible or pragmatic construction."

Id. at 24

- 27. The Court held that the notice requirements

can not "be disregarded by the district court at its

discretion" and, instead, complete satisfaction of

requirement s "is a mandatory, not optional, condition

precedent for suit." Id. at 26; see also Save the Yaak Comm.

v. Block, 840 F.2d 714, 721 (9th Cir. 1988) (letters sent to

various state and federal legislators did not satisfy the

notice requirement because no tice had not been sent to

requisite parties).

Plaintiffs contend that this Court's decision in Public

Interest Research Group v. Hercules, Inc., 50 F.3d 1239 (3d

Cir. 1995), establishes that a hyper

- technical reading of the

ESA's notice requirements is not required by Hallstrom and

in fact is inappropriate where, as allegedly is the case here,

the underlying purposes of the Act counsels against

dismissal of the action. In Hercules, petitioners notified the

requisite federal and state agencies and the alleged violator

of their intent to assert sixty

- eight violations of the CWA.

The petitioners waited the requisite sixty days andfiled a

complaint, which included more than thirty alleged

violations of the CWA that were not contained in the

origi nal notice. The district court dismissed, but we

reversed, holding that the notice letters did not fall short of

the statutory requirements despite the fact that the

defendants were not notified of all of the petitioners'

allegations.

20In doing so, we compared the flaws of the notification

letter with the congressional purposes of the notice

provision, which are: (1) giving the alleged violator an

opportunity to remedy the alleged violations; and (2) giving

the federal agencies with statutory enforcement powers an

opportunity to commence their own enforcement action. Id.

at 1246 (citing S. Rep. No. 92

- 414 at 80 (1971), reprinted in

1972 U.S.C.C.A.N. 3668, 3745). We found that when a

petitioner notifies the requisite parties and provides

sufficient information to permit the recipient to address the

alleged violations, notice is sufficient. Id. at 1246

- 49; see

also Marbled Murrelet, 83 F.3d at 1073 (letter to federal

defendants gave adequate notice, ev en though it

contemplated suit under S 9 rather than S 7).

Plaintiffs contend that, under Hercules, because FEMA's

ability to address its alleged violations of the ESA in no way

turned on whether the Department of Interior or the

Commerce Department received notice of their intent to

bring suit, and thus notifying the Commerce Department

would not have fostered further compliance with the ESA,

their failure to provide notice to the Secretary of Commerce

should not prove fatal to their action. How ever Hercules is

inapposite. In Hercules, each of the requisite defendants

had received notice of petitioner's intent to file suit, and

therefore our focus was on the contents of the notification

given and not, as was the case in Hallstrom, on whether

notice was in fact given.

Moreover, in Hercules, we distinguished Hallstrom on the

ground that while "the literal reading of the statute

compelled the [Hallstrom] Court's interpretation of the 60

- day delay requirement, there is no express requireme nt in

the statute pertaining to the content of a notice letter."

Hercules, 50 F.3d at 1249 (emphasis added). As a result, in

Hercules, when the requisite parties were in fact on notice

of the alleged violations, we were free to interpret the

statute f lexibly so as to promote the purposes of the Act.

In the case at bar, however, no such room for discretion

exists. Unlike Hercules, the agency charged here with

enforcement of the ESA, the Commerce Department, never

received notice. And, as previousl y noted, the ESA's notice

provision explicitly bars citizen suits unless the plaintiff

21

provides notice to the Secretary(ies) responsible for the

species at issue, in this case the Secretary of Commerce

and th e Secretary of the Interior, sixty days prior to suit.A literal interpretation of the Act's notice provision in this

case actually furthers the purposes of that provision by

giving the Commerce Department the opportunity to

commence its own enforcem ent action. It is only when a

regulatory agency fails to exercise its regulatory

responsibilities that enforcement through citizen suits

becomes important. See S.Rep. No. 92

- 414, at 64, 2 Leg.

Hist. at 1482, reprinted in 1972 U.S.C.C.A.N. 3730 ("It

sh ould be noted that if the Federal, State, and local

agencies fail to exercise their enforcement responsibility,

the public is provided the right to seek vigorous

enforcement action under the citizen suit provisions.").

While it is unclear how the Secre tary of Commerce would

have proceeded had he been given notice of plaintiffs' intent

to sue, it is not for us to deny the Department the

opportunity to address the plaintiffs' allegations prior to the

commencement of litigation.

Finally, plaintiffs urge us not to require dismissal of this

action with respect to the turtles because the notice

provision of the ESA is fatuous, in that it requires

notification of a different agency depending upon where the

turtles are located at a given moment, and a lso

unnecessarily contorted, in that it requires a plaintiff to

rummage through the complicated implementing

regulations in order to determine who must be notified.

While that argument has much appeal, as Judge Roth has

so carefully illuminated, we ar e not at liberty to excuse

plaintiffs' failure on the ground that a technical reading of

the Act's notice provision would be "inappropriate."7

_________________________________________________________________

7. We do however think that Congress and the agencies involved should

put their heads together and fashion a simple and clearer notice scheme.

To that end, we direct the Clerk of Court to send a copy of this opinion

with particular attention to this footnote and Judge Roth's dissent to

counse l for the majority leader and ranking member of the minority of

the House and Senate Commerce and Interior Committees, and to the

general counsel of the Department of Commerce and the Department of

Interior.

22

As previously discussed, S 11 explicitly prohibits persons

from bringing suit absent satisfaction of the sixty

- day

notice provision and admits of no exception. Because that

provision and its implementing regulations admit of no

ambiguity, the language of the Act must be regarded as

conclusive. See Garcia v. United States, 469 U.S. 70, 75

(1984) ("[O]nly the most extraordinary showing of contrary

intentions from the [legislative history] would justify alimitation on the `plain meaning' of the statut ory

language."). Moreover, plaintiffs were represented by

counsel, who had reason to know that the Secretary of

Commerce, in addition to the Secretary of the Interior,

required notification of plaintiffs' intent to sue. Indeed, in a

supplemental memo to Judge Finch, defendants stated that

the Commerce Department had jurisdiction over the sea

turtles in their marine environment.8 Plaintiffs and their

counsel also must have known that a failure to comply fully

with the notice provision would result i n dismissal, given

that, in the previous action, Judge Finch specifically noted

that plaintiffs' failure to notify the federal defendants would

require the court "to dismiss plaintiffs' [ESA] claims." Virgin

Islands Tree Boa, 918 F. Supp. at 902.

De spite its conclusion that plaintiffs had failed to satisfy

the notice requirements of the ESA, the district court did

not dismiss the plaintiffs' claims with respect to the turtles,

though it should have done so. Thus, we will remand to the

district co urt with instructions to dismiss those claims. In

doing so, we note that plaintiffs have since given notice to

the Secretary of Commerce, and they are now at liberty to

refile their claims and request that the matter be

consolidated with the Tree Boa p roceedings presently before

the district court.9

_________________________________________________________________

8. This is thus not a case where laymen are left to unravel a complex

statutory scheme without the assistance of counsel. Compare Zipes v.

Trans World Airlines, Inc., 455 U.S. 385, 397 (1982) (where "technical

reading would be particularly inappropriate in a statutory scheme in

which laymen, unassisted by trained lawyers, initiate the process,"

timely notice under Title VII is not a j urisdictional prerequisite

(citations

omitted)).

9. At oral argument, government counsel conceded that, should we

dismiss plaintiffs' ESA claims with respect to the turtles, plaintiffs

would

23

III. Denial of Preliminary Injunction

Judge Brotman denied plaintiffs' request for injunctive

relief under S 7(a)(1) and (2), S 7(c), and S 9 on the grounds

that plaintiffs had not provided evidence sufficient to

demonstrate a likelihood of success on the merits of their

claims or to establish that, absent injunctive relief, the

protected species would suffer irreparable injury. Hawksbill

Sea Turtle, 939 F. Supp. at 1210. Plaintiffs challenge Judge

Brotmans's holding with respect to their S 9 claim on thegroun d that it erred in giving the findings of Judge Finch

preclusive effect.10 More specifically, plaintiffs contend that

the application of collateral estoppel was inappropriate

because: (1) any findings made with respect to plaintiffs'

ESA claim were par t of an alternative holding, and therefore

not necessary to the prior ruling; and (2) the issues

involved in the first proceeding were not identical to those

presented here.11

_________________________________________________________________

not be barred by a statute of limitations challenge from filing a new

action. As a result of this statement, we need not examine whether

plaintiffs would otherwise be subject to a statute of limitations under

the

ESA or applicable state law.

10. Plaintiffs assert that Judge Brotman erred in holding that Judge

Finch's finding that defendants complied with the procedural

requirements of NEPA precluded them from asserting a claim for lack of

compliance with S 7(c) of the ESA. Given thatS 7(c)(1) appears to

anticipate that compliance with NEPA procedural measures can fulfill

obligations under the ESA, see 16 U.S.C.S 1536(c)(1) (if Secretary

requires biological assessment, "[s]uch assessment may be undertaken

as part of Federal agency's compliance with the requirements of ...

NEPA."), we find no merit in plaintiffs' challenge.

11. Plaintiffs additionally contend that, as a matter of law, findings

made

in the course of a preliminary injunction cannot support the application

of issue preclusion. In makin g this contention, plaintiffs rely on several

cases holding that orders granting preliminary injunctions are generally

not accorded preclusive effect in litigation on the merits in the same or

different proceeding. See University of Texas v. Camenisch, 451 U.S. 390,

396

- 98 (1981) (no preclusive effect in litigation on merits of same case);

Kuzinich v. County of Santa Clara, 689 F.2d 1345, 1350 (9th Cir. 1982)

(refusing to apply collateral estoppel to state court finding made in

preliminary injunction proceeding in trial on merits of plaintiff 's S

1983

claim); Community Nutrition Inst. v. Block, 749 F.2d 50, 56 (D.C. Cir.

1984) (refusing to accord preclusive effect to determination made in

24

As an initial m atter, it is not entirely clear whether the

denial of injunctive relief rested on the preclusive effect

given to Judge Finch's findings. In concluding that

plaintiffs had failed to provide sufficient evidence to

demonstrate irreparable harm, Judge Brot man stated that

he based his factual findings on the "review of Judge

Finch's findings, the parties' submissions, and the

testimony taken at the evidentiary hearing in the present

matter." Hawksbill Sea Turtle, 939 F. Supp. at 1210

- 11.This statement suggests that he might have reached his

conclusion based on an independent review of the new

evidence (some of which was quite compelling for the

plaintiffs). However, Judge Brotman explicitly adopted as

"conclusive" those of "Judge Finch's findings of fact with

respect to plaintiffs' claims in the previous action [that]

_________________________________________________________________

granting of preliminary injunction in final hearing on the merits in a

different case); Zenith Radio Corp. v. Mat sushita Elec. Ind. Co., 505 F.

Supp. 1125, 1185 (E.D. Pa. 1980) (Judge's findings, "which are

addressed to the preliminary motion to dismiss, are not `the law of the

case[,]' . . . do not control the issues . . . upcoming in connection with

the motions for summary judgment."). But findings made in granting or

denying preliminary injunctions can have preclusive effect if the

circumstances make it likely that the findings are"sufficiently firm" to

persuade the court that there is no compelling reason f or permitting

them to be litigated again. Dyndul v. Dyndul, 620 F.2d 409, 411

- 12 (3d

Cir. 1980); accord Commodity Futures Trading Comm'n v. Bd. of Trade,

701 F.2d 653, 657 (7th Cir. 1983) (findings made in preliminary

injunction decisions have preclusi ve effect "if the circumstances make it

likely that the findings are accurate [and] reliable"); Wright & Miller,

supra, S 4434, S 4445; 1 Restatement of Judgments (Second) S 13, supra,

illus. 1 at 136

- 37 (1982). (Whether the resolution in the first proc eeding

is sufficiently firm to merit preclusive effect turns on a variety of

factors,

including "whether the parties were fully heard, whether the court filed

a reasoned opinion, and whether that decision could have been, or

actually was appealed." In re Brown, 951 F.2d 564, 569 (3d Cir. 1991).

Preclusion would seem to be particularly appropriate in a second action

seeking the same injunctive relief. See Lyon Ford, Inc. v. Ford Marketing

Corp., 337 F. Supp. 691, 695 (D.C.N.Y. 1971); Wright & Miller, supra,

S 4445. However, because we determine herein that the issues involved

in the first proceeding simply were not identical to those presented here,

we do not decide whether Judge Finch's findings were "sufficiently firm"

to merit the application of collateral estoppel.

25

apply to plaintiffs' claims in the present action." Id. at

1207

- 08. As a result, we cannot be sure that such an

unencumbered review took place, and we review the district

court's denial of injunctive relief through the lens of the

collateral estoppel doctrine.

A. The Test for Collateral Estoppel

The doctrine of collateral estoppel prevents the

relitigation of issues that have been decided in a previous

action. See Montana v. Unit ed States, 440 U.S. 147 (1979).

Also referred to as issue preclusion, the doctrine "protect[s]

litigants from the burden of relitigating an identical issuewith the same party or his privy and ... promot[es] judicial

economy by preventing needless liti gation." Parklane

Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979).

Traditionally, four factors must be present before the

application of collateral estoppel is appropriate: (1) the

previous determination was necessary to the decision; (2)

the identical issue was previously litigated; (3) the issue

was actually decided in a decision that was final, valid, and

on the merits; and (4) the party being precluded from

relitigating the issue was adequately represented in the

previous action. Raytech Corp. v . White, 54 F.3d 187, 190

(3d Cir. 1995). In the case at bar, our attention is focused

on the first and second factors; however, when any one of

these factors goes unsatisfied, then the application of

collateral estoppel is inappropriate, for it would unjustly

foreclose matters that have yet to be litigated.

Central to our understanding of why, as we conclude

herein, Judge Finch's findings fail to satisfy the requisites

for the application of collateral estoppel is an iteration of

what claims wer e before the court in the first action and

how Judge Finch disposed of them.

B. The Holdings of Judge Finch

The factual findings from the first action given preclusive

effect were made in the course of Judge Finch's

determination of plaintiffs' cl aims pursuant to NEPA and

the ESA. With respect to NEPA, Judge Finch rejected

plaintiffs' claim that FEMA had violated S 102(2)(C) of NEPA

26

by preparing an Environmental Assessment ("EA") rather

than a more ex tensive Environmental Impact Statement

("EIS"), which is normally required for "major Federal

actions significantly affecting the quality of the human

environment." Tree Boa, 918 F. Supp. at 891

- 92. Judge

Finch concluded that the plaintiffs' had failed to

demonstrate a likelihood of success on the merits of this

claim, because, as FEMA had adequately considered the

environmental impact of the housing project and provided

for mitigation measures to reduce "to an insignificant level"

any adverse effe cts on the Tree Boa, its Environmental

Assessment satisfied NEPA's requirements.

In disposing of plaintiffs' ESA claims in turn, Judge

Finch concluded that FEMA and FWS had conducted an

adequate S 7 consultation, as required by 16 U.S.C.

S 1536(a)(2 ), thereby "fulfilling their duties to safeguard the

future of the Tree Boa." Tree Boa, 918 F. Supp. at 902.

Alternatively, Judge Finch found that he was compelled todismiss plaintiffs' ESA claims with respect to the Tree Boa

for failure to provide pr oper notice to the Secretary and the

alleged violator as required by 16 U.S.C. S 1540(g)(1)(A).

Judge Finch did not address the merits of plaintiffs' claims

brought pursuant to S 9.12

C. Alternative Holdings

Because Judge Finch determined that he did not have

the power to hear plaintiffs' ESA claims, any findings made

with respect to the merit of those claims are not essential

to the judgement and cannot support the application of

collateral estoppel. See Stebbins v. Keystone Ins. Co., 481

F.2 d 501, 508 (D.C. Cir. 1973) (holding that collateral

estoppel is not applicable to finding against plaintiff on

merits where court also held that plaintiff lacked standing);

Bokunewicz v. Purolator Products, Inc., 907 F.2d 1396, 1399

(3d Cir. 1990) (ho lding that "everything after denial of

jurisdiction" is "dicta, pure and simple"); Restatement of

_________________________________________________________________

12. Because we conclude, supra, that, in their second action, plaintiffs'

failed to sa tisfy the notice requirements of the ESA with respect to the

Hawksbill and Green Sea turtles, we do not address Judge Finch's

factual findings or legal conclusions pertaining to those species.

27

Judgments, supra , S 20, cmt. b, illus. 1 (dismissal of claim

for lack of subject matter jurisdiction does not bar

relitigation after the jurisdictional defect has been cured)

and cmt. e; Wright & Miller, supra, S 4421, at 207

- 08 ("If a

first decision is supported by f indings that deny the power

of the court to decide the case on the merits and by

findings that reach the merits, preclusion is inappropriate

as to the findings on the merits."). As a result, we must

examine Judge Finch's findings in the context of plai ntiffs'

NEPA claim.

D. The NEPA Claim

In the first action, plaintiffs asserted that FEMA had

violated NEPA by failing to engage in the requisite before

the

- fact risk analysis concerning the project site. In

disposing of plaintiffs' NEPA claim, J udge Finch drew upon

factual findings he had made at the outset of his opinion.

Judge Finch first concluded that FEMA did not err in

preparing an EA rather than an EIS given the evidence that

the projects would have "insignificant effects" on the Tree

Boa and Vessup Bay.

Judge Finch then explained why he considered validFEMA's conclusion that the Tree Boa would not be

significantly affected by the Project:

[T]he existence of any Tree Boas on the site is

uncertain. This Court fin ds that based on the evidence

presented to the Court, the last time one of the World's

leading experts on the Tree Boa found one near the site

of the Estate Nazareth Project was in 1987, despite

having looked for them in 199 1. He had not found any

following Hurricane Marilyn. The Tree Boas are

nocturnal and often the only visible signs of them

during daylight are their refugia. Teams of people

looked for those signs during the early stages of t he

construction process at the Estate Nazareth site. No

one found any Tree Boas on the site. Likewise, their

refugia were not found. Further, habitat remains in the

nearby area to provide a place for the Tree Boa to live.

A minimal increase in any threat to the Tree Boa will

be created by the temporary small increase in the

area's human population due to the Project.

28

Id. at 899. Judge Finch also noted that a n EIS need not be

done "[i]f a mitigation condition eliminates all significant

environmental effects." Id. at 898. While he cautioned that

"some question remains about the adequacy of the

mitigation measures as they existed in early January of this

ye ar," id. at 890, Judge Finch ultimately concluded that if

the mitigation measures established by FEMA in the EA

were followed, the future of the Tree Boa would be

adequately safeguarded. Id. at 898.

Thus, Judge Finch's ultimate conclusion that FEMA h ad

satisfied its procedural duties under NEPA was based on

the interrelationship between three factual findings: (1) no

Tree Boas were present on the project site; (2) FEMA had

adequately planned for the institution of mitigation

measures designed to protect the species and its habitat;

and (3) the influx of humans and their concomitant dangers

would be small in number and temporary. In the second

action, the district court explicitly referenced only the

second of these findings

-- that mitigation measures

adequately safeguarded the Tree Boa, and, in fact, explicitly

noted that the existence of Tree Boa was no longer in

dispute. However, because the finding as to the adequacy of

the mitigation measures relies in part upon Judge Finch's

initial conclusion that no Tree Boas were present and that

any risk to the species would be temporary, we examine the

new evidence presented in plaintiffs' second action with

respect to all three factual findings. Given the new evidence

and the nature of plain tiffs' ESA claims, to which we shallnow turn, none of these findings merit collateral estoppel

effect so as to preclude plaintiffs' from litigating their claims

before the district court.

E. The New Evidence

Judge Finch's finding that no Tree Boa s were present on

the project site was directly contradicted by evidence

adduced by plaintiffs in their second action. In thefirst

proceeding, Dr. Tolson, who is widely acknowledged as the

leading expert on the Virgin Islands Tree Boa, testified that

he last saw a Tree Boa in the vicinity of the project site in

the Fall of 1987. In the second proceeding, plaintiffs

produced an affidavit by Dr. Tolson, in which he declared

29

that, since the beginning of const ruction on the Estate

Nazareth site, there had been six documented sightings of

Tree Boas, two of which involved dead or dying animals, all

sighted within one

- quarter to one

- half mile from the project

site. This represents a marked increase in the freq uency of

Tree Boa sightings, of which there were only 38 total

incidents since the early seventies. Moreover, the number of

sightings is additionally significant given that the Tree Boa

population numbers less than 500 animals.

Additionally, in maki ng his findings, Judge Finch

credited the temporary nature of the housing project,

concluding that the dangers posed by a short term influx of

human beings was slight. See supra, at 38

- 39.

Furthermore, he reviewed mitigation measures proposed by

FEMA that were designed for a project of six months in

duration, and represented that "it would not be extended in

any circumstances for a total duration exceeding eighteen

months." Yet by September 1996, the time of the

evidentiary hearing before Judge Bro tman, it was clear that

the project could no longer be considered "temporary" in

the sense intended by Judge Finch. The project had been

under construction for eight months, and defendants

represented that the project was now expected to last up to

ei ghteen months past the completion of construction. As we

have seen, the project is now in limbo and may last much

longer.

Collateral estoppel applies only when the same issues

decided in the past action arise again in the present

context, see Southe rn Pacific R.R. v. U.S., 168 U.S. 1, 48

(1897), so that when significant new facts grow out of a

continuing course of conduct the issues in a successive suit

may fail to constitute the same "issue" so as to merit

preclusive effect. See Brogsdale v. Bar ry, 926 F.2d 1184,1188 (D.C. Cir. 1991) (finding that a 1975 determination

that unconstitutional crowding existed at a jail could not be

dispositive of the conditions existing in 1983); Fleer Corp. v.

Topps Chewing Gum, Inc., 501 F. Supp. 485, 513 (D. C. Pa.

1980) (holding that changes in the baseball card market

between 1965 and 1980 foreclosed any argument that a

definition of the relevant market by the Federal Trade

Commission could preclude relitigation of the market

30

definition issue); Wright & Miller, supra,S 1417, at 162

- 63;

Restatement of Judgments, supra, S 13 cmt. c. Based upon

this body of law, we do not believe that Judge Finch's

factual findings precluded consideration of additional

evidenc e in support of plaintiffs' ESA S 9 claims. Thus, we

conclude that Judge Brotman erred in giving Judge Finch's

findings preclusive effect and failing to examine all of the

evidence before him in considering plaintiffs' request for

injunctive relief.

F. The ESA Claims and New Evidence

The inappropriateness of applying issue preclusion to

plaintiffs' ESA S 9 claim is compounded by the fact that S 9

requires a different analysis of the facts than did the NEPA

claims of plaintiffs' first action. Co ngress, through the

enactment of NEPA, required FEMA "to take a hard look at

environmental consequences before taking a major action."

Baltimore Gas & Elec. Co. v. Natural Resources Defense

Council, Inc., 462 U.S. 87, 97 (1983). NEPA's "dominant

`thru st' ... is to ensure `that environmental concerns [are]

integrated into the very process of agency decisionmaking.' "

Township of Lower Alloways Creek v. Public Serv. Elec. &

Gas Co., 687 F.2d 732, 739 (3d Cir. 1982) (quoting Andrus

v. Sierra Club, 442 U.S. 347, 350 (1979)). The procedural

requirements of NEPA are satisfied if FEMA has proved that

it has adequately considered the interests of the Tree Boa

in planning for the Estate Nazareth project. See, e.g.,

Vermont Yankee Nuclear Power Corp. v. N atural Resources

Defense Council, Inc., 435 U.S. 519, 558 (1978). Thus,

NEPA provides for a before

- the

- fact risk analysis procedure,

and accordingly Judge Finch had to review only

anticipatory mitigation measures, not the mitigation

measures as implem ented.

Plaintiffs' second action, in contrast, is founded largely

on allegations that the construction and operation of the

housing project constituted a "taking" in violation of S 9 of

the ESA. To "take" is defined in the ESA as "to harass,

harm, p ursue, hunt, shoot, wound, kill, trap, capture, or

collect, or attempt to engage in any such conduct." 16U.S.C. S 1532(19). The relevant implementing regulations

provide that "harm" is defined to include an act "which

31

actually injures or kills wildlife" or "which annoy [a species]

to such an extent as to significantly disrupt essential

behavioral patterns." See 50 C.F.R. S 17.3 (superseded).

According to plaintiffs, these "takings" result from agency

acti ons that have killed or injured the Tree Boa, or present

an imminent threat of doing so, and that have "adversely

affected its environment to the extent of impairing its

natural behavior patterns." Hawksbill, 939 F. Supp. at

1200.

Plaintiffs' S 9 cl aims in the second action focus on a

different aspect of FEMA's conduct from their first action.

Instead of challenging FEMA's planning, they call into

question the defendants' execution of their agency action.

That is, even if agency action satisfies the procedural

requirements of NEPA, it could still constitute a "taking" in

violation of S 9.

However, instead of examining the evidence regarding

defendants' execution of their duties based on the record as

developed before it, Judge Brotman expli citly gave collateral

estoppel effect to Judge Finch's finding that "the mitigation

measures established for the projected construction of the

temporary housing project were adequate." Hawksbill Sea

Turtle, 939 F. Supp. at 1210. Where S 9 required an

analysis of whether, given the mitigation measures actually

implemented, a Tree Boa had been "taken", Judge Finch's

finding focused exclusively on the proposed mitigation

measures. Judge Finch, in fact, cautioned that "some

question remains about the a dequacy of the mitigation

measures as they existed in early January of this year."

Tree Boa, 918 F. Supp. at 890.

In sum, we conclude that Judge Finch did not decide the

identical issue (as to the adequacy of the mitigation

measures) placed before J udge Brotman by plaintiffs'S 9

claim. We will therefore reverse the order of the district

court and remand this case to the district court for

reconsideration of plaintiffs' motion for preliminary

injunction under S 9 of the ESA brought on behalf of th e

Tree Boa. The district court shall enter an order dismissing

32

the plaintiffs' claims with respect to the Hawksbill andGreen Sea Turtles.13

_________________________________________________________________

13. In their second action, plaintiffs asserted that the court should have

abandoned the normal practice of balancing the equities when

considering an application for injunctive relief brought under the ESA,

and focused instead on whether plaintiffs' could demonstrate a likelihood

of success on the merits. They argued that in TVA v. Hill, 437 U.S. 153

(1978), the Supreme Court pronounced that because S 7 contains a flat

ban on the destruction of critical habitats, it revokes a court's usual,

equita ble discretion to grant equitable relief in an action involving the

ESA. Hawksbill Sea Turtle, 939 F. Supp. at 1208. This argument may

have merit and we identify the pros and cons of the issue because the

district court will have to deal with it on rema nd.

In a typical preliminary injunction proceeding, a district court would

consider four factors: (1) the likelihood that the plaintiff will prevail

on

the merits at the final hearing; (2) the extent to which the plaintiff is

being irreparably harmed by the conduct complained of; (3) the extent to

which the defendant will suffer irreparable harm if the preliminary

injunction is issued; and (4) the public interest. Merchant & Evans, Inc.

v. Roosevelt Building Products, Inc., 963 F.2d 628, 632

- 33 (3d Cir. 1992).

Only if the plaintiff produces evidence sufficient to show that all four

factors favor preliminary relief would the court issue a preliminary

injunction. Id. The district court applied this test in denying plaintiffs

motion for injunctive relief, but it is by no means clear that this is the

test for an injunction under the ESA.

In TVA v. Hill, 437 U.S. 153 (1978), the Supreme Court held that

Congress had explicitly foreclosed the exercise of traditional equitable

discretion by courts faced with a violation of S 7 of the ESA. At the time

of that decision, S 7 commanded all federal agencies "to insure that

actions authorized, funded, or carried out by them do not jeopardize the

continued existence" of an endangered species. 16 U.S.C. S 1536 (1976).

In Hill, the Court affirmed the issuance of an injunction which closed the

nearly completed Tellico Dam (despite the potential loss of millions of

dollars), because of alleged harm to the endangered snail darter. In doing

so, the Court n oted that the "language, history, and structure" of the Act

"indicates beyond doubt" that Congress conclusively determined that the

public interest always weighed in favor of preservation of endangered

species. Id. at 174.

We note, however, that Cong ress has revisited S 7 three times since the

Court rendered its opinion in TVA v. Hill. See Pub. L. No. 95

- 632, S 3, 92

Stat. 3751, 3752

- 60 (1978); Pub. L. No. 96

- 159,S 4, 93 Stat. 1225,

footnote continues . . .

33

1226

- 28 (1979); Pub. L. No. 97

- 304, S 4, 96 Stat. 1411, 1417

- 20 (1982).As a result of these amendments, the obligation of the federal agencies

is now to "insure that any action ... is not likely to jeopardize the

continued existence of any endang ered species."S 7(a)(2), 93 Stat. at

1226, codified at 16 U.S.C. S 1536(a)(2) (1982) (emphasis added). The

amendments also formalized the consultation process and created a

procedure whereby agencies could seek exemptions for projects unable

to conform with the requirements of S 7(a)(2) that nevertheless met other

stringent criteria. Although the amendments weakened the standard

insofar as the section's protection of listed species is now less

absolute,

we are not convinced that they diminish the pre cedential force of the

Supreme Court's opinion in TVA v. Hill. Nothing in the amendments or

their history suggests that Congress intended to overrule TVA v. Hill, or

to deflate its prioritization of endangered species by returning equitable

discretion to the courts. See Sierra Club v. Marsh, 816 F.2d 1376, 1383

n.10 (9th Cir. 1987) (amendments do not alter precedent of TVA v. Hill).

Moreover, the Supreme Court appears to have subsequently expressed

the view that S 7 still limits a court's equitable discretion. In

Weinberger

v. Romero

- Barcelo, 456 U.S. 305 (1982), the Court held that the Federal

Water Pollution Control Act ("FWPCA") did not foreclose the exercise of

equitable discretion, and contrasted that statute with the ESA:

In TVA v . Hill, we held that Congress had foreclosed the exercise

of

the usual discretion possessed by a court of equity.... It was

conceded in Hill that completion of the dam would eliminate an

endangered species by destroying its critical habitat. Refusal to

enjoin the action would have ignored the "explicit provisions of

the

Endangered Species Act." 437 U.S. at 173. ... The purpose and

language of the statute limited the remedies available to the

District

C ourt; only an injunction could vindicate the objectives of the

Act.

456 U.S. at 313

- 14; see also Amoco Prod. Co. v. Village of Gambell, 480

U.S. 531, 543 n.9 (1987) (same).

Although TVA v. Hill addressed S 7 of the ESA, this standard for

injunctive relief might appropriately extend to a claim asserted under

S 9, which prohibits the "taking" of an endangered species, for the

language and legislative history of that provision is equally unambiguous

in its prioritization of the protection of endange red species. The fact

that

the protections of S 9 are arguably more extensive than those embodied

in S 7 lends support to plaintiffs' argument. Section 7, entitled

"Interagency Cooperation," requires all federal agencies to consult with

the appropriate wildlife agency to insure that any proposed action is not

likely to jeopardize the continued existence of an endangered species or

destroy its critical habitat. It calls for a risk analysis before the

fact. Infootnote continues . . .

34

contrast, S 9 flatly bans certain actions and has a broad scope, extending

beyond the actions of federal agencies to include both private and state

actions. See Paul D. Ort, What Does It Take To Take and What Does It

Take t o Jeopardize? A Comparative Analysis of the Standards Embodied

in Sections 7 and 9 of the Endangered Species Act, 7 Tul. Envtl. L.J. 197

(1993).

At this juncture, it would seem improper to require a plaintiff to meet

a different injunctive standard w ith respect to the substantive S 9 claim

than a S 7 claim, when the provisions are intended to work in tandem

towards the same objective, namely, protection of endangered species.

Other courts have concluded the same, holding that, when faced with a

re quest for injunctive relief under the ESA, a plaintiff need only show

that a defendant has violated the act to be entitled to injunctive relief.

See Sierra Club, 816 F.2d at 1384 (Sierra Club is "entitled to relief if

the

[defendants] violated a substan tive or procedural provision of the ESA.");

Loggerhead Turtle, 896 F. Supp. at 1178 (holding that, if defendants

violated substantive or procedural provision of ESA, a court does not

have traditional equitable discretion, instead "any threatened harm is

per se irreparable harm and ... public interest always favors the

imposition of an injunction").

Thus, plaintiffs' challenge raises a serious question, and there is

certainly a strong argument to be made that the court's discretion is in

fact limit ed. But the parties did not brief the isssue here, and, given

the

new developments in the case, we think they deserve an opportunity to

address it anew in the district court.

Judge Weis does not join in this footnote, but agrees with Judge

Brotman's statement that here "the loss involves the equally incalculable

value of the sanctity and quality of human life." Consequently, "this

court will not abandon the traditional equitable principles in evaluating

plaintiffs' application for a preliminary inj unction; . . . . Hawksbill

Sea

Turtle, 939 F.Supp. 1208.

35

ROTH, Circuit Judge, Concurring and Dissenting :

Although the majority engages in a thoughtful discussion

of the issues presented in this appeal, I c annot join the

conclusion that the plaintiffs' Endangered Species Act (ESA)

claims brought on behalf of the Hawksbill and Green SeaTurtles do not satisfy the notice requirements of S 11(g) of

the ESA, 16 U.S.C. S 1540(g). Accordingly, I would not

dis miss the claims brought on behalf of the Sea Turtles. In

addition, because I would not dismiss these claims, I have

gone on to consider the district's court order refusing

plaintiffs' application for a temporary restraining order and

preliminary injunc tion on behalf of the Hawksbill and

Green Sea Turtles. I would reverse that order and remand

for further proceedings.

I. Notice To "The Secretary"

Although the majority acknowledges the complexity of the

task it places upon prospective litigants, the labyrinthine

nature of the ESA's statutory and regulatory scheme

becomes apparent only upon a closer examination than the

one given to it by my colleagues. Section 11(g)(2)(A) of the

ESA provides that no citizen suit may be commenced "prior

to six ty days after written notice of the violation has been

given . . . ." 16 U.S.C. S 11(g)(2)(A). The Act nowhere

specifies the content of this notice but requires that the

notice be directed to "the Secretary, and to any alleged

violator . . ." Id. Secti on 1532(15) defines the term

"Secretary" to mean "the Secretary of the Interior or the

Secretary of Commerce as program provisions are vested

pursuant to the provisions of Reorganization Plan Number

4 of 1970." 16 U.S.C. S 1532(15).

A daunting amoun t of investigation is required before a

potential litigant can determine which "Secretary" to serve

notice upon. The text of S 1540(g)(2) offers no basis for

deciding when notice is to be referred to the Secretary of

the Interior and when notice is to be served upon the

Secretary of Commerce. Although the ESA refers to

Reorganization Plan Number 4 of 1970, that document

merely informs the reader that certain functions, formerly

committed to other federal agencies, have been transferred

to the Secre tary of Commerce, including:

36

(a) All functions vested by law in the Bureau of

Commercial Fisheries of the Department of the Interior

or its head, together with all functions vested by law in

the Secretary of the Interior or the Department of the

Interior which are invested through that Bureau or are

primarily related to the Bureau, . . . .

(b) The functions vested in the Secretary of the

Interior by the Act of September 22, 1959 (Public Law

86

- 359, 73 Stat. 642, 16 U.S.C. 760e

- 760g; relating to

migratory marine species of game fish).5 U.S.C. App. 1 Reorg. Plan 4 (1970).

Potential litigants, who have not given up at this point

, can begin combing through Title 50 of the Code of Federal

Regulations for a clue as to which Secretary should be

served with notice. The first helpful section encountered is

50 C.F.R. S 17.2, which purports to define the scope of the

USFWS's regulat ions on endangered and threatened wildlife

and plants:

By agreement between the [United States Fish and

Wildlife] Service and the National Marine Fisheries

Service, the jurisdiction of the Department of

Commerce has been specifically defined to include

certain species, while jurisdiction is shared with regard

to certain other species. Such species are footnoted in

Subpart B of this part, and reference is given to special

rules of the Nationa l Marine Fisheries Service for those

species.

50 C.F.R. S 17.2(b).

A fair reading of this section is that jurisdiction is shared

between the USFWS (a Department of the Interior agency)

and the NMFS (a Department of Commerce agency), and

th at the allocation of species to each service will be

identified in Subpart B. Such a reading would, however,

prove to be incorrect. Although Subpart B contains an

exhaustive list of endangered and threatened flora and

fauna, it gives no indication whic h agency possesses

jurisdiction for the administration of the ESA as to these

species, and it speaks not a word about pre

- suit notice. See

50 C.F.R. SS 17.11 & 17.12.

37

Not until Title 50, Chapter II, Subchapte r C1 can the

reader begin to put it all together. In 50 C.F.R.S 217.2 the

reader is informed that the regulations contained in 50

C.F.R., parts 216 through 227,

apply only for fish or wildlife under the jurisdictional

responsibilities of the Secretary of Commerce for the

purpose of carrying out the Endangered Species Act of

1973 (see Part 222, S 222.23(a)). Endangered species of

fish or wildlife other than those covered by these

regulations are under the jurisdiction of the Secretary

of the Interior. For rules and procedures relating to

such species, see 50 C.F.R. Parts 10

- 17.

50 C.F.R. S 217.2. Section 222.23(a) finally designates somespecies as coming under the jurisdiction of the Se cretary of

Commerce: "Atlantic Hawksbill sea turtles (Eretmochelys

imbricata)" and "Green sea turtles (Chelonia mydas)

breeding colony populations in Florida and on the Pacific

Coast of Mexico."2 Section 222.23(a) also states that there

exists a divis ion of agency jurisdiction for sea turtles: "The

National Marine Fisheries Service has sole agency

jurisdiction for sea turtles while the turtles are in the water

and the U.S. Fish and Wildlife Service has jurisdiction for

sea turtles while the turtles are on land." Id.

In Chapter IV of Title 50, there finally appear certain joint

regulations involving the United States Fish and Wildlife

Service, the National Marine Fisheries Service, and the

National Oceanic and Atmospheric Administration. With

respect to the scope of the regulations on joint

administration of the ESA, S 402.01(b) explains:

The U.S. Fish and Wildlife Service (FWS) and the

National Marine Fisheries Service (NMFS) share

responsibilities for administering the Act. . . .

_________________________________________________________________

1. Subchapter C is inappropriately titled "Marine Mammals," given that

it informs the reader of the notice requirement as it applies to sea

turtles, which are not mammal s.

2. Far from dealing with pre

- suit notice, S 222.23 identifies the species

for which the NMFS can issue permits to authorize incidental takings for

scientific purposes or for the enhancement of propagation or survival of

the affected endangered spe cies. See generally 50 C.F.R. S 222.23.

38

Endangered or threatened species under the

jurisdiction of the NMFS are located in 50 C.F.R.

S 222.23(a) and 227.4. If the subject species is cited in

50 C.F.R. 222.23(a) or 227.4, the federal agency shall

contact the NMFS. For all other listed species the

federal agency shall contact the FWS.

50 C.F.R. S 402.01(b). Section 227.4, referred to above,

merely identifies Green Sea Turtles as a threatened species.

A footnote appended to that section observes that NMFS

jurisdiction for sea turtles is limited to when the turtles are

in the water. See 50 C.F.R. S 227.4 n.1.

The byzantine nature of these regulations demonstrat e

the magnitude of the burden the majority's decision places

on a party wishing to sue under the ESA. None of these

regulations even remotely address the question of notice of

intent to sue. Indeed, 50 C.F.R. S 402.01(a) states that thepurpose the re gulations promulgated in Part 402 is to

implement ESA S 7(a) to (d), 16 U.S.C. S 1536(a) to (d),

dealing with interagency cooperation. It therefore is not

surprising that S 402.01(b) speaks of which office, as

between the USFWS or the NMFS, a "federal agency" should

contact. This language indicates that the drafters did not

have in mind that the regulations would be would be used

by potential litigants to identify the Secretary to whom pre

suit notice must be provided.

Additionally, the majority fails to consider that a potential

litigant is being encumbered in this way when the full

ramifications of a threat to the environment may not be

fully appreciated. At this early stage, a plaintiff is not likely

to have complete information about all the species affected

by a defendant's conduct or about the manner in which

those species are harmed. Under the majority's holding, a

plaintiff would have to delay bringing suit to enjoin the

"taking" of an endangered or threatened sea turtle species

u ntil it became apparent whether the turtles were being

harmed while on land or in the water. In the mean time,

additional animals could be placed in harm's way and

irreversible environmental damage done.

Indeed, even with the more complete informatio n

developed in this litigation, it is not clear whether the ESA

39

violations plaintiffs complain of with respect to the Sea

Turtles occur while the turtles are on land or in the water.

As the majority concedes, "plaintiffs allege that the housing

project will harm the marine and land habitat of the turtles

. . . ." Majority at 18. Yet, the majority contends that the

harm to the Sea Turtles cannot be viewed as "occurring

solely or primarily on land" because p laintiffs allege that it

is the run

- off of sediment from the project site and the

increase in undertreated sewage in Vessup Bay that

threaten the turtles. Id.

The majority's view fails to recognize that the destruction

of the food supplies in the tu rtles' marine habitat is only

incidental to the harm that will befall them. Plaintiffs have

further alleged that the diminution in the turtles' food

supply will cause them to abandon their traditional nesting

sites on the beaches abutting Vessup Bay wh ere they are

protected under the ESA. The danger according to plaintiffs

is that the turtles will move to "the British Virgin Islands,

. . . a scant 3

- 4 miles from the project site," where neither

species is protected. Plaintiffs' Appellate Br. at 16. There

the turtles would be subject to harassment and hunting

while on land as well as in the water. Destruction of theturtles' water habitat is only the indirect mechanism by

which this "taking" is effected. And, the regulations are not

clear whether the land/water distinction refers only to U.S.

territorial lands and waters.

Thus, making the notice requirement dependent on the

locale that a particular species occupies at a given moment

can give rise to unexpected complications. The fact,

howev er, that harsh results may arise from the application

of a mandatory prerequisite to suit is not enough to permit

relaxation of those requirements. See, e.g., Torres v.

Oakland Scavenger Co., 487 U.S. 312, 318 (1988).

Nevertheless, my conclusion that t he notice given here was

appropriate is not dependent on any unfairness of the

result. Instead, it is consistent with the case law on pre

suit notice fashioned by the Supreme Court and by this

Circuit.

The majority follows Hallstrom v. Tillamook Co unty, 493

U.S. 20 (1989), insisting that it stands for the blanket

proposition that nothing less than full compliance with the

40

notice requirement will permit plaintiffs to proceed with

their suit. Majority at 19. This unyielding view of Hallstrom

ignores the compelling difference that plaintiffs' supposed

procedural default here was not "caused by [the] `failure to

take the minimal steps necessary' to preserve their claims."

Hallstrom, 493 U.S. at 27

- 28 (q uoting Johnson v. Railway

Express Agency, Inc., 421 U.S. 454, 466 (1975)). Rather, it

is a product of ambiguities in the statute which require

resort to unwieldy regulations.

In Hallstrom, the plaintiffs did not even attempt to

provide notice to sta te and federal agencies even though

such notice was clearly required on the face of the citizens

suit provision of the Resource Conservation and Recovery

Act (RCRA). The RCRA's citizens suit provision

unambiguously provided that "no action may be

comm enced . . . (1) prior to sixty days after the plaintiff has

given notice of the violation (A) to the Administrator; (B) to

the State in which the alleged violation occurs; and (C) to

any alleged violator . . . ." 42 U.S.C. S 6972(b) (1982). The

RCRA fu rther conspicuously defined "Administrator" as "the

Administrator of the Environmental Protection Agency." 42

U.S.C. S 6903(1). Thus, the statute was clear in specifying

to whom pre

- suit notice must be directed.

Plaintiffs here, unlike those in Halls trom, have provided

all the notice required by the language of the ESA. Neither

the provisions of the ESA nor Reorganization Plan Number4 of 1970 specify whether the Secretary of the Interior or

the Secretary of Commerce should receive pre

- suit notice

. Only upon resort to the regulations governing "Wildlife and

Fisheries," which are nowhere cross

- referenced by the

notice provisions of the ESA, is it possible to infer which

Secretary should receive notice.

Our decision in Public Interest Research Group of New

Jersey, Inc. v. Hercules, 50 F.3d 1239 (3d Cir. 1995), is

helpful to explain why plaintiffs' suit is not foreclosed.

There we construed the notice provision of the Clean Water

Act, 33 U.S.C. S 1365(b), and its regulations to determine

wh ether the plaintiffs' notice letter had identified the

alleged violations with sufficient particularity to provide the

recipient with effective notice. Id. at 1241

- 42. We expressly

relied on the regulations enacted under the RCRA in

41

concluding that, for the content of the notice letter to be

adequate, it must provide "the EPA and the state with

enough information to enable them intelligently to decide

whether" to initiate an enforcement action, and must giv e

the alleged violator "enough information to be able to bring

itself into compliance." Id. at 1249.

My colleagues maintain that Hercules is of no use here

since the focus of that case "was on the contents of the

notification given." Majority at 21. Indeed, we drew this

distinction in Hercules. 50 F.3d at 1249 ("The Supreme

Court's focus in Hallstrom was on the timing of the notice,

not on its content."). We did so, not as an end in itself, but

because there was "no express requirement in the sta tute

pertaining to the content of a notice letter." Id. Under the

CWA, Congress has "delegated to the EPA the authority to

determine the necessary contents of a notice letter." Id.; see

also 33 U.S.C. S 1365(b) ("Notice under this subsection

shall be given in such manner as the Administrator shall

prescribe by regulation.").

Congress has incorporated into the ESA no such explicit

delegation of authority to specify who should receive pre

suit notice. No provision of the ESA commands that a

poten tial litigant look to the regulations promulgated in

connection with it to determine which Secretary is to be

given notice. Indeed, not even the regulations directly

answer this question.

"[A] literal reading of the statute" simply does not

command that notification be made to the Secretary of

Commerce. Hallstrom, 493 U.S. at 26. Thus, since no

relevant statute or regulation has identified withoutambiguity which Secretary is the proper recipient of

plaintiffs' pre

- suit notice, I do not believe t hat Hallstrom

forecloses plaintiffs' ESA claims on behalf of the Sea

Turtles.

II. Preclusive Effect of the First Action

I write on to briefly address an issue that the majority

has no need to resolve: whether Judge Finch's factual

finding that pl aintiffs had "not proved a causal connection

between possible harm to Vessup Bay from silt flowing into

42

the Bay" and the temporary housing project was entitled to

be given preclusive effect. Hawksbill Sea Turt le v. Federal

Emergency Management Agency, 939 F. Supp. 1195, 1210

(D.V.I. 1996) (citing Virgin Islands Tree Boa v. Witt, 918 F.

Supp. 879, 904 (D.V.I. 1996)). I believe that it was an abuse

of discretion for Judge Brotman to rely upon this factual

fi nding in rejecting preliminary injunctive relief for the Sea

Turtles. Judge Finch's factual finding was no more than

dictum that followed his conclusions that he was blocked

from addressing the merits of the plaintiffs' claims brought

on behalf of the Sea Turtles under either the ESA or NEPA.

It is immediately apparent that Judge Finch viewed the

claims brought on behalf of the Sea Turtles as not properly

before the court. In his recitation of the parties'

contentions, Judge Finch noted that he wo uld "not do a full

analysis" of plaintiffs' claims brought on behalf of the Sea

Turtles since plaintiffs had "failed to allege in their

Complaint or Amended Complaint that any harm had

occurred or would occur to either species of turtle or to

sponges or grasses upon which the turtles feed." Tree Boa,

918 F. Supp. at 892 & n.23. Furthermore, Judge Finch

found that plaintiffs' NEPA claim brought on behalf of the

Sea Turtles was "not properly before [the] Court" since

plaintiffs' Amended Complaint "la ck[ed] the degree of

specificity that would indicate that a specific claim [was]

raised as to these species." Id. at 899

- 900.

The merits of plaintiffs' ESA claims brought on behalf of

the Sea Turtles received no consideration before Judge

Finch. He indicated that all of plaintiffs' ESA claims failed

to satisfy the notice requirement of 16 U.S.C.

S 1540(g)(1)(A). Tree Boa, 918 F. Supp. at 891 & 902. Judge

Finch's subsequent discussion of plaintiff's "Section 7" ESA

claim, 16 U.S.C. S 1536, omits a ny reference to the Sea

Turtles.3 Virgin Islands Tree Boa, 918 F. Supp. at 902.

Plaintiff's "takings" claim brought on behalf of the Sea

Turtles, pleaded pursuant to S 9 of the ESA, 16 U.S.C.S 1538, likewise is not addressed. The very brief

_________

________________________________________________________

3. This omission certainly was not an oversight since Judge Finch

specifically discussed the adequacy of FEMA's consultation with respect

to the Tree Boa. Virgin Islands Tree Boa, 918 F. Supp. a t 902.

43

examination of these claims manifests Judge Finch's

apparent belief that they had not been specifically pleaded

and were not properly before him.

The rule is well settled that "[o]nce a court express es the

view that it lacks jurisdiction, the court thereafter does not

have the power to rule on any other matter." Bunker Ramo

Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1279

(7th Cir. 1983); Murdock v. Ute Indian Tribe of Uintah and

Ouray R eservation, 975 F.2d 683, 687

- 88 (10th Cir. 1992);

In re Newport Harbor Assoc., 589 F.2d 20, 24 (1st Cir.

1978); Stebbins v. Keystone Ins. Co., 481 F.2d 501, 508

- 09

(D.C. Cir. 1973); American Guaranty Corp. v. United States,

401 F.2d 1004, 1005

- 06 (Ct. Cl. 1968). But see Crawford v.

Zeitler, 326 F.2d 119, 121 (6th Cir. 1964). As one leading

treatise has explained,

[i]f a first decision is supported by findings that deny

the power of the court to decide the case on the merits

and by findings that got to the merits, preclusion is

inappropriate as to the findings on the merits. A court

that admits its own lack of power to decide should not

undertake to bind a court that does have power to

decide.

18 Charles Alan Wright, Arthur R. Miller, & Edward H.

Cooper, Federal Practice and Procedure S 4421 (1981).

The law in this Circuit is in accord. In Smith v. Pittsburgh

Gage and Supply Co., 464 F.2d 870, 874

- 75 (3d Cir. 1972),

we stated that the sc ope of the district court's decision was

properly limited to the jurisdictional issue resolved by it

even though the district court also decided factual issues

on the merits. More recently in Bokunewicz v. Purolator

Products, Inc., 907 F.2d 1396, 1399 (3d Cir. 1990), we

observed that "everything after the denial of jurisdiction

. . . , including the discussion of substantive issues, was

dicta, pure and simple."

Even if the alternate bases proffered for the denial of

injunctive relief for the Sea Turtles are not treated as

jurisdictional in the strict sense, issue preclusion is not

appropriate. Judge Finch obviously believed that thethreshold reasons he had provided for denying relief on

behalf of the Sea Turtles were dispositive, going so far as to

44

caution that he would not do a full analysis as to the Sea

Turtle claims. Virgin Islands Tree Boa, 918 F. Supp. at 892,

n.23. This is hardly the sort of "firmness" in a judgment

that justifies denying a party a chance to litigate the matter

fully in a later action. Thus, Judge Brotman should have

permitted plaintiffs a full opportunity to develop the factual

elements of their claims brought on behalf of the Sea

Turtles. The district court erred in n ot considering all of the

evidence it had before it.

III.

For the foregoing reasons, I would allow the plaintiffs to

proceed with their ESA claims brought on behalf of the

Hawksbill and Green Sea Turtles. I, therefore, respectfully

dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

45