Florida Key Deer v. Brown

The National Wildlife Federation, Florida Wildlife Federation, and Defenders of Wildlife (plaintiffs) brought suit under the Endangered Species Act (ESA), 16 U.S.C. § 1531, and the Administrative Procedure Act (APA), 5 U.S.C. §§ 551-59, on behalf of eight endangered and threatened species in the Florida Keys. The suit was brought against Michael Brown (defendant) in his official capacity as the undersecretary of Emergency Preparedness and Response for the Department of Homeland Security, which includes the Federal Emergency Management Agency (FEMA), as well as Gale Norton (defendant) in her official capacity as the secretary of the Department of the Interior, which includes the Fish and Wildlife Service (FWS). The plaintiffs sought to compel FEMA to enter ESA consultation with FWS regarding FEMA’s implementation of the National Flood Insurance Program (NFIP) in the Florida Keys. Following a court order of consultation, FWS found FEMA’s administration of the NFIP in the Florida Keys to be jeopardizing the eight endangered species. FWS found that any further habitat loss would result in permanent losses to the land available in the area for the protected species and that the main threat to the existence of the protected species was the change in habitat caused by residential and commercial construction. The plaintiffs moved for a permanent injunction against FEMA’s issuance of flood insurance for any new development in the habitats of certain species in Monroe County, Florida. The defendants argued that the interests of the National Association of Home Builders (NAHB), an association of private developers, represented the public interest and outweighed other interests relating to the protection of endangered species. The defendants further argued that the court lacked the authority to prohibit FEMA from issuing new flood-insurance policies within the habitats, because FEMA lacked the discretion to limit the availability of flood insurance in an otherwise-eligible community.