Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-22-1997

Hawksbill Sea v. FEMA
Precedential or Non-Precedential:

Docket
96-7661




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Recommended Citation
"Hawksbill Sea v. FEMA" (1997). 1997 Decisions. Paper 225.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/225


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Filed 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. BRIN; 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; PATRICIA 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; RUSSELL 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;
FRANK 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,
       Appellants

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 JONAGH, 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, ESQUIRE
       Attorneys, 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 collateral
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.

This is the plaintiffs' second lawsuit. In theirfirst action,
see Virgin Islands Tree Boa v. Witt, 

(D.V.I.
1996), plaintiffs alleged that the Federal Emergency
Management Agency ("FEMA"), the United States Fish and
Wildlife Service ("FWS"), 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.

The 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
preliminary 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 requisite 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, 

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

(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 violated 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 whom the
matter was reassigned following Judge Finch's recusal, held
a hearing in early August 1996 and received substantial
                                5



evidence in addition to that taken by Judge Finch,
including new and qualitatively different 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
protect 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 likelihood 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." 

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 promulgated
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 requires 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 and 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 have
in 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 must 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 requirement. 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 

. 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, because 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 holdings
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 violations, 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 evidence
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 prior 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 estoppel. 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 new
and significantly 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' representation 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
construction 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 has 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
Judge 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 preliminary
injunction with respect to the Tree Boa in light of all
relevant evidence available to it. As this matter must come
before the district court for final hearing, we suggest to the
district court that it consolidate the preliminary injunction
hearing 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 additionally 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 animals 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 the animals named as plaintiffs. See Watt v.
Energy Action Educational Foundation, 

(1981); Arlington
Heights v. Metropolitan Housing Dev. Corp., 

, 264, & n.9
(1977). (We note in passing, however, that the standing to sue of the
animals 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, 

, 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, 

(9th Cir. 1996); Mt.
Graham Red Squirrel v. Yeutter, 

(9th Cir. 1991); Northern
Spotted Owl v. Hodel, 

(W.D. Wash. 1988); Northern
Spotted Owl v. Lujan, 

(W.D. Wash. 1991); Cabinet
Mountains Wilderness/Scotchman's Peak Grizzly Bears v. Peterson, 

(D.C. Cir. 1982). Additionally, in Marbled Murrelet v. Pacific
Lumber Co., 

(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 Marbled Murrelet
"ha[d] standing to sue in its own right." 

(citations omitted);
see also Loggerhead Turtle v. County Council of Volusia County, Florida,

, 1177 (M.D. Fla. 1995) (same).

                                 9



I. Facts & Procedural History

The underlying facts are set forth in detail in Virgin
Islands Tree 

, and Hawksbill
Sea 

. 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 homes
and 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 of 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, 

, 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 Mammal
Protection Act); Hawaiian Crow v. Lujan, 

, 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 extraordinary step
of authorizing animals ... to sue, they could, and should, have said so
plainly." Citizens to End Animal Suffering and 

.

                                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 monensis 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 and
transfer 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 also 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
and 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 guidelines, 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 any
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 months 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 Governor 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 the
housing project on the grounds that the 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 FEMA and
FWS had failed to fulfill their duties under the ESA. Virgin
Islands Tree 

. More specifically,
plaintiffs claimed that in the course of defendants'
construction of the housing project, defendants had failed
to conserve the 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 sea 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 recused 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, testified 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 action authorized,
       funded, or carried out by such agency ... is not likely to
jeopardize
       the continued existence of any endangered species or threatened
         species or result in the destruction or adverse modification of
         habitat of 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 Secretary
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 title] 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 project 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 sighting
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.

Defendants 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, defendants
developed evidence that the run-off came from an
alternative source, 

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. 

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 mitigation 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 increase in the
dangers already facing the Tree Boa." 

Based on
these factual findings, the judge concluded that FEMA had
complied with NEPA's procedural requirements when it
conducted the EA. 

Addressing plaintiffs' ESA claims, Judge 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." 

Without 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 the 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 either species of turtle or to the
grasses upon which the turtles feed, the claims were not
properly before the court. 

n.23, & 899-900.
Judge Finch determined as a matter of fact that, even if
they had brought viable claims with respect to the turtles,
plaintiffs had failed to "prove sufficiently that the Estate
Nazareth Project was the source of any run-off into Vessup
Bay." 

The plaintiffs appealed to this Court and
we affirmed. Virgin Islands Tree Boa v. Witt, 

(3d Cir. 1996) (table).

C. The Second Action
Before 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 joined 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 injunction. 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 to 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 support 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 since
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 construction 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 Nazareth 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" the
Tree 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 

. 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. 

& n.27. With respect to the
turtles, Judge Brotman noted 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. 

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' habitats, as required for success
under S 7(a)(1) and (2). 

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 addition 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 respect 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 the 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
provisions 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 Interior. 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 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 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
interagency 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 Department 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 (listing 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. Thus, 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." The
alleged harm to the turtles cannot be viewed as occurring
solely or primarily on land. 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 starve." 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 notice 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, 

, 31 (1989) (holding that compliance with analogous
notice provision of the Resource Conservation and Recovery
Act ("RCRA"), was a "mandatory condition precedent" to
suit); Marbled Murrelet v. Babbitt, 

, 1072 (9th
Cir. 1996) (notice requirement of the ESA is
"jurisdictional"); Protect Our Eagles Trees (POETs) v. City of
Lawrence, Kansas, 

(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. Inc. v.
Windall, 

, 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, 

(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 & Procedure: 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 Department
of 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 satisfied 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. 

.

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 district court from
giving that language "a flexible or pragmatic construction."

The Court held that the notice requirements
can not "be disregarded by the district court at its
discretion" and, instead, complete satisfaction of
requirements "is a mandatory, not optional, condition
precedent for suit." 

see also Save the Yaak Comm.
v. Block, 

, 721 (9th Cir. 1988) (letters sent to
various state and federal legislators did not satisfy the
notice requirement because notice had not been sent to
requisite parties).

Plaintiffs contend that this Court's decision in Public
Interest Research Group v. Hercules, Inc., 

(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
original 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.

                                20
In 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. 

(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. 

-49; see
also Marbled 

(letter to federal
defendants gave adequate notice, even 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. However 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 requirement in
the statute pertaining to the content of a notice letter."

(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 flexibly 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 previously 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 the 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 enforcement 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
should 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 Secretary 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 also
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 are 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
counsel 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, 

, 75
(1984) ("[O]nly the most extraordinary showing of contrary
intentions from the [legislative history] would justify a
limitation on the `plain meaning' of the statutory
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 in 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 

.

Despite 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 court 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 proceedings 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., 

, 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 jurisdictional 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 

. Plaintiffs challenge Judge
Brotmans's holding with respect to their S 9 claim on the
ground 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 part 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 making 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, 

,
396-98 (1981) (no preclusive effect in litigation on merits of same case);
Kuzinich v. County of Santa Clara, 

, 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, 

, 56 (D.C. Cir.
1984) (refusing to accord preclusive effect to determination made in

                                24



As an initial matter, 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 Brotman 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 

-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. Matsushita 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 for permitting
them to be litigated again. Dyndul v. Dyndul, 

, 411-12 (3d
Cir. 1980); accord Commodity Futures Trading Comm'n v. Bd. of Trade,

, 657 (7th Cir. 1983) (findings made in preliminary
injunction decisions have preclusive 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 proceeding
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, 

, 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., 

, 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." 

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. United States, 

(1979).
Also referred to as issue preclusion, the doctrine "protect[s]
litigants from the burden of relitigating an identical issue
with the same party or his privy and ... promot[es] judicial
economy by preventing needless litigation." Parklane
Hosiery Co. v. Shore, 

, 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, 

, 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 were 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' claims 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 extensive Environmental Impact Statement
("EIS"), which is normally required for "major Federal
actions significantly affecting the quality of the human
environment." Tree 

. 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 effects 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 

.
Alternatively, Judge Finch found that he was compelled to
dismiss plaintiffs' ESA claims with respect to the Tree Boa
for failure to provide proper 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., 

, 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., 

, 1399
(3d Cir. 1990) (holding that "everything after denial of
jurisdiction" is "dicta, pure and simple"); Restatement of
_________________________________________________________________

12. Because we 

, that, in their second action, plaintiffs'
failed to satisfy 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 findings 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 plaintiffs'
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, Judge 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 valid
FEMA'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 finds 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 1991. 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 the
       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

Judge Finch also noted that an EIS need not be
done "[i]f a mitigation condition eliminates all significant
environmental effects." 

While he cautioned that
"some question remains about the adequacy of the
mitigation measures as they existed in early January of this
year," 

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. 

Thus, Judge Finch's ultimate conclusion that FEMA had
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 plaintiffs' ESA claims, to which we shall
now 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 Boas 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 construction 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 frequency 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 making 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. 

.
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 Brotman, 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
eighteen 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 Southern Pacific R.R. v. U.S., 

, 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. Barry, 

,
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., 

, 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
evidence 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. Congress, 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., 

, 97 (1983). NEPA's "dominant
`thrust' ... 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., 

, 739 (3d Cir. 1982) (quoting Andrus
v. Sierra Club, 

, 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. Natural Resources
Defense Council, Inc., 

, 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 implemented.

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, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or attempt to engage in any such conduct." 16
U.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
actions 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." 

.

Plaintiffs' S 9 claims 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 explicitly 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

. 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 adequacy of the mitigation
measures as they existed in early January of this year."
Tree 

.

In sum, we conclude that Judge Finch did not decide the
identical issue (as to the adequacy of the mitigation
measures) placed before Judge 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 the
Tree Boa. The district court shall enter an order dismissing

                                32



the plaintiffs' claims with respect to the Hawksbill and
Green 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, 

(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,
equitable discretion to grant equitable relief in an action involving the
ESA. Hawksbill Sea 

. 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 remand.

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., 

, 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. 

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, 

(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 noted 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. 

We note, however, that Congress 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 endangered 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 precedential 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, 

, 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, 

(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 

. ... The purpose and
       language of the statute limited the remedies available to the
District
       Court; only an injunction could vindicate the objectives of the

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

, 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 endangered 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. In
footnote 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 to 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 with 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
request 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 

(Sierra Club is "entitled to relief if
the
[defendants] violated a substantive or procedural provision of the ESA.");
Loggerhead 

(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 limited. 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 injunction; . . . . Hawksbill
Sea
Turtle, 

.

                                35



ROTH, Circuit Judge, Concurring and Dissenting :

Although the majority engages in a thoughtful discussion
of the issues presented in this appeal, I cannot join the
conclusion that the plaintiffs' Endangered Species Act (ESA)
claims brought on behalf of the Hawksbill and Green Sea
Turtles do not satisfy the notice requirements of S 11(g) of
the ESA, 16 U.S.C. S 1540(g). Accordingly, I would not
dismiss 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 injunction 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 sixty 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 . . ." 

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 amount 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 Secretary 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 regulations 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 National 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
that 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 which 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, Subchapter 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 some
species as coming under the jurisdiction of the Secretary 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 division 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." 

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 mammals.

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 species. 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 demonstrate
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 the
purpose the regulations 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
until 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 information
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 plaintiffs 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. 

view fails to recognize that the destruction
of the food supplies in the turtles' 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 where 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 the
turtles' 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,
however, 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., 

, 318 (1988).
Nevertheless, my conclusion that the 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 County, 

(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."

(quoting Johnson v. Railway
Express Agency, Inc., 

, 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 state 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
commenced . . . (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 further 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 Hallstrom, have provided
all the notice required by the language of the ESA. Neither
the provisions of the ESA nor Reorganization Plan Number
4 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, 

(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
whether the plaintiffs' notice letter had identified the
alleged violations with sufficient particularity to provide the
recipient with effective notice. 

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 give
the alleged violator "enough information to be able to bring
itself into compliance." 

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 

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

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
potential 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. 

. Thus, since no
relevant statute or regulation has identified without
ambiguity which Secretary is the proper recipient of
plaintiffs' pre-suit notice, I do not believe that 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 plaintiffs 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 Turtle v. Federal
Emergency Management Agency, 

, 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
finding 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 would "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 

& 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 "lack[ed] the degree of
specificity that would indicate that a specific claim [was]
raised as to these species." 

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 

& 902. Judge
Finch's subsequent discussion of plaintiff's "Section 7" ESA
claim, 16 U.S.C. S 1536, omits any reference to the Sea
Turtles.3 Virgin Islands Tree 

.
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 

.

                                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 expresses 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., 

, 1279
(7th Cir. 1983); Murdock v. Ute Indian Tribe of Uintah and
Ouray Reservation, 

, 687-88 (10th Cir. 1992);
In re Newport Harbor Assoc., 

, 24 (1st Cir.
1978); Stebbins v. Keystone Ins. Co., 

, 508-09
(D.C. Cir. 1973); American Guaranty Corp. v. United States,

, 1005-06 (Ct. Cl. 1968). But see Crawford v.
Zeitler, 

, 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., 

, 874-75 (3d Cir. 1972),
we stated that the scope 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., 

, 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 the
threshold 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 

,
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 not 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

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