Unpublished Disposition, 849 F.2d 1475 (9th Cir. 1988)

MEMORANDUM^* 

Appellants brought this action under the Administrative Procedures Act (APA), 5 U.S.C. §§ 701-706, and the National Environmental Protection Act (NEPA), 42 U.S.C. § 4332, challenging the United States Fish and Wildlife Service's (Service) decision to eradicate the red fox population from the Seal Beach National Wildlife Refuge (Wildlife Refuge), which lies within the Seal Beach Naval Weapons Station (Weapons Station). The project is intended to protect two endangered bird species believed to be threatened by the foxes. The Service had prepared an Environmental Assessment (Assessment) of the project concluding that the eradication program would cause no significant impact upon the human environment. As a result, no Environmental Impact Statement (EIS) was prepared. Appellants sought both a declaratory judgment that the Assessment did not support a finding of no significant impact and an injunction enjoining the eradication program until an EIS is prepared. The district court denied relief. We reverse.

The district court held that appellants have standing to challenge the government's finding of no significant impact. We agree.

Plaintiff has standing to challenge an alleged NEPA violation whenever it "creat [es] a risk that serious environmental impacts will be overlooked ... provided this injury is alleged by a plaintiff having a sufficient geographical nexus to the site of the challenged project that he may be expected to suffer whatever environmental consequences the project may have." City of Davis v. Coleman, 521 F.2d 661, 671 (9th Cir. 1975). See also Friends of the Earth v. United States Navy, 841 F.2d 927, 932 (9th Cir. 1988).

The government does not challenge the district court's finding that all the individual appellants, except Lynne Garmston, and many of the members of appellant Animal Lovers Volunteer Association live within a five-mile radius of the Weapons Station.

Appellants allege that by reducing the number of foxes in the area near appellants' homes the eradication project may increase the rodent population and thereby adversely affect the health of the public, including themselves. A negative impact on public health is clearly an "environmental impact"; it is equally clear that plaintiffs have shown a "geographical nexus" to the site as required by City of Davis.

Appellants also allege the eradication program will deprive them of an opportunity to observe the foxes in their neighborhoods. Such a "direct sensory impact of a change in the physical environment," Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 779 (1983) (Brennan, J., concurring), affecting appellants' "aesthetic or ecological surroundings," Animal Lovers Volunteer Ass'n, Inc. v. Weinberger, 765 F.2d 937, 938 (9th Cir. 1985), may constitute injury in fact. The government contends the program will not affect foxes in appellants' neighborhood because the program will be limited to the Weapons Station itself. But as appellants plausibly allege, foxes do not recognize the boundary of the Weapons Station and the eradication project necessarily will affect foxes that frequent adjacent areas, including appellants' nearby neighborhoods. This is sufficient to give appellants standing. See Friends of the Earth, 841 F.2d at 931-32.

The district court properly distinguished Animal Lovers I, which involved a similar project to eradicate goats from San Clemente Island, a military enclave of the U.S. Navy. Because the plaintiffs had no access to the island, and lived on the mainland to which the goats had no access, the project did not directly affect plaintiff's physical environment. 765 F.2d at 938-39.

2. Sufficiency of the Environmental Assessment

Appellants contend the Assessment does not provide a sufficient basis for the Secretary's finding that the fox eradication project would not have a significant environmental impact. We agree.¹ 

The Secretary argues that appellants' allegations regarding the impact upon the food chain and its consequences were speculative. But it is well established that plaintiffs need only allege facts that raise a substantial question of detrimental impact upon the environment to successfully challenge an Assessment; they need not prove such an impact. As we recently said in Save the Yaak Comm. v. Block, No. 86-3808, slip op. at 5321 (9th Cir. May 11, 1988), amending 840 F.2d 714, 717-8 (quoting Steamboaters v. F.E.R.C., 759 F.2d 1382, 1393 (9th Cir. 1985)):

"If substantial questions are raised regarding whether the proposed action may have a significant effect upon the human environment, a decision not to prepare an EIS is unreasonable. Additionally, an agency's decision not to prepare an EIS will be considered unreasonable if the agency fails to 'supply a convincing statement of reasons why potential effects are insignificant.' "

(Citations omitted; emphasis added). See also LaFlamme v. F.E.R.C., 842 F.2d 1063, 1069 (9th Cir. 1988); Foundation for North American Wild Sheep v. United States Dep't of Agric., 681 F.2d 1172, 1178 (9th Cir. 1982).

Appellants offered several declarations supporting their allegations that elimination of the foxes from the food chain might increase the rodent and raccoon population in the area, and thus endanger human health as well as the bird and plant life. The Secretary's assessment simply ignored the impact the eradication might have on overall ecological balance of the area. The Assessment details and evaluates the problem facing the bird species in the Wildlife Refuge and considers certain advantages and disadvantages of alternative solutions, but it contains no discussion of the effect the program may have on the environment other than upon the birds it sought to protect. This omission alone renders the Assessment inadequate. See Save the Yaak, slip op. at 5323-24 (an Assessment that considered the effect of a proposed road on endangered and threatened species but did not consider the effect on other wildlife and plants held insufficient).

The Secretary argues that because the foxes were imported into the area and were not initially inhabitants of its ecosystem, no study was required of the effect their removal might have on the food chain. There was evidence that the foxes had been a part of the ecological community for nearly 100 years. The Secretary could not simply assume without reason that their removal would be without consequences.

The district court held the Assessment properly found that the elimination of the opportunity to observe foxes in nature was not a significant environmental impact. The Assessment itself made no findings on the significance of this impact--it simply ignored it. The government simply repeats the argument that nonindigenous species may be eliminated without consideration of the environmental impact. This court has noted that a permanent, large-scale reduction in the population of a nonindigenous species may well have environmental significance. See American Horse Protection Association v. Andrus, 608 F.2d 811, 814-15 (9th Cir. 1979). Moreover, " [a]n 'agency cannot ... avoid its statutory responsibilities under NEPA merely by asserting that an activity it wishes to pursue will have an insignificant effect on the environment.' Instead, an agency must provide a reasoned explanation of its decision." Jones v. Gordon, 792 F.2d 821, 828 (9th Cir. 1986) (quoting Steamboaters v. F.E.R.C., 752 F.2d 1382, 1393 (9th Cir. 1985)) (plan to remove killer whales from their natural habitat cannot be assumed to be insignificant).

The Assessment explains that the government is embarking on the eradication program with the expectation of a significant environmental effect (reduced predation upon two endangered species of birds), thus recognizing that the program will indeed have a significant environmental impact. The Service's belief that this effect will be primarily beneficial does not allow it to conclude that the impact is "insignificant" for the purposes of NEPA. See 40 C.F.R. Sec. 1508.27(b) (1) (1987).

Appellants appear to ask this court to enjoin the Service's eradication program. We decline to do so. We remand to the district court to "balance the competing claims of injury" and "consider the effect on each party of granting or withholding [an injunction]." Save the Yaak, slip op. at 5332 (quoting Amoco Production Co. v. Village of Gambell, 107 S. Ct. 1396, 1404 (1987)).

Appellants' request for fees was premature. See Ninth Circuit Rules 39-1.6, 39-2.

5. Motion to Strike and Request for Sanctions

Appellants' motion to strike the addenda to appellees' brief is granted. "Papers not filed with the district court or admitted into evidence by that court are not part of the clerk's record and cannot be part of the record on appeal." Kirshner v. Uniden Corp. of America, 842 F.2d 1074, 1077 (9th Cir. 1988); Fed. R. App. P. 10(a).

Appellants' request for sanctions is denied. While the government attorney's inclusion of the addenda was inappropriate, we do not believe her action "multiplie [d] the proceedings ... unreasonably and vexatiously." 28 U.S.C. § 1927; see also Fed. R. Civ. P. 11.

REVERSED and REMANDED for further proceedings consistent with this memorandum.