Federal
Endangered Species Act
Section 10 (Habitat
Conservation Planning)
Digest of Recent Case Law
November, 2002
by
Tara L. Mueller, Esq.
Deputy Attorney General
California Office of the Attorney General
Land Law Section, Oakland CA
The views herein expressed are solely those of the
author, and do not necessarily reflect the views of the California Attorney
General, the California Department of Justice, or any other California state
agency.
Meaning
of Minimize and Mitigate
Transferability
of Take Permits:
Case Summary
Plaintiffs, Defenders of Wildlife and
one individual (Defenders), challenged the FWS’ decision to issue an ITP
pursuant to section 10 of the ESA. The
ITP authorized the taking of the Delmarva fox squirrel in connection with a
proposed residential development project in Maryland. Plaintiffs argued that the FWS acted arbitrarily and capriciously
in issuing the permit because the FWS failed to allow public comment on a key
component of the permit application and failed to find that the developer’s
proposed alternative would minimize the impacts of the taking to the maximum
extent practicable. The district court
granted summary judgment for the FWS, but the D.C. Circuit reversed.
The FWS had published in the Federal
Register a notice of availability of the ITP application and accompanying
habitat conservation plan (HCP), implementing agreement, and environmental assessment
as required by section 10(c) of the ESA, and also had mailed a copy of these
documents to Defenders pursuant to a previous stipulation. However, the documents the FWS made
available for public review did not include a map of the proposed mitigation
site for the project. In responding to
Defenders’ Freedom of Information Act (FOIA) request for all materials related
to the developer’s project and to the conservation of the Delmarva fox
squirrel, the FWS indicated that certain documents “were subject to
withholding.” Defenders’ comments on
the ITP application noted that it was unable to evaluate the suitability of the
proposed mitigation site as fox squirrel habitat (and therefore the impacts of
the project on the squirrel) without knowing the precise location of the
mitigation site.
In approving the ITP for the project,
the FWS stated that the impacts of the project on the fox squirrel would be
mitigated through a permanent conservation easement placed on 31 acres of
off-site habitat. The FWS’ findings
also acknowledged that, although the reduced impact alternative would reduce
the likelihood of take of fox squirrels, the developer had rejected this
alternative because it would involve additional costs and would delay required
local government approvals for the project.
The FWS attached a map of the mitigation site to the final HCP. It rejected Defenders’ request for a thirty
day extension of time to comment on the adequacy of the mitigation site. In their notice of intent to sue, Defenders
identified several problems with the adequacy of the mitigation site.
The court first held that the FWS had
violated sections 10(c) and 10(a) of the ESA by failing to make the map of the
mitigation site available for public review during the public comment period on
the ITP and HCP. The court noted that
section 10(c) expressly provides that “[i]nformation received by the [FWS] as
part of any [ITP] application shall be available to the public as a matter of
public record at every stage of the proceeding.” 16 U.S.C. § 1539(c).
Although the developer did not physically attach the map to the draft
HCP submitted to the FWS, there was no dispute that the map was “received by”
the FWS “as part of” the developer’s ITP application. Accordingly, the FWS was required to make the map available to
the public under section 10(c).
The court held that the FWS also was
required to make the map available to the public pursuant to section 10(a),
which instructs the FWS to provide an “opportunity for public comment, with respect
to the permit application and the related conservation plan.” 16 U.S.C. § 1539(a)(2)(B). The court held that this opportunity for
public comment must be meaningful.
Here, Defenders could not meaningfully comment on the mitigation value
of the off-site habitat without knowing the location of the land. In light of the FWS’ conclusion that the
off-site mitigation was necessary for its approval of the ITP, Defenders
consequently could not meaningfully comment on the ITP application as a whole
without an ability to comment on the site.
The court rejected the FWS’ assertion
that it had in fact made the map available for public comment by making it
available for review at the FWS field office, finding no evidence that the map
actually was available for public review during the public comment period. In fact, the court found, the FWS “plainly
misled Defenders and other interested members of the public into believing that
a map of the mitigation site was not in the public record.”
The court also rejected the FWS’
contention that any failure to make the map available for review was harmless
error because it would have reached the same conclusion had it made the map
available. The court held that
Defenders had shown that it was prejudiced by its inability to comment on the
map by pointing to “at least three serious problems that suggested the site
would not provide adequate mitigation for the taking” of the fox squirrel in
connection with the project. The FWS could
not overcome this showing of prejudice simply by stating that it was already
aware of these problems. First, the
court was not convinced that the agency in fact was aware of these problems,
and second, being aware of the problems was not the same as actually
considering them. The court refused to
consider the FWS’ self-serving post-hoc assertions that, had it considered
Defenders’ comments prior to issuing the permit, it would not have changed its
final decision. The court held that
“[w]e do not generally give credence to such post-hoc rationalizations, but
rather consider only the regulatory rationale actually offered by the agency
during the development of the regulation.”
The court noted that the FWS could easily have avoided protracted
litigation by granting Defenders’ reasonable request for a thirty day extension
of time to comment on the map.
Finally, the court held that the FWS
had violated section 10(a)(2)(B) of the ESA by failing to make an independent
finding that the developer would minimize and mitigate the impacts of the project
to the maximum extent practicable. The
FWS had acknowledged that the reduced impact alternative would reduce the
number of squirrels killed by automobiles by relocating the proposed homes and
project access road farther away from the squirrel habitat. Given this, the FWS could not approve the
project as proposed without making a finding that the reduced impact
alternative was impracticable. The
court found no evidence in the record that the FWS itself ever made such a
finding; instead, it simply repeated the developer’s conclusion the alternative
was impracticable because of the developer’s concern that it would entail
additional costs and delay.
The FWS’ decision documents did “not
contain any analysis whatsoever as to whether implementation of the reduced
impact alternative would actually result in additional costs and delay, or
whether the magnitude of such costs or delay would render the alternative
impracticable.” On the contrary, the
court noted, the FWS had declared that “no supporting economic analysis was
sought or considered.” The court
concluded that the FWS could not satisfy the requirement to make a “maximum
extent practicable” finding simply by referencing this provision of the ESA, or
by delegating its responsibility to make such a finding to the developer.
Analysis
This case has implications for other
ITPs issued by the Services, which commonly approve permits that do not
specifically identify the location of proposed mitigation lands. Under the reasoning of the Gerber
case, the Services cannot continue this practice, nor can they withhold
information critical to the evaluation of the adequacy of the HCP’s proposed
mitigation measures. The Services also
commonly defer to permit applicants’ conclusory assertions of impracticability,
notwithstanding the statement in the Services’ HCP Handbook that the applicant
must document such statements with actual evidence of economic
infeasibility. The Gerber case
requires the Services independently to evaluate such statements based on verifiable
information and objective documentation.
Case Summary
Plaintiffs challenged the FWS’ decision
to issue an ITP to La Cantera Development Company for the development of a
shopping mall. The ITP authorized La
Cantera to take three listed invertebrate species (two beetles and a spider)
incidental to the development of their property in exchange for La Cantera’s
agreement to dedicate 181 acres of on and off site habitat for these
species. Plaintiffs alleged that the
FWS violated section 10 of the ESA because it failed to ensure that La Cantera
would minimize and mitigate the impacts of the authorized take to the maximum
extent practicable and because it improperly found that the level of authorized
take would not jeopardize the continued existence of the species. In addition, plaintiffs alleged that the FWS
violated the National Environmental Policy Act (NEPA) by issuing a finding of
no significant impact (FONSI) for the ITP.
The court rejected each of plaintiffs’ claims, and granted summary
judgment for the FWS.
The court first held that the FWS did
not violate the ESA’s mitigation requirement in failing to require La Cantera
to implement a reduced development alternative. The court reasoned that the FWS had no duty under section 10 to
consider alternatives to La Cantera’s project.
Rather, the court agreed with the FWS’s position that its duty under the
“maximum extent practicable” requirement is “to analyze the applicant’s
proposal to ensure that the impacts of the chosen alternative are minimized and
mitigated to the maximum extent practicable.”
Here, plaintiffs had not offered evidence that “the minimization and
mitigation measures offered by La Cantera fail to meet the requirements of
section 10.” Moreover, the court
stated, even if FWS had a duty to consider alternatives, the FWS did so in this
case. The court also did not agree that
the FWS had simply acquiesced to La Cantera’s demands. Instead, in the court’s view, the FWS had
required substantially more mitigation than the company had originally
proposed.
The court distinguished Sierra Club
v. Babbitt, 15 F. Supp. 2d 1274 (S.D. Ala. 1998), noting that in this case,
unlike Sierra Club, there was no evidence that the FWS’ field office was
concerned about the inadequacy of the mitigation measures in the developer’s
HCP. In addition, unlike in Sierra
Club, the FWS provided an explanation and analysis of why the selected
alternative was appropriate, and also found that plaintiff’s alternative was
impracticable due in part to the financial impact it would have on the
developer. The court also distinguished
National Wildlife Federation v. Babbitt, 128 F. Supp. 2d 1274 (E.D. Cal.
2000), on the basis that, unlike that case, the record in this case showed that
the reduced development alternative would in fact have an economic impact on
the developer, and the record showed that the developer’s alternative met the
criteria for issuance of an ITP.
Therefore, the court held, the FWS did not act arbitrarily or
capriciously in issuing and ITP for the developer’s alternative.
The court next held that the FWS was not arbitrary or
capricious in failing to require the HCP to meet a recovery standard. The court, relying on the FWS’ HCP Handbook,
found that section 10 does not require an HCP to meet recovery plan goals, but
only a “no jeopardy” standard similar to that required of federal agencies
under section 7. The court believed
that the HCP met the section 10 “no jeopardy” issuance criterion, even though
the HCP relied on acquisition of habitat areas that the FWS admitted were
inadequate to ensure species survival, and in regions other than where the
development was proposed, contrary to the recovery plan standards for the
species. As to the location and size of
the preserves, the FWS appropriately relied on the applicant’s statement that
it was “limited by land that was practicably available for sale” during HCP
preparation. The court also upheld the
FWS’ reliance on the fact that much of the land surrounding the admittedly
inadequate mitigation areas was still in open space and “may become available
for preservation in the future.”
The court also rejected plaintiffs’
argument that the FWS violated NEPA in failing to prepare an environmental
impact statement (EIS). Plaintiffs
contended that the FWS ignored six of the ten NEPA regulations criteria for
preparation of an EIS: the project (1) is in an ecologically critical area; (2)
has controversial impacts and unknown risks; (3) is precedential in nature; (4)
will have significant cumulative impacts; (5) will result in the destruction of
significant scientific resources; and (6) will have an adverse effect on
endangered species. The court rejected
each of these assertions, finding that plaintiffs had failed to substantiate
their claim and/or that the FWS had adequately considered these issues and had
appropriately concluded that the HCP fully mitigated all of the project’s
potentially significant environmental effects.
The court rejected plaintiffs’ argument
with respect to the “controversial impacts” criterion because it did not
believe the dispute to be “substantial” enough in terms of the number and
strength of the opposition to the HCP.
The court distinguished other cases in which the courts found a
controversy sufficient to require preparation of an EIS on the ground that
there were numerous environmentalists and experts who disagreed with the
agency’s conclusion not to prepare an EIS.
Here, the court found, the opposition did not rise to the same level,
because only one expert disagreed with the FWS’ findings and only two
commentators stated that an EIS should be prepared for the project, and “NEPA .
. . does not demand scientific unanimity to support a FONSI.” Therefore, the court held, it could not
conclude that the FWS acted in an arbitrary and capricious manner in
determining that the comments did not create a sufficient controversy.
The court also disagreed that the HCP
and ITP would set an adverse precedent.
Even though the FWS acknowledged that the ITP would establish a
precedent for the level of mitigation required in future ITPs for the affected
invertebrate species in that county, the FWS found that the ITP was “not
dissimilar” for ITPs previously issued in other counties for the same species.
With regard to cumulative impacts, the
court held that the FWS’ finding that the authorized development “would add to
the overall demand for water resources and increase the burden” to provide
water without jeopardizing listed species in the region “does not amount to a
finding of significance which would require an EIS.” Moreover, the plaintiffs had not pointed to anything in the
record which described exactly how the FWS’ decision making was flawed.
Finally, the court disagreed with
plaintiffs’ assertion that the HCP and ITP by definition would adversely affect
listed species, requiring preparation of an EIS. The court stated that the record supported the FWS’ assertion
that it assessed the degree to which the ground beetles and spider would be
adversely affected and determined that there would be no significant impact
because of the mitigation measures in the HCP. Furthermore, plaintiffs again
had not pointed to anything in the record that showed the FWS decision was
arbitrary and capricious.
Analysis
This case is significant because, in
contrast to the D.C. Circuit’s approach in Gerber v. Norton, the court
appears to take developer’s assertions of economic infeasibility simply at face
value, and it upholds the FWS’ practice of issuing ITPs that impede species
recovery on grounds that greater mitigation would be impractical. If adopted by other courts, the holding in
the Center for Biological Diversity case could make it substantially
more difficult to challenge an HCP and accompanying ITP. This difficulty is underscored by the high
degree of deference the court accorded to the FWS’ analysis and
conclusions. The court simply accepted,
without questioning, the FWS’ rationale, deferring to the agency’s conclusory
analysis, without determining whether that analysis was supported by any
evidence in the record, or made logical sense.
The court’s reasoning on the NEPA issue
also contrasts with the decision in Sierra Club v. Babbitt, wherein the
Alabama District court held that the FWS unlawfully relied on a finding of no
significant impact for an HCP and ITP when it did not even know the minimum
viable population of the species. It
therefore could not reasonably estimate the extent of the project’s impacts on
the species. Similarly, in this case,
the FWS admitted that it did not possess basic information about the
invertebrate populations in question, such as the precise location and extent
of the species’ range.
In NWF v. Babbitt, a California
District Court relied on many of the factors considered by the Center for
Biological Diversity court but reached the opposite conclusion. The NWF court held that the existence
of controversy regarding the HCP and ITP, the unique geographical
characteristics of the region, the precedential nature of the permit, and the
degree to which the permit may affect endangered and threatened species, all counseled
in favor of preparing an EIS. The NWF
court held that, while the HCP’s mitigation measures were relevant to the
determination whether to prepare an EIS, substantial uncertainty regarding the
measures’ potential success required an EIS.
Likewise, in Center for Biological Diversity, the record
established significant uncertainty regarding the likely success of the HCP’s
mitigation measures, yet the court nevertheless relied on those measures to
hold than no EIS was required.
This court granted plaintiff Sierra
Club’s motion for preliminary injunction in a case challenging the FWS’
issuance of two ITPs authorizing take of the Alabama beach mouse. Plaintiff alleged that the FWS violated NEPA
in issuing the ITPs for several high rise condominium towers without first
preparing an EIS. The court held that
plaintiff was very likely to succeed on the merits of its claim that the FWS
violated NEPA in issuing a FONSI due to the lack of concrete data regarding the
effect of habitat loss on the species’ ability to survive and recover, and the
minimum habitat requirements necessary for its continued survival and recovery.
In an earlier case, the same court had
invalidated two other ITPs issued by the FWS on the ground that the FWS had
violated NEPA in preparing a FONSI on the permits. Sierra Club v. Babbitt, 15 F. Supp. 2d 1274 (S.D. Ala.
1998). The court held that the lack of:
current, reliable population data; information on the distribution of the beach
mouse within its range; and an estimate of the minimum viable population size rendered
the FONSI arbitrary and capricious. The
court found that, absent this information, the FWS had no basis for determining
how the proposed action would affect the beach mouse’s ability to survive and
recover.
In this case, the FWS acknowledged that
it did not have the information on beach mouse population density and
distribution that the court had found lacking the prior case. Nevertheless, the FWS asserted that it had
avoided the problems with the prior ITPs by using a habitat-based analysis. The court disagreed, finding that “the
record does not demonstrate that the agency has any clearer idea what effect
the project will have on the beach mouse under this approach than it did under
the incomplete population-based approach previously criticized by the court.”
In reaching its holding, the court
first stated that proposed action need not involve a threat of extinction to a
federally listed species in order to have a potentially significant
effect. However, the possibility of
extinction or extirpation from a traditional habitat weighs heavily in favor of
a finding of significance, as does the existence of uncertainty regarding an
action’s environmental effects. In this
case, the court held, the destruction of 20% of the “optimal habitat” for the
beach mouse, a species listed as endangered due to historic habitat loss, on
top of cumulative post-listing losses of an additional 20% of optimal habitat,
would have a “significant” impact under any reasonable definition of that term. The court also held that lack of information
about how the loss of this amount of optimal habitat would affect the species
also weighed in favor of preparation of an EIS. The court noted that almost all the post-listing habitat loss was
due to the FWS’ issuance of ITPs, for which the agency had never prepared an
EIS. Thus, the FWS could not rely on a
prior EIS to supply missing information about the impacts of the ITPs on the
beach mouse.
The court rejected the FWS’ argument
that the ITPs in question would only affect the local population and would not
affect the species as a whole, finding that local extirpation can still be a
significant impact, and that the beach mouse required several discrete but
connected colonies to survive. The FWS
had not addressed the effects of habitat fragmentation, barriers to migration
along the shoreline and between shoreline and interior habitat, and the effect
of increased flooding of interior habitat caused by increased development in
the area.
The FWS also had not addressed how much
contiguous habitat would remain after development of the high rise
condominiums, nor did it have reliable data on the minimum habitat requirements
for a viable beach mouse colony, or the minimum population requirements for
long-term survival and recovery of the beach mouse as a whole. The court dismissed the argument that the
ITPs would not have a significant impact because they would “leave slightly
more habitat than the lowest estimate of minimum habitat requirements,” finding
that significant impacts include impacts to species recovery as well as
survival, and impacts to a species’ maximum supportable population size. Moreover, because the remaining habitat
would be at or below the FWS’ only general estimate of minimum habitat, the
court found the agency’s finding of insignificance insupportable in the absence
of a reasonably reliable means for analyzing the significance of the impact of
such habitat loss on the beach mouse’s viability and recovery.
The court also dismissed the argument
that any significant impacts were mitigated to insignificance by the HCP
accompanying the ITPs, concluding that while the mitigation measures were
“admittedly beneficial” and minimized many of the lesser adverse effects of the
action, they did “nothing to lessen the irreducible destruction of
habitat.” The court stated that even if
it were to presume that the HCP would completely reduce any effect on the
habitat set-aside to insignificance, the HCP would not undo the habitat
destruction caused by construction of the condominiums, and would not create
new habitat to replace that lost through construction.
The court further found that the lack
of information regarding the impact of such construction and the loss of
optimal habitat on the beach mouse militated in favor of preparation of an
EIS. The court observed that, given the
lack of fundamental information on the effects of habitat loss, “any alleged
‘finding’ that the project will not significantly affect the species is the
purest sophistry.” The court rejected
the argument that the FWS was not required to prepare an EIS unless it found
that the ITPs would jeopardize the species.
The court stated that this would turn NEPA’s requirement of informed
decision making on its head, “making ignorance into a powerful factor in favor
of immediate action where the agency lacks sufficient data to conclusively show
not only that the proposed action would harm an endangered species, but that
the harm would prove to be ‘significant’.”
The regulations cited by the defendants were inapposite because they
addressed the FWS’ duties with regard to issuance of ITPs under the ESA, not
its duties under NEPA.
Having found that plaintiff was likely
to succeed on the merits of its claim that an EIS was required, the court then
determined whether a preliminary injunction was warranted. The court concluded that, under NEPA, it was
required to balance the equities in determining whether to grant an
injunction. It rejected plaintiff’s
contention that the U.S. Supreme Court’s decision in Tennessee Valley
Authority v. Hill, 437 U.S. 153 (1978) precluded such balancing. The court then found that the balance of
harms strongly favored an injunction.
The threatened destruction of optimal habitat would be irreversible, the
failure to prepare an EIS constituted an irreparable procedural injury, and a
preliminary injunction was necessary in order to preserve the court’s ability
to award meaningful and effective relief.
Further, the economic harm to the developers did not outweigh the
irreparable harm caused by failure to prepare an EIS, and the public interest
favored informed agency decision making and protection of endangered species.
Analysis
This represents one of those rare cases
where the court truly understood the significant biological implications of
direct and cumulative loss of habitat of a listed species. The court also recognized that habitat set
asides alone cannot mitigate the effects of such loss, because there is always
a net loss of suitable habitat under such arrangements. Finally, this decision reaffirms the
importance of informed decision making under NEPA. The court justifiably resisted the temptation to turn NEPA into a
paper tiger by allowing the projects to proceed without adequate environmental
analysis before irreversible impacts occur.
The court’s analysis in this case stands in sharp contrast to the
analysis of the District Court for the Western District of Texas in Center
for Biological Diversity v. Norton, 2002 WL 1160598 (W.D. Tex. 2002)
(summarized above).