United States District Court, N.D. California
March 30, 2004.
HAYWARD AREA PLANNING, Plaintiff,
GALE NORTON, Defendant
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
In accordance with the Court's Order of March 29, 2004, judgment is
IT IS SO ADJUDGED.
ORDER GRANTING THE FEDERAL
DEFENDANTS' MOTION FOR
GRANTING THE DEFENDANT-INTERVENOR'S
MOTION FOR SUMMARY JUDGMENT;
DENYING PLAINTIFFS' MOTION FOR
SUMMARY JUDGMENT; AND
DENYING PLAINTIFFS' MOTION FOR,
The parties' cross-motions for summary judgment are pending before the
Court. After consideration of the arguments of counsel and the papers
submitted, the Court GRANTS the federal defendants' motion, GRANTS the
defendant-intervenor's motion, and DENIES plaintiffs' motion, for the
reasons set forth below. In light of the disposition of the motions for
summary judgment, plaintiffs' motion for preliminary injunction is
This case, brought under the Endangered Species Act ("ESA"), involves
two federally protected species, the Alameda whipsnake and the California
red-legged frog. 62 Fed. Reg. 64306 (Dec. 5, 1997); 61 Fed. Reg. 25813
(May 23, 1996). Both species inhabit the Walpert Ridge, hills in Alameda
County, California, that extend from the City of Hayward southeast to
Union City and Fremont. Fish and Wildlife Service Administrative
Supplement ("FWS ARS") 3837. The U.S. Fish and Wildlife Service ("the
Service") designated the Alameda whipsnake's critical habitat, including
Walpert Ridge, on October 3, 2000. 65 Fed. Reg. 58933. Walpert Ridge was
designated critical habitat for the red-legged
frog [66 Fed. Reg. 14626 (Mar. 13, 2001)], but in November of 2002,
the District Court for the District of Columbia approved a settlement
that vacated the red-legged frog's critical habitat and remanded to the
Service for a new designation. See Homebuilders Ass'n of Northern
California v. Norton, No. 01-1291 (RLJ) (D.D.C. Nov. 6, 2002).
On July 30, 1998, Hayward 1900 applied to the Army Corps of Engineers
for a permit to allow it to begin construction of the Blue Rock Country
Club Project on 1,609 acres of open space on Walpert Ridge. Army Corps of
Engineers Administrative Record ("ACE AR") 560. Blue Rock Country Club is
envisioned as an elite development of 600 executive homes and a
championship golf course. In order to begin construction, Hayward 1900
would have to fill almost ten acres of wetlands, ponds, and channel
habitat on Walpert Ridge that are subject to the jurisdiction of the Army
Corps of Engineers. Id. The Corps requested formal consultation with the
Service under Section 7 of the ESA on September 4, 1998.
On April 5, 1999, the Service issued a draft biological opinion stating
that Blue Rock would jeopardize the whipsnake and the red-legged frog,
because it would prevent the species from dispersing over Walpert Ridge.
See Draft Formal Consultation on the Proposed Blue Rock Country
Club Project at 29, Fish and Wildlife Service Administrative Record ("FWS
AR") 2392. The biological opinion identified a "reasonable and prudent
alternative," as required by Section 7 of the ESA, which would meet the
project's purpose but would avoid danger to either species. Id. at 31-32.
The alternative entails reducing the size of the development to
"eliminate impacts to rock outcrops lining the top of the Walpert Ridge
and allow unimpeded cross ridge movement by" the whipsnake and the
red-legged frog. Id. at 31. Under the alternative, over 200 of the
residential housing units would have been eliminated, and the golf course
would have been either eliminated or reconfigured. Following the issuance
of the draft biological opinion, there were lengthy discussions between
Hayward 1900 and the Service to identify possible modifications of the
Blue Rock Project. The final plan submitted to the Service was Plan 13
(depicted in Exhibit G to Hayward 1900's motion). This plan increased the
size of the habitat area in the center of the golf course and shifted
most of the residential development and clubhouse facilities to the
northwest corner of the site. Plan 13 also: created an opening at the
northern end of the golf course
area to provide a corridor for whipsnake movement between scrub
habitat in drainages on the east and west sides of Walpert ridge;
enlarged the space between golf holes; elevated golf paths to allow for
whipsnake movement; moved the sixth hole to avoid disturbing a rock
outcrop; created buffers around streams and ponds to prevent the
introduction of contaminated run-off from the golf course; redesigned and
relocated water quality treatment and detention ponds so that they would
be less attractive as habitat for frogs; and proposed the creating of
additional frog breeding ponds higher on the Ridge. FWS ARS
On December 9, 1999, after review of the changes to the proposed Blue
Rock Project, the Service issued its final biological opinion, which
found that Blue Rock would not jeopardize the continued existence of
either the whipsnake or the red-legged frog. FWS AR 2718. The Service
issued a Section 404 permit for Blue Rock on July 14, 2000. Army Corps of
Engineers Administrative Record ("ACE AR") 2230-31. On November 14, 2000,
plaintiffs filed this action, challenging the December 9, 1999 final
biological opinion on the grounds that it was directly contrary to the
information in the record upon which it was based, and was therefore in
violation of the Endangered Species Act and the Administrative Procedure
At about this same time, the Service designated critical habitat for
the whipsnake and the red-legged frog (on October 3, 2000 and March
13, 2001, respectively). Thereupon, the Corps suspended the 404 permit
and requested reinitiation of Section 7 consultation and a new biological
assessment in order to reassess the impact of Blue Rock on the critical
habitat. The litigation of this action was stayed pending the
consultation. This round of the consultation evaluated the impact of Blue
Rock on the designated critical habitat unit. The Service and Hayward
1900 developed a final Mitigation and Monitoring Plan, which was designed
to mitigate all impacts that design changes to Blue Rock would not avoid.
On January 18, 2002, the Service issued a new draft biological opinion,
concluding that Blue Rock would not jeopardize the whipsnake or the
red-legged frog, and that the project would not result in the destruction
or adverse modification of critical habitat. FWS SAR 3088. On July 12,
Service issued its final biological opinion reaching the same
conclusions, and superseding the December 9, 1999 opinion. FWS SAR 4189.
The Corps reinstated Hayward 1900's Section 404 permit on July 24, 2002.
ACE AR 2702.
In August, 2002, plaintiffs amended their complaint to include claims
against the Army Corps for failing to ensure that its actions would not
result in the destruction or adverse modification of critical habitat. In
their First Amended Complaint, plaintiffs alleged that the 2002 final
biological opinion and the administrative record fail to provide any
support for the Service's "no jeopardy" conclusion and that the Service's
"destruction or adverse modification" analysis is patently illegal.
Now before the Court are the parties' cross motions for summary
A. Motion for summary judgment
The Federal Rules of Civil Procedure provide for summary adjudication
when "the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
In a motion for summary judgment, "[if] the moving party for summary
judgment meets its initial burden of identifying for the court those
portions of the materials on file that it believes demonstrate the
absence of any genuine issues of material fact, the burden of production
then shifts so that "the non-moving party must set forth, by affidavit or
as otherwise provided in Rule 56, `specific facts showing that there is a
genuine issue for trial."' See T.W. Elec. Service, Inc. v. Pacific
Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 317 (1986)).
In judging evidence at the summary judgment stage, the Court does not
make credibility determinations or weigh conflicting evidence, and draws
all inferences in the light most favorable to the nonmoving party.
See T.W. Electric, 809 F.2d at 630-31 (citing Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 So.
Ct. 1348 (1986)); Ting v. United States, 927 F.2d 1504, 1509
(9th Cir. 1991). The evidence presented by the parties must be
admissible. Fed.R.Civ.P. 56(e). Conclusory, speculative testimony in
affidavits and moving papers is insufficient to raise genuine issues of
fact and defeat summary judgment. See Falls Riverway Realty, Inc. v.
City of Niagara Falls, 754 F.2d 49 (2d Cir. 1985); Thornhill
Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).
Hearsay statements found in affidavits are inadmissible. See, e.g.,
Fong v. American Airlines, Inc., 626 F.2d 759, 762-63 (9th Cir.
B. Review of administrative action
Judicial review of the Fish and Wildlife Service's final biological
opinion is governed by the Administrative Procedure Act ("APA"),
5 U.S.C. § 706(2). Pyramid Lake Paiute Tribe v. U.S. Dep't of the
Navy, 898 F.2d 1410, 1413 (9th Cir. 1990). The court "shall" set
aside any agency decision that the Court finds is "arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law."
5 U.S.C. § 706(2)(A). The APA restricts the trial court reviewing an agency
action from considering any evidence outside of the administrative record
available to the agency at the time of the challenged decision. See
5 U.S.C. § 706(2)(E); Florida Power & Light Co. v.
Lorion, 470 U.S. 729, 743-44 (1985); Havasupai Tribe v.
Robertson, 943 F.2d 32, 34 (9th Cir. 1991), cert. denied,
503 U.S. 959 (1992).
The court must determine whether the agency decision "was based on a
consideration of the relevant factors and whether there has been a clear
error of judgment." Citizens to Preserve Overton Park v. Volpe,
401 U.S. 402, 416 (1971). The Supreme Court has explained that an agency
action would be arbitrary and capricious if "the agency has relied on
factors which Congress has not intended it to consider, entirely failed
to consider an important aspect of the problem, [or] offered an
explanation for its decision that runs counter to the evidence before the
agency. . . ." Motor Vehicles Mfrs. Ass'n v. State Farm Automobile
Insurance Co., 463 U.S. 29, 43 (1983). Although the arbitrary and
capricious standard "is narrow and presumes the agency action is
valid, . . . it does not shield agency action from a `thorough, probing,
in-depth review." Northern Spotted Owl v. Hodel, 716 F. Supp. 479,
481-82 (W.D. Wash. 1988) (citations omitted). The Court cannot,
however, substitute its judgment for that of
the agency or merely determine whether it would have decided an
issue differently. Marsh v. Oregon Natural Resources Council
490 U.S. 360, 377 (1989).
A. Cross-motions for summary judgment
This Court's role in reviewing the Fish and Wildlife Service's final
biological opinion with regard to the Blue Rock Project and its impact on
the whipsnake, its critical habitat and the red-legged frog is limited to
a determination of whether the Service considered the relevant factors
and articulated a rational connection between the facts found and the
choice made. See Pyramid Lake Paiute Tribe, 898 F.2d at 1414:
see also Baltimore Gas & Elec. Co. v. Natural Resources Defense
Council 462 U.S. 87, 105 (1983). Under this standard, this Court finds
that the Service did consider the relevant factors and did articulate a
rational connection between those factors and its decision.
1. Service findings re: jeopardy to the continued existence of
the whipsnake and the red-legged frog
Defendants assert that the Blue Rock development will not jeopardize
the continued existence of either the whipsnake or the red-legged frog.
The Service does project some problems for both the whipsnake and the
frog because of the Blue Rock development, but finds that there are
sufficient mitigation measures to reduce these problems to a non-jeopardy
level. This Court finds that the "no jeopardy" conclusion is supported by
the administrative record.
The Service projects that Blue Rock will block cross-Ridge movement for
the whipsnake in the residential parts of the development and that it
will diminish cross-Ridge movement for the whipsnake in the golf course.
FWS SAR 4232. The Service states that this decrease in connectivity could
lead to fragmentation of the whipsnake population, which could result in
inbreeding and genetic problems within the population, problems that
could damage the species as a whole. However, the Service goes on to
determine that there are mitigation measures that would reduce the
potential effects of Blue Rock on the whipsnake population to a
non-jeopardy level. The active golf areas will be built on the perimeter
of the golf course, while the interior will be set aside as a
private conservation area for both the whipsnake and the frog. Golf cart
paths will be elevated to avoid potential whipsnake habitat corridors.
Hayward 1900 will create and enhance rock outcrop scrub habitat, the kind
which studies have shown have successfully attracted whipsnakes.
Furthermore, the Service notes that the Blue Rock Project will result in
dedication of 995 acres to the East Bay Regional Park District, which
will manage the acreage to benefit the whipsnake and the frog. After
considering all of this mitigation, the Service concluded that these
improvements "would likely bolster whipsnake numbers and contribute to
connectivity across Walpert Ridge." FWS SAR 4235.
With regard to the red-legged frog, the Service initially states that
Walpert Ridge is an important breeding area for the red-legged frog, and
that interference with the frog's breeding behaviors could result in
significant population impacts. FWS SAR 1823, 4237. The Service then
states that the Blue Rock Project will include construction of new frog
breeding ponds, some of which will be constructed high on the Ridge in
order to feed into the Palomares and Dry Creek drainages and encourage
dispersal downstream. Id. at 2697. The Resource Management Plan provides
that the ponds will be monitored twice annually in order to detect and
remove the presence of bullfrogs or other non-native species. Id. at 427.
Furthermore, while Blue Rock will result in the fill of 9.2 acres of
wetlands, it will mitigate this by the creation of 25.9 acres in the
conservation areas. FWS SAR 2679-80.
The Service's conclusions cannot be said to be arbitrary, capricious or
an abuse of discretion, as they were based on consideration of the
relevant factors and are supported by the administrative record.
2. Comparison with the 1999 draft "reasonable and prudent"
Plaintiffs contend that the Blue Rock Project, as it now stands, should
be barred because it has not been scaled back in conformance with the
draft "reasonable and prudent" alternative in the 1999 draft biological
opinion. Defendants maintain, however, that they were not required to use
the draft "reasonable and prudent" alternative. This appears to be
correct; see Southwest Center for Biological Diversity v. U.S.
Bureau of Reclamation, 143 F.3d 515, 522-23 (9th Cir. 1998):
Under the ESA, the Secretary was not required to
pick the first reasonable alternative the FWS came
up with in formulating the [reasonable and prudent
alternative]. The secretary was not even required
to pick the best alternative or the one that would
most effectively protect the Flycatcher from
jeopardy. The Secretary need only have adopted a
final [reasonable and prudent alternative] which
complied with the jeopardy standard and which
could be implemented by the agency.
Southwest Center, 143 F.3d at 522. This Court agrees with
defendants that they were not required to use the 1999 draft "reasonable
and prudent" alternative.
3. Whipsnake critical habitat
ESA Section 7 requires agencies to ensure that their actions do not
result in "adverse modification" to the critical habitat of listed
species. The determination in the July, 2002 final biological opinion,
that the Blue Rock development will not result in adverse modification to
the whipsnake's critical habitat, does not lack support in the
a. Definition of adverse modification
Plaintiffs contend that Service used an improper definition of "adverse
modification" in arriving at its findings, making its ultimate
determination arbitrary and capricious. Plaintiffs rely on Sierra
Club v. United States Fish and Wildlife Service, 245 F.3d 434 (5th
Cir. 2001), in which the Fifth Circuit held that a decision of the Fish
and Wildlife Service was arbitrary and capricious because the "evaluation
of the merits of critical habitat designation was premised on the view
that jeopardy consultation was functionally equivalent to consultation
under the destruction/adverse modification standard." Sierra
Club, 245 F.3d at 445. Under the regulation, "jeopardize the
continued existence of" is defined as "to engage in an action that
reasonably would be expected, directly or indirectly, to reduce the
likelihood of both the survival and recovery of a listed species in the
wild by reducing the reproduction, numbers, or distribution of that
species," while "destruction or adverse modification" is defined as "a
direct or indirect alteration that appreciably diminishes the value of
critical habitat for both the survival and recovery of a listed species."
50 C.F.R. § 402.02. The Fifth Circuit held that the regulatory
definition of the destruction or adverse modification standard was
inconsistent with the ESA, because "requiring
consultation only where an action affects the value of critical
habitat to both the recovery and survival of a species imposes a
higher threshold than the statutory language permits." Sierra
Club, 245 F.3d at 442. The Court went on to find the regulation's
definition of the destruction or adverse modification standard facially
invalid. Id. at 443.*fn1
Defendants maintain that they did not engage in the type of analysis
that was invalidated in the Sierra Club decision, because they
considered the question of destruction or adverse modification to the
whipsnake's habitat separately from the question whether the project
would result in jeopardy to the species. Plaintiffs point to portions of
the administrative record which suggest that the two questions merged: In
response to an inquiry about whether consultation was required if a
previous consultation had resulted in a finding of "no jeopardy" to the
whipsnake, a response from FWS stated "We expect that projects that do
not jeopardize the continued existence of the Alameda whipsnake are not
likely to destroy or adversely modify its critical habitat." 65 Fed. Reg.
58933 (Oct. 3, 2000). Plaintiffs also cite an email from FWS biologist
David Wright, in which he stated "Since we issued a no-jeopardy on the
project before the designation of critical habitat, the Service's
often-stated position (e.g. in every critical habitat proposal and rule)
that destruction or adverse modification of critical habitat is
equivalent to jeopardy, appears to limit our ability to find anything but
no adverse modificatio[n] on this project." FWS SAR at 3082.
Defendants respond that this was simply a generalized statement about
the FWS expectations, and was not probative of methods used by FWS in the
Blue Rock consultation. They point out that, in response to Mr. Wright's
email, senior employees of the Field Office placed a memorandum in the
file stating "the Service issued a draft biological opinion project and
will issue a final biological opinion that makes a conclusion relative to
jeopardy that is independent of the conclusion relating to destruction or
adverse modification of critical habitat." FWS SAR 4187.
Defendant point to portions of the record which demonstrate that the
Service conducted an
analysis of critical habitat that did not define jeopardy as
equivalent to destruction or adverse modification. For example, the Corps
submitted a biological assessment at the outset of consultation which
undertook a detailed analysis of Blue Rock's likely effects on whipsnake
critical habitat. FWS SAR 1800-22. This assessment separately evaluated
how habitat alteration would affect survival and how habitat alteration
and compensation and mitigation measures would affect or benefit,
respectively, the recovery of the species. FWS SAR 1816.
This Court agrees with defendants. Plaintiffs have failed to produce
evidence to support their claims that the Service relied on an invalid
interpretation of the destruction or adverse modification standard. In
light of the rest of the administrative record, one response to a comment
and one email from a FWS biologist, both subject to various
interpretations, are not enough to warrant a finding that the Fish and
Wildlife Service's final biological opinion was arbitrary and capricious.
b. Support from the administrative record for the Service's
Defendants state that, contrary to plaintiffs' claims, that there is
sufficient support from the administrative record for FWS' finding that
Blue Rock would not destroy or adversely modify critical habitat. The
The administrative record makes it clear that the Blue Rock Project
will have extensive negative effects on the critical habitat, including
direct loss of habitat, reduced connectivity, reduction of prey base due
to habitat loss, increase in pets and other urban-adapted predators, and
chronic human-related disturbance. The same record, however, evaluates in
some detail the ways in which these impacts will be mitigated by
compensation measures, such as the dedication of 1,197 acres for the
preservation and management of whipsnake critical habitat for the benefit
of the whipsnake and the frog, the created rock outcrop scrub habitat,
and the increased management in conservation areas.
Review under the Administrative Procedures Act requires that
substantial deference be given to agency decisions. In light of the
substantial evidence presented in the administrative record in this
matter, this Court cannot say that in issuing the 2002 final biological
opinion the Service "relied on
factors which Congress has not intended it to consider, entirely
failed to consider an important aspect of the problem, [or] offered an
explanation for its decision that runs counter to the evidence before the
agency." Motor Vehicles Mfrs. Ass'n v. State Farm Automobile
Insurance Co., supra, 463 U.S. at 43. The Service considered
relevant factors and made no clear error of judgment. Citizens to
Preserve Overton Park v. Volpe. supra, 401 U.S. at 416. Accordingly,
the Court GRANTS both the federal defendants' and the
defendant-intervenor's motions for summary judgment, and DENIES
plaintiffs' motion for summary judgment.
B. Defendant-intervenor's objections to evidence
Defendant-Intervenor Hayward 1900 objects to certain evidence relied on
by plaintiffs in their motion for summary judgment. Specifically, Hayward
1900 objects to statements contained in the Declarations of Sherman Lewis
and Jeffrey K. Miller which introduce facts, for the first time,
regarding matters considered by the Service during review. Hayward 1900
argues that the appropriate forum for the introduction of this evidence
is the administrative proceeding, and that plaintiffs have not
demonstrated that any of the exceptions to this rule, as outlined in
Animal Defense Council v. Hodel, 840 F.2d 1432, 1438 (9th Cir.
1988), apply here. This Court agrees, and SUSTAINS the objections.
For the foregoing reasons, the Court GRANTS the federal defendants'
motion for summary judgment, GRANTS the defendant-intervenor's motion for
summary judgment, and DENIES plaintiffs' motion for summary judgment. For
the same reasons, plaintiffs' motion for preliminary injunction is
DENIED. [Docket ## 74, 94, 98 and 117.]
IT IS SO ORDERED.