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HAYWARD AREA PLANNING v. NORTON

March 30, 2004.

HAYWARD AREA PLANNING, Plaintiff,
v.
GALE NORTON, Defendant



The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

JUDGMENT

In accordance with the Court's Order of March 29, 2004, judgment is hereby entered.

IT IS SO ADJUDGED. Page 1

 
ORDER GRANTING THE FEDERAL DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; GRANTING THE DEFENDANT-INTERVENOR'S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; AND DENYING PLAINTIFFS' MOTION FOR, PRELIMINARY INJUNCTION
  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 DENIED.

  BACKGROUND

  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 Page 2 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 Page 3 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 2184-85, 2182-84.

  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 Act.

  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, 2002, the Page 4 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 ...


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