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HAYWARD AREA PLANNING v. NORTON

United States District Court, N.D. California


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 summary judgment.

  LEGAL STANDARD

 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 Page 5 (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. 1980).

 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 Page 6 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).

  DISCUSSION

  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 Page 7 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" alternative

  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): Page 8

 

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 administrative record.

  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 Page 9 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 Page 10 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 finding

  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 Court agrees.

  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 Page 11 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.

  CONCLUSION

  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.


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