Gerber v. Norton

• Decision Date: 02 July 2002
• Docket Number: No. 01-5247.,01-5247.
• Parties: John E. GERBER, III and Defenders of Wildlife, Appellants. v. Gale A. NORTON, Secretary, Department of the Interior, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

294 F.3d 173

John E. GERBER, III and Defenders of Wildlife, Appellants. v. Gale A. NORTON, Secretary, Department of the Interior, et al., Appellees.

No. 01-5247.

United States Court of Appeals, District of Columbia Circuit.

Argued May 7, 2002.

Decided July 2, 2002.

COPYRIGHT MATERIAL OMITTED

Appeal from the United States District Court for the District of Columbia (No. 99cv02374).

Eric R. Glitzenstein argued the cause for appellants. With him on the briefs was Katherine A. Meyer. Jonathan R. Lovvorn entered an appearance.

Kathryn E. Kovacs, Attorney, U.S. Department of Justice, argued the cause for appellees Gale A. Norton, et al. With her on the brief was M. Alice Thurston, Attorney.

Lawrence R. Liebesman and Rafe Petersen were on the brief for appellee Winchester Creek Limited Partnership.

Before: EDWARDS, HENDERSON, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

This case involves a challenge to a decision by the Fish and Wildlife Service to issue a permit authorizing the otherwise unlawful "taking" of the endangered Delmarva fox squirrel in connection with a proposed residential development. Appellants contend that the Service violated the Endangered Species Act (ESA) because it did not allow public comment on a key component of the developer's permit application, and because it did not make the statutorily required finding that the developer's plan reduced the impact of the taking to the maximum extent practicable. Because appellants are correct on both counts, we reverse the district court's grant of summary judgment against appellants and order the case remanded for further consideration by the Service.

I

Section 9 of the ESA makes it unlawful to "take" any endangered species. 16 U.S.C. § 1538(a)(1)(B). A species is "endangered" if it "is in danger of extinction throughout all or a significant portion of its range." Id. § 1532(6). The statute defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Id. § 1532(19). The Service's regulations further define "harm" to include "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 C.F.R. § 17.3.

Section 10 of the ESA creates an exception to the general ban on taking. Under that section, the Service may issue a permit allowing "any taking otherwise prohibited by section 1538(a)(1)(B) of this title if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539(a)(1)(B). Several conditions must be met prior to the grant of an incidental take permit. The applicant for the permit must submit a conservation plan, known as a "Habitat Conservation Plan" or "HCP," that describes:

(i) the impact which will likely result from such taking; (ii) what steps the applicant will take to minimize and mitigate such impacts ...; (iii) what alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized; and (iv) such other measures that the Secretary may require as being necessary or appropriate for purposes of the plan.

Id. § 1539(a)(2)(A). The Service must publish notice of the permit application in the Federal Register, and "[i]nformation received by the [Service] as part of [the] application shall be available to the public as a matter of public record at every stage of the proceeding." Id. § 1539(c). The Service also must provide an "opportunity for public comment" on the application and related conservation plan. Id. § 1539(a)(2)(B). Finally, before issuing the permit the Service must make certain specified findings. These include findings that the taking will be incidental, that it "will not appreciably reduce the likelihood of the survival and recovery of the species in the wild," and, most relevant here, that "the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking." Id.

Appellants John E. Gerber, III and Defenders of Wildlife (hereinafter Defenders) challenge the issuance of an incidental take permit to the Winchester Creek Limited Partnership.¹ The permit authorizes the incidental taking of Delmarva fox squirrels on a residential community development site owned by Winchester. The site, known as Home Port, is located in Queen Anne's County, Maryland, on the Eastern Shore of the Chesapeake Bay. It is "one of the last natural habitats" for the Delmarva fox squirrel, which has been listed as an endangered species since 1967. Gerber v. Babbitt, 146 F.Supp.2d 1, 3 (D.D.C. 2001); see Final Environmental Assessment (EA) at 2 (J.A. at 649). According to the Service, residential developments may harm fox squirrels by fragmenting and degrading their habitat, disrupting their normal behavior patterns, increasing their risk of being struck by vehicles, and exposing them to attacks from pets. See Draft HCP at 23-28 (J.A. at 411-16).

In 1997, Winchester asked the Service whether its development would result in the taking of fox squirrels and whether it should apply for a permit. The Service responded that, as long as speed limits and leash laws were enforced in the area of the project, a taking would probably not occur and hence no permit was necessary. Defenders promptly filed a lawsuit alleging that, in determining that Winchester did not need a permit, the Service had violated the ESA, the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. § 706. The Service reconsidered its position and, after conducting an "in-depth review of the scientific literature," advised Winchester that the Home Port development would likely take fox squirrels, speed limits and leash laws notwithstanding. Letter from Fish and Wildlife Service (FWS) to Winchester at 1-2 (May 22, 1998) (J.A. at 289-90). In light of the Service's shift in position, Defenders agreed to dismiss their lawsuit. The dismissal was subject to a joint stipulation that the Service would publish notice of the "availability of a draft `habitat conservation plan' (`HCP') and application for a[n] `incidental take permit' (`ITP') for the proposed Homeport on Winchester Creek residential development project," and that it would mail Defenders a "courtesy copy of the draft HCP, ITP application, and NEPA documentation." Joint Stipulation ¶ 1 (J.A. at 107-08).

On December 31, 1998, the Service issued the required Federal Register notice announcing the receipt of Winchester's application for a permit. The notice stated that persons "wishing to review the permit application, HCP, EA, and IA [Implementing Agreement] may obtain a copy by writing the Service's Chesapeake Bay Field Office." Notice of Availability and Receipt of Application, 63 Fed.Reg. 72,321, 72,321 (Dec. 31, 1998). It also stated that "[d]ocuments will be available for public inspection by written request" to that office. Id. The draft Environmental Assessment explained that Winchester planned to designate another "31-acre forested parcel in Queen Anne's County ... for an off-site conservation easement to compensate in part for [the] take of [fox squirrels] at Home Port." Draft EA at 53 (J.A. at 517). In accordance with the stipulation entered into as a condition of dismissing the earlier lawsuit, the Service mailed Defenders copies of Winchester's permit application and accompanying draft HCP. That material, however, did not include a map of, or otherwise specify the location of, the proposed 31-acre mitigation site. Nor was that omission limited to the package sent to Defenders; the map was absent from all public distributions made by the agency.

Prior to publication of the Federal Register notice, Defenders had submitted a Freedom of Information Act (FOIA) request to the Service for "[a]ny and all documents that relate to or in anyway pertain to the Homeport on Winchester Creek development" or "to the conservation of the endangered Delmarva fox squirrel." FOIA Request at 1 (J.A. at 550).² After the notice was issued and Defenders received copies of the application and HCP, the Service responded to Defender's FOIA request. It advised that, while "the public review documents ... were released to you on December 23, 1998," other documents were "subject to withholding." Letter from FWS to Defenders at 1 (Jan. 8, 1999) (J.A. at 552).

Thereafter, Defenders filed extensive comments on Winchester's permit application. They maintained, however, that they could not evaluate the suitability of the mitigation site as fox squirrel habitat — and hence could not evaluate the overall impact of Winchester's application — without knowing the site's location. See Defenders' Comments at 7 (J.A. at 764). They requested the location information, as well as a 30-day extension of the comment period to address that information. See id. at 7, 12 (J.A. at 764, 769).

The Service issued its final decision regarding the permit on April 11, 1999, and issued the permit itself on May 13, 1999. In approving the permit, the Service stated that the losses of live squirrels and habitat caused by the Home Port development "need to be mitigated," and that the developer planned to place "31.40 acres of wooded habitat off-site in a perpetual environmental easement" as a "conservation measure[ ] designed to mitigate" those losses. Findings and Recommendations at 13 (J.A. at 750). The Service also acknowledged that there was a "Reduced Impact Alternative" to Winchester's plan that "would reduce the likelihood of take" of fox squirrels by relocating the development's access road "away from the [squirrels'] forested edge habitat." Final EA at 5 (J.A. at 652). It noted, however, that this alternative had been "rejected by the applicant" because it would entail additional costs...