Friends of Endangered Species, Inc. v. Jantzen

• Decision Date: 14 May 1985
• Docket Number: No. 84-1991,84-1991
• Citation: 760 F.2d 976
• Parties: , 15 Envtl. L. Rep. 20,455 FRIENDS OF ENDANGERED SPECIES, INC., Plaintiff-Appellant, v. Robert A. JANTZEN, Director, United States Fish and Wildlife Service; County of San Mateo; City of Daly City; City of Brisbane; City of South San Francisco; Visitacion Associates; W.W. Dean and Associates, Inc.; Presley of Northern California, Inc.; Foxhall Investment, Ltd., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 976

760 F.2d 976

22 ERC 1817, 15 Envtl. L. Rep. 20,455

FRIENDS OF ENDANGERED SPECIES, INC., Plaintiff-Appellant, v. Robert A. JANTZEN, Director, United States Fish and Wildlife Service; County of San Mateo; City of Daly City; City of Brisbane; City of South San Francisco; Visitacion Associates; W.W. Dean and Associates, Inc.; Presley of Northern California, Inc.; Foxhall Investment, Ltd. Defendants-Appellees.

No. 84-1991.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 15, 1985.

Decided May 14, 1985.

Michael Freund, Berkeley, Cal., for plaintiff-appellant.

David Byers, Redwood, Cal., for defendants-appellees.

An Appeal From United States District Court For the Northern District of California.

Before PREGERSON and FERGUSON, Circuit Judges, and CURTIS, ^* Senior District Judge.

PREGERSON, Circuit Judge:

Friends of Endangered Species, Inc. (Friends) appeals from a summary judgment in favor of public and private appellees. ¹ Friends had challenged a decision of the United States Fish and Wildlife Service (the Service) to issue a permit that authorized the "taking" ² of Mission Blue butterflies from areas of the San Bruno Mountain. For the reasons stated below, we affirm the district court's order, 589 F.Supp. 113, granting summary judgment to appellees.

FACTS

San Bruno Mountain (the Mountain), an area rich in wildlife, contains about 3,400 acres of undeveloped land located on the northern San Francisco Peninsula. Throughout the early 1970's, appellees Visitacion Associates and the Crocker Land Company, a co-owner of Visitacion, purchased virtually all the land on the Mountain. In 1975, they proposed to develop approximately 7,655 residential units and 2,000,000 square feet of office and commercial space on the Mountain.

Appellee's proposal generated intense controversy over the appropriate level of development of the Mountain. A local environmental group, the Committee to Save San Bruno Mountain, led the opposition to Visitacion Associates' development proposal. In response to this controversy, in March 1976, the San Mateo County Board of Supervisors (the County) adopted the San Bruno Mountain General Plan Amendment (the General Plan Amendment), which permitted construction of only 2,235 residential units, as well as some office and commercial space. The General Plan Amendment designated the remainder of the land on the Mountain as open space.

In 1980, litigation between Visitacion Associates and the County over the General Plan Amendment was settled. Under the settlement, Visitacion Associates and the Crocker Land Company sold or donated to the County and the State of California over 2,000 acres of the Mountain for parkland. The County and Visitacion Associates also agreed to designate about one-third of the Mountain for development and two-thirds for parks.

Shortly after the settlement was reached, the Service found that the Mission Blue butterfly, which was on the endangered species list, inhabited the Mountain. ³

In May 1980, various individuals and entities formed the San Bruno Mountain Steering Committee (the Committee) to formulate a plan that would both protect the endangered species and allow some development of the Mountain. The Committee consisted of representatives of the County, the cities of Brisbane, Daly City, and South The Steering Committee initiated a two-year Biological Study of, among other species, the Mission Blue butterfly, to determine its population and distribution on the Mountain and whether development would conflict with the butterflies' continued existence. The study technique employed was a mark-release-recapture of the butterflies. ⁴

San Francisco (the Cities), Visitacion Associates, other prospective developers, landowners, the Service, the California Department of Fish and Game, and the Committee to Save San Bruno Mountain (the citizens' group which had opposed Visitacion Associates' 1975 development proposal).

The Biological Study concluded that the Mission Blue inhabited most of the grassland portions of the Mountain, including areas planned for development. The Study also determined that if development did not occur, the butterflies' grassland habitat would inevitably be lost to encroaching brush, and the butterflies' continued existence would be seriously threatened.

In October 1981, the Steering Committee began developing a Habitat Conservation Plan (the Plan), based on the Biological Study. The Plan was to provide an approach by which habitat protection and real estate development on the Mountain would take place at the same time. The Steering Committee incorporated the final Plan into an implementing document, called the "Agreement with Respect to the San Bruno Mountain Area Habitat Conservation Plan" (the Agreement). The County, the Cities, the major landowners and developers, the California Department of Fish and Game, and the California Department of Parks and Recreation executed the implementing agreement.

The Agreement dedicated 793 privately owned acres to local agencies as permanent open space, preserved 81% of the open space on the Mountain as undisturbed habitat with another 3% of open space to be restored after temporary disturbances during construction. The Agreement also required lot owners on the Mountain to contribute $60,000 annually to finance a permanent habitat conservation program. The County agreed to supervise the program. According to the Plan, the development would disturb only 14% of the present habitat of the Mountain's population of Mission Blue butterflies.

To effectuate the Agreement, section 10(a) of the Endangered Species Act (ESA), 16 U.S.C. Sec. 1539 (1982), required the Service to issue a Permit. Because the Service's approval of the Permit required compliance with federal and California environmental statutes, San Mateo County and the Service agreed in February 1982, to prepare jointly a combined Environmental Impact Report (EIR), required under state law, and an Environmental Assessment (EA), required under federal law. In July 1982, the Service published notice of the draft EIR/EA on the Plan and proposed Permit and made the EIR/EA public for hearing and comment. The Service received both favorable and adverse comments and, in its Permit Findings and final EIR/EA, considered and responded to these comments.

In November 1982, the Service received a formal application for a Permit from the County and the Cities for the incidental taking of Mission Blue butterflies, San Bruno Elfin butterflies, and San Francisco garter snakes. The Service then published notice of its receipt of the Permit application and requested public comments.

In March 1983, the Service issued a Biological Opinion concluding that, pursuant to section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. Sec. 1536 (1982), the planned development under the Permit would not jeopardize the continued existence Also in March, the Service issued the Permit, conditioned upon implementation of the Agreement and the Plan. The Permit allows incidental "taking" of the Mission Blue on the Mountain, but prohibits taking of the San Francisco Garter Snake and the San Bruno Elfin butterfly within their designated habitats, unless the Service grants an amendment to the Permit.

of various species on the Mountain, including the Mission Blue butterfly. The Service also issued a Finding of No Significant Impact (FONSI) stating that issuance of the Permit would not significantly affect the quality of the human environment. This finding obviated the need for an Environmental Impact Statement. See 42 U.S.C. Sec. 4332(2)(C) (1982); Preservation Coalition v. Pierce, 667 F.2d 851, 855 (9th Cir.1982).

In August 1983, Friends filed an action in the district court for declaratory and injunctive relief. Friends contended that because the field studies were methodologically flawed, the Service's findings that relied on the field data were arbitrary and capricious, and that approval of the Permit based on such findings constituted an abuse of the agency's discretion. Friends also alleged that the EIR/EA's discussion of environmental impacts and alternatives to development on the Mountain was insufficient under the National Environmental Policy Act (NEPA), 42 U.S.C. Sec. 4321 (1982), to enable the Service adequately to assess the environmental impacts of the Permit and the Plan. Friends alleged that NEPA, therefore, required the Service to prepare a full-blown Environmental Impact Statement in this case.

In November 1983, Friends moved the district court for both a temporary restraining order and a preliminary injunction to halt certain grading work on the Mountain. The district court denied both motions. Appellees then brought a motion for summary judgment, which the district court granted. The district court held that appellant had failed to raise an issue of material fact on any of its claims under NEPA or the ESA. Friends now appeals this ruling.

The issues presented on appeal are: (1) whether appellant raised a genuine issue of material fact in alleging that the Service violated the ESA in issuing the Permit allowing incidental "taking of" various species including the Mission Blue butterfly from San Bruno Mountain; (2) whether appellant raised a genuine issue of material fact in alleging that the service failed to comply with NEPA.

STANDARD OF REVIEW ON SUMMARY JUDGMENT

In reviewing a grant of summary judgment, we must determine whether, after viewing the evidence in the light most favorable to the opposing party, any genuine issue of material fact remains for trial and whether the substantive law was correctly applied. Fed.R.Civ.P. 56(c); Amaro v. Continental Can Co., 724 F.2d 747, 749 (9th Cir.1984). We review de novo the trial court's grant of summary judgment. Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983).

DISCUSSION

I. Violation of the Endangered Species Act

Appellant first contends that in issuing the Permit, the Service...