Friends of Endangered Species, Inc. v. Jantzen
| Decision Date | 20 March 1984 |
| Docket Number | No. C-83-3837 SW.,C-83-3837 SW. |
| Citation | 589 F. Supp. 113 |
| Parties | FRIENDS OF ENDANGERED SPECIES, INC., Plaintiff, 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.; Presely of Northern California, Inc.; Cadillac-Fairview Homes West, Inc.; Foxhall Investment, Ltd.; Defendants. |
| Court | U.S. District Court — Northern District of California |
Albert E. Polonsky, City Atty., City of Daly City — Daly City, Cal., for defendant, City of Daly City.
Michael Freund, Albany, Cal., for plaintiff.
James P. Fox, Dist. Atty. by David J. Byers, Deputy Dist. Atty., Redwood City, Cal., for defendant County of San Mateo.
Irell & Manella, George T. Caplan, Los Angeles, Cal., for defendant Cadillac Fairview Homes West — California.
Howard N. Ellman, John D. Hoffman, Kenneth N. Burns, Ellman, Burke & Cassidy, San Francisco, Cal., for defendant Visitacion Associates.
Robert K. Rogers, Jr. City Atty., Elladene Lee Katz, Asst. City Atty., South San Francisco, Cal., for defendants.
Jessica S. Pers, Michael J. Coffino, Heller, Ehrman, White & McAuliffe, San Francisco, Cal., for defendant W.W. Dean & Associates.
George J. Silvestri, Jr., Bagshaw, Martinelli, Corrigan & Jordan, San Rafael, Cal., for defendant City of Brisbane.
Charles E. Chase, Burlingame, Cal., for defendant, Foxhall Inv., Ltd.
Joseph J. Cook II, Mark A. Cameron, Miller, Starr & Regalia, Oakland, Cal., for Presley of Northern California, Inc.
Joseph P. Russoniello, U.S. Atty., Rodney H. Hamblin, Asst. U.S. Atty., Chief, Land and Natural Resources Division, Charles M. O'Connor, Asst. U.S. Atty., San Francisco, Cal., Dianne H. Kelly, Atty., U.S. Dept. of Justice, Washington, D.C., for Federal defendant.
ORDER AND MEMORANDUM OF LAW GRANTING MOTION FOR SUMMARY JUDGMENT
Defendants brought a motion for summary judgment pursuant to Fed.R.Civ.Pro. 56 noticed for February 8, 1984. Because of a misunderstanding with regard to the scheduling of defendants' motion for summary judgment, plaintiff arrived late for oral argument. Rather than reschedule hearing, or grant defendant's motion, we invited both parties to supplement their briefs with any additional facts and legal arguments they might have intended to raise at oral argument. Both parties have now done so. The parties have not, in our opinion, presented arguments significantly different from those presented in the first series of papers submitted.
Plaintiff has responded to defendants' motion by repeating the various claims it made previously, when seeking a TRO and a preliminary injunction. It contends that the issuance of the permit challenged herein was a violation of the Endangered Species Act (ESA), 16 U.S.C. § 1531, and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321. Plaintiff claims that the survival of certain species of butterflies (the Mission Blue and the San Francisco Checkerspot, among others) will be threatened by the development which defendants propose. In support of this position, plaintiff submits the declarations of two experts in entomology, who challenge the methodology of the biological study upon which the permit was issued. Plaintiff claims that these declarations raise genuine issues of material fact regarding the validity of the permit, foreclosing the entry of summary judgment for defendants.
Having reviewed the memoranda, affidavits, and other papers submitted by the parties, we conclude that the plaintiff has not produced any material facts precluding the summary judgment motion of the defendants. Therefore, IT IS HEREBY ORDERED that the defendants' motion for summary judgment is GRANTED. FACTS:
San Bruno Mountain is 3500 acres of undeveloped land on the San Francisco Peninsula. It is an area rich in wildlife, including several endangered species of Lepidoptera. It is also an area attractive to developers, given its close proximity to the urban centers of San Francisco and San Jose. The conflict of these two competing interests has brought the case to us.
Our involvement in the case is recent, however, when compared to that of the parties. Throughout the early 1970's, defendant Visitacion Associates and the Crocker Land Company, a co-owner of Visitacion, purchased land on the Mountain in hopes of capitalizing on its location. By 1975, these defendants owned virtually all of the Mountain. They then approached the municipal and county defendants with a proposal to develop large areas of San Bruno Mountain.
A citizens' group, the Committee to Save San Bruno Mountain, formed to oppose the development In response to this controversy, the San Mateo County Board of Supervisors passed the San Bruno General Plan Amendment (Amendment) in 1976.
By 1980, litigation between Visitacion Associates and the County over the Amendment reached a mutually satisfactory solution. As a result of the settlement, Visitacion and the Crocker Land Co. sold or donated over 2000 acres on the Mountain to the county and State for parkland. Thus, about one-third of the Mountain was designated for development, while two-thirds was dedicated to parks.
Soon after the final conveyances of the property, the plot thickened as a result of federal action pertaining to the wildlife present on the mountain. On March 28, 1980, the Fish and Wildlife Service (FWS) issued a re-proposal to list the Callippe Silverspot Butterfly, found in some numbers on the Mountain, as an endangered species, and to designate its critical habitat pursuant to Section 4 of the Endangered Species Act, 16 U.S.C. § 1533. The newly proposed critical habitat overlapped most of the area on the Mountain which had been reserved for development.
Nearly simultaneously, the Mission Blue Butterfly, which was already on the endangered species list, was found to inhabit some of the area to be developed.
In order to adequately safeguard the endangered species, while fulfilling promised development opportunities, the San Bruno Mountain Steering Committee was formed in May of 1980. It was ultimately made up of representatives of San Mateo County, the three cities involved, prospective developers, FWS, the California Department of Fish and Game, and the Committee to Save San Bruno Mountain.
The Steering Committee initiated a two-year Biological Study of the Mission Blue and Callippe Silverspot butterflies to determine their populationand distribution on the Mountain, and to determine whether development would conflict with the continued existence of the species. Although the Mission Blue and Callippe Silverspot were the focus of the study, it also gave consideration to several other species not listed as endangered. The County selected and hired Thomas Reid Associates to conduct this study when the butterfly situation had first come to light.
The study concluded that the butterflies inhabited most of the grassland portions of the Mountain, including those areas slated for development. It also concluded that, if development did not occur, the species would be threatened through natural forces by the loss of its grassland habitat to encroaching brush, noxious to the butterflies.1
In October of 1981, the Steering Committee began developing a Habitat Conservation Plan (HCP) based on the study. The final HCP, completed in November, 1982, was incorporated into an implementing document called the "Agreement with Respect to the San Bruno Mountain Area Habitat Conservation Plan" (the Agreement). The Agreement was executed by the County, the cities, the major landowners and developers involved on the Mountain, the California Department of Fish and Game, and the California Department of Parks and Recreation.
The Agreement dedicated 793 privately owned acres as open space, preserved 81% of the open space on the Mountain as undisturbed habitat, with another 3% to be restored after temporary disturbance during construction, and required contribution of $60,000 annually, adjusted for inflation, by lot owners on the Mountain to finance a permanent habitat conservation program. The County agreed to supervise the program through a conservation manager and an advisory committee of scientists. According to the HCP, 14% of the population of the Mission Blue on the Mountain would be disturbed by the development.
Notwithstanding the Agreement and HCP, the ESA required FWS to issue a permit pursuant to Section 10(a) of the Act, 16 U.S.C. § 1539. As a prerequisite to the issuance of this permit, the FWS was required to conduct an inter-agency consultation and issue a Biological Opinion certifying that the permit was not likely to jeopardize the continued existence of the endangered species.
Also, NEPA required an Environmental Assessment (EA) to determine whether the permit would have significant adverse environmental consequences; if so, a full blown Environmental Impact Statement (EIS) would be necessary.
To that end, the FWS made the EIR/EA public for hearing and comment in November of 1982. Some adverse comments were received by the FWS during the comment period; these were considered and answered at length by the FWS in its permit findings and EIR/EA. In addition, three scientists of national reputation commented favorably on the report. Some three months after the close of the comment period, the FWS received more criticisms of its Biological Study. It considered these comments at length in its permit findings, although under no strict legal duty to do so.
After these public hearing and opportunities for written...
To continue reading
Request your trial
-
Loggerhead Turtle v. County Counc., Volusia County
...care, raise an issue as to the agency's procedure in evaluating and reviewing the data before it." Friends of Endangered Species, Inc. v. Jantzen, 589 F.Supp. 113, 119 (N.D.Cal.1984), aff'd, 760 F.2d 976 (9th The administrative record demonstrates that, before granting the permit, the Servi......
-
Environment Now! v. Espy, CV-F-94-5474 OWW.
...that summary judgment is appropriate because the case is limited to the administrative record, relying on Friends of Endangered Species, Inc. v. Jantzen, 589 F.Supp. 113 (N.D.Cal.1984), aff'd, 760 F.2d 976 (9th Cir.1985). The Friends court granted defendant's motion for summary judgment on ......
-
Assiniboine and Sioux Tribes of Fort Peck Indian Reservation v. Board of Oil and Gas Conservation of State of Montana
...as long as federal agency does not abdicate responsibilities and rubberstamp their work product); Friends of Endangered Species, Inc. v. Jantzen, 589 F.Supp. 113, 118-19 (N.D.Cal.1984), aff'd, 760 F.2d 976 (9th Cir.1985) (federal agency's delegation of environmental research to a third part......
-
Southwest Center for Biological Div. V. Bartel
...review of the Secretary's actions." Village. of False Pass v. Clark, 733 F.2d 605, 609 (9th Cir.1984); Friends of Endangered Species v. Jantzen, 589 F.Supp. 113, 118 (N.D.Cal.1984) (summary judgment is appropriate vehicle to review administrative action), aff'd, 760 F.2d 976 (9th Cir.1985).......
-
Natural communities conservation planning: California's new ecosystem approach to biodiversity.
...1539(a)(2)(B). (18.) Pub. L No. 97-304 [sections] 6(1), 96 Stat. 1422 (1982). (19.) 596 F. Supp. 518 (N.D. Cal. 1984), aff'd on reh'g, 589 F. Supp. 113 (N.D. Cal. 1984), aff'd., 760 F.2d 976 (9th Cir. 1985). (20.) 42 U.S.C. [subsections] 4231-4370c (1988). (21.) Id. (plaintiff, Friends of E......