SW. Center for Biological Deversity v. Berg

• Decision Date: 27 September 2001
• Docket Number: INTERVENTION-APPELLANTS,No. 99-56627,PLAINTIFFS-APPELLEES,DEFENDANTS-APPELLEES,99-56627
• Citation: 268 F.3d 810
• Parties: (9th Cir. 2001) SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY; CALIFORNIA NATIVE PLANT SOCIETY; SAVE OUR FORESTS AND RANCHLANDS; CARMEL MOUNTAIN CONSERVANCY, PRESERVE WILD SANTEE; IRON MOUNTAIN CONSERVANCY; RAMONANS FOR SENSIBLE GROWTH; SAN DIEGO AUDUBON SOCIETY; SIERRA CLUB; HORNED LIZARD CONSERVATION SOCIETY; EARTH MEDIA; PRESERVE SOUTH BAY; SAN DIEGO HERPETOLOGICAL SOCIETY; WETLANDS ACTION NETWORK,, v. KEN BERG, CARLSBAD FIELD SUPERVISOR; ANNE BADGLEY, ACTING REGIONAL DIRECTOR; GALE NORTON, <A HREF="#fr1-*" name="fn1-*">* SECRETARY OF THE INTERIOR; MICHAEL UBERUAGA, SAN DIEGO CITY MANAGER,, PARDEE CONSTRUCTION COMPANY; BUILDING INDUSTRY LEGAL DEFENSE FOUNDATION; NATIONAL ASSOCIATION OF HOME BUILDERS; CALIFORNIA BUILDING INDUSTRY ASSOCIATION; BUILDING INDUSTRY ASSOCIATION OF SAN DIEGO, APPLICANTS IN
• Court: U.S. Court of Appeals — Ninth Circuit

Page 810

268 F.3d 810 (9th Cir. 2001)

SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY; CALIFORNIA NATIVE PLANT SOCIETY; SAVE OUR FORESTS AND RANCHLANDS; CARMEL MOUNTAIN CONSERVANCY, PRESERVE WILD SANTEE; IRON MOUNTAIN CONSERVANCY; RAMONANS FOR SENSIBLE GROWTH; SAN DIEGO AUDUBON SOCIETY; SIERRA CLUB; HORNED LIZARD CONSERVATION SOCIETY; EARTH MEDIA; PRESERVE SOUTH BAY; SAN DIEGO HERPETOLOGICAL SOCIETY; WETLANDS ACTION NETWORK, PLAINTIFFS-APPELLEES, v. KEN BERG, CARLSBAD FIELD SUPERVISOR; ANNE BADGLEY, ACTING REGIONAL DIRECTOR; GALE NORTON,^* SECRETARY OF THE INTERIOR; MICHAEL UBERUAGA, SAN DIEGO CITY MANAGER, DEFENDANTS-APPELLEES, PARDEE CONSTRUCTION COMPANY; BUILDING INDUSTRY LEGAL DEFENSE FOUNDATION; NATIONAL ASSOCIATION OF HOME BUILDERS; CALIFORNIA BUILDING INDUSTRY ASSOCIATION; BUILDING INDUSTRY ASSOCIATION OF SAN DIEGO, APPLICANTS IN INTERVENTION-APPELLANTS.

No. 99-56627

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted May 8, 2001

Filed September 27, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

John C. Eastman (argued), the Claremont Institute Center for Constitutional

Jurisprudence, Claremont, California, and Hugh Hewitt and William E. Halle, Hewitt & McGuire, LLP, Irvine, California, for applicants in intervention-appellants.

Neil Levine (argued), Earthlaw, Denver, Colorado, Daniel J. Rohlf, Pacific Environmental Advocacy Center, Portland, Oregon, and Marco Gonzales, Solano Beach, California, for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of California; Irma E. Gonzalez, District Judge, Presiding. D.C. No. CV-98-02234-IEG.

Before: Rymer, Hawkins, and Gould, Circuit Judges.

Ronald M. Gould, Circuit Judge:

We must decide the proper scope of intervention as of right pursuant to Federal Rule of Civil Procedure 24 ("Rule 24") in the context of environmental litigation. Pardee Construction Company ("Pardee") and four national and local building trade associations (the "Builders") (collectively, "Applicants") appeal the denial of their motion to intervene in an action for declaratory and injunctive relief brought by the Southwest Center for Biological Diversity and other environmental groups (collectively, "Southwest") against various officers of the U.S. Fish and Wildlife Service ("FWS"), the Department of the Interior, and the City of San Diego (the "City"), and the U.S. Army Corps of Engineers (collectively, "Defendants"). Southwest challenges the measures Defendants have taken to ensure the protection of seven endangered wetland species, and the validity of conservation plans and an agreement and permit that regulate development projects affecting these and other protected species. We have jurisdiction over the denial of a motion to intervene as of right as a final appealable order pursuant to 28 U.S.C. § 1291. Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998). We reverse the denial of the motion to intervene and remand.

FACTS AND PROCEDURAL HISTORY

Section 9 of the Endangered Species Act ("ESA") makes it unlawful for any person to "take" an endangered species of fish or wildlife. 16 U.S.C. § 1538(a)(1)(B). FWS has extended the take prohibition to include threatened fish and wildlife. 16 U.S.C. § 1533(d); 50 C.F.R. § 17.31(a). The "take" of a protected species includes "harm," 16 U.S.C.§ 1532(19), which, in turn, includes effects from any "significant habitat modification or degradation where it actually kills or injures wildlife." 50 C.F.R. § 17.3.

Section 10 of the ESA creates an exemption from the ESA's prohibition on the take of covered species. It grants FWS the power to issue permits allowing for the take of listed species that incidentally results from lawful activities on private property. 16 U.S.C. § 1539(a)(1)(B). To obtain an "Incidental Take Permit" ("ITP"), a party must develop a "habitat conservation plan" ("HCP") that provides for ongoing mitigation efforts to minimize the project's future impact on protected species. 16 U.S.C. § 1539(a)(2); 50 C.F.R.§ 17.22. Before issuing an ITP, FWS must prepare and evaluate a biological opinion to ensure that the project will not jeopardize the continued existence of covered species. 16 U.S.C. § § 1536(a)(2), (b)(3)(A).

In 1991, California passed the Natural Communities Conservation Planning Act ("NCCPA"). 1991 Cal. Stat. 765 (codified at CAL. FISH & GAME CODE § § 2800-2840). The purpose of the NCCPA is to encourage planning among affected interests for habitat protection of species to avert their listing under the ESA. The NCCPA authorizes the California Department of Fish & Game ("CDFG") to enter agreements with parties to implement a Natural Communities Conservation Plan ("NCCP") "to provide comprehensive management and conservation of multiple wildlife species." CAL. FISH & GAME CODE § 2810.¹

In 1990, the City began developing a comprehensive land management plan known as the San Diego Multi-Species Conservation Program ("MSCP") Plan. The MSCP Plan encompasses a 900-square-mile area in San Diego County (the "County"), including the City, portions of the County's unincorporated areas, and some coastal and inland cities within the County. The MSCP Plan became a blueprint for a "workable balance between preservation of natural resources and regional growth and economic prosperity."

The MSCP Plan took more than five years to develop and involved participation and negotiation by stakeholders including federal, state, and local governments; wildlife agencies; property owners; environmental groups; and citizens. The twenty-nine member MSCP Working Group represented stakeholders including plaintiff the Sierra Club, defendants the City and FWS, and Applicants Pardee and the Building Association of San Diego ("BIA/SD").

The MSCP Plan established a permanent 171,917 acre preserve called the Multi-Habitat Planning Area (the"MHPA"), which covers about thirty percent of the County's total land area. Private landowners contributed about thirty-seven percent of the MHPA acreage. Under the MSCP Plan, the City and other municipalities within the plan's area are responsible for developing their own "subarea plans." The City's Subarea Plan ("Subarea Plan") encompasses 200,000 acres-approximately thirty-five percent of the total MSCP Plan area.

After development of the MSCP Plan and the Subarea Plan (collectively, the "Plans"), FWS, CDFG, and the City entered into a contractually binding Implementation Agreement ("IA"). The Plans qualify as both an HCP and a NCCP, and they are specifically incorporated into the IA. Pursuant to the IA and shortly after its execution, FWS issued the City an ITP ("City's ITP") covering eighty-two protected species and incorporating the Plans and the IA. The City's ITP gives the City power for fifty years to confer delegated incidental take authority on projects that comply with all requirements of the IA, the City's ITP, and the Plans.

The IA also grants the City the power to create third-party beneficiaries to the IA, if they meet additional regulatory requirements outlined in the IA and the Plans. Under paragraph 17.1(A) of the IA, the City confers Third Party Beneficiary status on projects pursuant to its review of the project's impacts on biological resources, determination of necessary mitigation measures to compensate for such impacts, and imposition of such mitigation as a condition of development binding on those with Third Party Beneficiary status. The IA allows the City to confer its delegated incidental take authority on Third Party Beneficiaries. The IA also provides "assurances" that, absent "extraordinary circumstances" or future listing of species as protected, the City will not impose on Third Party Beneficiaries additional mitigation or protective measures other than those allowed by the IA.

Although the broadest of the IA's assurances are given to Third Party Beneficiaries, the IA also protects against further mitigation and conservation regulation to projects identified as in the "Approval Process." Projects in the Approval Process are given a "Category" ranking from 1 to 3, with projects in the last category considered the furthest along in the approval process. According to the IA, proponents of projects in Category 3 are considered "vested under California law."

Vernal pools are freshwater wetlands that form in shallow depressions on mesa tops and valley floors. The depressions fill with rainwater and runoff in the Fall and Winter, and dry up in the Spring. Vernal pools are a shrinking environment in California, with an estimated ninety-seven percent of such habitats already destroyed by development. Five plant and two shrimp species that inhabit San Diego's vernal pools are endangered. The City's ITP lists these species among its covered species.

On December 30, 1998, Southwest and thirty local and national environmental groups filed a First Amended Complaint in district court asserting fourteen claims for relief against Defendants. The action alleges Defendants did not abide by ESA requirements in protecting seven vernal pool species. Southwest challenges the formulation, approval, and implementation of the IA, the Plans, and the City's ITP.

Southwest's claims for relief include claims: (1) that challenge the adoption of the City's HCP (MSCP Plan, identified in the First Amended Complaint as including the Subarea Plan and IA) and the issuance of City's ITP for failing to comply with the procedural requirements of the ESA; (2) that assert the Subarea Plan and City's ITP are illegal based on failures to satisfy substantive standards of the ESA for the vernal pool species; (3) that FWS should have revoked the City's ITP for the failure to abide provisions implementing monitoring, management, and regulatory protocols specified in the Subarea Plan and IA as incorporated by the ITP and failure of the FWS to abide other ESA requirements; (4) that FWS failed to complete a Recovery Plan for vernal pool...