Southwest Center for Biological Div. V. Bartel

470 F.Supp.2d 1118

SOUTHWEST CENTER FOR BIOLOICAL DIVERSITY, California Native Plant Society, Wetlands Action Network, 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, San Diego Herpetological Society, Earth Media, Inc., and Preserve South Bay, Plaintiffs, v. Jim BARTEL, Anne Badgley, and Gale Norton, Defendants, and Building Industry Legal Defense Foundation, National Association of Home Builders, California Building Industry Association, Building Industry Association of San Diego, and Pardee Construction Company, Intervening Defendants.

Building Industry Legal Defense Foundation, National Association of Home Builders, California Building Industry Association, and Building Industry Association of San Diego, Cross-Complainants, v. United States Fish and Wildlife Service, Gale Norton, City of San Diego, and Anne Badgley, Cross-Defendants, and Southwest Center for Biological Diversity, Sierra Club, California Native Plant Society, San Diego Audubon Society, and Preserve The South Bay, Intervening Defendants.

No. 98-CV-2234-B(JMA).

United States District Court, S.D. California.

December 15, 2006.

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Daniel J. Rohlf, Portland, OR, for Plaintiffs.

Marco Antonio Gonzalez, Coast Law Group, Encinitas, CA, Neil Levine, Earthjustice, Washington, DC, for Plaintiffs/Intervenor Defendants.

U S Attorney CV, Thomas C. Stahl, U S Attorneys Office Southern District Of California Civil Division, San Diego, CA, Jane P. Davenport, Keith W. Rizzardi, Wildlife and Marine Resources Section, Environment and National Resources Divis U S Department of Justice, Martin McDermott, US Department of Justice, Environmental Defense Section, Washington, DC, Stephen M. Macfarlane, United States Department of Justice, Environmental Natural Resource Divison, Sacremento, CA, for Defendants/Cross Defendants.

Stephen J. Odell, Law Offices of Stephen J. Odell, Portland, OR, William E. Halle, Hewitt and O'Neil Llp, Irvine, CA, for Intervenor Defendant.

John Peter Mullen, Richard A. Duvernay, Office of the City Attorney Civil Division, San Diego, CA, for Cross Defendant.

AMENDED DECISION AND INJUNCTION

BREWSTER, Senior District Judge.

In this Endangered Species Act ("ESA," 16 U.S.C. §§ 1531-1544) case, fourteen national, state, and local conservation and environmental groups¹ (hereinafter "Plaintiffs") challenge the decision of the United States Fish and Wildlife Service² (hereinafter "FWS" or "Federal Defendants") to issue an incidental take permit ("ITP") under § 10 of the ESA to the City of San Diego³ based upon its conservation plan. This Court has jurisdiction under the citizen suit provision of the ESA. § 1540(g). Though the City's ITP governs 85 species, Plaintiffs' lawsuit is limited to seven vernal Pool species—two small aquatic crustacean species (San Diego fairy shrimp and Riverside fairy shrimp) and five plant species (Otay mesa mint, California Orcutt grass, San Diego button celery, San Diego mesa mint, and spreading navarretia (also known as prostrate navarretia) — which are listed as "endangered" or "threatened.") Third Amended Complaint ¶ 41-42 ("TAC").

A construction company and four building associations intervened (hereinafter "Builder Intervenors")⁴ and filed a crosscomplaint against the Federal Defendants and the City of San Diego to challenge the scope of the .ITP provisions on those same seven vernal pool species. Southwest Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820-22 (9th Cir.2001); Cross Compl. ¶ 9-12; see Order Resolving Subject Matter Jurisdiction at 4-5 (filed Sept. 8, 2004).

Having considered the administrative record, the legal briefs, and the relevant case law, it appears to this Court that the ITP would permit monumental destruction of the vernal pool species, which are extremely sensitive to their environment and were virtually extinct in 1995. The Court finds that FWS overlooked an important aspect of the operation of the Assurances because the malleable standard — to avoid the pools when "practicable" — virtually guarantees development and the ersatz mitigation measures run counter to the realistic needs of these dwindling vernal pool species and may hasten their extinction. It is undisputed that the fairy shrimp cannot be transferred by human transplant from one area to another with any measure of reliability or survivability. Yet, a close examination of the record reveals that FWS has authorized extensive development of lands containing vernal pools that would destroy essential habitat for these rare species under the guise of obtaining promises for "mitigation" in other areas. The ostensible "mitigation" is inadequate to ensure that the fairy shrimp will survive and recover to the point where they need not be listed for protection of the ESA. In short, while vigorous development is certain, the purported mitigation is unlikely to conserve the listed species. Moreover, the record does not support FWS's finding that the City of San Diego would fund its share of the conservation plan. The Court finds that this plan violates both the spirit and letter of the ESA.

More specifically, the Court finds that FWS must re-initiate consultation proceedings on the City's ITP because the avenue of seeking permits from the United States Army Corps of Engineers ("ACOE") is no longer available for vernal pools,, and the remaining conservation measures are inadequate to protect these fragile species. FWS concedes that it did not examine the impact of the City's plan on the vernal pool species because FWS did not anticipate any impact on those species; instead, FWS expected to evaluate any impact on particular sites in future permit procedures. That structure violates the ESA as to the vernal pool species in this case because FWS has locked in any mitigation, that could be recommended or would be required to the measures delineated in the City's conservation plan — the very plan that FWS did not assess for adequate protection of the vernal pool species because it deferred that evaluation to future proceedings and that uses mitigation measures that FWS had previously concluded are ineffective, experimental, and inadequate given the strict needs of the imperiled vernal pool species. The position of FWS thus circles back onto itself, and the species are left in a "heads I lose, tails you win" position that substitutes inadequate conservation measures in the place of the strict conservation and recovery standards of the ESA. Consequently, the Court finds that the Assurances in the Implementing Agreement ("IA"), as applied to the vernal pool species, violate the ESA because they are inconsistent with the governing statutory command to conserve the vernal pool species to bring them to the point at which protection by the ESA is no longer necessary. § 1523(3).

One might ask, when all is said and done, "who cares about the fairy shrimp and the other vernal pool species?" Fairy shrimp, when they manage to survive to adulthood, are one-quarter inch fully grown. For the most part, they are hard to see by the naked eye. There are not many left, and if gone, who would miss there Surely, the casual observer passing through the Southern California landscape would not notice one way or the other. The biologists tell us that every species has an essential and unique roll to play in the food chain that supports us all. If the fairy shrimp ultimately become extinct in the San Diego region, they will cease to be a devourer of lower forms of life in the food chain, such as bacteria and micro algae on clay particles, which could impact control on the species below. Similarly, the fairy shrimp would not be available food for creatures above in the chain, such as waterfowl and toads, who look to them for their diet. In the microscopic view, the fairy shrimp may make little, identifiable difference. But if this type of destruction is treated on a case-by-case basis as an unimportant loss, it does not take long before life on this planet is in jeopardy. Congress saw that threat when it enacted the ESA. § 1531(b). Congress demonstrated foresight by realizing that the country's present understanding of the value of a myriad of life forms was not yet known, and that extinction should be prevented by protecting both the individual species and the ecosystems upon which those species depended for survival. Id.

It is not for this Court to be sympathetic or unsympathetic to the vernal pool species, but it is the Court's obligation to interpret and follow the law as written. This permit, with its massive development of vernal pool habitat and highly questionable mitigation techniques for a species that cannot be simply gathered and moved to another location, violates the fundamental objective of the ESA to conserve listed species to bring them to the point at which statutory protection is no longer necessary. The Court declines to approve it.

I. Endangered Species Act

The ESA, enacted by Congress and signed by the President, reflects a national concern for the preservation and replenishment of a rapidly growing list of species who are threatened or endangered with extinction. "The plain intent of Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost." Tennessee Valley Authority v. Hill, 437 U.S. 153, 175, 184 & n. 29, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). "Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as 'institutionalized caution.'" Id. at 194, 98 S.Ct. 2279. "Congress was concerned about the unknown uses that endangered species might have and about the unforeseeable place such creatures...