ELR Citation: ELR 20455
No(s). 84-1991 (9th Cir. May 14, 1985)

The court holds that the United States Fish and Wildlife Service (FWS) complied with the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA) when it issued a permit under ESA §10(a) authorizing the taking of an endangered species of butterfly in connection with development activity on San Bruno Mountain near San Francisco. The court reviews FWS' ESA compliance under the arbitrary and capricious standard. The court first holds that FWS complied with ESA §10(a)'s requirement that it find that the taking will not appreciably reduce the likelihood of the survival of the endangered species. In fact, FWS found that the permit, which is conditioned on implementation of a habitat conservation plan, was likely to enhance the butterfly's chance of survival. FWS properly relied on a biological study to support this conclusion. The legislative history of ESA §10(a) supports FWS' actions, citing FWS' conduct in this case as the model approach. Further, FWS made good-faith efforts to consider all criticism of the study before relying on it. Second, FWS complied with ESA §10(a)'s mitigation requirement through various measures adopted in the habitat conservation plan. Third, FWS complied with ESA §7(a)(2) by considering all relevant data in determining that the permit would not likely jeopardize the continued existence of the butterfly.

The court next reviews FWS' NEPA compliance using a reasonableness standard. The court first holds that FWS' decision not to prepare an environmental impact statement based on its determination of no significant impact was reasonable. FWS' decision is supported by its thorough analysis, including consideration of public comment, extensive coordination with state and local governments, and the adoption of mitigation measures. Second, the underlying environmental impact report/environmental assessment adequately discussed reasonable alternatives to the proposed development. Finally, FWS reasonably concluded that a worst-case analysis was not necessary since adequate information on environmental impacts was available and these impacts will be reconsidered as the staged development proceeds.

Counsel for Appellants
Michael Freund
1915 Addison St., Berkeley CA 94704
(415) 540-1992

Counsel for Appellees
David Byers
U.S. District Attorney's Office
Redwood City CA 94602
(415) 363-4761

Before Ferguson and Curtis,^* JJ.