ELR Citation: ELR 20603
No(s). 94-56748 (9th Cir. Jan 25, 1995)

The court holds that the Federal Highway Administration's (FHwA's) approval of the proposed San Joaquin Hills tollroad through California gnatcatcher habitat did not violate the Endangered Species Act (ESA), and affirms a district court's denial of environmental groups' request for a preliminary injunction to halt construction of the tollroad. The groups allege that the FHwA's approval of the tollroad violated the ESA in light of the U.S. Fish and Wildlife Service's (FWS') alleged failure to use the best scientific information available in the biological opinion it issued for the project and FWS' failure to designated critical habitat for the gnatcatcher. The court holds that it need not decide whether FWS was bound to apply California conservation guidelines when evaluating the tollroad, because FWS' conclusion that the tollroad is consistent with those guidelines is not arbitrary, capricious, or an abuse of discretion. The biological opinion explicitly states that the tollroad project is consistent with the guidelines' principles governing long-term management and protection of coastal sage scrub habitat. Also, FWS took into account all direct and indirect impacts the tollroad will have on gnatcatcher habitat and articulated a rational basis for drawing its conclusions, and the biological opinion used the best scientific information available. The court thus holds that the FHwA's reliance on the biological opinion in approving the tollroad did not violate ESA §7.

The court next holds that it need not decide whether the groups have raised serious questions about FWS' rationale for concluding that designating critical habitat for the gnatcatcher would not be prudent and, therefore, need not decide the legality of FWS' decision not to designate critical habitat under ESA §4(a)(3). Even if FWS erred in failing to designate critical habitat, the error can be remedied without issuing an injunction. The court holds that the groups failed to carry their burden of establishing that a violation of the ESA is at least likely in the future. The FHwA has not yet violated any of its obligations under ESA §7. To demonstrate that the FHwA is likely to violate the ESA, the groups must show that if compelled to designate critical habitat, FWS will likely include land affected by the tollroad project as part of that designation. The court holds that the groups have failed to make this showing. FWS has already conducted a thorough analysis of the tollroad's impact on the gnatcatcher and has concluded that the immediate project area is not essential to the overall survival and recovery of the species. The FWS has also concluded that the tollroad will not likely impair the overall utility of the San Joaquin Hills as important, and likely essential, gnatcatcher habitat. Though these determinations are not precisely the same as those FWS would be called on to make in designating critical habitat, they are sufficiently similar to suggest that FWS is unlikely to conclude that land used by the tollroad is essential to the conservation of the gnatcatcher. The court notes that because FWS is required to take into consideration the economic impact of specifying any particular area as critical habitat, even if FWS were to conclude that land used by the tollroad is presumptively critical habitat, it would likely exercise its discretion to exclude the area from any designation it might make. This is particularly likely in light of the fact that the tollroad will destroy only 155 of the estimated 400,000 acres of remaining coastal sage scrub habitat. Thus, because the groups have failed to carry their burden of showing that the FHwA's approval of the tollroad is likely to violate §7(a)(2), the court holds that the district court did not abuse its discretion in refusing to issue a preliminary injunction. The court vacates the injunction this court issued on December 23, 1994.

[Pleadings in related litigation are digested at ELR PEND. LIT. 66307.]

Counsel for Plaintiffs
Michael Fitts
Natural Resources Defense Council
6310 Vincente Blvd., Ste. 250, Los Angeles CA 90048
(213) 934-6900

Counsel for Defendants
Ellen Durkee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Schroeder, Hall, and Kozinski, JJ.