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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

NATIONAL WILDLIFE FEDERATION,

et al., 

Plaintiffs,

v.

GALE NORTON, 

Defendant. 

CIV-S-04-0579 DFL JFM

MEMORANDUM OF OPINION

AND ORDER

Plaintiffs National Wildlife Federation, Friends of the

Swainson’s Hawk, Planning and Conservation League, and Sierra

Club allege that the Secretary of the Interior violated the

Endangered Species Act by approving the Natomas Basin Habitat

Conservation Plan and issuing incidental take permits to the City

of Sacramento and Sutter County. By orders of July 2, 2004 and

July 19, 2004, the court permitted the City of Sacramento, Sutter

County, and several landowners in the affected area to intervene

as defendants. The parties now cross-move for summary judgment. 

This is the second time that the court has been asked to

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 A “threatened” species is any species which is likely to 1

become an endangered species within the foreseeable future

throughout all or a significant portion of its range. 16 U.S.C.

§ 1532(20). 

2

review a habitat conservation plan for the Basin. See Nat’l

Wildlife Fed’n v Babbitt, 128 F.Supp.2d 1274 (E.D. Cal. 2000)

(“Natomas I”). In Natomas I, the court held that the habitat

conservation plan was inadequate. For the reasons that follow,

the court now finds that the revised plan satisfies the

requirements of the Endangered Species Act (“ESA”).

 I. Background 

A. History of the Habitat Conservation Plan 

The Natomas Basin is a low-lying region of approximately

53,000 acres in Sacramento and Sutter Counties. (Administrative

Record (“AR”) 59.) The Basin is home to the Giant Garter Snake

(“GGS”) and the Swainson’s Hawk, the two species of greatest

concern in this litigation. In 1993, the Secretary listed the

GGS as a threatened species under the Endangered Species Act

(“ESA”). The Swainson’s Hawk has not been listed as a 1

threatened species by the Secretary; however, it has been so

listed by the California Department of Fish and Game under the

California Endangered Species Act. 14 C.C.R. § 670.5(b)(5)(A),

Cal. Fish & Game Code § 2067. The GGS is an elusive animal that

lives in rice fields and drainage ditches; it is found only in

rice-growing regions of the Central Valley, including ricegrowing areas in the Basin and associated canals. The Swainson’s

Hawk is migratory, wintering in Central and South America and

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spending March to September in the Central Valley. The hawk

forages on small rodents found in large open fields and nests in

large trees; there are approximately 50 identified hawk nesting

sites in the Basin and the riparian corridor of the Sacramento

river. (AR 952-55.) 

The ESA conditions the Secretary’s issuance of an incidental

take permit (“ITP”) upon her approval of a habitat conservation

plan (“HCP). The ITP allows activity, here development, that

could injure or harm – “take” in the language of the statute --

an endangered or threatened species. Without an ITP, developers

would be subject to serious penalties, including criminal

prosecution, for any injury to an endangered or threatened

species. 16 U.S.C. §§ 1538, 1540. The history of the

development of the Natomas Basin HCP is outlined in Natomas I and

need not be repeated here in detail. See Nat’l Wildlife Fed’n v

Babbitt, 128 F.Supp.2d at 1277-78. In brief, the first HCP for

the Basin was a regional conservation plan designed to cover

development in the entire Basin. Id. at 1279. The 1997 HCP

anticipated that five jurisdictions -- the City, Sacramento

County, Sutter County, Reclamation District No. 10, and the

Natomas Central Mutual Water Company -- would apply for ITPs. 

Id. The HCP was designed to permit development of 17,500 acres

of Basin land over the 50-year life of the ITPs, with mitigation

lands acquired at a .5-to-1 ratio as land was developed. Id. at

1280. The acquisitions were to be funded with mitigation fees

paid by developers in the relevant jurisdictions. Id. In the

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end, however, only the City applied for a permit under the HCP. 

Despite the lack of participation by the other jurisdictions, the

Secretary granted an ITP to the City, finding that the issuance

of an ITP to the City, with the limitations imposed by the HCP,

would not likely jeopardize the continued existence of the

species covered by the HCP, including the GGS and the Swainson’s

Hawk. Id. at 1282-84. 

The Secretary’s issuance of an ITP to the City was

challenged by various organizations, among whom were the

plaintiffs in the present action. On August 15, 2000, the court

found that several of the Secretary’s findings were unreasonable

and violated the ESA, thereby setting aside the Secretary’s

issuance of the ITP. Id. at 1292-1300. Specifically, the court

found that the Secretary erroneously concluded that: (1) the HCP

minimized and mitigated the impact of the permitted takings “to

the maximum extent practicable;” (2) the City had ensured

adequate funding for the mitigation plan; and (3) issuance of the

ITP to the City, in the absence of participation by the other

jurisdictions, would not jeopardize the continued existence of

the covered species. Id. On this last issue, the court found

that a principal failing of the 1997 ITP was that it relied upon

an HCP that took a regional approach to conservation, covering

the entire 53,000-acre Basin, when in fact only the City sought

an ITP and agreed to be bound by the HCP. Id. at 1291, 1299. 

The HCP failed to analyze possible effects on the species in the

event that the other jurisdictions -- primarily Sacramento and

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 The NBHCP also anticipates development of 1,983 acres in 2

the Metro Air Park project. (Pl.’s Mot. at 5-6.) An ITP was

previously issued for that project, an action the court upheld in

Nat’l Wildlife Fed’n v. Norton, 306 F.Supp.2d 920 (E.D. Cal.

2004) (“Metro Air Park”). In total the NBHCP anticipates 17,500

acres of development in the Basin. 

 The final EIR/EIS was prepared to comply with the public 3

agencies’ obligations under the National Environmental Policy Act

and the California Environmental Quality Act. The EIR/EIS

evaluates a broader range of potential environmental impacts. 

The adequacy of the EIR/EIS is not challenged in this action. 

However, because the EIR/EIS is part of the record of decision,

the analysis and responses to comments in the EIR/EIS are

relevant to evaluating the Secretary’s conclusions under the ESA. 

5

Sutter counties -- failed to subscribe to the HCP. However, the

court upheld the conclusion that the HCP would not result in

jeopardy to the covered species were it implemented by the five

jurisdictions envisioned by the HCP. Id. at 1295-98. 

After the 1997 ITP was set aside, the City revised the HCP

to address the flaws identified by the court. Currently before

the court is a revised HCP, covering development only by the City

and Sutter. This second Natomas Basin HCP (“NBHCP”) was approved

by the Secretary in April 2003. At the same time, the Secretary

granted ITPs to the City and Sutter, authorizing a total of

15,517 acres of development. Shortly thereafter, the Service 2

and the Secretary issued the required supporting documents: a

Biological Opinion (“BiOp”) examining effects upon the species

listed in the proposed ITP, Findings and Recommendations

supporting the issuance of an ITP, a final EIR/EIS, and the

Record of Decision, in which the Secretary adopted the Service’s

findings and announced her decision to issue the ITPs.3

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 The plan also requires other minimization and avoidance 4

measures. In particular, the plan calls for preservation of the

“Swainson’s Hawk Zone,” a one-mile strip of land adjacent to the

Sacramento River, which contains many of the Swainson’s Hawk

nesting sites in the Basin. (AR 1032, 1034.)

6

B. The Final NBHCP

The purpose of the NBHCP is to “promote biological

conservation in conjunction with economic and urban development

within the permit area.” (AR 19.) The final NBHCP envisions

participation by the City and Sutter, but does not depend on

participation by both entities. (Id. at 50-51.) The NBHCP

covers 22 species, with particular attention to the GGS and the

Swainson’s Hawk, since they are prominent in the Basin, listed as

threatened under state or federal law, and occupy habitat that

will also benefit other covered species. (Id. at 64.) The NBHCP

anticipates that development by the City and Sutter will be

limited to 15,517 acres -- 8,050 acres within the City and 7,467

acres in Sutter County –- and provides that approval of any

development beyond this limit -- whether by the City and Sutter

or by other entities -- will trigger reevaluation and possible

amendment of the plan, and could result in suspension or

revocation of the City and Sutter permits. (Id. at 20, 23-26,

110.) 

Like the 1997 HCP, the primary mitigation measure relied on

in the NBHCP is acquisition and enhancement of reserve properties

at a .5-to-1 ratio for all of the lost habitat, to be funded by

developer fees. (Id. at 36, 169-98.) The 8,750 acres of 4

reserve land will be divided in the following fashion: 50% in

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rice cultivation that will serve as habitat for the GGS; 25% in

managed marsh habitat for the GGS; and 25% in upland habitat that

could be used for foraging by the Swainson’s Hawk. (Id. at 37.) 

The NBHCP offers the following reasons to support the adequacy of

the .5-to-1 ratio: (1) the reserves will provide higher quality

habitat than the lands to be developed, especially given that the

reserves will be managed for the covered species; (2) much of the

land to be developed is of limited value as habitat but will be

assessed as if it were of value; (3) the reserves will provide

permanent habitat for the covered species; (4) the NBHCP provides

monitoring and adaptive management to protect the species; and

(5) the reserves will be large and biologically viable. (Id. at

132-33.) On this last point, the NBHCP requires that, by the end

of the 50-year term of the plan, there must be one reserve of at

least 2,500 acres in size, with the remaining reserves in blocks

of 400 acres or more that will be connected by watercourses. 

(Id. at 140.) The NBHCP also provides that setback zones should

be “considered” prior to the acquisition of reserve lands and

that, if possible, reserve lands should be located 800 feet or

more from urban development. (Id. at 142.) 

The NBHCP contains several provisions designed to ensure

that its environmental objectives will be achieved and that

development will not outpace the acquisition of mitigation lands. 

One of these provisions is a 200-acre “cushion” of mitigation

land, which requires that, as of September of each year, the

Natomas Basin Conservancy (“NBC”) -- which is the entity that

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owns, acquires, and manages the reserve lands -- must have

acquired at least 200 more acres of reserve land than necessary

to mitigate all of the development approved to that date before

any further development is permitted. (Id. at 213-14.) This

requirement is intended to assure that the NBC will never be

unable to find and acquire mitigation lands for development that

has already been approved. The NBHCP also calls for increases in

the mitigation fees, as necessary and without a cap, to pay for

increased costs of land acquisition and reserve management. (Id.

at 211.) “Catch-up fee” ordinances enacted by the City and

Sutter will require developers who have received development

approval to pay the increased mitigation fees if they have not

yet engaged in ground-disturbing activity. (Id. at 212.) 

 The NBHCP also imposes monitoring and review obligations

designed to ensure that the plan will achieve the desired

conservation objectives and goals. Two types of monitoring are

required by the plan: (1) compliance monitoring, to assure that

the reserves are properly acquired and managed; and (2)

biological effectiveness monitoring, to determine whether the

assumptions of the plan hold true in practice over time. (Id. at

217-32.) Beyond these continuing obligations, the plan also

calls for broad reviews at designated development milestones. An

overall program review will be conducted once 9,000 acres of

development have been approved. (Id. at 239-41.) The overall

program review will be made available for public review and

comment. (Id.) The NBHCP also calls for an independent midCase 2:04-cv-00579-DFL -JFM Document 70 Filed 09/08/05 Page 8 of 47
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point review by each permittee to address the possibility that

development might proceed faster in one jurisdiction than the

other. (Id.) The NBHCP also provides for “adaptive management”

to respond to the monitoring, reviews, or other new scientific

data. (Id. at 234-38.) Should the adaptive management

provisions prove insufficient, the NBHCP can be amended or

revised, or, in the worst case, the permits could be suspended or

revoked. (Id. at 252-56.) 

The NBHCP concedes that there will be harm to the species

listed in the permit, but contends that the harm will be

significantly reduced by the measures described above. (Id. at

263-330.) The NBHCP further finds that the proposed level of

mitigation is the “maximum extent practicable,” relying on

economic analysis. (Id. at 332-36.) Finally, the NBHCP

concludes that the plan as proposed is the best option among

other possible alternatives in light of biological and financial

considerations. (Id. at 336-38.) 

Through the implementation agreement, the City and Sutter

agree to be bound by the terms of the NBHCP, which are also

incorporated into the ITP. (Id. at 806-55.)

C. The 2003 Biological Opinion

The Biological Opinion (“BiOp”) is an evaluation by the

Service’s wildlife biologists of the potential effects of

issuance of the ITPs on the species identified in the plan and

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 The BiOp is required by the ESA because the issuance of 5

an ITP is a federal action. See part II.A, infra. 

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the proposed ITPs. 16 U.S.C. § 1536. While acknowledging that 5

the proposed development will have both direct and indirect

negative effects on the GGS, the BiOp ultimately concludes that

the ITPs will not affect the viability of the GGS population

within the Natomas Basin or the viability of the species as a

whole. (AR 1028.) This finding is based on several factors: (1)

the minimization and take avoidance measures imposed by the

NBHCP, including pre-construction surveys and de-watering and

fencing of canals; (2) the protection, enhancement, restoration,

or creation of 6,562.5 acres of higher quality reserves for the

snake; (3) the maintenance of connectivity between reserve lands;

(4) the continued existence of 16,000 acres of GGS habitat that

will remain in the Basin after development; and (5) the creation

of year-round protected habitat in the reserves specifically

managed to benefit the GGS and not subject to the vagaries of

rice farming. (Id.) 

The BiOp similarly acknowledges that the Swainson’s Hawk

will suffer some negative impacts from implementation of the

proposed action, including the loss of up to 20% of its nesting

habitat and 40% of its foraging habitat in the Basin, most of

which is of high or moderate quality. (Id. at 1032-37.) 

However, the BiOp concludes that the proposed action will not

jeopardize the survival of the Central Valley population of the

Swainson’s Hawk or the species as a whole because: (1) the

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reserves created will provide foraging opportunities at the

appropriate time of year, during nesting; (2) approximately

13,000 acres of foraging habitat will not be affected; (3) the

acquired foraging habitat will be closer to the nesting trees;

(4) more high quality foraging habitat will be created; and (5)

significant foraging habitat exists to the west, in Yolo County. 

(Id. at 1039.) In sum, the BiOp concludes that issuance of ITPs

to the City and Sutter will not appreciably reduce the likelihood

of the survival and recovery of these species in the wild.

D. The 2003 Findings and Recommendations

The Findings and Recommendations represent the Service’s

findings in light of the information in the NBHCP and the BiOp. 

The Service concludes that the impacts of the issuance of the

ITPs will be minimized and mitigated to the maximum extent

practicable. (Id. at 1182.) Specifically, the Service finds

that the injury to the species covered by the permit will be

mitigated to the maximum extent practicable by: (1) the measures

identified in the NBHCP; (2) establishment, enhancement, and

active management of 7,758.5 acres of high-quality reserve

habitat; (3) establishment of a monitoring and reporting plan;

and (4) use of a funding mechanism that contains assurances that

the NBHCP will be implemented. (Id. at 1184-85.) The Service

finds that the harm will be minor for all of the covered species,

except the GGS, and that, for all covered species, including the

GGS, the consequences of the harm will be effectively mitigated

by the conservation measures provided for by the NBHCP. More

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 The Swainson’s Hawk nests and breeds in the Basin from 6

March to September. However, under current conditions, much of

the potential foraging habitat is cultivated with crops that

either do not provide good foraging habitat for the Swainson’s

Hawk or do not provide good foraging habitat until August or

September, after young have fledged. (AR 725-49.) 

12

specifically, as to the Swainson’s Hawk, the Service determines

that the degree of injury will be low because: (1) the majority

of the foraging habitat that will be lost is currently not

available to the hawk during its nesting season ; (2) substantial 6

foraging habitat will exist in the Basin even after the planned

development; and (3) substantial foraging habitat will remain in

Yolo County. (Id. at 1188-89.) The Service further concludes

that any injury will be effectively mitigated for the reasons

stated in the BiOp and described above.

As to the GGS, the Service acknowledges that there is a

higher likelihood of injury to the GGS, but still concludes that

the injury will be effectively mitigated by the measures included

in the NBHCP, including: (1) limits on construction during the

GGS dormant period; (2) pre-construction surveys and dewatering;

(3) the creation of managed marsh habitat; (4) the acquisition of

rice fields and their management with “snake friendly practices”;

and (5) the assurances of connectivity of snake habitat. (Id. at

1190-91.)

The Findings and Recommendations conclude that, in addition

to effectively mitigating for the anticipated harm, the NBHCP

provides for mitigation to the “maximum extent practicable,”

relying on the economic analysis prepared in conjunction with the

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 Although the Secretary made the final decision to issue an 7

ITP, her conclusions depend on the analysis and findings of the

Service. Therefore, although the Secretary is the named

defendant in this case, the court will frequently refer to the

BiOp and Findings and Recommendations of the Service in reviewing

the decision of the Secretary. 

13

NBHCP. (Id. at 1192-93.) The Findings and Recommendations

likewise conclude that the City and Sutter have ensured adequate

funding for the plan through: (1) the mitigation fee program,

which includes five different components and which is not capped;

(2) the catch-up fee ordinance; and (3) the 200-acre cushion of

mitigation land. (Id. at 1194-95.) Finally, the Findings and

Recommendations conclude that the issuance of the ITPs will not

appreciably reduce the likelihood of survival and recovery of any

of the covered species, including the Swainson’s Hawk and GGS. 

(Id. at 1196-99.) In accordance with these Findings, the Service

recommends that the Secretary of the Interior approve the ITPs

for the City and Sutter. 

The Findings and Recommendations became the decision of the

Secretary of Interior once she adopted them in the Record of

Decision and issued the two ITPs. This suit followed in March 7

2004. Plaintiffs seek a ruling that the Secretary’s findings are

not supported by the record and that the Secretary’s approval of

the NBHCP and issuance of the ITPs should be revoked.

II. Statutory Standards and Requirements

A. The Endangered Species Act

The purpose of the ESA is to “conserve ecosystems upon which

endangered and threatened species depend” and “to provide a

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program for the conservation of such endangered species.” 16

U.S.C. § 1531(b). As a means of achieving this goal, Section 9

of the ESA prohibits private individuals from “taking” endangered

or threatened species. Id. § 1538(a)(1)(B). The ESA defines

“take” to include “harm” to animals. Id. § 1532(19). The

Service has defined “harm,” within the meaning of “take,” to

include “significant habitat modification or degradation where it

actually kills or injures wildlife,” a definition that has been

upheld by the Supreme Court. 50 C.F.R. § 17.3 (2004); Babbitt v.

Sweet Home Chapter for Cmtys. for a Great Or., 515 U.S. 687, 696,

115 S.Ct. 2407 (1995). 

The broad scope of Section 9 is limited by several

exceptions, found in Section 10. Specifically, Section 10

authorizes the Secretary to issue a permit, an ITP, for any

taking that is incidental to the carrying out of an otherwise

lawful activity. 16 U.S.C. § 1539(a)(1)(B). To receive an ITP,

the permit applicant must submit an HCP that specifies: (i) the

impact which will likely result from such taking; (ii) what steps

the applicant will take to minimize and mitigate such impacts,

and the funding that will be available to implement such steps;

(iii) what alternative actions to such taking that the applicant

considered and the reasons why such alternatives were not

selected; and (iv) such other measures that the Secretary may

require as necessary or appropriate for the purposes of the plan. 

Id. § 1539(a)(2)(A); 50 C.F.R. § 17.22 (2004). The Secretary

must issue an ITP upon finding that: (i) the taking will be

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incidental; (ii) the applicant will, to the maximum extent

practicable, minimize and mitigate the impacts of the taking;

(iii) the applicant has ensured adequate funding for the HCP;

(iv) the taking will not appreciably reduce the likelihood of the

survival and recovery of the species in the wild; and (v) any

additional measures required by the Secretary will be undertaken. 

16 U.S.C. § 1539(a)(2)(B). 

Section 7 of the ESA applies to federal actions, and

requires federal agencies, through consultation with the Service,

“to insure that any action authorized, funded, or carried out” by

the agency is “not likely to jeopardize the continued existence

of any endangered species or threatened species.” Id. §

1536(a)(2). Issuance of an ITP is an agency action that requires

the Service to engage in internal consultation and prepare a BiOp

evaluating whether issuance of the ITP will result in jeopardy to

any endangered or threatened species. Id. § 1536(b). An action

will result in “jeopardy” if it will “reduce appreciably the

likelihood of both the survival and recovery of a listed species

in the wild. . . .” 50 C.F.R. § 402.02 (2004). The required

jeopardy analysis under Section 7(a)(2) is identical in almost

all respects to the inquiry under Section 10(a)(2)(B)(iv). 

Natomas I, 128 F.Supp.2d at 1286. In considering whether the

action will jeopardize a species, the Service must evaluate the

effects of the action and any cumulative effects on the listed

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 “Effects of the action” are the direct and indirect 8

effects of an action on the species or critical habitat, together

with the effects of other activities that are interrelated or

interdependent on that action, that will be added to the

environmental baseline. 50 C.F.R. § 402.02 (2004). “Cumulative

effects” are “those effects of future State or private

activities, not involving Federal activities, that are reasonably

certain to occur within the action area of the Federal action

subject to consultation.” Id.

16

species. 50 C.F.R. § 402.14(g) (2004). 8

B. The Administrative Procedure Act

Review of final agency actions under the ESA is governed by

the Administrative Procedure Act (“APA”). 5 U.S.C. § 706;

Pacific Coast Fed’n of Fishermen’s Ass’ns v. NMFS, 265 F.3d 1028,

1034 (9th Cir. 2001). The APA provides that the court must “hold

unlawful and set aside agency action, findings and conclusions”

that are “arbitrary, capricious, an abuse of discretion or

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). An

agency action is arbitrary and capricious if the agency failed to

consider relevant factors, failed to articulate a rational

connection between the facts found and the choice made, or made a

clear error of judgment. Baltimore Gas & Elec. Co. v. NRDC, 490

U.S. 87, 105-06, 103 S.Ct. 2246 (1983); Pacific Coast Fed’n of

Fishermen’s Ass’ns, 265 F.3d at 1034; Greenpeace v. NMFS, 80

F.Supp.2d 1137, 1150 (W.D. Wash. 2000). Review under this

standard is “searching and careful,” but “narrow.” Marsh v. Or.

Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851 (1989). 

The court should not substitute its judgment for that of the

agency, but rather must determine whether the evidence in the

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administrative record permitted the agency to make the decision

it did. Baltimore Gas & Elec. Co., 462 U.S. at 97; Occdidental

Eng’g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985). The

agency decision need not be ideal, so long as the agency gave at

least minimal consideration to the relevant facts contained in

the record. Southwest Ctr. for Biological Diversity v. Bureau of

Reclamation, 143 F.3d 515, 523, quoting Ctr. for Marine

Conservation v. Brown, 917 F.Supp. 1128, 1143 (S.D. Tex. 1996). 

Deference to the agency is especially appropriate where the

challenged decision relies upon the agency’s expertise. Mt.

Graham Red Squirrel v. Espy, 986 F.2d 1568, 1571 (9th Cir. 1993). 

The court should defer to the agency’s reasonable interpretation

and resolution of equivocal or conflicting evidence, including 

conflicting expert opinions. Friends of Endangered Species, Inc.

v. Jantzen, 760 F.2d 976, 986 (9th Cir. 1985); Cent. Ariz. Water

Conservation Dist. v. EPA, 990 F.2d 1531, 1539 (9th Cir. 1993). 

Plaintiffs challenge three of the Secretary’s conclusions as

arbitrary and capricious under the APA: (1) that the injury to

the GGS and Swainson’s Hawk will not appreciably reduce the

likelihood of survival and recovery of these species; (2) that

the NBHCP will minimize and mitigate the effects of any taking to

the maximum extent practicable; and (3) that the City and Sutter

will ensure adequate funding for the required mitigation. 

(Compl. ¶¶ 55-72.) The court addresses these three contentions 9

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in the following sections. 

III. No Jeopardy to Survival Findings

Plaintiffs allege that the Secretary erroneously concluded

that development activity permitted under the NBHCP will not

appreciably reduce the likelihood of the survival and recovery of

the Swainson’s Hawk and the GGS. 16 U.S.C. §§ 1536, 1539. At

the heart of plaintiffs’ argument is their contention that the

Secretary gave insufficient consideration to the development that

is likely to occur in the remainder of the Basin, outside the

City’s current boundaries and Sutter County, over the 50-year

term of the NBHCP, and to the effect of this additional

development on the viability and efficacy of the planned reserves

and the survival of the species. (Pls.’ Mot. at 19.) 

Plaintiffs’ arguments generally fall into three categories: (1) 

the Service failed to analyze the lack of binding commitments

from other jurisdictions and, at the same time, erroneously

relied on voluntary mitigation measures by those jurisdictions;

(2) the Service failed to consider the cumulative impacts of

other proposed projects in the Basin; and (3) the Service failed

to consider the lack of protection of the 800-foot reserve

setbacks. 

A. Failure to Analyze the Lack of Binding Commitments by 

 Other Jurisdictions

Plaintiffs argue that the Service failed to address the lack

of binding commitments to the NBHCP by other entities -- namely,

the County of Sacramento, the Natomas Mutual Water Company, and 

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Reclamation District 1000 -- and instead assumed that these

entities will continue their current course of conduct. (Id.) 

Plaintiffs rely on Natomas I, in which the court faulted the

Secretary for issuing an ITP to the City alone, based on a

regional HCP that assumed participation of five jurisdictions. 

128 F.Supp.2d at 1295-96, 1299. However, unlike the 1997 HCP,

the non-participation of the other jurisdictions is specifically

considered and addressed in the present NBHCP; the Secretary

determined that the lack of participation would not negatively

impact implementation of the plan.

As to the water agencies, plaintiffs argue that the plan

erroneously assumes that the water agencies will continue to

maintain the network of canals and irrigation ditches that will

connect the reserves. All parties agree that the connectivity of

habitat provided by the irrigation system is essential to the

survival of the GGS. In response, defendants contend that this

issue was looked at in great detail and that, for a number of

reasons, the Service reasonably concluded that hydrological

connectivity would not be affected by the failure of the water

districts to participate. First, the Service found that

connectivity corridors will remain open because they will

continue to be needed for drainage and irrigation of agricultural

lands. (AR 1611-14.) Of course, this assumes that much of the

Basin will continue in agriculture, a point addressed further

below, but if this assumption is correct then irrigation canals

will still be necessary. The Service further analyzed whether

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current management practices by farmers and the water agencies

are sufficient to protect the snake as it moves through the

corridors and concluded that they are. (Id.) Second, the Service

reasoned that any decision by the water agencies to close or fill

the canals would necessarily require further federal

consultation, either because the activity would result in a

“taking” under the ESA or because it would require a § 404 Clean

Water Act permit, and that any adverse impacts to the GGS could

be mitigated at that time. (Id.) Third, the Service noted that

the NBHCP includes other measures to protect connectivity,

including yearly evaluations of connectivity and the use of

mitigation fees to purchase canals or channels, if needed. (Id.) 

Finally, and closely related to the third point, the Service also

relied on the NBC’s status as a landowner and, therefore, as a

shareholder in the Natomas Mutual Water Company, increasingly

able to influence the water company’s decision-making as the NBC

acquires new land and shares. (Id. at 1612, 1028.) 

The issue of connectivity is discussed in the NBHCP, the

BiOp, and in the Final EIR/EIS, both as part of the original

analysis and in response to comments. (Id. at 134-37; 888-90,

1027-28, 1611-14, 1955-58, 1999-2000, 2005-06, 2132-44.) All of

the arguments now advanced by defendants have been addressed in

these documents. Taken together, the four considerations

advanced by the Service rationally explain how connectivity will

be maintained. It cannot fairly be said that the Service and, by

extension, the Secretary, failed to consider the issue. Nor does

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it appear, in light of the evidence in the record, that the

Secretary was “arbitrary and capricious” or made a clear error of

judgment in concluding that connectivity would not be

significantly affected by the failure of the water agencies to

participate. 

Plaintiffs similarly argue that the Secretary failed to

consider the non-participation of Sacramento County and

erroneously assumed that Sacramento County’s land in the Basin

will remain devoted to agricultural uses. (Pls.’ Mot. at 19-21.)

The NBHCP and the BiOp do assume that development in the Basin

will be limited to the 17,500 acres in the permit areas and

relies on that assumption in concluding that sufficient habitat

will remain for the covered species. (AR 1026.) This assumption

is based on the current land use plans of Sacramento County. 

(Id. at 121, 1055.) The NBHCP, BiOp, and EIR/EIS also conclude

that because any future development in the Basin not covered by

the HCP and ITPs would likely result in injury to listed species,

any future development in the Basin would require new federal

approvals. Any such approvals would in turn require a new HCP

and ITP for the particular project, and could also lead to

revision of the existing NBHCP, were the additional development

to exceed the assumed limits in the NBHCP. (Id. at 121, 1055,

1617-32.) The court previously upheld reliance of the Service on

the general plans of the City, Sutter, and Sacramento County to

determine the probable extent of development and the likely

impacts to the covered species. Natomas I, 128 F.Supp.2d at

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 One of the benefits of a regional HCP is that it removes 10

the incentive to be among the first to develop and the potential

unfairness to those landowners who, for whatever reason, choose

to develop at a later time. Those who develop at the end of the

line may find that they cannot obtain an ITP because so much

habitat has already been affected by earlier development. The

same dynamic occurs as between regional HCPs. Thus, the decision

not to participate in the NBHCP may place Sacramento County in a

more difficult position if it later seeks an ITP. Thus, while

plaintiffs contend that future development will vitiate the

NBHCP, it is more likely that, if future development in the

County will have this effect, the Secretary will decline to issue

ITPs for development in the County or will insist on mitigation

that may be considerably greater than that required by the NBHCP. 

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1296. Although these plans can be changed, they are the best

current information about future development. Given that any

development outside of the NBHCP would be subject to its own

environmental review, the decision of the Service to rely on the

general plan of Sacramento County to predict future development

in Sacramento County is not unreasonable.10

Plaintiffs also argue that the Service ignored the

development of “agricultural-residential rural estates” and other

small projects in Sacramento County whose impacts have not, and

will not, be mitigated. (Pls.’ Reply at 8, 14-15, 20-22.) 

However, the impacts of such developments were considered in the

NBHCP and the EIR/EIS, and their impact was determined to be

small. (AR at 61, 1630, 1979, 2082-83.) The Service considered

these developments and rationally determined that they would not

result in jeopardy to the covered species.

Finally, plaintiffs cite a number of cases for the

proposition that the Service cannot rely on “voluntary” and

“speculative” mitigation measures by the water agencies,

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individual landowners, or Sacramento County in reaching a nojeopardy conclusion. (Pls.’ Mot. 21-22 n.12; Pls.’ Reply at 13.) 

However, in the cases cited by plaintiffs, the Service assumed

that the third-party would undertake affirmative acts that would

mitigate injury to a species, even though those actions were

speculative or voluntary. In this case, by contrast, the Service

merely evaluated the baseline conditions in the Basin and

concluded, based on articulated reasons, that those conditions

were not reasonably likely to change without further federal

review and approval. 

Accordingly, the Secretary’s finding that the failure of

other jurisdictions to participate in the NBHCP does not

undermine its effectiveness is not arbitrary, capricious or

clearly erroneous. The fatal flaw of the earlier HCP was that it

was a regional conservation plan that assumed all jurisdictions

would participate and gave no attention to the possibility that

some would not. 128 F.Supp.2d at 1291. This plan, by contrast,

focuses on the two permittees and explains why further

development or action by any other entity would require

additional federal approvals. The plan does not assume or

require the participation of any third parties to be effective. 

Plaintiffs’ claim that the plan depends on the voluntary actions

of third-parties is without merit. 

B. Failure to Consider the Cumulative Impacts of the Joint Vision

 MOU and Other Proposed Projects

Plaintiffs argue that the Service failed to undertake an

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adequate cumulative effects analysis, as required by the ESA,

because it failed to consider the impacts of the so-called “Joint

Vision” development and other proposed projects. (Pls.’ Mot. at

22-31.) Specifically, plaintiffs focus on a Memorandum of

Understanding entered into in December 2002 by the City of

Sacramento and Sacramento County, commonly referred to as the

“Joint Vision MOU,” which sets forth several principles for going

forward with annexation and urbanization of 10,000 acres in

Sacramento County currently designated for agricultural use. 

(Id.) This 10,000-acre area is not part of the 17,500 acres that

the NBHCP projects for development in the entire Basin and, were

development of the 10,000 acres to occur, this might well be a

significant change in circumstances that could destroy the

effectiveness of the NBHCP. Because the “Joint Vision MOU” is by

no means a concrete plan for development, the court finds that

the Service was correct in finding that the lands covered by the

MOU are not reasonably likely to be developed and, therefore,

need not be the subject of a cumulative effects analysis. 

The purpose of the Joint Vision MOU is to “define a mutually

acceptable set of proposed principles that the City and

[Sacramento] County are prepared to consider when considering

future land use planning” in the Basin. (AR 2374.) The

principles set forth are “intended to guide future discussion and

the ultimate negotiation of an agreement between the County and

the City.” (Id. at 2377.) The MOU asserts that growth in the

Basin is “inevitable,” and assigns to the City the primary

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 Defendants argue that the Handbook is entitled to 11

deference under the standard set forth in United States v. Mead

Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164 (2001). Plaintiffs

do not dispute that the interpretation of “reasonably certain” in

the Handbook is entitled to deference, nor do they offer an

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responsibility for planning new growth in the area. (Id. at

2373, 2375.) However, the MOU also contemplates that any

implementation of its principles will require discretionary

legislative actions by the relevant land-use jurisdictions and

further state and federal environmental review. (Id. at 2374-

75.) 

The ESA requires the Service, in evaluating whether the ITP

will affect the likelihood of survival and recovery of the

covered species, to consider “cumulative effects” on the species. 

50 C.F.R. § 402.02 (2004). These effects are defined to include

the “effects of future state or private actions, not involving

federal activities, that are reasonably likely to occur.” Id. 

By negative implication, the Service is not required to analyze

the effects of future federal actions. Similarly, it is not

required to analyze non-federal actions that are not reasonably

likely to occur. Future federal actions include actions that

require federal authorization, through permitting or funding. 

Loggerhead Turtle v. County of Volusia, 120 F.Supp.2d 1005, 1017

n.20 (M.D. Fla. 2000); Cal. Native Plant Soc.’y v. Norton, 2004

WL 1118537 at *14 (S.D. Cal. Feb. 10, 2004). Although the

regulations do not define when an effect is “reasonably certain”

to occur, the FWS HCP Handbook offers the following

explanation :

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alternate interpretation of the term. In enacting the ESA,

Congress gave the Service authority to promulgate binding

regulations. 16 U.S.C. § 1540(f). However, the Handbook

definition is not a regulation, but a mere interpretation of a

regulation. The court in Mead explicitly found that

interpretations contained in agency manuals are not entitled to

the highest level of deference. 533 U.S. at 234. Nonetheless, a

court may still defer to an agency’s interpretation of its own

regulation, depending upon “the thoroughness evident in its

consideration, the validity of its reasoning, its consistency

with earlier and later pronouncements, and all those factors

which give it power to persuade, if lacking power to control.” 

Id. at 227-230, 234-38, quoting Skidmore v. Swift & Co., 323 U.S.

134, 140, 65 S.Ct. 161 (1944). Applying this standard, the court

finds that the Service’s interpretation is entitled to deference

and is a reasonable construction of the regulation.

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the more State, tribal, or local administrative 

discretion remaining to be exercised before a 

proposed non-federal action can proceed, the less 

there is a reasonable certainty the project will be

authorized. Speculative non-federal actions that may 

never be implemented are not factored into the 

cumulative effects analysis . . . . The action agency 

should consider the economic, administrative, and legal

hurdles remaining before the action proceeds. 

United States Fish & Wildlife Service and National Marine

Fisheries Service, Endangered Species Act Consultation Handbook

4-30 (1998). 

In support of their argument that the “no jeopardy” finding

was arbitrary and capricious in light of the cumulative effects

on the species, plaintiffs contend: (1) the additional 10,000

acres of development proposed in the MOU is reasonably certain to

occur; (2) the development of this acreage fatally undermines the

NBHCP; (3) the development will not necessarily require further

federal approval; and (4) the Service was required to consider

its effects upon the species covered by the ITP but failed to do

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so. (Pls.’ Mot. at 22-31.)

In concluding that development of the 10,000 acres within

the Joint Vision MOU was not “reasonably certain,” the Service 

relied on the numerous discretionary steps remaining before any

development could occur, and the preliminary nature of the Joint

Vision MOU. These discretionary steps include: land-use

planning, environmental review, biological resources evaluation,

compliance with local, state, and federal laws, and approval of

the plan by the City, County, and Local Agency Formation

Commission (“LAFCO”). (AR 1617.) If these regulatory hurdles

are surmounted, further review will be required by federal

agencies under the ESA and the NBHCP. 

Furthermore, the Joint Vision MOU is only a “conceptual

agreement” designed to “establish principles to form the

parameters of a future agreement or agreements.” (Id. at 2373.) 

The MOU is not a concrete development proposal establishing a set

level of development or land use patterns. (Id. at 2373-77.) No

funds are committed. (Id.) The MOU does not change the existing

agricultural-use designation for any of the 10,000 acres. (Id.

at 2374.) The MOU does not waive any existing land use

requirements but explicitly contemplates the necessity for

further discretionary approvals and environmental review. (Id.) 

Given the tentative, general nature of the MOU and the

considerable number of local, state, and federal approvals that

would be required before any development of the 10,000 acres

could occur, the Service did not err in determining that the

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 Plaintiffs cite two cases for the proposition that the 12

MOU must be considered now as a cumulative impact. Neither case

is binding and neither is on point. In NWF v. Norton, 332

F.Supp.2d 170,177-79 (D.D.C. 2004), the court found that the

Service entirely ignored small-scale state and local projects

that were reasonably certain to occur and, in fact, ignored its

own conclusion that habitat degradation was a significant threat

to the panther. Here, the Service explicitly considered the

possibility of additional development and determined that any

development would be subject to additional federal review. In 

Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 2005 WL

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Joint Vision development was not reasonably certain to occur and

need not be considered by the Service in conducting its jeopardy

analysis. 

In addition, the Service reasonably concluded that the MOU

would require federal action because any future development will

require: (1) a new ITP and therefore a new evaluation by the

Service of possible injury to protected species from that

development if the ITP is approved; and (2) a reevaluation of the

efficacy of the NBHCP in light of the proposed development. 

Indeed, the City has a powerful incentive to assure that

development under the MOU is consistent with federal

requirements; through the implementation agreement, the City has

committed to ensuring that additional development does not occur

in the Basin without federal review. Thus, were the MOU lands to

develop without federal review -- an unlikely prospect given that

the MOU assigns control to the City -- the City could face

revocation of its existing ITP under the NBHCP. (Id. at 20-21.)

Therefore, any further development will necessarily be a federal

action because further federal approval will be required under

any scenario that could impair the efficacy of the NBHCP. The 12

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1278878 at *18-21 (D.Or. 2001), the court held that the agency

had the discretion to consider the impacts of future actions that

were reasonably certain to occur, even though such actions would

require additional federal approvals, not that it was required to

do so. 

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Service is entitled to assume that private individuals and the

relevant agencies will seek the required federal approvals before

proceeding with activities that could result in a taking of a

protected species. Natomas I, 128 F.Supp.2d at 1298. The

determination of the Service that any development under the Joint

Vision MOU would be a federal action and, therefore, need not be

included in the cumulative effects analysis, is not arbitrary or

clearly erroneous, particularly given that development of the

10,000 acres is not “reasonably certain” to occur. 

C. Impact of the Joint Vision on the Acquisition of Reserves

Plaintiffs argue that, in addition to the direct destruction

of 10,000 acres of habitat through the Joint Vision development

addressed above, the Service also should have considered the

probable effect of the Joint Vision development on the ability of

the NBC to acquire sufficient reserves. (Pls.’ Mot. at 30.) 

Plaintiffs argue that, of the 53,000 acres in the Basin, 7,000

acres are already developed, 17,500 acres are approved for

development under the NBHCP, and 10,000 are contemplated for

development under the Joint Vision, leaving only 18,000 acres for

mitigation of the impacts of both the NBHCP development and the

Joint Vision development. (Id.) 

Plaintiffs’ scenario is unlikely and, more importantly, is

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 The court notes, however, that the Service and those 13

seeking an ITP in the future will face an uphill battle if they

attempt to argue that additional development in the Basin beyond

17,500 acres will not result in jeopardy. The NBHCP, BiOp,

EIR/EIS, and Findings and Recommendations are all predicated on

the assumption that development in the Basin will be limited to

17,500 acres and that the remaining lands will remain in

agricultural use. (AR 20-24, 862, 866-67, 1171-72, 1617-18.) 

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adequately addressed in the record. First, as discussed above,

at this point, the Joint Vision development is not reasonably

likely to occur. Second, if and when a concrete development

proposal is put forth, it will be the subject of additional

federal and state environmental review. The Service, and the

court, are entitled to assume at this point that future

development will not be permitted if sufficient mitigation land

is unavailable and the development will result in jeopardy.13

Furthermore, the NBHCP provides a fail-safe measure to ensure a

sufficient supply of mitigation land. The NBHCP provides that,

if off-site mitigation land is not available for purchase by the

NBC, development must either stop or the developer must provide

an in-lieu dedication of sufficient mitigation land. (AR 804.) 

Finally, the EIR/EIS did consider the impact of the Joint Vision

on the acquisition of mitigation lands, but concluded that it was

not a pressing concern at this time, for the reasons addressed

above. (Id. at 1618.) For these same reasons, the court finds

that the Service did not clearly err in concluding that the 

Joint Vision MOU does not vitiate the NBHCP. 

D. Other Proposed Developments

Finally, plaintiffs argue that the Service erred in failing

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to analyze the cumulative impacts of other specific development

proposals moving forward in the Basin. (Pls.’ Mot. at 22-27.)

However, the final EIR/EIS specifies that all of these projects

will require future federal approval because they are not covered

by any of the ITPs issued under the NBHCP. (AR 1624-31.) 

Moreover, the record reflects multiple reasons why the Service

concluded that these developments are not reasonably certain to

occur: (1) the areas are not currently planned for urban

development under existing land use plans; (2) the lands are

located outside the City’s sphere of influence, the City limits,

and the urban services boundary; (3) no urban services are

available; and (4) there are significant legal and planning

hurdles to development. (Id. at 1055, 1216, 1614-32.) 

Plaintiffs, by contrast, present no evidence in the record

showing that these projects are anything more than the optimistic

day dreams of developers. In light of the reasoned analysis by

the Service as to why the impacts of these proposals need not be

considered, and in the absence of any evidence that the Service

made a clear error of judgment, the decision to exclude

consideration of these projects was not arbitrary or clearly

erroneous. 

E. Failure to Consider the Lack of Protection of Setbacks

Finally, plaintiffs argue that the no-jeopardy conclusion

was erroneous because it depends on 800-foot setbacks for the

reserve lands but does not protect the setbacks from development. 

(Pls.’ Mot. at 32; Pls.’ Reply at 26.) As discussed above, one

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of the acquisition criteria for reserve lands is that they should

be located at least 800 feet from lands currently designated or

used for urban development. (AR 889.) The plan does not

contemplate that the setback lands will be acquired by the NBC,

but assumes that the setback areas will be agricultural lands

within the Basin. (Id. 889-90.) However, after reserve lands

are acquired, the setbacks are not required to be managed in any

particular fashion and later could be used for urban development. 

(Id.) Plaintiffs argue that the failure to protect the setbacks

fatally undermines the no-jeopardy conclusion. (Pls.’ Mot. at

32; Pls.’ Reply at 26.) 

However, the Service explicitly stated in the BiOp that the

setbacks are not a permanent aspect of the mitigation program but

are, instead, a mere acquisition criteria, to be considered and

achieved, if possible. (AR 889-90.) Therefore, the Service’s

no-jeopardy conclusion did not erroneously assume or depend on

permanent protection of the 800-foot setbacks. Moreover, the

NBHCP provides for re-evaluation of the status and adequacy of

the setback criteria during the mid-point reviews. (Id. at 142-

3.) The Service’s determination that the reserve system would

prevent jeopardy to the GGS and Swainson’s Hawk considered the

potential impact of development in the setback zone. This

determination was not arbitrary or capricious.

F. Summary

In sum, plaintiffs have not pointed to evidence

demonstrating that the “no-jeopardy” finding was arbitrary and

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capricious. Although the Secretary did not reach the conclusions

plaintiffs desire, the record indicates that the Secretary

considered the relevant factors and articulated a rational

connection between the facts found and the conclusions reached. 

The Service addressed the non-participation of other agencies,

considered the potential Joint Vision development plan, and did

not depend on the 800-foot preferred setbacks in reaching the nojeopardy conclusion. The no jeopardy finding is not arbitrary or

clearly erroneous. 

IV. Mitigate to the Maximum Extent Practicable

Prior to issuing an ITP, the Secretary must determine that

the permit applicant will, to the maximum extent practicable,

minimize and mitigate the impacts of the taking. 16 U.S.C. §

1539(a)(2)(B)(ii). There are two components to this finding: (1)

the adequacy of the mitigation program in proportion to the level

of injury -- take -- that will result; and (2) whether the

mitigation is the maximum that can be practically implemented by

the applicant. Metro Air Park, 306 F.Supp.2d at 927-28. These

two factors are evaluated on a sliding scale, such that a

stronger showing on one factor may compensate for a weaker

showing on the other. Id. For instance, where the habitat lost

is of minimal or no value to the covered species and the

mitigation plan more than compensates for the level of injury,

the applicant need not do more, even if it would be financially

feasible. Id. at 928. Here, plaintiffs assert that the

Service’s findings on both aspects are arbitrary and capricious. 

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A. Proportionality to the Injury

Plaintiffs argue that the Service erred in finding that the

.5-to-1 mitigation ratio sufficiently compensates for the injury

that will occur to the GGS and the Swainson’s Hawk as a result of

the development authorized by the ITPs. (Pls.’ Mot. at 35.) 

1. Giant Garter Snake

As a result of the development authorized by the ITPs, 8,512

acres of GGS snake habitat will be destroyed. (AR 1021.) The

Service determined that, if unmitigated, this would result in 

considerable harm to the GGS. (Id. at 1190.) However, this

habitat will be replaced by 2,187 acres of restored marshlands

and 4,375 acres of rice habitat, resulting in an effective

mitigation ratio, for the GGS, of approximately .75-to-1. (Id.

at 1191.) 

The Service offers several reasons why the reserve lands

adequately compensate for the loss of some habitat. Unlike

existing habitat, reserve habitat: (1) will be protected in

perpetuity; (2) will be actively managed for the snake; (3) will

not be subject to the continual disturbance caused by farming or

canal maintenance; (4) will be available year round; (5) will not

be unavailable to the snake because of canal maintenance

activities; and (6) will be relatively free of human intrusion. 

(Id. 1026, 1191.) The restored marsh is considered particularly

valuable replacement habitat, as it is the preferred habitat for

the GGS. (Id. at 1191.) The Service also emphasizes the

provisions of the NBHCP that preserve connectivity and minimize

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disturbances during construction activity. (Id. at 1190-92.) 

The Service concludes that the combination of on-site

minimization measures and the new high-quality wetland habitat

will effectively mitigate for the harm to the GGS of the

development permitted by the ITP and the NBHCP. (Id. at 1192.) 

The Service’s analysis considers the relevant issues and is a

reasoned explanation as to why the mitigation measures are

proportionate to the possible injury or take. 

2. Swainson’s Hawk

Two types of Swainson’s Hawk habitat will be affected by the

development authorized by the ITPs: nesting habitat and foraging

habitat. (Id. at 1188-89.) Approximately 80% of the nesting

habitat in the Basin, most of it in the Swainson’s Hawk Zone,

will remain after the authorized development. (Id. at 1032.)

Although four nest trees will be removed as a result of the

authorized development, the City has committed to planting 60

replacement nesting trees. (Id. at 1033.) The Service

determined that this was adequate to mitigate for the removal of

nest trees and the small loss of nesting habitat, particularly

given that most of the nesting trees in the area of authorized

development are not active. (Id. at 1034.) Plaintiffs do not

point to any evidence in the record to contradict this

conclusion, or any evidence that the Service should have

considered, but did not. The Service evaluated the available

scientific information and reached a reasonable conclusion that

the effects to nesting habitat would be fully mitigated.

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The impact to Swainson’s Hawk foraging habitat is

quantitatively more significant. Approximately 40% of the

Basin’s potential foraging habitat, some 9,188 acres, will be

lost as a result of the authorized development. (Id. at 1034.) 

The NBHCP provides for acquisition of 2,187.5 acres of highquality upland foraging habitat. (Id. at 731.) Approximately

1,000 acres of additional foraging habitat will be available

through the fallowed rice lands and upland components of the

managed marsh. (Id. at 732.) However, even with the reserve

lands, there will be a net loss of approximately 6,000 acres of

potential foraging habitat. 

Nonetheless, the Service concludes, for reasons discussed at

length in the BiOp, the Findings and Recommendations, and an

Addendum to the EIR/EIS, that the loss of this habitat would

result in a low level of harm to the hawk if mitigated as

required by the NBHCP. (Id. at 1034-39, 1189-90, 726-47.) The

Service concludes that despite the quantitative losses in

habitat, the replacement habitat will likely be qualitatively

equivalent. (Id.) The technical memorandum identifies at least

three reasons why the Swainson’s Hawk will not be negatively

affected by the loss of habitat. First, the 2,187.5 acres of

replacement habitat will all be of high quality, managed

specifically for the hawk. (Id. at 731.) Even under the worstcase implementation scenario, where more than half of the reserve

lands would consist of current high-value habitat, rather than

newly created high-value habitat, the NBHCP will result in an

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 The analysis also offers several reasons why this 14

situation, “Scenario 3," is not likely to occur. (AR 745.) 

Instead, Scenario 1 or 2, which both result in a net increase of

1,455 acres of high-value habitat, are determined to be more

likely to occur. (Id.) 

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increase of 353 acres of high-value habitat. (Id. at 742.) 14

Second, under the NBHCP, the temporal availability of

foraging opportunities would be maintained or improved. (Id.) 

Under current conditions, much of potential foraging habitat is

available in September, when row crops such as corn are

harvested, and in June. (Id. at 737.) By contrast, relatively

little foraging habitat is available during the other months the

Swainson’s Hawk is in the Basin -- April, May, July, and August. 

(Id.) Under the most likely implementation scenarios for the

NBHCP, foraging opportunities would be increased during the

months of April, May, and June, with the anticipated effect of

increasing nesting density and reproductive success. (Id. at

740-41, 744.) 

Third, the acquired reserves will likely be in closer

proximity to nesting trees. (Id. at 745.) A primary acquisition

criteria for upland reserves is proximity to known or potential

nesting trees. (Id. at 156.) Proximity of foraging habitat to

nesting trees has been linked to reproductive success for the

Swainson’s Hawk. (Id. at 738.) For all of these reasons, the

Service concludes that any harm to the Swainson’s Hawk as a

result of lost foraging lands will be effectively mitigated by

the reserve lands. The Service considered the relevant

scientific evidence in the record and articulated reasons for its

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ultimate conclusion that the mitigation was sufficient. 

In response to this technical analysis, plaintiffs point to

a letter from James Estep, a leading expert on the Swainson’s

Hawk and Chair of the Swainson’s Hawk Technical Advisory

Committee. (Id. at 1244-46.) In his letter, Estep references

earlier comments submitted by the Swainson’s Hawk Technical

Advisory Committee, which indicated that increased foraging

habitat is needed to protect the Swainson’s Hawk from losses. 

(Id.) He then criticizes the technical analysis prepared in

response to these comments. (Id.) Specifically, while Estep

admits that it is “literally possible” to double rodent

production on half the foraging land, he asserts that this

concept has “since been widely dismissed.” (Id. at 1245.) He

calls Appendix K an “attempt to construct models designed to

justify the same flawed biological reasoning.” (Id.) 

This single letter from a respected expert is insufficient

to show that the Service’s conclusions are arbitrary or clearly

erroneous. The Service responded to early comments with an

extensive technical analysis of the effectiveness of the

mitigation strategy, with references to multiple expert reports

to support its conclusions. (Id. at 727-49.) Although Estep

asserts that the conclusions of Appendix K are “flawed,” he does

not offer any explanation as to why the conclusions are flawed or

offer any expert opinions to contradict these conclusions. 

Moreover, the court defers to the agency’s reasonable resolution

of conflicting opinions from experts, since the Service’s

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wildlife experts are in a much better position than the court to

evaluate such evidence. See Friends of Endangered Species, Inc.,

760 F.2d at 986; Cent. Ariz. Water Conservation Dist., 990 F.2d

at 1539. Finally, although plaintiffs fault the Service for

approving an HCP with less than a one-to-one mitigation ratio and

cite other HCPs from surrounding areas that have higher ratios,

they provide no evidence that these HCPs cover the same species,

involve the same quality of habitat issues, or involve the same

economic or demographic variables. 

Based on the evidence in the record, the Secretary’s

determination that the mitigation was proportionate to the

expected take of the GGS and Swainson’s Hawk is not arbitrary or

capricious. However, because the NBHCP results in a net loss of

habitat, including moderate and high value habitat, for both the

GGS and the Swainson’s Hawk, this is not one of those rare cases

where the habitat to be developed is of such low value that the

feasibility of further mitigation is irrelevant. 

B. Feasibility of Further Mitigation

Plaintiffs argue that the Service erroneously relied on the

permittees’ analysis of the feasibility of additional mitigation,

rather than conducting an independent analysis of practicable

alternatives. (Pls.’ Mot. at 36-37.) Plaintiffs also argue that

even the economic analysis prepared by the City and Sutter

supports a higher mitigation ratio. (Id. at 30.) The economic

analysis prepared by the permittees indicates two reasons why

increased mitigation, specifically a 1-to-1 mitigation ratio,

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would not be practicable or feasible: (1) the mitigation fees

charged under the NBHCP are already substantially higher than

fees charged under the HCPs in other California jurisdictions;

and (2) the fees that would be charged under a higher mitigation

ratio might well push the costs of development beyond the

industry standard of feasibility. (AR 441-444, 455-57.) 

On the first point, the economic analysis compares the

proposed NBHCP mitigation fees to costs under the City of

Bakersfield HCP, the City of Coalinga HCP, the South Sacramento

HCP, and the Yolo County HCP and finds that the fees charged by

these jurisdictions are substantially lower than the fees

proposed under the NBHCP. (Id. at 457.) However, this analysis

is not dispositive on the question of feasability because the

level of mitigation fees the market will bear is tied to the

relevant real estate market and the land-use composition of the

development. Therefore, without any evidence that the lands

covered by these HCPs have similar market conditions and land-use

plans, these comparisons are of little value in determining the

feasibility of a higher mitigation fee under the NBHCP. 

However, the expert economic analysis also evaluates the

market conditions in the Sacramento region and analyzes the

effect of the proposed fees on the cost-effectiveness of the

proposed development, looking at the cost burdens imposed by the

combination of the proposed NBHCP fees and infrastructure fees,

such as fees for schools, water, wastewater, and traffic. (Id.

at 441-44, 457-60, 494.) The analysis finds that the estimated

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total fees for residential development within the permit areas

would be approximately 13-14% of the estimated sales price of a

residential unit. (Id. at 441.) It also finds that a 15% fee

burden is generally the “feasibility benchmark” for residential

development, although a 20% cost burden may be feasible,

depending on specific financial considerations. (Id.) 

The analysis determines that alternatives calling for

increased mitigation would not push the cost burden beyond the

15% benchmark under current conditions, but offers two reasons

why increased mitigation might become infeasible. First, the

analysis notes the City originally adopted a low infrastructure

fee for the North Natomas area that eliminated certain funding

and programs, including funding for police, fire services, bike

trails and community center facilities. (Id. at 441, 443, 457-

60.) However, that fee program is currently under revision, and

the development impact fees are anticipated to increase, raising

the overall fee burden. (Id.) Second, because the mitigation

fees are not capped, and land acquisition prices are rising

rapidly, the mitigation fees might be increased substantially to

generate the funds necessary to buy mitigation lands. The

analysis notes that this is particularly likely if mitigation is

required at a 1-to-1 ratio, because developable land would become

even more scarce. (Id.) 

The Findings and Recommendations consider the economic

analysis offered by the permittee and also offer three further

reasons why additional mitigation is impracticable. (Id. at

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1193.) First, the Findings and Recommendations point out that

there is no cap on the mitigation fee over the 50-year term of

the plan. (Id.) Second, the Service notes that the mitigation

fee more than doubled since the time the economic analysis was

prepared, so that the cost burdens might now be at or past the

industry benchmarks of feasibility. (Id.) What was theoretical

at the time the economic analysis was prepared, has become the

reality. Finally, the Findings and Recommendations state that

further fee increases are expected in the future, which could

push costs beyond the industry benchmarks for feasibility. (Id.) 

Plaintiffs contend that: (1) the project applicants did not

examine an adequate range of alternatives; (2) the economic

analysis does not support the finding of “impracticability”; and

(3) the Service’s two-page analysis is insufficient to support

the finding of impracticability. (Pls.’ Mot. at 38-39.) As to

the first argument, defendants did consider two alternatives that

called for an increased mitigation ratio. (AR 3351.) 

Plaintiffs do not indicate what other alternatives should have

been considered or cite any legal precedent to support this

position. (Pls.’ Reply at 36.) Plaintiffs’ second argument --

that the economic analysis does not support a finding of

impracticability -- is based on a flawed interpretation of the

word “practicable” as used in the statute. Plaintiffs assert

that since the economic analysis does not state that increased

fee levels are totally infeasible, the City and Sutter have not

met their burden of showing that additional mitigation would be

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impracticable. (Id. at 37-38; Pls.’ Mot. at 39.) As this court

previously found in Metro Air Park, 306 F.Supp.2d at 928 n.12,

“practicable” as used in the ESA does not simply mean “possible,”

as opposed to impossible, but has the more nuanced meaning of

“reasonably capable of being accomplished.” The economic

analysis noted a number of uncertainties that could push the fee

burden beyond the feasibility benchmark and doom all development. 

In light of these uncertainties, and the rapid rise in fees noted

in the Findings and Recommendations, the Service rationally

concluded that additional mitigation was not “reasonably capable

of being accomplished” without jeopardizing the proposed

development. Ultimately this question is not a matter of

arithmetic based on firm figures and projections but a judgment

call given the uncertainties of the real estate market and the

various other factors that affect development costs and rewards. 

In the circumstances here, particularly in light of rapidly

rising land costs, the Secretary’s finding represents a 

reasonable judgment. 

Plaintiffs’ final argument is that the Service abrogated its

duties by relying on the analysis of the permit applicants to

determine whether additional mitigation would be practicable. 

However, the case relied on by plaintiffs, Gerber v. Norton, 294

F.3d 173, 185 (D.C. Cir. 2002), is readily distinguishable. In

Gerber, the Service relied on the developer’s word that the

proposed alternative was impracticable, without any supporting

analysis. 294 F.3d at 185. Here, the City and Sutter provided

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 Plaintiffs also contend that the Service had a duty to 15

inquire whether a modified development scenario -- for example,

commercial as opposed to residential -- would have been possible

and permitted additional mitigation. (Pls.’ Reply at 37-38.) 

However, plaintiffs have not provided any legal precedent for

this position and the court previously rejected a similar

argument. See Metro Air Park, 306 F.Supp.2d at 928 (holding that

it is best to “avoid unduly enmeshing the Service in developers’

economic affairs and projections.”). 

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an extensive expert analysis to substantiate the conclusion that

additional mitigation was not practicable. Furthermore, the

Service went beyond the information provided by the City and

Sutter, noting, for instance, that mitigation fees had increased

significantly since the economic analysis was prepared. 

15

Based on the foregoing analysis, the finding of the

Secretary that the NBHCP would minimize and mitigate the impacts

of the proposed action to the maximum extent practicable is not

arbitrary and capricious. The Service and the Secretary

evaluated both proportionality and practicability and rationally

determined that the proposed level of mitigation: (1) would

effectively compensate for the injury to species that would occur

under the ITPs; and (2) was the maximum practicable in the

circumstances. 

V. Failure to Ensure Adequate Funding

Plaintiffs’ final claim is that the NBHCP fails to ensure

adequate funding for the plan, as required by 16 U.S.C. §

1539(a)(2)(B)(iii). (Pls.’ Mot. at 40.) Plaintiffs make three

arguments as to why funding is not ensured: (1) the NBHCP relies

on unfunded voluntary measures such as setbacks and connectivity;

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 Plaintiffs point to some speculation by the court in 16

Natomas I “that it is not clear that a funding mechanism that is

not backed by the applicant’s guarantee could ever satisfy the

requirement of § 1539(a)(2)(B)(iii).” This language is not

holding and merely raises a question that is answered in this

opinion. 

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(2) the permittees have not “guaranteed” that they will fund the

mitigation plan in the event that the developer fees prove

inadequate; and (3) developers are immune from retroactive fee

increases. (Id.; Pl.’s Reply at 39-41.) With regard to the

first argument, as discussed above in Section III.A, the NBHCP

does not rely on unfunded voluntary measures to ensure success --

funds are provided for ensuring connectivity and the plan does

not “rely” on the 800-foot setback zones, which are merely a

preferred acquisition criteria. (AR 135, 140-41.) 

The second and third arguments are based on the same

hypothetical fact scenario. Plaintiffs assert that since the

fees will be set and then paid by developers on an annual basis,

the fees collected may be insufficient if property costs increase

between the time the fees are collected and the time mitigation

lands are purchased. (Pls.’ Mot. at 40.) As a result,

plaintiffs argue, funding for the NBHCP has not been “ensured” by

the City and Sutter. (Id.) However, the NBHCP includes 16

several fail-safe provisions to protect against rising land costs

during the period between collection of fees and acquisition of

reserve lands. First, the NBHCP requires the NBC to maintain a

200-acre “cushion” of reserve lands, so that development will not

outpace the acquisition of mitigation land. (AR 213-14.) 

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Second, if land acquisition costs increase before the City and

Sutter have an opportunity to adjust the mitigation fees, the

developer can be required to dedicate land rather than paying the

fee. (Id. at 804, 1195.) Although plaintiffs argue that

“funding shortfalls” are still possible with land dedications,

the court fails to see how this could occur; if there is a

dedication of the required mitigation land, the landowner will

not have to pay the land acquisition component of the mitigation

fee, and the NBC will obtain the appropriate amount of reserve

land. Third, the “catch-up” fee ordinances further protect

against rising land costs, as they narrow the window between fee

payment and acquisition of mitigation land. (Id. at 212.) 

Finally, unlike the funding mechanism found inadequate in Natomas

I, the mitigation fees are not capped under the NBHCP, so that

fees can be increased to compensate for rising land costs. (Id.

at 212.) 

In the Findings and Recommendations, the Service relied on

all of these elements to find that the City and Sutter had

adequately ensured funding for the plan. (Id. at 1194-96.) 

While it is true, as plaintiffs assert, that developers are

protected from retroactive fee increases, plaintiffs have not

pointed to any evidence in the record suggesting that such

retroactive fee increases would be necessary under the NBHCP. 

The NBHCP is structured to avoid the need for retroactive fee

increases through foresight and advance planning. Plaintiffs

have not shown that the NBHCP, as structured, will not adequately

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fund the required mitigation. The finding of the Secretary that

the plan adequately ensures funding is not arbitrary or

capricious. 

VI. Conclusion

For the foregoing reasons, defendants’ motion for summary

judgment is GRANTED and plaintiffs’ motion for summary judgment

is DENIED. The clerk shall enter judgment.

IT IS SO ORDERED.

Dated: September 7, 2005

DAVID F. LEVI

United States District Judge

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