## Facts

- Private developers proposed large-scale residential and commercial development on San Bruno Mountain in San Mateo County, California, an area containing significant undeveloped habitat.
- Local land-use approvals reduced the development footprint and set aside substantial acreage for public parkland, leaving a defined portion of the mountain available for development.
- The U.S. Fish and Wildlife Service determined that the endangered Mission Blue butterfly inhabited the mountain.
- A multi-stakeholder steering committee developed a Habitat Conservation Plan (HCP) after a multi-year biological study.
- The HCP set aside most designated open space for habitat, funded ongoing habitat management through resident fees, and concentrated development to reduce impacts.
- Local officials sought an incidental take permit under Endangered Species Act (ESA) § 10(a) to authorize take of listed species incidental to otherwise lawful development.
- The Service issued the permit after finding the HCP’s conservation measures would improve the Mission Blue butterfly’s prospects.
- An environmental organization sued, alleging the permit violated ESA § 10(a) standards and that the Service violated NEPA by declining to prepare an environmental impact statement (EIS).
- The district court granted summary judgment for defendants, and the organization appealed.

## Issues

1. Whether ESA § 10(a) authorizes an incidental take permit supported by a comprehensive, long-term habitat conservation plan addressing a broad land-use program.
2. Whether the Service reasonably found the permit satisfied ESA § 10(a) criteria, including minimizing and mitigating impacts to the maximum extent practicable and avoiding an appreciable reduction in the likelihood of survival and recovery.
3. Whether the Service complied with NEPA by preparing an environmental assessment (EA), issuing a finding of no significant impact (FONSI), and not preparing an EIS.
4. What level of judicial deference applies to the Service’s biological and technical determinations in issuing an ESA § 10(a) permit.

## Decision

- The Ninth Circuit affirmed summary judgment for defendants.
- The court held ESA § 10(a) permits incidental take authorization for a comprehensive HCP of this scope.
- Applying arbitrary-and-capricious review, the court upheld the Service’s finding that the HCP satisfied statutory criteria and would not jeopardize the Mission Blue butterfly.
- The court upheld the Service’s NEPA process, concluding the EA and FONSI supported the decision not to prepare an EIS.

## Legal Principles

- ESA § 10(a) may support incidental take permits tied to broad habitat conservation planning when statutory prerequisites are met; the statute is not limited to small or discrete projects.
- Agency determinations under ESA § 10(a), including predictions about biological outcomes, are reviewed under the Administrative Procedure Act’s arbitrary-and-capricious standard.
- A permit decision is sustained when the agency considers relevant scientific information, evaluates alternatives and mitigation, and explains a rational connection between the record and its conclusions.
- Under NEPA, an agency may rely on an EA and FONSI without preparing an EIS if it takes a hard look at environmental consequences and reasonably finds no significant impacts requiring an EIS.
- NEPA is procedural; it requires informed decisionmaking rather than a particular environmental result.

## Conclusion

The Ninth Circuit sustained the federal wildlife agency’s use of ESA § 10(a) to approve a large, long-term habitat conservation plan for San Bruno Mountain and upheld the agency’s NEPA EA/FONSI, deferring to the agency’s reasoned scientific judgments under arbitrary-and-capricious review.


Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976 (9th Cir. 1985)