## Facts

- In 2003, the Secretary of the Interior, acting through the U.S. Fish and Wildlife Service (FWS), approved the Natomas Basin Habitat Conservation Plan (NBHCP) for planned development in the Natomas Basin near Sacramento, California.
- The NBHCP was intended to cover development by the City of Sacramento and Sutter County and applied to 22 species, with particular attention to the threatened giant garter snake (GGS) and Swainson’s hawk.
- The Secretary issued incidental-take permits (ITPs) under Endangered Species Act (ESA) § 10 authorizing substantial development that would result in take and habitat loss.
- FWS prepared and issued ESA-related documents supporting the permits, including a Biological Opinion (BiOp) addressing effects on listed species, findings and recommendations supporting issuance of the ITPs, and a final environmental impact statement (EIS) under NEPA.
- The NBHCP’s primary mitigation measure required acquisition and improvement of reserve properties at a 0.5-to-1 ratio for habitat loss (half an acre of reserve for each acre affected), with acquisition and management largely funded by developer fees.
- In the administrative materials, FWS evaluated the 0.5:1 ratio and concluded that reserve lands and management measures would compensate for habitat losses and that expected harm to the GGS and Swainson’s hawk would be low.
- The National Wildlife Federation and other environmental organizations challenged the approvals, contending that the agency erred in concluding that the 0.5:1 mitigation ratio and related measures adequately addressed the impacts to the GGS and Swainson’s hawk, and that the permits and plan therefore violated the ESA and were unlawful under APA review.
- The parties filed cross-motions for summary judgment based on the administrative record.

## Issues

1. Whether the Secretary and FWS acted arbitrarily and capriciously in approving the NBHCP and issuing ESA § 10 incidental-take permits based on a 0.5:1 mitigation ratio for impacts to the GGS and Swainson’s hawk.
2. Whether the agency’s ESA findings supporting the ITPs—including the determination that the plan minimized and mitigated impacts to the maximum extent practicable and would not appreciably reduce the likelihood of survival and recovery—were supported by the record.
3. Whether the ESA/NEPA supporting analyses (including the BiOp and the EIS) adequately evaluated the effects of the authorized development and the mitigation approach, including consideration of cumulative effects.

## Decision

- The court upheld the Secretary’s approval of the NBHCP and issuance of the incidental-take permits.
- The court denied the plaintiffs’ motion for summary judgment and granted summary judgment for the defendants.
- Applying APA deferential review, the court concluded that the administrative record supported FWS’s evaluation of the 0.5:1 mitigation ratio and its conclusion that reserve acquisition and management measures would compensate for habitat losses.
- The court accepted the agency’s assessment of expected impacts on the GGS and Swainson’s hawk and declined to substitute plaintiffs’ competing views for the agency’s technical judgments where the record showed reasoned analysis.
- The court found no basis to set aside the related ESA and NEPA documentation on the grounds asserted, including objections tied to the mitigation ratio and consideration of cumulative effects.

## Legal Principles

- Under the APA, a court may set aside agency action only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; the agency must explain its decision and connect the record evidence to its conclusions.
- ESA § 10 permits issuance requires, among other elements, a habitat conservation plan that minimizes and mitigates the impacts of take to the maximum extent practicable and a finding that the authorized take will not appreciably reduce the likelihood of the species’ survival and recovery in the wild.
- In reviewing ESA determinations involving scientific and technical matters, courts generally defer to the agency’s reasoned evaluation of the record rather than choosing among competing scientific views.
- Where the agency has considered the relevant factors—such as mitigation measures, funding mechanisms, and cumulative effects—and has provided a rational explanation grounded in the record, its ESA and NEPA analyses will be sustained on review.

## Conclusion

The Eastern District of California upheld the Secretary’s approval of the Natomas Basin Habitat Conservation Plan and the associated ESA incidental-take permits, concluding under APA review that the record supported FWS’s determination that a 0.5:1 reserve-to-impact mitigation approach and related measures adequately addressed anticipated effects on the threatened giant garter snake and Swainson’s hawk, and that the challenged ESA and NEPA analyses were not arbitrary or capricious.


National Wildlife Federation v. Norton, 2005 WL 2175874 (2005)