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Gerber v. Norton

Citation: 32 ELR 20767
No. No. 01-5247, 294 F.3d 173/(D.C. Cir., 07/02/2002)

The D.C. Circuit held that the U.S. Fish and Wildlife Service (FWS) violated the Endangered Species Act (ESA) by failing to make available for public comment critical information in connection with a developer's incidental take permit application and by failing to make a statutorily mandated finding that the developer's plan would minimize the negative impact on the endangered Delmarva fox squirrel. As part of a settlement agreement with an environmental group that challenged the FWS' failure to require an incidental take permit for the developer's proposed construction, the FWS agreed to require an incidental take permit and to provide the group with a copy of the developer's habitat conservation plan, incidental take permit, and NEPA documents. During the comment period on the incidental take permit, the FWS sent the documents, but omitted a map of the developer's proposed 31-acre mitigation site. The group sought all documents related to the proposed development, but the FWS withheld the map. The FWS then issued the incidental take permit, and the group sued alleging ESA violations.

The court first holds that the FWS violated ESA §10 by failing to make the map of the off-site mitigation area available during the comment period. ESA §10(c) expressly provides that the information the FWS receives as part of an incidental take permit shall be available to the public as a matter of public record. ESA §10(a), which provides for meaningful public comment, also required the FWS to make the map available. The group could not meaningfully comment on the value of the proposed mitigation site. Moreover, disclosure of the map was required by the previous settlement agreement entered into by the group and the FWS. The court further holds that the FWS' failure to make the map available to the public was not harmless error. The map was essential to the group's ability to meaningfully comment on the incidental take permit, and the group showed at least three specific reasons how the FWS' failure to provide the map prejudiced it. The fact that the FWS might have known about the issues that the group would have commented on, and the fact that the agency would not have changed its decision considering these comments does not render its ESA violation harmless. The court also holds that the FWS violated ESA §10(a)(2)(B) by failing to find that the developer would minimize the impacts of the taking to the maximum extent practicable. Before issuing the incidental take permit, the FWS was obliged to find independently that no practicable alternative to the development plan would minimize the taking of fox squirrels. The FWS did not independently make such a finding. In fact, the FWS found in its environmental assessment (EA) that there was an alternative that would reduce the likelihood of taking fox squirrels, but the developer rejected the alternative. Thus, given the FWS' finding in the EA, the service could not have issued the permit consistent with ESA §10(a) without making a finding that the reduced impact alternative was impracticable. However, no such finding was made. Therefore, issuance of the permit violated the ESA, and the case is remanded to the FWS for further proceedings.

Counsel for Appellants
Eric T. Glitzenstein
Meyer & Glitzenstein
1601 Connecticut Ave. NW, Washington DC 20009
(202) 588-5206

Counsel for Appellees
Kathryn E. Kovacs
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Garland, J. Before Edwards and Henderson, JJ.