WILLIAM A. FLETCHER, Circuit Judge:
The City of Sausalito, California, brings suit to enjoin the National Park Service from implementing its plans for the development and rehabilitation of Fort Baker, a former military base near Sausalito. Sausalito contends that the National Park Service, the National Marine Fisheries Service, and the United States Fish and Wildlife Service have violated numerous environmental and conservation-oriented statutes, including the National Environmental Policy Act, 42 U.S.C. §§ 4321-4347; the Endangered Species Act, 16 U.S.C. §§ 1531-1544; the Coastal Zone Management Act, 16 U.S.C. §§ 1452-1465; the Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712; the Marine Mammal Protection Act, 16 U.S.C. §§ 1371-1421h; the National Park Service Concessions Management Improvement Act, 16 U.S.C. § 5951, et seq.; the Omnibus Parks and Public Lands Management Act of 1996, 16 U.S.C. § 17o; the National Park Service Organic Act, 16 U.S.C. §§ 1-18f-3; the Act creating the Golden Gate National Recreation Area, 16 U.S.C. § 460bb; and the Administrative Procedure Act, 5 U.S.C. §§ 701-706.
The magistrate judge, hearing the case by consent, granted summary judgment for Defendants, holding that Sausalito lacked standing to assert many of its claims, and that the other claims failed on the merits. We hold that Sausalito has standing to assert all of its claims. However, with the exception of its claims under the Coastal Zone Management Act and the Marine Mammal Protection Act, we hold that Sausalito's claims fail on the merits.
I. Background
Fort Baker ("the Fort" or "the site") is located in Marin County, California, just over the Golden Gate Bridge from San Francisco. The Fort lies in a 335-acre valley just inside the entrance to San Francisco Bay. It is bounded to the south and east by the shore of the Bay. The City of Sausalito is just north of the Fort, also on the shore of the Bay.
Fort Baker was established as an Army post around the turn of the last century. In 1972, when Congress established the Golden Gate National Recreation Area as a unit of the National Park System, Fort Baker was included in the Recreation Area's boundaries, with the expectation that it would be fully incorporated once it was no longer needed by the Army. See 16 U.S.C. § 460bb-2. The Army has been transferring portions of the site to the National Park Service ("Park Service") since the mid-1980s. The Base Closure Act, 10 U.S.C. § 2687, mandated that Fort Baker be closed as an Army facility and completely transferred to the Park Service by 2001.
Fort Baker has been described as "one of the most special gems" of the Golden Gate National Recreation Area. It is praised for its serenity, hiking trails, wildlife, water access, and scenic views. Numerous species of wildlife and vegetation live at Fort Baker, including the endangered Mission Blue Butterfly, for which the Fort is one of its few remaining habitats. The site includes 183 acres of tideland, more than a mile of rocky shoreline, and a harbor at Horseshoe Bay that is
In 1980, the Park Service drew up a General Management Plan ("GMP") for the Golden Gate National Recreation Area, including a discussion of the possible future uses of Fort Baker. Pursuant to the National Environmental Protection Act, the GMP was accompanied by an environmental impact statement ("EIS"). The GMP approved the use of historic buildings at Fort Baker as a conference center, the removal of a wooden bulkhead to restore a beach, improvements to the landscape, and the construction of additional parking. In anticipation of the complete transfer of Fort Baker to its authority, the Park Service later sought to update the GMP's proposals to account for critical developments that had occurred since 1980, such as the discovery of a federally listed endangered species at the site. The Park Service therefore prepared a new EIS, which is site-specific to Fort Baker.
The Park Service initiated public scoping in 1997, followed by a period of public comments and meetings. In October 1998, the Park Service released its draft EIS. Thereafter, the Park Service conducted another public scoping, took public comments, and held an additional public meeting. After close of the review period in December 1998, the Park Service agreed to hold additional meetings with Sausalito to address its concerns about the draft EIS.
A final EIS ("FEIS") was released in October 1999. The FEIS details four alternatives for developing Fort Baker, and selects one of these as the plan it proposes to implement ("Fort Baker Plan" or "Plan"). In formulating these alternatives and selecting the Fort Baker Plan, the FEIS identifies the needs of the site, the purpose for the action, and the objectives the Park Service seeks to achieve.
The FEIS identifies three major needs to which the proposed action responds. First, the FEIS recognizes a need to "arrest deterioration" of Fort Baker's historic buildings and "allow for occupancy that will provide for their ongoing care." Second, noting that "Fort Baker's natural values are also exceptional," the FEIS recognizes that "[p]rotection and enhancement of the natural resources of the site as it receives greater public use will require a comprehensive strategy to balance these needs." Third, the FEIS notes that "existing facilities and features for visitors' enjoyment for the site are minimal and inadequate" and that "[t]he Bay Area Discovery Museum [] requires additional space at Fort Baker for its program...."
Based on these stated needs, the FEIS identifies five purposes of the proposed action. These purposes are to identify: (1) "the program and types of uses that would be accommodated in the historic buildings that would generate adequate revenue for building rehabilitation and preservation"; (2) "improvements to facilitate public uses, including new construction and removal of buildings, landscape treatments, trails, parking circulation, and locations and patterns of use"; (3) "waterfront improvements"; (4) "opportunities for habitat restoration"; and (5) "an approach to the protection, rehabilitation and maintenance of historic and natural resources."
Based on these needs and purposes, the FEIS proposes six objectives designed to "create a framework for considering and evaluating new uses and site improvements." First, the proposed action
Under the Fort Baker Plan chosen by the Park Service, a conference and retreat center, with a maximum of 350 guest rooms, will be established near the Parade Ground using both rehabilitated historic structures and new structures. Parking for a maximum of 455 cars will be provided in already disturbed areas. The Bay Area Discovery Museum will be expanded, and its parking facilities relocated and expanded. The Coast Guard is authorized to build a small addition to its existing facility. The Presidio Yacht Club's facilities and marina will be opened to the public. A wooden bulkhead will be removed, and the beach will be restored. Forty-two acres of natural habitat, including twenty-three acres of existing Mission Blue Butterfly habitat, will be maintained, enhanced, or restored. Hiking trails throughout the site will be rehabilitated. The Plan also outlines various measures to mitigate anticipated adverse environmental impacts. In June 2000, the Park Service issued the Record of Decision, which adopted the Fort Baker Plan, including its mitigation measures, as the proposed action for the site.
Sausalito filed suit challenging the Plan in federal district court. The court granted summary judgment in favor of Defendants. City of Sausalito v. O'Neill, 211 F.Supp.2d 1175 (N.D.Cal.2002). The court held that Sausalito lacked standing to assert its claims under the Coastal Zone Management Act, the Marine Mammal Protection Act, the Migratory Bird Treaty Act, the National Park Service Concessions Management Improvement Act, and the Omnibus Parks and Public Lands Management Act of 1996. The court also held that Defendants had not violated the National Environmental Protection Act, the Endangered Species Act, the National Park Service Organic Act, or the Act creating the Golden Gate National Recreation Area. Sausalito timely appealed.
We review the district court's summary judgment order de novo. United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.2003). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the court below correctly applied the relevant substantive law. See id.
II. Standing
We review a party's standing de novo. Gospel Missions of Am. v. City of
A. Article III Standing
To satisfy Article III standing, Sausalito must demonstrate that "(1) it has suffered an `injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).
The nature of the Article III standing inquiry is not fundamentally changed by the fact that in many of its causes of action Sausalito asserts a "procedural," rather than "substantive," injury. We have recently stated, with respect to "procedural injury," that
Citizens for Better Forestry v. U.S. Dep't of Agric., 341 F.3d 961, 969-70 (9th Cir.2003). Whether substantive or procedural injury is alleged, a plaintiff must show a "concrete interest" that is threatened by the challenged action. That is, for Article III purposes, we may recognize a "procedural injury" when a procedural requirement has not been met, so long as the plaintiff also asserts a "concrete interest" that is threatened by the failure to comply with that requirement.
For example, a cognizable procedural injury exists when a plaintiff alleges that a proper EIS has not been prepared under the National Environmental Policy Act when the plaintiff also alleges a "concrete" interest—such as an aesthetic or recreational interest—that is threatened by the proposed action. See Sierra Club v. Morton, 405 U.S. 727, 738, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (aesthetic and recreational harms may amount to concrete injury-in-fact). For purposes of Article III standing, we do not require a plaintiff to demonstrate that a procedurally proper EIS will necessarily protect his or her concrete interest in the park. Under Citizens for Better Forestry, a cognizable procedural injury exists for Article III purposes when, because of a failure to honor a statutorily required procedure, it is "reasonably probable that the challenged action will threaten [a plaintiff's] concrete interests." 341 F.3d at 969-70.
As a municipality, Sausalito may not simply assert the particularized injuries to the "concrete interests" of its citizens on their behalf. See Colorado River Indian Tribes v. Town of Parker, 776 F.2d 846, 848 (9th Cir.1985) ("[Cities] cannot sue as parens patriae because their power is derivative and not sovereign."). Rather, as a municipality, Sausalito may sue to protect its own "proprietary interests" that might be "congruent" with those of its citizens. Id. The term "proprietary" is somewhat misleading, for a municipality's cognizable interests are not confined to protection of its real and personal property. The "proprietary interests" that a municipality may sue to protect are as varied as a municipality's responsibilities, powers, and assets.
Sausalito has met its burden of establishing concrete "injury in fact" to its proprietary interests. Sausalito's city manager, Dana Whitson, testified by declaration
The district court found that Whitson's declaration sufficiently demonstrates Article III injury, stating that the "Fort Baker Plan would result in a detrimental increase in traffic and crowds in downtown Sausalito, affecting City-owned streets as well as municipal management and public safety functions." City of Sausalito, 211
Applying the three Friends of the Earth factors, we hold that Sausalito has adequately claimed injury for Article III purposes. First, Sausalito has alleged harm to its proprietary interests with sufficient detail to state a "concrete and particularized" injury. Id. at 180, 120 S.Ct. 693. Second, the injuries are "actual or imminent, not conjectural or hypothetical[,]" and are "fairly traceable" to the implementation of the Fort Baker Plan. Id. The FEIS itself acknowledges that implementation of the Plan will result in an increase in local traffic, an increase in air pollutant emissions, and an incremental contribution to the cumulative noise environment. The FEIS thus finds that implementation of the Fort Baker Plan will result in known, predictable consequences that Sausalito identifies as concrete injury. Third, because Sausalito's asserted injuries will not occur if the Plan is not implemented, Sausalito has alleged injury that can be redressed by a decision blocking implementation of the Plan. Id. at 180-81, 120 S.Ct. 693. To put it in the terms we used in Citizens for Better Forestry, if the Plan is not implemented, the "reasonably probable" threat to Sausalito's concrete proprietary interests will have been removed. 341 F.3d at 969.
B. Non-constitutional Standing
It is not enough, however, for a plaintiff to satisfy the constitutional standing requirements of Article III. A plaintiff must also satisfy the non-constitutional standing requirements of the statute under which he or she seeks to bring suit. This non-constitutional standing inquiry is not whether there is a "case or controversy" under Article III, and thus does not go to our subject matter jurisdiction. Rather, the nonconstitutional standing inquiry is whether a particular plaintiff has been granted a right to sue by the statute under which he or she brings suit. Once the Article III standing requirement is satisfied, this is a purely statutory inquiry.
Some statutes grant standing narrowly. Under such statutes, some would-be plaintiffs with obvious, real-world interests in the outcome of a suit are nevertheless unable to sue because the statute has not conferred standing upon them. See, e.g., United Dairymen of Arizona v. Veneman, 279 F.3d 1160, 1165 (9th Cir.2002) (under Block v. Cmty. Nutrition Inst., 467 U.S. 340, 352, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984), milk consumers have no standing to challenge milk market order under the Agricultural Marketing Agreement Act, even though the effect of the order is to increase retail milk prices). Other statutes grant standing very broadly, some as broadly as Article III permits. Under such statutes, would-be plaintiffs with small or minimal real-world interests are able to sue. See, e.g., Friends of the Earth, 528 U.S. at 180-89, 120 S.Ct. 693 (upholding standing for plaintiff suing under
Statutes, however, rarely spell out in specific terms who does and does not have standing to sue. In difficult or uncertain cases, courts are left to infer the answer from various sources, including the purpose of the statute and background assumptions drawn from the common law. See Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U.L. REV. 881, 886 (1983). But the fundamental inquiry is straightforward, even if the answer is not always obvious: Does the statute in question confer a right to sue on the plaintiff who seeks to bring suit?
If statutory standing is not explicitly provided in the text of a statute, a plaintiff challenging federal administrative action looks to Section 10(a) of the Administrative Procedure Act ("APA"), which provides that any "person ... adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. Under the APA, a "`person' includes an individual, partnership, corporation, association, or public or private organization other than an agency." 5 U.S.C. § 551(2).
Interpreting the APA, the Supreme Court in Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), held that anyone "arguably within the zone of interests" protected by the statute under which he or she has asserted injury has standing to bring suit under that statute. The Court has instructed that the "zone of interests" test is to be construed generously, stating that the "test is not meant to be especially demanding," and that a court should deny standing under the "zone of interest" test only "if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit." Clarke v. Secs. Indus. Ass'n, 479 U.S. 388, 399, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987); see also Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1059 (9th Cir.2004); Ocean Advocates v. U.S. Army Corps of Eng'rs, 361 F.3d 1108, 1120-21 (9th Cir.2004). Specifically, "there need be no indication of congressional purpose to benefit the would-be plaintiff." Graham v. Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1004 (9th Cir.1998) (citing Clarke, 479 U.S. at 399-400, 107 S.Ct. 750).
As a municipal corporation, Sausalito qualifies as a "person" under Section 10(a) of the APA. To determine whether Sausalito is within the zone of interests of the statutes under which it brings suit, we look "to the substantive provisions of the [statutes], the alleged violations of which serve as the gravamen of the complaint." Bennett v. Spear, 520 U.S. 154, 175, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). We are instructed by Clarke to understand these substantive provisions liberally. Thus, "APA plaintiffs need only show that their interests fall within the `general policy' of the underlying statute, such that interpretations of the statute's provisions or scope could directly affect them." Graham, 149 F.3d at 1004 (quoting Nat'l Credit Union Admin. v. First Nat'l Bank and Trust Co., 522 U.S. 479, 487-88, 118 S.Ct. 927, 140 L.Ed.2d 1 (1998) (further citations omitted)).
Defendants have objected to statutory standing for five of the statutes under which Sausalito seeks to bring suit. Those statutes are the Coastal Zone Management Act, the Marine Mammal Protection Act, the Migratory Bird Treaty Act, the Concessions Management Improvement Act, and the 1996 Omnibus Parks and Public Lands Management Act. We address these
1. Coastal Zone Management Act
The purpose of the Coastal Zone Management Act ("CZMA") is to "preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation's coastal zone for this and succeeding generations." 16 U.S.C. § 1452(1). To accomplish these ends, the CZMA encourages the states to draw up "management plans" for their coastal zones and requires that "[e]ach Federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs." Id. § 1456(c)(1)(A). A federal agency ensures consistency of its proposed actions with state management programs by submitting a "consistency determination to the relevant State agency." Id. § 1456(c)(1)(C); see also 15 C.F.R. § 930.36. After receipt of the consistency determination, the "State agency shall inform the Federal agency of its concurrence with or objection to the Federal agency's consistency determination." 15 C.F.R. § 930.41. Sausalito contends that the Park Service violated the CZMA because the Fort Baker Plan is not "consistent to the maximum extent practicable" with the approved state management program for the San Francisco Bay. 16 U.S.C. § 1456(c)(1)(A).
The district court denied standing under the CZMA, holding that the CZMA's "zone of interests" extends only to "a state's protection of their [sic] coastal zones, but not to a local entity's quarrel with the state agency's conclusion...." City of Sausalito, 211 F.Supp.2d at 1187. We disagree. It is true that local governments like the City of Sausalito are not charged with making or concurring in consistency determinations under the CZMA. But this does not mean that they do not have standing to challenge determinations made by others. If the only parties that could challenge a consistency determination were the agencies that had already made or concurred in that determination, there would effectively be no judicial review of CZMA compliance. There is no indication that the CZMA was intended by Congress to insulate from judicial review the actions of the agencies required to comply with the statute. We have, in the past, allowed parties other than those charged with making or concurring in a consistency determination to bring suit under the CZMA. See, e.g., Akiak Native Cmty. v. U.S. Postal Serv., 213 F.3d 1140, 1144-46 (9th Cir.2000) (reviewing CZMA claims brought by Alaska Native communities); Northwest Envtl. Def. Ctr. v. Brennen, 958 F.2d 930, 936-37 (9th Cir.1992) (reviewing CZMA claims brought by environmental organizations).
We hold that adversely affected local governments are within the "zone of interests" of the CZMA, as parties "adversely affected or aggrieved" by an improper consistency determination, and that Sausalito therefore has standing. 5 U.S.C. § 702; see Clarke, 479 U.S. at 399, 107 S.Ct. 750. The CZMA explicitly states that it is "national policy" to "encourage the participation and cooperation of the public, state and local governments ... in carrying out the purposes of [the statute]." 16 U.S.C. § 1452(4) (emphasis added); see also id. § 1452(5) (It is "national policy" to "encourage coordination and cooperation with and among the appropriate Federal, State, and local agencies....") (emphasis added). Further, we have previously indicated in dictum our view that local governments have standing
2. Marine Mammal Protection Act
The Marine Mammal Protection Act ("MMPA") prohibits "taking" a marine mammal without a permit. 16 U.S.C. §§ 1372, 1374. The statute defines "taking" as harassing, hunting, capturing, or killing a marine mammal, as well as attempting to do so. Id. § 1362(13), (18); 50 C.F.R. § 216.3. Sausalito contends that implementation of the Fort Baker Plan will cause the "taking" of sea lions and harbor seals under the MMPA, and that a permit is therefore required. The FEIS makes clear that the Park Service has not applied, and does not intend to apply, for a permit.
Sausalito argues that it is explicitly granted standing under Section 104(d)(6) of the MMPA, which provides: "Any applicant for a permit, or any party opposed to such permit, may obtain judicial review of the terms and conditions of any permit issued by the Secretary under this section or of his refusal to issue such a permit." 16 U.S.C. § 1374(d)(6). We held in Jones v. Gordon, 792 F.2d 821, 824-25 (9th Cir.1986), that Section 104(d)(6) provides for judicial review of permits already issued and of the Secretary's refusal to issue permits. However, Sausalito challenges neither the substantive terms of an already issued permit nor the refusal to issue a permit. Rather, it challenges the Park Service's refusal to seek a permit at all. Sausalito's challenge therefore does not come within the explicit grant of standing under Section 104(d)(6).
Nonetheless, if Sausalito comes within the "zone of interests" of the MMPA, it has standing to seek an injunction requiring that a permit be obtained, or, in the absence of a permit, forbidding an activity that constitutes a "taking" of a marine mammal. The MMPA is intended to protect marine mammals so that they continue "to be a significant functioning element in the ecosystem of which they are a part." 16 U.S.C. § 1361(2). According to the MMPA:
Id. § 1361(6). Marine mammal conservation is thus the goal of the MMPA, and the statute explicitly recognizes that such conservation is a worthy objective because of "esthetic and recreational as well as economic" concerns.
Implementation of the MMPA would be severely hampered if affected parties with conservationist, aesthetic, recreational, or economic interests in marine mammal protection were not allowed to bring suits challenging failures to apply for required permits. We believe that under the most reasonable interpretation of the "zone of interests" test, as liberally construed by the Court in Clarke, standing is granted to any party who would be "adversely affected or aggrieved" by the failure of a party to procure a permit that is required under the MMPA. 5 U.S.C. § 702; see Clarke, 479 U.S. at 399, 107 S.Ct. 750.
The FEIS for the Fort Baker Plan states that construction and increased use of the waterfront area of Fort Baker will result in marine mammals making "less frequent use of the area." Because Sausalito has asserted aesthetic, recreational, and economic interests tied to the presence of marine mammals in the water and along its shoreline, it is "adversely affected or aggrieved" by the failure of the Park Service to seek an MMPA permit. 5 U.S.C. § 702; see Clarke, 479 U.S. at 399, 107 S.Ct. 750. We therefore hold that Sausalito has standing to sue to require the Park Service to apply for an MMPA permit before implementing the Fort Baker Plan.
3. Migratory Bird Treaty Act
The Migratory Bird Treaty Act ("MBTA") protects migratory birds. Its stated purpose is "to aid in the restoration of such birds in those parts of the United States adapted thereto where the same have become scarce or extinct, and also to regulate the introduction of American or foreign birds or animals in localities where they have not heretofore existed." 16 U.S.C. § 701. The MBTA specifically forbids pursuing, hunting, taking, capturing, killing, or attempting to take, capture or kill migratory birds without authorization from the Secretary of the Interior. Id. §§ 703, 704; 50 C.F.R. § 21.27. Sausalito contends that implementation of the Fort Baker Plan—specifically, construction activities, tree removal, and increased visitor usage—"may result in the foreseeable deaths of migratory birds" and may thereby violate the MBTA. It is clear from the FEIS that the Park Service has not sought, and does not intend to seek, authorization from the Secretary.
On its face, the MBTA is a criminal statute. See id. §§ 706, 707(a)-(d). The statute does not specifically authorize civil injunctive suits, and it says nothing about who has standing to bring such a suit. However, this court, the D.C. Circuit, and the Eighth Circuit have decided civil injunctive suits brought under the MBTA by animal welfare or environmental organizations. See Seattle Audubon Soc'y v. Evans, 952 F.2d 297, 302-03 (9th Cir.1991); Humane Soc'y of the U.S. v. Glickman, 217 F.3d 882, 888 (D.C.Cir.2000); Newton County Wildlife Ass'n v. U.S. Forest Serv., 113 F.3d 110, 114-15 (8th Cir.1997). Although the necessary implication of these decisions is that a civil injunctive suit is authorized under the MBTA, and that the plaintiff organizations had standing to bring the suits, neither question was discussed in the opinions.
We are bound to follow the implicit, but necessary, holding of our decision in Seattle
4. Concessions Management Improvement Act
The National Park Service Concessions Management Improvement Act, 16 U.S.C. § 5951 et seq. ("CMIA"), governs the award and administration of these concession contracts and "establish[es] a ... comprehensive concession management program for national parks." Nat'l Park Hospitality Ass'n v. Dep't of the Interior, 538 U.S. 803, 806, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). "To make visits to national parks more enjoyable for the public, Congress authorized [the Park Service] to grant privileges, leases, and permits for the use of land for the accommodation of visitors. Such privileges, leases, and permits have become embodied in national parks concession contracts." Id. at 805-06, 123 S.Ct. 2026 (internal quotations and citation omitted).
In enacting the CMIA, Congress found:
16 U.S.C. § 5951(a). Further, Congress declared that it is congressional policy:
Id. § 5951(b).
Sausalito contends that the conference center proposed for Fort Baker will bring development and commercialization that will impair Fort Baker's natural resources and harm Sausalito through increased congestion. We do not require that Sausalito be a potential concessioner to have standing under the CMIA. It is sufficient that Sausalito assert injury to its "proprietary interest" that would result if the public accommodations, facilities, and services are constructed or provided in a manner Sausalito contends is inconsistent with the CMIA. Cf. Wilderness Pub. Rights Fund v. Kleppe, 608 F.2d 1250 (9th Cir.1979) (resolving on the merits a suit by non-concessioner plaintiff brought under the federal statute superceded by the CMIA, Concessions Policy Act, formerly at 16 U.S.C. §§ 20-20g). As a party "adversely affected or aggrieved" by a concession that potentially violates the congressional policies
The Park Service contends that Sausalito is not within the CMIA's zone of interests because the CMIA does not regulate "the type of long-term lease for the retreat and conference center envisioned in the Fort Baker plan," but this contention is unavailing. The regulations implementing the CMIA define a "concession contract" as a "binding written agreement between the Director and a concessioner entered under the authority of this part ... that authorizes the concessioner to provide certain visitor services within a park area under specified terms and conditions." 36 C.F.R. § 51.3. The FEIS states that "[t]he conference and retreat center operator would be selected under existing [Park Service] authorities that provide for long-term agreements for rehabilitation and operation of park buildings." The Park Service offers nothing to support its contention that the operation of the conference center, as described in the FEIS, does not qualify as a concession governed by the CMIA.
5. Omnibus Parks and Public Lands Management Act of 1996
Under the Omnibus Parks and Public Lands Management Act of 1996 ("Omnibus Act"), the Secretary of the Interior "is authorized where necessary and justified to make available employee housing, on or off the lands under the administrative jurisdiction of the [Park Service], and to rent or lease such housing to field employees of the [Park Service]...." 16 U.S.C. § 17o(2). Such authorization is intended, inter alia, to help "eliminate unnecessary Government housing and [to] locate such housing as is required in a manner such that primary resource values are not impaired." Id. § 17o(1)(E). The Omnibus Act directs that "[t]he Secretary may not utilize any lands for the purposes of providing field employee housing under this section which will impact primary resource values of the area or adversely affect the mission of the agency." Id. § 17o(17)(A).
Sausalito contends that the Fort Baker Plan violates section 17o(17)(A) of the Omnibus Act because the on-site housing of concession employees at the conference center will impair Fort Baker's "primary resource values" of "scenic beauty and natural character." Sausalito has asserted injury based on increased congestion and traffic caused, inter alia, by on-site employees' trips into Sausalito. As "a party adversely affected or aggrieved" by on-site housing that potentially violates the policies Congress sought to further through the Omnibus Act, Sausalito is within the statute's "zone of interests."
III. Statutory Duties
We have thus held, or Defendants have conceded, that Sausalito has standing to sue under all the statutes it seeks to enforce. We now turn to the question of whether Defendants have violated, or will violate, the duties proscribed by those statutes.
A. Standard of Review
Because the statutes under which Sausalito seeks to challenge administrative action do not contain separate provisions for judicial review, our review is governed by the APA. See, e.g., Morongo Band of Mission Indians v. FAA, 161 F.3d 569,
Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). While we must be "searching and careful" in our inquiry, Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (internal quotations and citations omitted), we may not substitute our own judgment for that of the agency. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). We "must uphold agency decisions so long as the agencies have `considered the relevant factors and articulated a rational connection between the factors found and the choices made.'" Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 953-54 (9th Cir.2003) (quoting Washington Crab Prods., Inc. v. Mosbacher, 924 F.2d 1438, 1441 (9th Cir.1990) (further internal citations omitted)).
Where "a court reviews an agency action involv[ing] primarily issues of fact, and where analysis of the relevant documents requires a high level of technical expertise, we must defer to the informed discretion of the responsible federal agencies." Sierra Club v. U.S. EPA, 346 F.3d 955, 961 (9th Cir.2003), amended by 352 F.3d 1186 (9th Cir.2003) (internal quotations and citation omitted); see also Ariz. Cattle, 273 F.3d at 1236 ("We are deferential to the agency's expertise in situations ... where `resolution of the dispute involves primarily issues of fact.'") (quoting Marsh, 490 U.S. at 377-78, 109 S.Ct. 1851); Selkirk, 336 F.3d at 954 ("Disputes involving `primarily issues of fact' must be resolved in favor of the expert agency so long as the agency's decision is based on a reasoned evaluation of the relevant factors.") (quoting Marsh, 490 U.S. at 377-78, 109 S.Ct. 1851).
B. National Environmental Policy Act
The National Environmental Policy Act ("NEPA") requires that an environmental impact statement be prepared for "major Federal actions significantly affecting the quality of the human environment...." 42 U.S.C. § 4332(2)(C). The EIS should "provide full and fair discussion of significant environmental impacts and shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1.
Our review of an EIS is limited to a "rule of reason that asks whether an EIS contains a reasonably thorough discussion of the significant aspects of the
Sausalito challenges the FEIS for the Fort Baker Plan in several respects. First, Sausalito contends that the FEIS fails to consider reasonable alternatives to the Plan. Second, it contends that the FEIS fails to consider the impacts of the Plan on traffic. Third, it contends that the FEIS fails to consider the "commercialization precedent" that implementation of the Plan will allegedly create. Fourth, it contends that the FEIS does not adequately discuss the effects of the Plan on wildlife. Fifth, it contends that the FEIS "fails to support its conclusion with scientific evidence." Finally, it contends that the FEIS does not sufficiently disclose and discuss the cost-benefit analyses that the Park Service may have performed. We address these contentions in turn. We conclude, as to all of them, that the Park Service has taken the requisite "hard look."
1. Alternatives
NEPA provides that federal agencies must, to the fullest extent possible, "[s]tudy, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. § 4332(2)(E). The alternatives section is "the heart of the environmental impact statement." 40 C.F.R. § 1502.14. The EIS, however, "need not consider an infinite range of alternatives, only reasonable or feasible ones." City of Carmel-by-the-Sea v. U.S. Dep't of Transp., 123 F.3d 1142, 1155 (9th Cir.1997); 40 C.F.R. § 1502.14(a)-(c). The rule of reason "guides both the choice of alternatives as well as the extent to which the[EIS] must discuss each alternative." Carmel, 123 F.3d at 1155. "`[F]or alternatives which were eliminated from detailed study, [the EIS must] briefly discuss the reasons for their having been eliminated.'" Am. Rivers v. FERC, 201 F.3d 1186, 1200 (9th Cir.2000) (quoting 40 C.F.R. § 1502.14(a) (emphasis added by the court)).
The FEIS identifies and considers in detail four alternatives: (1) the Fort Baker Plan; (2) the "GMP Alternative"; (3) the "Office and Cultural Center Alternative"; and (4) "the No-Action Alternative." During scoping and initial planning, the Park Service considered other alternatives that were "initially thought to be viable or were suggested by the public," but were not developed in further detail "because they were determined to be infeasible or did not fit within the Purpose and Need for the project." The Park Service initially considered, but then rejected, a "maximum natural resource restoration" alternative. Other rejected alternatives discussed in the FEIS include use of the site as a charter or independent school, as a university campus, as a lodging facility, as an arts and education center, as a residential youth academy of environmental science and art, and as a fully operating military post.
Sausalito contends that the Park Service should have identified and analyzed in detail more than the four alternatives considered in the FEIS. Specifically, Sausalito contends that the FEIS should have evaluated in more detail alternatives that would
As an initial matter, the Park Service contends that because Sausalito did not raise its concern about funding during public comments and in its many exchanges with the Park Service, it has not satisfied our requirement that those who challenge an EIS "bear a responsibility to structure their participation so that it is meaningful, so that it alerts the agency to the [parties'] position and contentions." City of Angoon v. Hodel, 803 F.2d 1016, 1022 (9th Cir.1986) (internal quotation and citation omitted); cf. Morongo Band, 161 F.3d at 576 (implying that "the burden is on the party challenging the agency action to offer feasible alternatives."). A party has participated in a sufficiently meaningful way when it has alerted the agency to its position and claims. See Angoon, 803 F.2d at 1022. Sausalito adequately made its concerns about funding at Fort Baker known to the Park Service throughout the public review and comment process. For example, in April 1999, Sausalito's mayor wrote to Golden Gate National Recreation Area Superintendent Brian O'Neill: "[W]e cannot stress enough the desire of our City to have this project reduced to an appropriate scale.... To this end, we urge the Park Service to seek new funding, if necessary, to supplement the cost of rehabilitation in order to reduce the scope of the project." (Emphasis added.) Similarly, in December 1999, Sausalito's mayor wrote to Regional Park Service Director John Reynolds expressing concern that while
The Park Service was thus clearly alerted to Sausalito's concerns that the Park Service's pursuit of funding had been too limited.
In the past we have cautioned that "even if an alternative requires `legislative action[,]' this fact `does not automatically justify excluding it from an EIS.'" Methow Valley Citizens Council v. Reg. Forester, 833 F.2d 810, 815 (9th Cir.1987), overruled on other grounds by Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (quoting City of Angoon, 803 F.2d at 1021); see also Kilroy v. Ruckelshaus, 738 F.2d 1448, 1454 (9th Cir.1984) ("In some cases an alternative may be reasonable, and therefore required by NEPA to be discussed in the EIS, even though it requires legislative action to put it into effect."). However, we have also noted that "[i]f an alternative requires congressional action, it will qualify for inclusion in an EIS only in very rare circumstances." City of Angoon, 803 F.2d at 1022 n. 2. We identified one of these "very rare" circumstances in Muckleshoot Indian Tribe v. United States Forest Service, 177 F.3d 800 (9th Cir.1999). There we held that an EIS prepared by the Forest
In assessing whether we confront another of those "very rare circumstances" here, we must understand the context in which the Park Service dealt with funding limitations. It is clear from the record that the lack of congressional funding available for rehabilitation of the historic structures at Fort Baker was a central concern of the Park Service throughout the development of the Fort Baker Plan. It is also clear from the administrative record that the lack of congressional funding was not merely "speculative."
Acting Park Service Superintendent B.J. Griffith explained the Park Service's efforts at procuring congressional funds to Sausalito's mayor in April 1999:
(Emphasis added.) Griffith reiterated these points one month later, stating, "With regard to funding opportunities for long-term rehabilitation and maintenance of the buildings at Fort Baker, Congress has made it clear that new uses will need to provide funds for this purpose."
The Park Service's assessment of the limitations of congressional funding was discussed openly throughout the planning process. After scoping had closed in October 1997, Chief Park Service Planner for Fort Baker Nancy Hornor briefed a citizens' advisory committee. She stated, "Financial sustainability was one of the important criteria for the site, [b]ecause we are not really anticipating that we are going to get a big influx of federal dollars to pay for the high cost of rehabilitating both the buildings and the infrastructure on the site." In September 1998, before the same citizens' group, Park Service Project Manager Ron Golem identified "the need for outside funding" as one of the "guiding principles for the implementation of this plan." He explained:
(Emphasis added.)
The record also reflects the Park Service's consistent attempts to work with members of Congress to secure whatever funding was available. Park Service memoranda indicate that as of March 1999, Congressman Jack Murtha was continuing his efforts "to secure military funding of the $12.5 million infrastructure requirement" and that various members of Congress, including members of the Military Construction Committee and the National Security Appropriations Subcommittee, had been "engaged" with respect to seeking funding. In July 1999, Congressman Ralph Regula, Chair of the Subcommittee on Interior and Related Agencies of the House Appropriations Committee, wrote to Superintendent O'Neill thanking him for "the briefings and information you provided to the subcommittee members regarding issues of importance to the park[.]" Regula specified that "[t]he subcommittee members seemed very excited about the potential for Fort Baker and we were, of course, please[d] to hear that Jack Murtha would pursue the $12 million needed for infrastructure repairs in the Defense bill." However, Regula cautioned, "As you know, our Interior bill allocation fell $200 million below the enacted level and we are limiting new projects so that we can make a serious dent in backlog maintenance needs of the parks." In 1999, the Park Service succeeded in procuring some funds from Congress when the Department of Defense's Appropriations Bill contained five million dollars for infrastructure repair at Fort Baker. In 2000, the House Appropriations Committee approved another six million dollars for infrastructure improvements at Fort Baker.
The record thus indicates that Park Service planners kept abreast of possible congressional funding sources, were well-informed as to the limitations of these sources, and were, on occasion, successful in obtaining funding. That the Park Service's efforts were focused on appropriations that covered infrastructural improvements, and not on appropriations that would have indefinitely sustained the site, does not indicate that the Park Service did not diligently pursue congressional funding. On the contrary, as is made clear from Griffin's and Golem's comments, as well as other information in the record, the Park Service's focus resulted from an informed understanding of Congress's willingness to fund Fort Baker's rehabilitation and a strategic choice about how best to secure whatever funding might be available. It was thus reasonable for the FEIS not to have explored in detail the "alternative" of additional congressional funding beyond what the Park Service had already secured. Sausalito may wish that Congress had been more receptive to the Park Service's requests or that the Park Service could have devised a different and more effective strategy in seeking congressional funding. But this desire alone does not require us to conclude that the FEIS is inadequate. We therefore do not confront one of those "very rare circumstances" where an EIS is inadequate for not including the "alternative" of seeking federal funds.
2. Traffic Impact
The FEIS states, "During scoping, the most frequently voiced concerns
3. Commercialization Precedent
The Council on Environmental Quality Guidelines ("Guidelines"), the regulations implementing NEPA, require that an EIS discuss "[t]he degree to which the action may establish a precedent for future actions." 40 C.F.R. § 1508.27(b)(6). The FEIS discusses in depth any "commercialization precedent" that would result from implementation of the Fort Baker Plan. It analyzes the Plan's impact on regional community services and employment opportunities, including local hotels and expected visitor spending in the region. The Plan also discusses its consistency with relevant land-use plans, such as the Presidio General Management Plan, the San Francisco Bay Plan, the Marin Countywide Plan, and the Sausalito General Plan, each of which discusses the uses of land within its relevant boundaries. Finally, and critically, in its discussion of the "Growth-Inducing Impacts" of the Fort Baker Plan, the FEIS states:
These discussions satisfy the Guidelines' direction to consider "the degree to which the action may establish a precedent for future actions with significant effects." 40 C.F.R. § 1508.27(b)(6). By providing information about the likely community and commercial impacts of the Plan on the regional economy, as well as placing these impacts in the context of regional land-use plans, the Park Service has taken the requisite "hard look" at this issue and provides the information necessary to make
4. Impact on Wildlife
The FEIS discloses that "[c]onstruction activities at the fishing pier and marina could temporarily disrupt marine animals, including harbor seals, California sea lions, and feeding, resting and nesting waterbirds and seabirds, in the proximity of work sites and in the water. However, there would be no long-term adverse impact on marine species due to construction activities in these areas." The FEIS also states that "[i]ncreased recreational boating in the area and use of the boat ramp might disrupt marine mammals, and wintering water birds that congregate in the area." As mitigation, the FEIS provides that "[d]esignation of appropriate recreational uses, interpretive signage and materials informing boaters and other visitors of appropriate actions to prevent disturbance, limitations on use areas and the boat ramp ... would avoid or mitigate visitor impacts." Additionally, the FEIS provides for ongoing monitoring of marine mammals to "verify [the] effectiveness of mitigation and/or identify needs for any additional management actions."
With respect to migratory birds, the FEIS states:
The FEIS also states that brown pelicans and least terns "are often seen in Horseshoe Bay and offshore in the bay." The FEIS states that while they do not have nesting sites at Fort Baker, American peregrine falcons and bald eagles are seen "occasionally flying over the bay." As mitigation, the FEIS provides:
The FEIS's discussion of salmonids, including mitigation measures, is described, infra, as part of our analysis of the Park Service's compliance with the Endangered Species Act.
Although discussion of the effects on specific species is not particularly detailed in the FEIS, we conclude from the description of adverse impacts and, in particular, of the mitigation measures, that the Park Service took a "hard look" at the wildlife impacts, and that the FEIS came to a reasonable conclusion that the Fort Baker Plan would not have a significant impact on these populations. In Edwardsen v. United States Department of the Interior, 268 F.3d 781, 790 (9th Cir.2001), we pointed to the inclusion of mitigation within an EIS as an important element in evaluating the reasonableness of the EIS's conclusions on wildlife. See also Selkirk, 336 F.3d at 954 (noting that if mitigation measures are "in place, then the reviewing
5. Methodologies and Sources Used
The Guidelines direct agencies to "insure the professional integrity, including scientific integrity, of the discussions and analyses in [an EIS]." 40 C.F.R. § 1502.24. This direction includes a requirement that methodologies and scientific sources be disclosed. Id. The FEIS identifies the following methodologies employed in predicting biological impacts:
(Bracketed numbers added.) The FEIS goes on to identify six criteria used to assess the degree of impact. The FEIS states that its analysis of the Plan's impacts on biological resources at Fort Baker relied on two specific sources: "Fort Baker Natural Resources Inventory," prepared in 1998 by EDAW, Inc.; and "Assessment of Baseline Vegetation Conditions and Habitat Restoration Potential at East Fort Baker, Golden Gate National Recreation Area," prepared in 1998 by May Consulting Services. In a similar fashion, the FEIS details the methodologies and specific sources used to assess the Plan's impacts on Fort Baker's cultural resources, traffic and circulation, air quality, land use and community services, and visual and aesthetic resources. The FEIS thus clearly indicates the methodologies and sources used to evaluate the Plan's impacts.
Sausalito nevertheless contends that the FEIS "fails to support its conclusions with scientific evidence." For example, Sausalito contends that the FEIS does not provide support for its conclusions about the Plan's impacts on wildlife in Horseshoe Bay and migratory birds. However, the "Biological Resources" section of the FEIS, in which the impacts of the Plan are discussed, details the methodologies and sources for predicting biological impacts listed above. The FEIS specifically refers to "[f]ield observations regarding special status species identified by [the United States Fish and Wildlife Service] and [the National Marine Fisheries Service], bird use of open water in Horseshoe Bay, and marine biological resources in area of impact related to removal of bulkhead."
Sausalito further contends that the FEIS is inadequate because it fails to make available the biological opinions upon which the FEIS is based. We have held "that NEPA requires that the public receive the underlying environmental data from which [an] ... expert derived her opinion." Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1150 (9th Cir.
6. Failure to Include Cost-Benefit Analysis
The Guidelines require that "[i]f a cost-benefit analysis relevant to the choice among environmentally different alternatives is being considered for the proposed action," the analysis "shall be incorporated by reference or appended to the [EIS] as an aid in evaluating the environmental consequences." 40 C.F.R. § 1502.23. "For purposes of complying with [NEPA]," the Guidelines require that "an environmental impact statement should at least indicate those considerations, including factors not related to environmental quality, which are likely to be relevant and important to a decision." Id. Sausalito contends that the Park Service used cost-benefit analyses to choose among environmentally different alternatives, but did not comply with the Guidelines' disclosure requirements for such analyses. The Park Service contends that the documents at issue are not "cost-benefit analyses," but are instead properly understood as "pro formas" that were "prepared and used by the [the Park Service] for [the] very narrow purpose [of testing] the viability of the retreat and conference center from the operator/developer's perspective."
While the Guidelines do not provide a specific definition of "cost-benefit analysis," they make clear that such an analysis may be informal. The Guidelines direct, "For purposes of complying with [NEPA], the weighing of the merits and drawbacks of the various alternatives need not be displayed in a monetary cost-benefit analysis and should not be when there are important qualitative considerations." Id.; see also Sierra Club v. Sigler, 695 F.2d 957, 976 n. 15 (5th Cir.1983). A "cost-benefit" analysis under the Guidelines consists of any analysis identifying and assessing the comparative benefits and/or costs of "environmentally different alternatives." 40 C.F.R. § 1502.23. To be subject to the Guidelines' disclosure requirements, the analysis must be "relevant to the choice" between these alternatives. Id. The Guidelines conclude: "In any event, an environmental impact statement should at least indicate those considerations, including factors not related to environmental quality, which are likely to be relevant and important to a decision." 40 C.F.R. § 1502.23.
We disagree with the Park Service's contention that it did not perform a "cost-benefit analysis." The contested documents consist mostly of reports and letters prepared for the Park Service by the Sedway Group ("Sedway"), a consulting firm specializing in real estate and urban economics. Sedway's July 1997 confidential report entitled "Market and Economic Assessment of Fort Baker Reuse Opportunities" ("1997 Report") explores "the market
Although neither the 1997 Report nor the 1998 Letter was formally incorporated into the FEIS, the considerations and evaluative criteria used in the Report and the Letter were adequately revealed in the FEIS. The Report comparatively assessed the discussed alternatives for their "capacity to generate funds for the [Park Service's] infrastructure and site improvements." As Sausalito itself has made clear, the criterion of generating funds is considered throughout the FEIS. The 1998 Letter discussed alternatives that were comparatively assessed for their capacity to generate jobs, visitor spending, and regional hotel demand. These criteria are discussed in the FEIS's section on "Land Use and Community Services." We therefore hold that the FEIS's failure formally to incorporate or append these analyses does not violate NEPA.
The other documents identified by Sausalito do not assess the comparative merits of environmentally different options. Rather, they explore the feasibility of only one element of the proposed action-the conference center itself. These documents are thus not cost-benefit analyses subject to the Guidelines' disclosure requirements, but are, as the Park Service described them, "pro formas" intended to help the Park Service understand in further detail the viability and parameters of a single option.
C. Endangered Species Act
The Endangered Species Act ("ESA") prohibits "taking" an endangered or threatened species, 16 U.S.C. § 1538(a)(1)(B), and requires the Secretary of the Interior to
Id. § 1536(a)(2). The ESA requires a consultation process among agencies. First, a federal agency proposing action that may result in a "taking" must ask the appropriate federal service-either the United States Fish and Wildlife Service ("Fish and Wildlife Service") or the National Marine Fisheries Service ("Fisheries Service")—whether a listed or proposed endangered or threatened species may be present in the area of the proposed action. Id. § 1536(c)(1).
If the relevant service answers that such a species may be in the area, the
If the agency proposing action determines, on the basis of the biological assessment, that its action "may affect" an endangered species, the agency must initiate the process of "formal consultation" with the appropriate service. 50 C.F.R. § 402.14(a). In this process, the agency must provide the service with "the best scientific and commercial data available or which can be obtained during the consultation." Id. § 402.14(d). Formal consultation results in a "biological opinion" in which the service
16 U.S.C. § 1536(b)(3)(A). The suggested alternatives "may not jeopardize the listed species or result in the destruction or adverse modification of its critical habitat." Am. Rivers v. Nat'l Marine Fisheries, 126 F.3d 1118, 1122 (9th Cir.1997).
In formulating the Fort Baker Plan, the Park Service consulted with both the Fish and Wildlife Service and the Fisheries Service. After receiving lists of species and habitats that may potentially be affected by the Fort Baker Plan, the Park Service prepared a biological assessment of impacts to the listed species, which it included in the October 1998 draft EIS. The Fisheries Service informed the Park Service in October 1998 that it would concur in the Park Service's determination that the Fort Baker Plan would not likely affect the listed species if the Park Service included certain mitigation measures in its proposed action. These mitigation measures were then incorporated into the FEIS. The Park Service concluded in its biological assessment that the Mission Blue Butterfly was the only species likely to be affected by the Plan, and requested formal consultation with the Fish and Wildlife Service on the Butterfly. Consultation ended in September 1999 when the Fish and Wildlife Service issued a biological opinion concluding that the Fort Baker Plan, including its mitigation measures, "is
Sausalito contends that an adequate biological assessment was not prepared with respect to the Fort Baker Plan's effects on the Mission Blue Butterfly and the salmonids listed in the FEIS. Sausalito also contends that the Park Service did not comply with the 180-day deadline for preparing a biological assessment.
1. Mission Blue Butterfly
The Mission Blue Butterfly ("Butterfly") is classified as an endangered species, and Fort Baker is one of its only remaining habitats. In 1995, a biological opinion ("1995 Opinion") was prepared for the Golden Gate Bridge District as part of a seismic and wind retrofit of the Golden Gate Bridge. The north end of the Bridge abuts Fort Baker. The 1995 Opinion concluded that the Bridge retrofit was not likely to jeopardize the Butterfly's continued existence, provided that restoration and preservation of Butterfly habitat in Fort Baker was undertaken as mitigation. The 1995 Opinion specified that any proposed change to its designated Butterfly habitat restoration sites at Fort Baker should be approved by the Fish and Wildlife Service.
Sausalito contends that the Park Service failed to consider information contained in the 1995 Opinion in its biological assessment in connection with the Fort Baker Plan, and that the Fish and Wildlife Service failed to incorporate such information into its biological opinion. It further contends that neither the Park Service nor the Fish and Wildlife Service properly disclosed or considered an asserted conflict between the Fort Baker Plan and Butterfly habitat restoration required by the 1995 Opinion. We disagree with both contentions.
The FEIS clearly acknowledges the mitigation requirements contained in the 1995 Opinion. It states that"[p]lanned restoration of [Butterfly] habitat as mitigation for the Golden Gate Bridge seismic retrofit work would continue to be implemented at Fort Baker," and that the Park Service "conducts annual surveys for the butterfly, and both the [Park Service] and the [Bridge District] have been actively improving habitat at Fort Baker primarily through removal of invasive plants." The FEIS provides the following mitigation for Butterfly habitat:
Among other things, the FEIS provides for further mitigation through a "protocol
Sausalito points to an internal memo, contained in the administrative record and written by a Park Service employee before release of the draft EIS, expressing concern that habitat restoration sites associated with the Bridge District's mitigation activities would potentially conflict with elements of the Fort Baker Plan "that will likely be recommended by the [Plan] for uses other than habitat restoration." The record reflects, however, that the Park Service ultimately concluded that there would not be such a conflict. The "Assessment of Baseline Vegetation Conditions and Habitat Restoration Potential at East Fort Baker," which is included by reference in the FEIS and is a part of the Fish and Wildlife Service's consultation record, states:
(Emphasis added.)
On this record, we conclude that the Park Service and the Fish and Wildlife Service considered all the "relevant factors" and "important aspect[s] of the problem" with respect to the Butterfly. Native Ecosystems Council, 304 F.3d at 901. The need for restoration and preservation of Butterfly habitat both in general and in reference to the obligations of the Bridge District was adequately considered in assessing the effects of the Fort Baker Plan on the Butterfly. Further, Sausalito's assertion of a conflict between the Fort Baker Plan and the Bridge District's requirements is not borne out by the record. When "a court reviews an agency action involving primarily issues of fact, and where analysis of the relevant documents requires a high level of technical expertise, we must defer to the informed discretion of the responsible federal agencies." Sierra Club, 346 F.3d at 961 (citation and internal quotations and brackets omitted); see also Ariz. Cattle, 273 F.3d at 1236 ("We are deferential to the agency's expertise in situations, like that here, where resolution of this dispute involves primarily issues of fact.") (internal quotations and citation omitted). It is clear that both the Park Service and the Fish and Wildlife Service used their "informed discretion" in concluding that the Fort Baker Plan will not encroach on Butterfly habitat or jeopardize the continued existence of the Butterfly. We defer to that informed discretion. Sierra Club, 346 F.3d at 961.
2. Salmonids
Sausalito contends that the FEIS's discussion of salmonids is inadequate to serve as a biological assessment under the ESA. The FEIS states that among the "sensitive and special status
The FEIS also provides specific mitigation measures to prevent harm to salmonids in the area. Specifically, the FEIS states:
(Emphasis added.)
Sausalito argues that the listing of threatened salmon species in the appendix, rather than in the text of the FEIS, impairs its usefulness as a biological assessment. We disagree. There is no requirement barring a biological assessment from including relevant information in an appendix, and the text of the FEIS clearly indicates that further information about specific species is included in Appendix C. Sausalito also argues that the FEIS is not adequate as a biological assessment because it does not "address the summer presence of some of these salmon stock within Horseshoe Cove, and their vulnerability to harm from the Plan's proposed construction, excavation and dredging activities." We disagree with this argument as well. The presence of particular species of juvenile salmon in the area was set out in Appendix C, and the presence of salmon generally was discussed in the mitigation section. That section describes the timing of the salmon migration, stating: "[T]he period of the downstream migration of juvenile salmon ... begins in the northern portions of the Sacramento River system in July through December, with peak migration in September and October." The Park Service thus discussed the potential presence of salmon in the area and tailored a mitigation measure that would respond to the salmon's presence. Because we are convinced that the Park Service considered all the "relevant factors" and "important aspect[s] of the problem" and crafted an assessment, requiring specific mitigation, that was responsive to
3. Compliance with 180-Day Deadline
The ESA requires, with some exceptions, that a biological assessment be completed within 180 days. 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12(i). Sausalito claims that the Park Service violated the ESA by not completing a biological assessment within 180 days after receiving a species list from the Fish and Wildlife Service. On May 6, 1998, the Fish and Wildlife Service provided the Park Service with a list of species and habitats that may be affected by the Plan. The Park Service issued a biological assessment in the form of the draft EIS on October 14, 1998, within 180 days of receipt of that list. Soon after, on October 19, 1998, responding to a July 1998 request from the Park Service, the Fish and Wildlife Service sent the Park Service an updated species list that included species not on the previous list. The Park Service issued its FEIS and updated biological assessment in October 1999, almost a year after receiving the updated and expanded list.
The Park Service concedes that the October 1999 biological assessment violated the 180-day deadline. The Park Service argues, however, that "Sausalito cannot show that this violation harmed or will harm any of its interests." In reviewing agency action, the APA requires that "due account shall be taken of the rule of prejudicial error." 5 U.S.C. § 706. We have applied a harmless error rule to agency action differently, depending on both the types of action and error at issue. In the rulemaking context, we "exercise great caution in applying the harmless error rule," holding that "failure to provide notice and comment is harmless only where the agency's mistake clearly had no bearing on the procedure used or the substance of decision reached." Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 (9th Cir.1992) (internal quotations and citations omitted); accord Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir.1995); Cal-Almond, Inc. v. USDA, 14 F.3d 429, 442 (9th Cir.1993); Buschmann v. Schweiker, 676 F.2d 352, 358 (9th Cir.1982). In other contexts, however, our review for harmless error is more demanding of plaintiffs. Where the agency's error consisted of a failure to comply with regulations in a timely fashion, we have required plaintiffs to identify the prejudice they have suffered. Thus, when plaintiffs have "failed to identify any prejudice from the delay, no [judicial] action is warranted." Hall v. U.S. EPA, 273 F.3d 1146, 1163-64 (9th Cir.2001); see also Kolek v. Engen, 869 F.2d 1281, 1286 (9th Cir.1989) (discussing application of harmless error rule to procedural mistakes).
In this case, like Hall, the agency's error consisted of tardiness in performing a required task. By the time suit was filed, however, the task had been completed. In this circumstance, we require plaintiffs to identify the harm they have suffered because of the agency delay. Because Sausalito, like the plaintiff in Hall, has pointed to no harm resulting from the Park Service's belated biological assessment, we hold that it is not entitled to a remedy as a result of the Park Service's tardiness.
Our holding is consistent with our decisions in Biodiversity Legal Foundation v. Badgley, 309 F.3d 1166 (9th Cir.2002), and Center for Biological Diversity v. Norton, 254 F.3d 833 (9th Cir.2001), where, without conducting a harmless error review, we awarded the remedies plaintiffs sought when an agency had not complied with ESA deadlines. In both Badgley and Norton, plaintiffs sought injunctions to compel
D. Coastal Zone Management Act
The Coastal Zone Management Act ("CZMA") requires that "[e]ach Federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs." 16 U.S.C. § 1456(c)(1)(A). A federal agency ensures consistency of its actions with a state management program by submitting a "consistency determination to the relevant State agency." Id. § 1456(c)(1)(C); see also 15 C.F.R. § 930.36. After receipt of the consistency determination, the "State agency shall inform the Federal agency of its concurrence with or objection to the Federal agency's consistency determination." 15 C.F.R. § 930.41.
California has an approved coastal management program for the San Francisco Bay ("the Bay"). Cal. Govt.Code §§ 66600, 66603. The San Francisco Bay Conservation and Development Commission ("Bay Commission") administers the program under the San Francisco Bay Plan ("Bay Plan"). Id. §§ 66603, 66620-25. The Bay Plan directs, in relevant part, that "[l]imited commercial recreation facilities, such as small restaurants, should be permitted within waterfront parks provided they are clearly incidental to park use, are in keeping with the basic character of the park, and do not obstruct public access to and enjoyment of the Bay." The Bay Plan further directs that "[l]imited commercial development may be appropriate... in all parks shown on the Plan maps except where there is a specific note to the contrary" (Emphasis added.) Such a "specific note to the contrary" appears on "Bay Plan Map No. 4," and states that "[n]o commercial uses [should occur at Fort Baker] except for convenience needs of park visitors."
The Park Service submitted to the Bay Commission a "consistency determination" that the Fort Baker Plan was consistent with the Bay Plan. The Bay Commission concurred in this determination. Sausalito contends that this consistency determination does not satisfy the CZMA because the Fort Baker Plan is not "consistent to the maximum extent practicable" with the Bay Plan. 16 U.S.C. § 1456(c)(1)(A). Sausalito argues that the Bay Plan clearly indicates that "commercial uses" are permitted at Fort Baker only if they are "for [the] convenience needs of park visitors," and that "commercial recreation facilities" are "permitted within waterfront parks" only if "they are clearly incidental to park use." Sausalito argues that the construction of a conference center at Fort Baker contravenes these clear directives because the conference center and its attendant commercial services will be "destination magnets designed to draw hundreds of thousands of visitors to Fort Baker for conventions, seminars and other purposes unrelated to recreational enjoyment of [Fort Baker's] waterfront." Sausalito also argues that, in contravention of the Bay Plan, the conference center is not "in keeping with the basic character of the
In considering challenges to CZMA consistency determinations, we have previously stated that "[w]here procedures to resolve potential federal-state disagreements over matters affecting the jurisdiction of both have been established, we should be reluctant to set aside determinations made pursuant to those procedures absent a compelling reason to do so." Save Lake Washington v. Frank, 641 F.2d 1330, 1339 (9th Cir.1981). We do not generally find a "compelling reason" to overturn a consistency determination simply because our "opinion on the substantive issue of consistency" is different from that of the federal and state agencies. Cf. id. ("express[ing] no opinion on the substantive issue of consistency" and refusing to overturn federal consistency determination). That is, we will not generally overturn a consistency determination just because we might have come to a different conclusion were the determination of "consistency" before us in the first instance. Cf. Overton Park, 401 U.S. at 416, 91 S.Ct. 814 (1971) (we may not substitute our judgment for that of agency when reviewing agency action).
However, in this case, we hold that there is a "compelling reason" to hold that the Park Service's consistency determination was based on an improper ground under the CZMA. Save Lake Washington, 641 F.2d at 1339. The regulations implementing the CZMA specifically provide that "[f]ederal agencies shall not use a general claim of a lack of funding ... as a basis for being consistent to the maximum extent practicable with an enforceable policy of a management program." 15 C.F.R. § 930.32(a)(3). In arriving at its consistency determination, and in procuring the Bay Commission's concurrence in that determination, the Park Service relied on just such a "general claim" of insufficient funding.
In presenting its consistency determination to the Bay Commission, the Park Service stated, "As the steward of more than 670 historic structures, the Golden Gate National Recreation Area has a 27-year track record of historic preservation through compatible re-use.... This is important because the initial high cost of rehabilitation of the historic buildings can not be met entirely through federal appropriations...." (Emphasis added.) The Park Service continued, "The Fort Baker Plan proposes to continue in that tradition by engaging partner organizations to provide for visitor-oriented public uses... includ[ing] the Bay Area Discovery Museum and a public-serving retreat and conference center."
The Bay Commission relied heavily on the Park Service's claim of insufficient funding in ultimately concurring with the Park Service's consistency determination. The Bay Commission noted that the conference center proposed for Fort Baker seemed to conflict with the Bay Plan's limitations on commercial uses. The Bay Commission stated:
(Emphasis added.) The Bay Commission then concluded that the Fort Baker Plan was consistent with the Bay Plan "to the maximum extent practicable":
(Emphasis added.)
In making its consistency determination and in seeking the Bay Commission's concurrence, the Park Service relied on the need to generate funds for the Fort Baker complex, even though lack of funds is explicitly forbidden as a criterion for finding consistency under 15 C.F.R. § 930.32(a)(3). The Park Service's and the Bay Commission's reliance on a proscribed criterion in concluding that the Fort Baker Plan is "consistent to the maximum extent possible" with the Bay Plan is a "compelling reason" for holding that the Park Service's consistency determination was improper under the CZMA. Because the Park Service "relied on factors which Congress has not intended [them] to consider," we hold that the Park Service acted arbitrarily and capriciously with respect to its statutory obligations under the CZMA. Motor Vehicle Mfrs., 463 U.S. at 43, 103 S.Ct. 2856.
It is unlawful under the Marine Mammal Protection Act ("MMPA") to "take" a marine mammal without a permit. 16 U.S.C. §§ 1372, 1374. Under the statute, "take" means "harass, hunt, capture, or kill" or to attempt to "harass, hunt, capture, or kill." Id. § 1362(13). A 1994 amendment to the MMPA defines "harassment" as
Id. § 1362(18)(A). This definition or harassment is broader than it had been prior to the amendment. Implementing regulations to the MMPA, promulgated before the passage of the 1994 amendment and not subsequently amended, define "take" as follows:
50 C.F.R. § 216.3.
Sausalito contends that implementation of the Fort Baker Plan will effectuate a "taking" without an MMPA permit. The FEIS states, "Construction activities at the fishing pier and marina could temporarily disrupt all marine animals, including harbor seals, California sea lions, and feeding, resting and nesting waterbirds and seabirds, in the proximity of work sites and in the water." It further states that "[i]ncreased boating in the area and use of the boat ramp might disrupt marine mammals
Because the district court held that Sausalito did not have standing to seek an injunction requiring that the Park Service seek a permit, it did not reach the merits of Sausalito's claim under MMPA. The briefing on the merits in this court is somewhat cursory. Under the circumstances, we think it best for us not to decide the question as an initial matter. We are remanding the case to the district court in any event because of our holding on Sausalito's claim under the Coastal Zone Management Act, and we therefore do not unduly delay final resolution of this case in remanding to the district court for an initial decision on the merits of Sausalito's MMPA claim.
F. Migratory Bird Treaty Act
The Migratory Bird Treaty Act ("MBTA") provides that without authorization from the Secretary of the Interior it is unlawful to "pursue, hunt, take, capture, kill, attempt to take, capture, or kill" any migratory bird or "any part, nest, or egg of any such bird...." 16 U.S.C. § 703. Sausalito asserts that implementation of the Fort Baker Plan will violate the MBTA because migratory birds' nesting trees will be cut down, thereby disturbing both birds and their nests. The FEIS makes clear that the Park Service has not sought, and does not intend to seek, authorization from the Secretary.
In Seattle Audubon Society v. Evans, we explained that the definition of an unlawful "taking" under the MBTA "describes physical conduct of the sort engaged in by hunters and poachers, conduct which was undoubtedly a concern at the time of the statute's enactment in 1918." 952 F.2d at 302. There we held that unlike under the ESA, an unlawful "taking" under the MBTA did not occur through "habitat destruction," even that which "le[d] indirectly to bird deaths." Id. at 303. Because Sausalito alleges only that migratory birds and their nests will be disturbed through habitat modification, we hold that the Park Service does not need to seek authorization from the Secretary.
G. National Park Service's Organic Act & the Act Establishing the Golden Gate National Recreation Area
The National Park Service's Organic Act ("Organic Act") provides:
16 U.S.C. § 1a-1. The Act establishing the Golden Gate National Recreation Area instructs that the Secretary of the Interior "shall utilize the resources in a manner which will provide for recreation and educational opportunities consistent with sound principles of land use planning and management," and further that the Secretary "shall preserve the recreation area, as far as possible, in its natural setting, and protect it from development and uses which would destroy the scenic beauty and natural character of the area." Id. § 460bb.
We disagree. Because we have held that the Park Service complied with NEPA and the ESA, we reject Sausalito's claim to the extent that it is premised upon violation of these statutes. We also reject Sausalito's claim that the development contemplated for Fort Baker is fundamentally at odds with the congressional directives of the Organic Act and the Act establishing the Golden Gate National Recreation Area. As an initial matter, the Fort Baker Plan will not, as Sausalito asserts, add 156,000 square feet of new development to the site. As the FEIS indicates, this figure is offset by the projected removal of 71,000 square feet of existing structures. The maximum net new construction is therefore only 85,000 square feet. Further, the FEIS states that "[t]he proposed rehabilitation, demolition and new construction would be accommodated within the existing developed footprint of Fort Baker and be required to maintain the site's character.... No adverse land use impacts due to building removal or new construction are expected." In describing how the Fort Baker Plan would preserve the character of the site, the FEIS states:
The FEIS further details that "[a]pproximately 42 acres of natural habitat would be maintained, enhanced or restored" and "[e]xisting trails would be improved where surfaces are degraded, signing inadequate, or where accessibility improvements are possible without conflicting with other resource values." With respect to the site's scenic beauty, the FEIS states that "the Proposed Action includes the removal of visually distractive elements, such as deteriorated surfaces, nonhistoric structure, and asphalt paving. These site changes, as well as the creation of the beach and the restoration of the Parade Ground, would substantially enhance existing views by improving the park — and campus-like character and revealing the historic nature of the site." Finally, with respect to the cumulative impacts to the visual and aesthetic resources of the site, the FEIS concludes:
On this record, we cannot conclude that the development contemplated by the Fort Baker Plan is fundamentally at odds with the directives of the Organic Act and the Act establishing the Golden Gate National Recreation Area. We are satisfied that the Park Service has balanced the potential harms of development with its responsibilities for conservation, preservation, and public service. In the absence of a particular congressional directive outlining specific limitations on the development of Fort Baker-such as that provided for the Presidio of San Francisco, another Golden Gate National Recreation Area site-we decline to hold that the Park Service arbitrarily and capriciously violated these Acts. See Omnibus Parks and Land Management Act of 1996, Pub.L. No. 104-333, § 104(c)(3), 110 Stat. 4093, 4102 (1996) (management program for the Presidio shall provide that "new construction [is] limited to replacement of existing structures of similar size in existing areas of development").
H. Concessions Management Improvement Act
The Regulations implementing the Concessions Management Improvement Act ("CMIA") direct that "[d]evelopment of visitor services in park areas will be limited to locations that are consistent to the highest practicable degree with the preservation and conservation of the resources and values of the park area." 36 C.F.R. § 51.2. Sausalito contends that the Park Service has violated this Regulation by not developing the "maximum resource restoration" alternative in the FEIS, and by "ignor[ing] procedures required under NEPA, ESA, CZMA, MMPA, and MBTA, further eroding the park's natural resources."
To the extent that Sausalito's claim is based on the Park Service's dismissal of the "maximum resource restoration" alternative, we reject it. We have already concluded that it was not arbitrary and capricious for the Park Service not to have developed this alternative further. To the extent that Sausalito's claim is based on its contention that the Park Service did not satisfy its statutory obligations under the listed statutes, we also reject it. We have already concluded that, with the exception of the CZMA, the Park Service complied with its statutory obligations. That the Park Service has failed, however, to comply with the CZMA does not demonstrate that it has developed visitor services in "locations that are [not] consistent to the highest practicable degree with the preservation and conservation of the resources and values of the park area" within the meaning of the CMIA. Id. On this record, we cannot conclude that the Park Service has arbitrarily and capriciously failed to satisfy its obligations under the CMIA.
The Omnibus Parks and Public Lands Management Act of 1996 ("Omnibus Act") directs that "[t]he Secretary may not utilize any lands for the purposes of providing field employee housing ... which will impact primary resource values of the area or adversely affect the mission of the agency." 16 U.S.C. § 17o(17)(A). Sausalito contends that the Fort Baker Plan violates this prohibition by authorizing on-site housing that "impacts Fort Baker's `primary resource values' ... by impairing Fort Baker's `scenic beauty and natural character,'" citing the Act creating the Golden Gate National Recreation Area, 16 U.S.C. § 460bb. As discussed above, the FEIS emphasizes that the Fort Baker Plan will preserve and enhance Fort Baker's "scenic beauty and natural character." Sausalito has pointed to nothing contravening the FEIS in this respect. We therefore hold that the Park Service did not act arbitrarily or capriciously with respect to its obligations under the Omnibus Act.
Conclusion
We hold that Sausalito has standing to pursue all of its claims under all the statutes under which it brought suit. With the exception, however, of its claims under the Coastal Zone Management Act and the Marine Mammal Protection Act, Sausalito's claims fail on the merits. We remand to the district court for further proceedings consistent with this opinion. Parties shall bear their own costs.
AFFIRMED in part; REVERSED in part; and REMANDED.
FootNotes
Further, the Bay Plan map for the area that includes Fort Baker would be amended to eliminate the notation that has previously provided, "No commercial except for convenience needs of park visitors."
We may take judicial notice of a record of a state agency not subject to reasonable dispute. See Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir.1986) (court may take judicial notice of records and reports of state administrative bodies), overruled on other grounds by Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). We decline, however, to do so here. Even if we were to take judicial notice of the amended Bay Plan, and even if the amended plan has legal consequence in the absence of approval by the Department of Commerce, the amended Bay Plan would not affect the appeal now before us. The federal courts are not empowered to determine, in the first instance, whether the Fort Baker Plan, as described in the FEIS, is consistent with the Bay Plan. Rather, the federal courts are required under the CZMA to review agency assessments of consistency of the Fort Baker Plan with the Bay Plan. Until there has been an agency consistency determination, there is nothing for the federal courts to review. We decline to take judicial notice of the amendments to the Bay Plan that have been adopted by the Bay Commission because, even if we took judicial notice, the amendments could have no legal significance in this appeal.
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