Full opinion text
ORDER CONCERNING PENDING MOTIONS FOR SUMMARY JUDGMENT BIERY, District Judge. First, they destroyed the Carolina parakeet, and I did not speak out because I was not a Carolina parakeet. Next, the Florida red wolf was made extinct, and I said nothing because I am homo sapien, not Cams rufas floridanus. Then they took the habitat of the silver trout, the Santa Barbara song sparrow, and the Wisconsin cougar, but I inhabited elsewhere and had no concern and did not get involved. Then my environment began to deteriorate and decay— and there were no other species to whom I could look for protection. This dispute presents technical environmental legal issues. In a larger sense, the case compels us to think about our responsibility as stewards of the earth which bore and sustains us. For those of Western religious beliefs, the author of the creation story teaches that we “have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that mov-eth upon the earth.” But “dominion” does not mean “destruction,” and our elected representatives have passed the Endangered Species Act standing for that proposition. At about the time our political ancestors were writing the Magna Car-ta, St. Francis of Assisi implicitly foresaw the need for protective legislation when he wrote: By our own fault we have lost the beautiful relationship which we once had with all ... creation.... Give us the grace to see all animals as gifts from [God] and to treat them with respect for they are [God’s] creation. In a perfect world, the lion would lie down with the lamb; and we would live in peace with each other and in harmony with the land. It is not; lions still eat lambs; and we do not. Instead of a community of neighborhoods, we are becoming a segregated collection of consuming Haves served by minimum wage Have-nots whose festering envy will someday manifest itself. While ancient Rome had its bread and circuses, we have our air conditioned malls and arenas to satisfy the appetites of American materialism and entertainment. The reaping and reckoning in public health and quality of life which will come to our children and grandchildren will echo from what we incrementally sow into their environment and whether we come to an epiphany of the interdependence and interrelatedness played out in the mystery of the dance called life. Apparently invoking the principle that matter is neither created nor destroyed but merely changes forms, defendant-in-tervenor La Cantera Development Co. wishes to profit from suburban consumerism by transforming Nature’s beauty into upscale shopping venues accompanied no doubt by lovely, non-porous asphalt parking lots over a part of our water supply. Despite my personal lamentation about failing to nurture nature, my oath and the judicial process require decisions to be made within the parameters of the law, notwithstanding my own view that we have quite enough of the sterility of steel and concrete stores, several now standing vacant. See Perkins v. Alamo Heights Indep. School Dist., No. SA-02-CA-313-FB, 2002 WL 1160583 (W.D.Tex. Apr. 9, 2002) (order concerning jurisdiction and preliminary injunction) (to be published) (“[w]hile I might have made a distinction and different decision.. .my personal opinion is secondary to the law”); Dutmer v. City of San Antonio, 937 F.Supp. 587, 589 (W.D.Tex.1996) (notwithstanding personal opposition, Court does not sit in loco par-entis to decide whether terms limits make better or worse government). A preview of the legal analysis is that plaintiff Center for Biological Diversity would' prefer pristine wilderness. Defendant-intervenor La Cantera would rather develop the land with no responsibility for its actions on living things. The United States Fish and Wildlife Service is the regulatory referee charged with keeping the ball somewhere around the 50-yard line as between encroaching human activity and endangered species. The law requires the judicial branch of government to give deference to administrative agency decisions so long as they are supported by substantial evidence and are not arbitrary and capricious. See Newell Recycling Co., Inc. v. United States Envtl. Prot. Agency, 231 F.3d 204, 206 (5th Cir.2000) (decision by Environmental Protection Agency’s Appeal Board must be affirmed by court unless “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”); Meadows v. Securities & Exch. Comm’n, 119 F.3d 1219, 1224 (5th Cir.1997) (court to uphold decision by agency unless “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; factual findings by the Commission to be upheld “if supported by substantial evidence”); Louisiana v. Mathews, 427 F.Supp. 174, 175 (E.D.La.1977) (judicial review of action by Food & Drug Administration banning sale and distribution of small turtles limited to whether defendants acted “arbitrarily, capriciously, in abuse of their discretion or-otherwise unlawfully”); see also Texas Alcoholic Beverage Comm’n v. Top of the Strip, Inc., 993 S.W.2d 242, 249 (Tex.App.—San Antonio, 1999, pet. denied) (court’s review of TABC order based on substantial- evidence rule; court may reverse or remand case if substantial rights of appellant have been prejudiced because administrative findings, conclusions, inferences, or decisions are “arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion”; reviewing court evaluates reasonableness not correctness of the order). For the reasons stated below, this Court finds United States Fish and Wildlife Service negotiated and regulated vigorously and at arms length to- discharge its duty under the Endangered Species Act with the result that La Cantera Development Co. purchased, and has set aside and will maintain 181 on-site and off-site acres of protected land for the subject species and their cave habitats. Plaintiff Center for Biological Diversity’s Motion for Summary Judgment (docket # 27) is DENIED. The motions for summary judgment by defendants La Cantera Development Co. (docket # 29) and United States Fish and Wildlife Service (docket #30) are GRANTED. Procedural Parameters On October 22, 2001, the United States Fish and Wildlife Service (hereinafter referred to as FWS or Service) issued an Incidental Take Permit to La Cantera Development Company related to the development of approximately 750 acres of land in northern Bexar County, Texas. The permit was issued pursuant to section 10 of the Endangered Species Act, 16 U.S.C. § 1539(a), and authorized the permittee, La Cantera Development Company, Ltd. (hereinafter referred to as La Cantera or defendant-intervenor) to “take” three species of karst invertebrates, Rhadine exilis, a troglobitic ground beetle, Rhadine internals, also a troglobitic ground beetle, and Circurina madia, a meshweaver spider, incidental to the construction, operation and management of the development of the property. “Threats to the[ese] species and their habitat include destruction and/or deterioration of habitat by construction; filling of caves and karst features and loss of permeable cover; contamination from septic effluent, sewer leaks, run-off, pesticides, and other sources; predation by and competition with nonnative fire ants; and vandalism.” 65 Fed.Reg. 81419. Like the warning to humans by a dying canary in the coal mine, some of these dangers adversely affect homo sapiens. FWS contends that before making its decision to issue the incidental take permit, it completed a comprehensive analysis and documentation process pursuant to section 10 of the Endangered Species Act and the National Environmental Policy Act of 1969. The analysis and documentation process featured a Habitat Conservation Plan, Biological Opinion, an environmental assessment, a finding of no significant impact, and extensive public participation. On December 12, 2001, plaintiff Center for Biological Diversity (hereinafter referred to as Center), filed suit in this Court seeking declaratory and injunctive relief. Plaintiff alleges the FWS violated both the Endangered Species Act and the National Environmental Policy Act by improperly issuing a Habitat Conservation Plan, incidental take permit, and a finding of no significant impact and allowing the development of the La Cantera property in northern Bexar County, Texas. Plaintiff argues the development will cause an improper take of three endangered invertebrate species and cause undue, environmental harm to the property which contains significant environmental values and which is in the Edwards Aquifer Recharge Zone. On January 16, 2002, Center filed its Motion for Temporary Restraining Order and Preliminary Injunction asking the Court to “enjoin the defendant United States Fish and Wildlife Service ... to suspend its ‘incidental take [of endangered species] permit’ ... issued to La Cantera Development Company for the development of ‘La Cantera’ property in northern San Antonio, Texas.” La Cantera filed its motion for leave to appear as an amicus curiae in the case and filed its brief in opposition to Center’s motion for TRO and preliminary injunction. The Court held a hearing on the temporary restraining order and preliminary injunction on January 17, 2002, and orally denied plaintiffs request. Thereafter, on February 7, the Court granted La Cantera’s unopposed motion to intervene as a party-defendant and entered a Scheduling Order to control the disposition of the case. Because the parties advised the Court they agreed the case should be decided on cross motions for summary judgment, the Scheduling Order set forth the deadlines for submitting the motions, responses, and replies. All briefing has been submitted, and this case is now ripe for disposition. Parameters of the Dispute Plaintiff believes a quotation taken from an e-mail sent by Christina Longacre of the FWS to Glen Sain Mitts, Vice President, Senior Finance Officer with USAA Real Estate Company, shows why this case is “particularly important.” Ms. Lon-gacre wrote, “This will be the basis for those to come in Bexar” County. Plaintiff believes that because the standards and procedures used for the Habitat Conservation Plan and Environmental Assessment in this case were the first to be used for the cave invertebrates in Bexar County, it is important for the FWS to know what is expected for compliance with the Endangered Species Act and the National Environmental Policy Act. Therefore, what is at stake here is not simply the La Cantera tract of land, but the remaining undeveloped lands of central Texas as well. Plaintiff maintains that not only do legal flaws exist which are fatal to the integrity of the entire process and the result, but these legal flaws are further exacerbated by irregularities such as undue influence and pressure exerted by La Cantera during the process. In its motion for summary judgment, plaintiff claims: (1) the FWS failed to ensure that the “applicant will, to the maximum extent practicable, minimize and mitigate the impacts of [] taking”; (2) the FWS arbitrarily found the development would “not appreciably reduce the likelihood of the survival and recovery of the species in the wild,” and (3) the FWS incorrectly found there is “no significant impact” and thereby avoided the preparation of an environmental impact statement to fully assess the development. In response, FWS contends plaintiff has failed to establish its actions in issuing the incidental take permit were arbitrary and capricious because (1) the La Cantera project and the Habitat Conservation Plan satisfied the requirements of the Endangered Species Act for issuing the incidental take permit; (2) the failure to adopt the comments by George Yeni does not make the decision arbitrary and capricious, and (3) FWS complied with its obligations under the National Environment Policy Act and properly arrived at a finding of no significant impact. La Cantera also believes (1) its permit complies with the Endangered Species Act; (2) FWS adequately analyzed the minimization and mitigation requirements, and (3) an environment impact statement was unnecessary because the FWS correctly found the La Cantera project did not “significantly” affect the qualify of the human environment. The Lone Star Chapter and the Alamo Regional Group of the Sierra Club filed an amicus brief fully supporting the Center’s claims and position in this case. Legal Parameters — Motions for Summary Judgment A motion for summary judgment should be granted when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A dispute concerning a material fact is considered “genuine” if the evidence “is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It is not the Court’s function to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249, 106 S.Ct. 2505. The Court must determine if there are “any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. Of course, in ruling on a motion for summary judgment, all inferences drawn from the factual record are viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If the party moving for summary judgment carries its burden of producing evidence which tends to show there is “no genuine issue of material fact, the nonmov-ant must then direct the court’s attention to evidence in the record sufficient to establish the existence of a genuine issue of material fact for trial.” Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.1996). The nonmoving party may not rely upon mere conclusory allegations to defeat a motion because allegations of that type are not competent summary judgment evidence and are insufficient to defeat a proper motion. Id In fact, if the “nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation,” a motion for summary judgment may be granted even in cases “where elusive concepts such as motive or intent are at issue.” Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994). The party opposing the motion also may not rest on the allegations contained in the pleadings but “must set forth and support by summary judgment evidence specific facts showing the existence of a genuine issue for trial.” Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998). In meeting this requirement, the party must “identify specific evidence in the record” and “articulate the precise manner in which that evidence supports his or her claim.” Id. Rule 56 of the Federal Rules of Civil Procedure does riot impose upon this Court the “duty to sift through the record in search of evidence to support a party’s opposition to summary judgment.” Id. (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n. 7 (5th Cir.), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992)). A summary judgment will only be, precluded by disputed facts which are material, i.e. “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Factual disputes which are irrelevant or unnecessary to the issue will not preclude summary judgment. Id. Because cross motions for summary judgment have been filed in this case, each party’s motion must be considered separately, and each movant must present evidence to support its respective motion. Ghoman v. New Hampshire Ins. Co., 159 F.Supp.2d 928, 931 (N.D.Tex.2001); Dutmer v. City of San Antonio, 937 F.Supp. 587, 589-90 (W.D.Tex.1996). Summary judgment is often appropriate in cases involving a review of an administrative record. National Wildlife Fed’n v. Babbitt, 128 F.Supp.2d 1274, 1289 (E.D.Cal.2000) (summary judgment frequently appropriate in cases involving judicial review of voluminous and complete administrative record); Loggerhead Turtle v. County Council, 120 F.Supp.2d 1005, 1011-12 (M.D.Fla.2000) (because court is to determine issues based on agency’s administrative record, “trial is generally unnecessary and summary judgment is often appropriate”). The Parameters of Agency Review In determining whether the action by the FWS in this case should be set aside, the parties agree the standard established by the Administrative Procedure Act, 5 U.S.C. § 706, applies. See North Carolina Alliance for Transp. Reform, Inc. v. United States Dep’t of Transp., 151 F.Supp.2d 661, 678 (M.D.N.C.2001) (National Environmental Policy Act contains “no independent private right of action”; “Administrative Procedure Act...expressly provides a right to judicial review of all final agency actions, including NEPA decisions”); Bennett v. Spear, 5 F.Supp.2d 882, 885 (D.Or.1998) (“[j]udicial review of agency action under the Endangered Species Act is controlled by section 706 of the Administrative Procedure Act, 5 U.S.C. § 706”). The application of this standard of review has been explained as follows: Under this “very narrow” standard of review, we may not “weigh the evidence in the record pro and con.” Instead, “our role is to review the agency action to determine whether the decision “was based on a consideration of the relevant factors and whether there was a clear error of judgment.’” “Thus, if the agency considers the factors and articulates a rational relationship between the facts found and the choice made, its decision is not arbitrary or capricious.” “Indeed, the agency’s decision need not be ideal, so long as it is not arbitrary or capricious, and so long as the agency gave at least minimal consideration to relevant facts contained in the record.” Harris v. United States, 19 F.3d 1090, 1096 (5th Cir.1994) (citations omitted.); see Lodge Tower Condo. Ass’n v. Lodge Props., Inc., 85 F.3d 476, 477 (10th Cir.1996) (review under § 706 narrow; agency need only “demonstrate that it considered relevant factors and alternatives after a full ventilation of issues and that the choice it made was reasonable based on that consideration”) (quoting Mount Evans Co. v. Madigan, 14 F.3d 1444, 1453 (10th Cir.1994)). The Court, in deciding whether to uphold an agency’s decision, may not consider evidence outside of the administrative record. Harris, 19 F.3d at 1096 n. 7. It is only where the action is not supportable on any rational basis that the administrative decision is considered to be arbitrary and capricious. Kaplan v. Johnson, 409 F.Supp. 190, 196 (N.D.Ill.1976), rev’d on other grounds, 545 F.2d 1073 (7th Cir.1976). The action will not be considered arbitrary and capricious even if the reviewing court could have reached a contrary decision based on the same evidence. Id.; see Green v. United States Coast Guard, 642 F.Supp. 638, 642 (N.D.Ill.1986) (citing to Kaplan and recognizing that the “ ‘reviewing court is not barred from setting aside an agency decision when it cannot conscientiously find that the evidence supporting that decision is substantial,’ it may not ‘displace the [agency’s] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo’”). In addition, when an agency is acting within its “own sphere of expertise,” this Court’s review “must be very deferential.” Center for Marine Conservation v. Brown, 917 F.Supp. 1128, 1143 (S.D.Tex.1996); see Loggerhead Turtle v. County Council, 120 F.Supp.2d 1005, 1013 (M.D.Fla.2000) (in case involving Endangered Species Act, court noted that because an agency’s “special scientific expertise [was] involved, the Court must be ‘most deferential.’ ”). “An agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, the court might find contrary views more persuasive.” Center for Marine Conservation, 917 F.Supp. at 1143 (quoting Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)); see Bennett v. Spear, 5 F.Supp.2d 882, 885 (D.Or.1998) (when specialists express contrary views, agency given discretion to rely on “the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive”) (quoting Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)). The choices by the Secretary, are entitled to a “presumption of regularity.” Loggerhead, 120 F.Supp.2d at 1013. An agency violates the Administrative Procedure Act where it: relies on factors Congress did not intend for it to consider, fails to examine an important aspect of the problem, offers an explanation for its decision that contradicts the evidence before the agency, or is so implausible that it cannot be attributed to a product of agency expertise. North Carolina Alliance for Transp. Reform, Inc. v. United States Dep’t of Transp., 151 F.Supp.2d 661, 679 (M.D.N.C.2001). Parameter of the Arguments 1. Did FWS Fail to Ensure La Cantera Will to the Maximum Extent Possible, Minimize and Mitigate the Impacts of the Taking of Rhadine exil-is, Rhadine infemalis, and Cicurina madia? Plaintiff argues the Endangered Species Act (hereinafter ESA) is explicit in requiring that an incidental take permit not issue unless the FWS ensures the applicant will to the maximum extent practicable, minimize and mitigate the impacts of the taking, and the record in this case shows that requirement was not met. Plaintiff contends the FWS failed to adequately analyze and provide an explanation for the rejection of the “Reduced Development” Alternative which would have, for purposes of argument here, completely avoided a “take” of the ground beetles and spider. Instead, the FWS offered a single, conclusory statement concerning the reduced economic value which would result from implementation of the Reduced Development alternative (i.e. loss óf 100 acres for development) but failed to provide any analysis in support of its conclusion, for example, how much profit La Cantera claims it might forego under this alternative and/or whether a different confíguration of the development, but which avoids the 100 acres, might still provide an adequate return. Plaintiff believes La Cant-era expressed its desire to develop the entire property, and the FWS simply acquiesced. Plaintiff also contends the “Proposed Alternative” adopted does not fulfill the statutory requirement to minimize and mitigate the impacts of the taking to the “maximum extent practicable,” and the FWS failed to announce what standard would be applied in determining “the maximum extent practicable.” Plaintiff believes the maximum extent practicable standard imposes a clear duty on the FWS to fulfill the statutory command to the extent it is feasible or possible. The fact one alternative is more expensive or less profitable is insufficient to show the alternative financially infeasible. Relying on a California state court case, plaintiff claims what is required is “evidence that the additional costs or lost profitability are sufficiently severe as to render it impractical.” Citizens of Goleta Valley v. Board of Supervisors, 197 Cal.App.3d 1167, 243 Cal.Rptr. 339 (1988). Under these standards, plaintiff argues that the manner in which the FWS proceeded is arbitrary and capricious because it allowed La Cantera to “take” the species as it desired. FWS agrees that before an incidental take permit could be issued to La Cantera in this case, the FWS had to find that La Cantera would to the maximum extent practicable, minimize and mitigate the impacts of the incidental taking. As set out in the Service’s Habitat Conservation Planning Handbook, the “maximum extent practicable” standard has been interpreted as follows: This finding typically requires consideration of two factors: adequacy of the minimization and mitigation program, and whether it is the maximum that can practically be implemented by the applicant. To the extent that the minimization and mitigation program can be demonstrated to provide substantial benefits to the species, less emphasis can be placed on the second factor. The Handbook also explains that it is only “where the adequacy of the mitigation is a close call the record must contain some basis to conclude that the proposed project is the maximum that can be reasonably required by that applicant.” FWS contends the mitigation and minimization measures proposed by La Cantera were carefully considered by it in its Findings and Recommendations on Issuance of an Incidental Take Permit, and in its Biological Opinion for La Cantera Development Company. FWS contends that in order to minimize the take of the affected spe-eies, La Cantera provided two one-acre set-backs from caves inhabited by the endangered species and has purchased and insured the perpetual preservation of eight caves on five off-site karst preserves totaling 179 acres with the preservation measures for both on-site and off-site preserves to include: routine inspections, vegetation and habitat management, red-imported fire ant control, fencing, signage, cave-gating, control of mammals, surface and subsurface monitoring, and other measures. In addition to the on-the-ground preservation measures, La Cantera is also funding outreach and research programs. FWS disagrees with plaintiffs proposition that it was required to impose on La Cantera the “Reduced Development” alternative because section 10 of the ESA does not authorize the FWS to impose any alternative on any applicant, and the FWS has made this position clear in its Handbook. Instead, FWS maintains its duty is to analyze the applicant’s proposal to ensure that the impacts of the chosen alternative are minimized and mitigated to the maximum extent practicable. Plaintiff has failed to offer evidence that the minimization and mitigation measures proposed by La Cantera fail to meet the requirements of section 10. Therefore, plaintiffs argument that FWS’s actions were arbitrary and capricious because they failed to explain why the Reduced Development Alternative was rejected is without merit. Moreover, even if FWS had a duty to consider the alternatives, a consideration of the alternatives was made. The La Cantera caves were found to be in close proximity to existing roadways and did not provide ideal conditions for the long-term protection of the species as would the off-site preserves to be acquired by La Cant-era in mitigation of their incidental taking. Therefore, FWS states it accepted the one-acre setbacks around the La Cant-era caves # 1 and # 2 with implementation in perpetuity of measures to protect the species there and required La Cantera to acquire and maintain off-site mitigation based on the impact on the number and quality of the caves on the La Cantera property. In fact, Dr. Veni, upon whom plaintiff relies in support of its motion, stated that “[t]he rectangular shape of the proposed 100-acre La Cantera preserve will result in considerable adverse edge effects on the three La Cantera caves, which are especially susceptible since they are near the edges of the property, Therefore, this proposed preserve would help but will not be adequate to fully protect these species.” AR 1, A69, 0641. Dr. Veni recommended to FWS that the Reduced Development Alternative with additions from the Proposed Alternative be accepted because it was the only alternative that protected Mixojapyx (which is a species not at issue in this case). In contrast, SWCA Environmental Consultants opined there was no quantitative data to indicate that the two listed species found within La Cantera Caves # 1 and #2 would perish within the 1 acre setbacks. In addition to this difference of opinion, the FWS was also provided with information that even if the 100-acres would provide significant, long-term protection for the species, the cost to La Cantera would “make the project infeasible because the 100 acres was extremely valuable land.” Based on this record, FWS contends the mitigation and minimization measures imposed are of signifi-eant benefit to the endangered species, In response to plaintiffs contention that the FWS simply acquiesced to La Cant-era’s demands, the FWS points to the fact that originally, La Cantera argued that the one-acre setbacks would provide adequate mitigation. The FWS not only rejected this proposal as inadequate but also La Cantera’s proposal for three small preserves containing a total of 34 acres and 4 caves, and its proposal of four preserves containing 109 acres and 7 caves. FWS states it also rejected La Cantera’s propos-a[ a(j¿ a 70 acre preserve which included the Hills and Dales Pit but drop the Madia cave. La Cantera then amended its proposal to include the Madia Cave, and the FWS found this proposal satisfactory. The cost to La Cantera to acquire the 179 off-site preserves for this proposal is approximately $4 million. Thus, FWS believes the record fully supports that their finding, that the HCP contains measures that, to the maximum extent practicable, avoids, minimizes, and mitigates the impacts of La Cantera’s take of the affected species, was not arbitrary or capricious. The Court agrees. As set forth in Sierra Club v. Babbitt, 15 F.Supp.2d 1274, 1279 (S.D.Ala.1998), this Court, in applying the arbitrary and capricious standard of review, may not: set aside an agency action that is rational, based on consideration of the relevant factors and within the scope of the authority delegated to the agency by the statute, “ ... the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found the choice made.’ ” (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). Here as in Sierra Club, the FWS issued an incidental take permit and the dispute there, as is the case here, focused on whether the developer adequately minimized and mitigated the taking impacts to the “maximum extent practicable.” Id. The plaintiffs argued the levels of off site mitigation funding contained in the HCPs incorporated into the ITPs were inadequate and could not be supported by any rational basis in the Administrative Record. Id. In making their argument, the plaintiffs maintained the agency’s determination of the mitigation funding amounts was arbitrary and capricious. The court noted the “lack of any analysis in the Administrative Record concerning whether the amount or level of offsite mitigation funding is to the maximum extent practicable supports the plaintiffs contention.” Id. at 1280-81. The court also noted that the field office had expressed concerns over the inadequacy of the level of funding for offsite mitigation in one of the HCPs and ITPs and even though the field office failed to voice similar concerns with respect to the second HCP and ITP, the record nevertheless showed “that the FWS failed to support the level or amount of offsite mitigation funding with a clearly articulated analysis demonstrating whether the amount or level of funding is rationally based on the relevant facts.” Id. at 1281. In response, the defendants asserted that the field office’s concerns had been previously addressed prior to the final draft of the Biological Opinion, when it was told that the “ITP would state our use of these additional funds” for offsite mitigation in addition to the $150,000, but the court found that “such a eonelusory statement [did] little to ameliorate the lack of a sufficient basis upon which the FWS can demonstrate that the mitigation measures are to the maximum extent practicable.” Id. The court found the statement did not increase the mitigation measures nor did it provide the “necessary analysis to demonstrate that the existing level of mitigation is sufficient.” The court noted that FWS: simply ignored the clearly expressed concerns of the experts Congress intended the agency to rely upon in making such discretionary decisions. This is further illustrated by the complete lack of subsequent consideration or explanation of the amount of mitigation funding in the final BO, HCP, and ITP. As the Court finds that there is no sufficient basis in the Administrative Record to support the amount of offsite mitigation funding, the issuance of the ITPs was arbitrary and capricious. Id. Here, however, the Court has found no evidence nor has plaintiff pointed to any, of a field service office expressing concern over the inadequacy of the minimization and mitigation measures set forth by La Cantera in their HCP. The Court is aware of Dr. Veni’s concerns but under his complete analysis, even the 100 acres was insufficient. The FWS also had before it opinions/responses contrary to those of Dr. Veni. Moreover, plaintiffs argument concerns an alternative in the plan which La Cantera did not seek to implement instead of an actual portion of the plan at issue in Sierra Club. Although plaintiff contends FWS did not consider this alternative, there is no language in the Sierra Club opinion requiring FWS to consider all alternatives set forth in a HCP. The court instead took issue with FWS’s failure to explain or provide any analysis of “whether the amount of offsite mitigation required is ‘to the maximum extent practicable.’ ” Id. at 1282. The court noted that “the Administrative Record must contain some analysis of why the level or amount selected is appropriate for the particular project at issue.” Id. Even though the plaintiff does not agree with its analysis, FWS did provide an explanation and analysis of why the selected alternative was appropriate for the La Cantera project. Moreover, the record also shows FWS found the plaintiffs chosen alternative not practicable due in large part to the financial impact it would have on the development of the property and concerns as to the long-term preservation of the species due to the proximity of this area to major highways. Plaintiff, here, as in Loggerhead Turtle v. County Council, 120 F.Supp.2d 1005, 1021-22 (M.D.Fla.2000), must: bear in mind that an “agency’s decision need not be ideal, so long as it is not arbitrary or capricious, and so long as the agency gave at least minimal consideration to relevant facts contained in the record.” The Service is not required to select all available measures or even the best measures. Rather, it must select measures that minimize and mitigate impacts to the maximum extent practicable. The record supports the decision in this case even though it might not be plaintiffs “ideal” or even “the best” measure. In another case in which the court found the FWS acted in an arbitrary and capricious manner, the plaintiffs challenged, as plaintiff does in this case, the failure by FWS to consider “any alternatives involving greater mitigation measures.” National Wildlife Fed’n v. Babbitt, 128 F.Supp.2d 1274, 1291 (E.D.Cal.2000). In fact, none of the three alternative HCP strategies involved additional mitigation. Relying on Sierra Club v. Babbitt, 15 F.Supp.2d 1274 (S.D.Ala.1998) (discussed above), the court noted that the phrase “maximum extent practicable” required the FWS to consider an alternative involving greater mitigation. In this context, the court stated the “record should provide some basis for concluding, not just that the chosen mitigation fee and land preservation ratio are practicable, but that a higher fee and ratio would be impracticable.” Id. at 1292. The court found the record “nearly non-existent” on whether the HCP provided the maximum practicable mitigation fee and reserve land ratio and explained: There are conclusory statements in the record to the effect that “the common and local wisdom is that a fee in the range from $2000 to $2500 per acre is practicable,” but the record is devoid of evidence that the Service subjected this assumption to any examination or attempted to determine if a higher base fee would also be practicable. There is no economic analysis, discussion of mitigation fees in similar plans and circumstances, or even representation from particular landowners. ... The plain language of the statutory provision requiring that the Plan minimize and mitigate its effect “to the maximum extent practicable” is not satisfied by a fee set, as here, at the minimum amount necessary to meet the minimum biological necessities of the covered species. The record lacks adequate evidence and analysis of whether .a fee higher than that initially proposed by the working group would be economically practicable. Id. at 1292-93 (citations to record omitted). Here, however, the record reflects that the reduced development alternative would in fact have an economic impact. As set forth in FWS Findings, some commentors requested the FWS to choose the environmentally preferred/Reduced Development Alternative 2 over the Preferred Alternative, but FWS stated it had a non-discretionary duty to issue the incidental take permit where the applicant adequately addresses the permit issuance criteria. As set forth in the EA/HCP, Alternative 2 did not include the issuance of a permit under section 10 of the ESA and did not provide for the removal or realignment of existing roadways, which could cause a potential long-term preservation problem, because that would be cost prohibitive. In addition, this alternative would not provide off-site mitigation, and the off-site caves sought to be protected under the Preferred Alternative would not receive active long-term management for the listed species. Again, as previously set forth, FWS specifically noted this alternative would “provide greatly reduced economic value for the current landowners by virtue of the loss of approximately 100 acres of otherwise developable land” and La Cant-era chose not to pursue this option. Given that FWS cannot require an applicant to choose a particular alternative, the record as set forth herein supports the finding that La Cantera met the issuance criteria for an incidental take permit, and the FWS did provide some basis for not choosing the Reduced Development Alternative, the Court cannot find FWS’s actions arbitrary and capricious. 2. Did the FWS Arbitrarily Find the Development by La Cantera Would Not Appreciably Reduce the Likelihood of Survival and Recovery of Rhadine exilis, Rhadine infernalis, and Cicurina madia? Plaintiff contends the HCP violates the mandate of section 1539(á)(2)(B)(iv) of the Endangered Species Act. This section provides the Secretary shall issue the permit if “after opportunity for public comment, with respect to a permit application and the related conservation plan” the Secretary finds, among other listed factors, that “the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild.” 16 U.S.C. § 1539(a)(2)(B)(iv). Plaintiff states it is not arguing that the HCP must enhance recovery but merely that it must not “appreciably reduce” recovery. Because under plaintiffs analysis the HCP does not appreciably reduce recovery, the HCP must be set aside and remanded to the FWS. In support of its argument, plaintiff states the term “conservation” as defined in the ESA means “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the ESA] are no longer necessary.” 16 U.S.C. § 1532(3). According to a recent 5th Circuit decision, “ ‘conservation’ speaks to the recovery of a threatened or endangered species.” Sierra Club v. United States Fish & Wildlife Serv., 245 F.3d 434, 442 (5th Cir.2001). Relying on the comments of Dr. Veni, plaintiff argues the HCP here will reduce the likelihood of recovery of the species. In a letter to Christina Longacre of the FWS dated August 12, 2001, Dr. Veni opines that the proposed HCP did not meet recovery plan standards. Dr. Veni wrote: A recovery plan does not yet exist for the Bexar County karst invertebrates: However, my discussions with USFWS staff indicate that until a plan is established the USFWS would follow the methodology of the recovery plan for the related endangered Austin karst invertebrates (O’Donnell, Elliott, and Stanford 1994). The key element to that plan is that at least “three karst fauna areas [KFAs] within each karst fauna region [KFR] in each species range should be protected in perpetuity.” The three La Cantera caves are located in the UTSA KFR (per Veni and Associates, 1994), but only two of the five proposed preserves are within that area. In my dealings with USFWS on behalf of my clients who have looked for mitigation properties for their impacts, USFWS has insisted on finding caves within the same KFR. The Service should be consistent and do the same here. Dr. Veni also wrote about the chosen alternative wherein he stated: 1) Alternative 1, the “Proposed Alternative” should be rejected. It does not come close to meeting the standards of the Austin karst invertebrate recovery-plan. Further, it does not protect the caves’ ecosystem, including Mixojapyx, and thus does not preserve the biological integrity of the UTSA KFR. Plaintiff explains the only response by FWS to Dr. Veni’s comments was that normally priority should be given to acquiring mitigation in the same karst region but here, La Cantera was limited by what land was practicably available for sale during the preparation of the HCP and therefore had to look outside the region for other high priority locations for the species. Plaintiff contends the fact that La Cantera is the only place in the region where the cave species could be protected, FWS should have protected this area, not written it off. Plaintiff claims Dr. Veni specifically made this point, but FWS did not respond. Because FWS chose to allow the destruction of the La Cantera caves despite their own standards which provide that recovery requires their protection, FWS acted in an arbitrary and capricious manner. See Sierra Club v. Babbitt, 15 F.Supp.2d 1274, 1282 (S.D.Ala.1998) (despite explicit directive in FWS Handbook “not to apply inconsistent mitigation policies and to provide good reasons for or to explain clearly any inconsistent applications, the agency never provided ‘good reasons’ for or ‘clearly explained’ why the FWS applied inconsistent mitigation policies ... in the same geographic area”). Plaintiff believes this point is made stronger by the fact that not only were the recovery standards relaxed for this HCP, but the normal permit requirements that applicants stop working pending investigation of new found sites (as is found in the Buttercup permit) were omitted due to pressure by La Cantera to avoid making that information part of the record and being shut down. Again returning to Dr. Veni’s comments, plaintiff contends that not only do the locations of the off-site preserve sites fail to meet the recovery standards but the quality of these sites do as well. In his August 12 comment letter, Dr. Veni wrote: In recent meetings I’ve had with USFWS staff, they have presented a mitigation matrix where the quality of a cave’s habitat is compared to the proposed impact to determine the number of eaves needed for adequate mitigation. The proposed HCP will result in major impacts to La Cantera Cave No. 1 and La Cantera Cave No. 2 and total impact to La Cantera Cave No. 8, which are probably moderate quality habitats due to the nearby roads. My understanding of the mitigation matrix was that caves of moderate quality that would be subjected to major or total impact would require 2-3 caves in the same KFR in exchange for mitigation. This standard is not met by the number of caves offered in the UTSA KFR nor in their quality. In fact, not even a 1:1 mitigation of caves exists for the UTSA KFR. Plaintiff states FWS merely responded to these comments with the conclusory statement contained in the HCP that the off-sites cave preserves are considered to be of equal or greater quality than the La Cantera caves, but FWS failed to say who considered this to be true. Because FWS has relied on Dr. Veni’s opinion for listing determinations and for this HCP, plaintiff believes the “who” of this contrary opinion is relevant. Plaintiff also finds telling the fact the FWS did not consider smaller 4 and 5 acre preserves to be adequate. Even more telling is the fact that FWS did not respond to Dr. Veni’s comment that the EA/HCP is based on data that is simply wrong. Based on this assertion, plaintiff claims the decision of the FWS must be set aside because it was based on inaccurate information and/or fails to comply with the ESA’s mandate that decisions must be based on the best scientific and commercial data available. Plaintiff also takes issue and finds “even more disturbing than lack of response to this [simply wrong] issue” that the Service was aware of features that could contain endangered species but failed to require necessary follow-up because of pressure from La Cant-era. In addition to the failure to require “normal survey/report/stop-work conditions” in the permit, plaintiff claims the parties were aware of Cave 184 yet never included or mentioned this cave in the EA/HCP. Thus, because as set forth above, the HCP contains major flaws in terms of technical data, procedures employed, and conclusions reached, plaintiff contends it violates the ESA’s mandate that the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild. As set forth by the FWS, section 10(a)(2)(B)(iv) of the ESA requires a finding by the FWS, before it may issue an incidental take permit, that the incidental take will not “appreciably reduce the likelihood of survival and recovery of the species in the wild.” The FWS made that finding here. FWS argues that in the Biological Opinion, it made the determination, as required by section 7(a)(2) of the ESA, that the issuance of the ITP is “not likely to jeopardize the continued existence” of the endangered species covered by the permit. This so-called “jeopardy” standard has been explained to mean “to engage in an action that reasonably would be expected ... to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild.” 50 C.F.R. § 402.02. Thus, FWS argues, the jeopardy-standard for a § 7(a)(2) finding is essentially the same as the standard for issuing an incidental take permit pursuant to § 10(a)(2)(B)(iv). In fact, this is exactly what Congress intended. Despite this clear Congressional expression, plaintiff appears to argue, based oh a recent 5th Circuit opinion, that merely avoiding jeopardy is not the same as ensuring the recovery/conservation of the species as required by the ESA. As pointed out by Dr. Veni in his August 12 comments, the HCP at issue here will not “reduce the likelihood of recovery of the species.” At issue in Sierra Club v. United States Fish & Wildlife Serv., 245 F.3d 434 (5th Cir.2001), was the refusal of the FWS to designate critical habitat for the Gulf sturgeon. The court held: “(1) Regulation defining circumstances under which jeopardy consultation is required was invalid as conflicting with Endangered Species Act (ESA); and (2) agencies’ reliance on availability of jeopardy consultation when deciding that it would not be prudent to designate critical habitat for threatened Gulf sturgeon was error where made in reliance upon invalid regulation.” Id. Before finding the regulation invalid, the court provided a background into the ESA as follows: In 1973, Congress enacted the ESA as a “means whereby the ecosystems upon which endangered species and threatened species depend may be conserved,” and “to provide a program for the conservation of such endangered species and threatened species.” The ESA defines “conservation” as “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided [by the ESA] are no longer necessary.” As the district court observed, the objective of the ESA is to enable listed species not merely to survive, but to recover from their endangered or threatened status. To achieve this objective, Congress required the Secretary of the Interior to designate a “critical habitat” for all listed species. The ESA defined occupied critical habitat as “the specific areas within the geographic area occupied by the species, at the time it is listed ... on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection.” Critical habitat designation primarily benefits listed species through the ESA’s consultation mechanism. Section 7(a)(2) of the statute requires federal agencies to consult with the Secretary to “insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification” of that species’s critical habitat. Thus, regardless of whether critical habitat is designated, an agency must consult with the Secretary where an action will “jeopardize the continued existence” of a species. If critical habitat has been designated [which has not been done with respect to the beetles and spider at issue here], the statute imposes an additional consultation requirement where an action will result in the “destruction or adverse modification” of critical habitat. Although the ESA does not elaborate on the two consultation scenarios discussed above, 50 C.F.R. § 402.02 defines each in terms of the effects of agency action on both the survival and recovery of the species. Thus, to “jeopardize the continued existence of’ a species is “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild.” This “jeopardy standard” is similar to the regulation’s description of “destruction or adverse modification” of critical habitat. The regulation defines “destruction or adverse modification” as a “direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species.” Id. at 438-39. Before rejecting as unpersuasive Sierra Club’s first argument that the “regulation defines the jeopardy and destruction/adverse modification standards in terms of both survival and recovery” and the regulation “consequently equates these two consultation standards,” the court noted that because it was revievdng a facial challenge to a regulation, its review was not under the Administrative Procedure Act (as is the case here) but rather pursuant to Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Id. at 440. Therefore, the court had to first determine whether Congress had directly spoken to the “precise question at issue,” with reversal in that instance warranted “only where an agency interpretation is contrary to ‘clear congressional intent.’ ” Id. at 440-41. If, however, the statute is silent or ambiguous, the court then determines if the agency’s interpretation is “a permissible construction of the statute.” Id. at 441. An agency’s construction is reversed only if it is “arbitrary, capricious or manifestly contrary to the statute.” Id. This review differs however from the review this Court must apply here in that review under the APA focuses on the “reasonableness of the agency’s decision-making process” as compared with the “reasonableness of [the agency’s] interpretation.” Id. at n. 37 (citing Texas Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 410 (5th Cir.1999)). In its second argument, and the argument found by the 5th Circuit to have merit, the Sierra Club argued that the regulation “sets the bar too high” for the destruction/adverse modification standard. Id. Sierra Club argued that the requirement that the action must affect both survival and recovery conflicted with the ESA which requires “consultation where an action affects recovery alone; it is not necessary for an action to affect the survival of a species.” Id. The court agreed and explained: The ESA defines “critical habitat” as areas which are “essential to the conservation” of listed species. “Conservation” is a much broader concept than mere survival. The ESA’s definition of “conservation” speaks to the recovery of a threatened or endangered species. Indeed in a different section of the ESA, the statute distinguishes between “conservation” and “survival.” Requiring consultation only where an action affects the value of critical habitat to both the recovery and survival of a species imposes a higher threshold than the statutory language permits. Id. at 441-42 (footnotes/citations omitted). The legislative history also supports the court’s analysis because critical habitat had been defined in a 1978 regulation in terms of a loss of air, land or water area, that would “appreciably decrease the likelihood of the survival and recovery of a listed species,” and being aware of this regulatory approach, Congress in amending the ESA in 1978 chose to define critical habitat as it reads today in terms of conservation. Id. at 442. The court concluded the “Services’ definition of the destruction/adverse modification standard in terms of survival and recovery is consequently an attempt to revive an interpretation that was rejected by Congress.” Id. at 443. Based on the “manifest inconsistency between [the regulation] and Congress’s ‘unambiguously expressed intent’ in the ESA, [the court found] the regulation’s definition of the destruction/adverse modification standard to be facially invalid.” Id. at 443. Having so found, the court made the following comment: We emphasize that our holding applies only to the definition of “destruction or adverse modification.” The remainder of 50 C.F.R. § 402.02—including the regulation’s definition of “jeopardize the continued existence of’—is unaffected by our ruling. Id. at n. 61. Thus, because plaintiff has not made a facial challenge to the regulation and because the 5th Circuit has not affected the regulation at issue herein concerning jeopardy to the continued existence of the ground beetles and spider, the Court will not impose upon the Service a higher “conservation” standard but will review the agency’s decision under the traditional jeopardy standard. See National Wildlife Fed’n v. Babbitt, 128 F.Supp.2d 1274, 1286 (E.D.Cal.2000) (when Service considers issuance of ITP, it must “engage in internal consultation under § 7, and may issue the permit only upon a finding that it ‘is not likely to jeopardize the continued existence of a protected species”). As set forth by the court in National Wildlife: Formal consultation typically culminates in the issuance of a biological opinion by the Service, which addresses whether jeopardy is likely to occur for any protected species, and if so, whether “reasonable and prudent alternatives” exist to avoid jeopardy. The Service must use “the best scientific and commercial data available” in making the required “no jeopardy” finding. In every respect except for this “best scientific and commercial data” requirement, the no jeopardy finding required by-ESA § 7(a)(2) is identical to the survival finding required under § 10(a)(2)(B)(iv). Where the “available data” is imperfect, the Service is not obligated to supplement it or to defer issuance of its biological opinion until better information is available. Rather, “the Service must develop its biological opinion based upon the best scientific and commercial data available regardless of the ‘sufficiency’ of that data.” Id. at 1286-87. Plaintiffs argument with respect to the inadequacy of the HCP is based on the comments of Dr. Veni. Plaintiff contends that in Dr. Veni’s August 12 comments, he pointed out the HCP will “reduce the likelihood of recovery of the species” and the proposed HCP does not meet the recovery plan standards established for related endangered Austin karst invertebrates. However, as pointed out by FWS, a section 10(a)(2)(B)(iv) permit does not require the HCP to meet any recovery plan goal. Support for this proposition comes from the FWS Handbook which provides: Issuance of a section 10 permit must not “appreciably reduce” the likelihood of the survival and recovery of the species in the wild. Note that this does not explicitly require an HCP to recover listed species, or contribute to their recovery objectives outlined in a recovery plan. .This reflects the fact that HCPs were designed by Congress to authorize incidental take, not to be mandatory recovery tools. Handbook at 3-20 (emphasis in original). Based on this language, it does not appear to the Court that FWS acted in an arbitrary and capricious manner by not requiring the HCP in this case to meet the recovery plan standards, assuming as plaintiff asserts that it does not, set forth for other species of listed karst invertebrates in Travis and Williamson counties. However, in order to provide a complete review, the Court will consider plaintiffs arguments. As pointed out by FWS, Dr. Veni’s comments, upon which plaintiff relies, were made on August 12, 2001, which was over 2 months before the Service issued its Biological Opinion on October 22, 2001. In addition, as previously set forth, this Court’s review of an agency acting within its own sphere of expertise must be very deferential. Even if this Court were to find Dr. Veni’s contrary views more persuasive, an agency is given discretion to rely on the reasonable opinions of its own qualified experts. This Court has not been presented with any evidence that Dr. Veni was for the purposes of the HCP at issue here one of FWS’s experts. In response to plaintiffs contention that the only response by FWS to Dr. Veni’s assertion that the proposed HCP does not meet recovery plan standards because it does not follow the standard of three karst fauna areas within each karst fauna region being protected in perpetuity, was that normally priority should be given to acquiring mitigation in the same karst region where the impact occurs but the applicant was limited here by what land was practicably available for sale during the preparation of the HCP, FWS asserts that assuming that goal is appropriate, the La Cantera project would not interfere with the achievement of this goal because three karst fauna areas within the UTSA region will exist after the development. FWS states this point was made in the Biological Opinion as follows: In evaluating the effects of the proposed action which are further described under Section 5.1 of the EA/HCP, we assessed the impact in relation to the conservation strategy outlined for similar species in the Endangered Karst Invertebrates Recovery Plan for Travis and Williamson counties, Texas (1994). Recovery criteria in that plan call for the preservation, in perpetuity, of three karst fauna areas (areas separated from each other hydrologically and geologically), if three exist, for each species within each karst region. In reviewing the status of the affected species, we determined that three karst fauna areas within the UTSA karst region will exist after the ;p