Full opinion text
MEMORANDUM OPINION AND ORDER RE PLAINTIFFS’ MOTION FOR MOTION FOR SUMMARY JUDGMENT AND DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT ISHII, District Judge. This is an action for declaratory judgment and injunctive relief in which Home Builders Association of Northern California, California Chamber of Commerce, Construction Materials Association of California, Building Industry Legal Defense Foundation, California Alliance for Jobs, Steven M. DeLucchi, and Mary O. DeLuc-chi (“Plaintiffs”) challenge the final designation or “rule” designating critical habitat for the Alameda whipsnake, Masticophis lateralis euryxanthus, issued by the United States Fish and Wildlife Service (“the Service”). See 62 Fed.Reg. 64306. The court has federal question subject matter jurisdiction over this action under 28 U.S.C. section 1331 and pursuant to the Administrative Procedures Act, 5 U.S.C. sections 701-706 (providing for judicial review of agency action). Plaintiffs move for summary judgment, contending that the Service designated critical habitat for the Alameda whipsnake (“the snake”) without adequate delineation of the area or sufficient analysis of the economic and other impacts of the designation in violation of the Endangered Species Act (“the ESA”), 16 U.S.C. sections 1531 et seq.; the Administrative Procedures Act (“the APA”), 5 U.S.C. sections 551, et seq.; the National Environmental Policy Act (“the NEPA”), 42 U.S.C. sections 4321, et seq.; the Regulatory Flexibility Act (the “RFA”), 5 U.S.C. sections 601, et seq.; and the Small Business Regulatory Enforcement Fairness Act (“the SBREFA”), 5 U.S.C. sections 801, et seq. Plaintiffs contend that the final rule designating critical habitat for the snake should therefore be overturned and remanded to the Service. Defendants the Service; the Department of the Interior; Gale A. Norton, Secretary of the Interior; and Marshall P. Jones, Jr., Acting Director of the United States Fish and Wildlife Service (“Defendants”) also move for summary judgment, contending that the final rule designating the habitat for the snake should be upheld, but also arguing that the court should order a limited remand of the rule to the Service for reconsideration of the economic analysis required by the ESA in light of the decision in New Mexico Cattle Growers Ass’n v. U.S. Fish & Wildlife Service, 248 F.3d 1277 (10th Cir.2001) and for revision of the legal descriptions of the seven critical habitat units designated by the Service. BACKGROUND The Service formally proposed listing the snake as a threatened species under the ESA in 1994, 59 Fed.Reg. 5,3774 (Feb. 7, 1994), and published a final listing rule in 1997, 62 Fed.Reg. 64,306 (Dec. 5, 1997). The Service did not designate critical habitat for the snake at that time. Pursuant to the ESA, a designation of critical habitat is to be done concurrently with the listing. 16 U.S.C. sections 1533(a)(3)(A), 1533(b)(6)(C)(ii). Intervenor filed suit in 1999 in the United States District Court for the Northern District of California to compel the designation of the critical habitat for the snake, as well as six other species. See Southwest Center for Biological Diversity, et al. v. United States Fish and Wildlife Service, et al., case no. CIV 99-1003 WHA. Pursuant to a settlement agreement in that case, the Service agreed to submit for publication in the Federal Register a proposal to withdraw the existing “not prudent” critical habitat designation for the snake, together with a new proposed critical habitat on or before March 1, 2000. See Exhibit A, Interve-nors’ Memorandum of Points and Authorities in Opposition to Defendants’ Motion for Voluntary Remand. The Service further agreed that if it determined that designation of critical habitat for the snake was prudent, it would, by September 1, 2000, submit for publication a final critical habitat designation for the snake and simultaneously withdraw the existing “not prudent” designation. Id. The September 1, 2000 deadhne was subsequently extended to September 22, 2000, by stipulation of the parties, and the final designation of critical habitat was published in the Federal Register on October 3, 2000. 65 Fed. Reg. 58,933. It is that final designation of critical habitat for the snake (“the Final Rule”) that Plaintiffs challenge in this action. PROCEDURAL HISTORY The complaint in this action was filed on June 7, 2001, and Defendants filed an answer on September 18, 2001. On October 19, 2001, the Center for Biological Diversity (“Intervenor”) filed a motion to intervene as a matter of right pursuant to Rule 24(a), Federal Rules of Civil Procedure. In its moving papers, Intervenor explained that it had initiated the administrative and legal actions that led to the listing of the snake as a threatened species and to the designation of its critical habitat. The Magistrate Judge found that Intervenor met the four requirements for intervention of right and therefore granted Intervenor’s motion. See Cabazon Band of Mission Indians v. Wilson, 124 F.3d 1050, 1061 (9th Cir.1997), cert. denied, 524 U.S. 926, 118 S.Ct. 2319, 141 L.Ed.2d 694 (1998) (the four requirements for intervention of right are timeliness, a significant protectable interest relating to the subject of the action, practical impairment of the intervenor’s ability to protect that interest, and inadequate representation by the parties to the suit). On February 22, 2002, Defendants filed a motion for voluntary remand, the stated basis for which was the Service’s desire to voluntarily reconsider its designation of critical habitat for the snake in light of the decision in New Mexico Cattle Growers Ass’n. v. U.S. Fish & Wildlife Service, 248 F.3d 1277 (10th Cir.2001). Defendants sought an order from the court vacating the Final Rule, and Plaintiffs filed a brief in support of Defendants’ motion. Inter-venor, however, opposed Defendants’ motion. After taking the matter under submission on the papers, the court issued a Memorandum Opinion and Order denying Defendants’ motion for voluntary remand, and holding as follows: In summary, the court finds that the Service has been unable to provide sufficient legal authority to support the method by which it is attempting to change a duly promulgated rule. Instead of utilizing the clearly established administrative procedures for amending or revising a rule, the Service, finding itself in a litigation posture, has conceded that the rule was not promulgated in compliance with ESA and asks the court to vacate the rule and remand the matter to it so that it can create a new rule. The court notes that this is not a case in which later-acquired information has caused the Service to rethink its decision. Rather, the Service’s only stated reason for seeking this remand is the Service’s own conclusion that its decision does not comply with a later-issued decision by the Tenth Circuit. Implicit throughout the Service’s papers is the assumption that the existence of this decision makes the Alameda whipsnake critical habitat determination per se invalid or illegal. The Service even refers to its “duty to abide by recent judicial interpretations of the ESA.” As stated above, the court finds that this assumption is faulty, for the obvious reason that this court is not within the Tenth Circuit. Further, the court finds that the existence of the Tenth Circuit opinion is insufficient to overcome the Service’s duty to comply with the statutorily mandated procedures for revising or amending a critical habitat rule. In summary, the Service has failed to demonstrate that this court can properly remand an ESA rule to the Service without making a determination on the merits and without the Service complying with the statutory procedures for revising a rule. Memorandum Opinion and Order Re Defendants’ Motion for Voluntary Remand, July 2, 2002,17:12 — 18:4. On September 20, 2002, Defendants filed a “renewed” motion for remand, which Plaintiffs and Intervenor opposed. The court took the matter under submission without oral argument and denied the motion, finding as follows: In their original motion, Defendants asked the court to vacate the rule and then remand the matter to the agency. In their current motion, Defendants again ask the court to remand this matter, but ask the court to do so without vacating the current rule, thus allowing the current rule to stay in effect until a new rule is issued. The court finds that this change in the relief sought by Defendants does not address the basis of the court’s prior decision.... The proposal by Defendants of remanding this matter without vacating the present rule does not remedy the defects in their original motion, as previously explained by the court... The court must find, therefore, as it did in regard to Defendants’ original motion, that Defendants have failed to demonstrate that this court can properly remand an ESA rule without making a determination on the merits and without the United States Fish and Wildlife Service complying with the statutory procedures for revising a rule. See generally, Greene v. Union Mutual Life Insurance Company, 764 F.2d 19, 22 (1st Cir.1985) (requests for reconsideration of interlocutory decisions of the district court are subject to the complete power of the court rendering them to afford such relief as justice requires). Memorandum Opinion and Order Re Defendants’ Renewed Motion for Voluntary-Remand, November 6, 2002, 3:2 — 4:3. Now pending before the court are the cross motions for summary judgment by Plaintiffs and Defendants. Intervenor has filed points and authorities in opposition to Plaintiffs’ motion and in support of Defendants’ motion. LEGAL STANDARD The review of a final agency action is governed by the APA under an “arbitrary or capricious” standard, thus an agency’s decision should be overturned if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1401 (9th Cir.1995). The Ninth Circuit has explained the application of this standard as follows: Review under the arbitrary and capricious standard is narrow and the reviewing court may not substitute its judgment for that of the agency. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (Marsh). We must determine whether the agency’s decision was made after considering the relevant factors and whether the agency made a clear error of judgment. Id. at 378, 109 S.Ct. at 1861. We may reverse the agency’s decision as arbitrary or capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, offered an explanation that ran counter to the evidence before the agency, or offered one that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Dioxin/Organochlorine Center v. Clarke, 57 F.3d 1517, 1521 (9th Cir.1995). Western Radio Services Co., Inc. v. Espy, 79 F.3d 896, 900 (9th Cir.1996), cert. denied, 519 U.S. 822, 117 S.Ct. 80, 136 L.Ed.2d 38 (1996). In inquiring whether an agency’s decision meets this standard, “we ask whether the agency ‘considered the relevant factors and articulated a rational connection between the facts found and the choice made.’ ” Natural Resources Defense Council v. U.S. Depart, of the Interior, 113 F.3d 1121, 1124 (9th Cir.1997) (quoting Pyramid Lake Paiute Tribe of Indians v. U.S. Depart. of the Navy, 898 F.2d 1410, 1414 (9th Cir.1990)). Thus, the standard is “highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision.” Independent Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir.2000)(internal quotations omitted.). Both of the original parties to this action seek summary judgment in their favor. Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Poller v. Columbia Broadcasting System, 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir.1984). In an action such as this, challenging the final decision of an administrative agency, the court does not utilize the standard analysis for determining whether a genuine issue of material fact exists. In Occidental Engineering Co. v. INS, 753 F.2d 766, 769-70 (9th Cir.1985), Occidental brought an action challenging the denial by the Immigration and Naturalization (“INS”) of its petition to reclassify one of its employees. The district court granted summary judgment to the INS and Occidental appealed. The Ninth Circuit held in part as follows: Occidental contests the district court’s grant of summary judgment on the grounds that there exist disputed issues of material fact. But there are no disputed facts that the district court must resolve. That court is not required to resolve any facts in a review of an administrative proceeding. Certainly, there may be issues of fact before the administrative agency. However, the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did. De novo factfinding by the district court is allowed only in limited circumstances that have not arisen in the present case. See, e.g., Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971); Proietti v. Levi 530 F.2d 836, 838 (9th Cir.1976); Dredge Corporation v. Penny, 338 F.2d 456, 462 (9th Cir.1964). The appellant confuses the use of summary judgment in an original district court proceeding with the use of summary judgment where, as here, the district court is reviewing a decision of an administrative agency which is itself the finder of fact. In the former case, summary judgment is appropriate only when the court finds there are no factual issues requiring resolution by trial. In the latter case, summary judgment is an appropriate mechanism for deciding the legal question of whether the agency could reasonably have found the facts as it did. In this case, the Administrative Record is before the court and there has been no indication by any party that de novo fact-finding by the court is needed. Thus, what remains to be decided by the court is the legal issue of whether the Service acted appropriately and thus is entitled to judgment as a matter of law or whether, to the contrary, it failed to do so and Plaintiffs are entitled to judgment. CONTROLLING LAW The first two stated purposes of the ESA are “to provide 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.” 16 U.S.C. § 1531(b). In order for a species to receive full protection under the ESA, it must be listed as “threatened” or “endangered.” An “endangered” species is one “which is in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6). A “threatened” species is “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(20). When a species is listed as threatened or endangered, the Service has a duty, “to the maximum extent prudent and determinable,” to concurrently, “designate any habitat of such species which is then considered to be critical habitat.” 16 U.S.C. § 1533(a)(3)(A). “Critical habitat” for an endangered or threatened species is defined in the ESA as follows: (i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 1533 of this title, 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; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title, upon a determination by the Secretary that such areas are essential for the conservation of the species. 16 U.S.C. § 1532(5)(A). The ESA requires the Service to make the designation of critical habitat and make revisions to the designation, “on the basis of the best scientific date available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat.” 16 U.S.C. § 1533(b)(2). It gives the Service the discretion to exclude any area from critical habitat if the Service determines that “the benefits of such exclusion outweigh the benefits of specifying such an area as part of the critical habitat,” unless it determines, “based on the best scientific and commercial data available,” that to do so will result in the extinction of the species. 16 U.S.C. § 1533(b)(2). Under the ESA, all federal agencies are required to consult with the Service, to “insure that any action authorized, funded, or carried out” by the 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 [critical] habit of such species,” unless the agency has been granted an exemption. 16 U.S.C. § 1536(a)(2); see also 16 U.S.C. § 1536(a)(3) (requiring federal agencies to consult with the Service on any prospective agency action at the request of a prospective permit or license applicant). The ESA also extends to persons, through prohibiting the “taking” of a designated endangered species. 16 U.S.C. § 1538(a)(1)(B). The term “take” under the ESA is defined as to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). The term “harm” is defined within the Service’s regulations to include an act that significantly modifies or degrades a species’ habitat resulting in actual death or injury to the species. 50 C.F.R. § 17.3(c)(3). Although the “taking” provision in 16 U.S.C. section 1538(a)(1)(B) applies expressly only to “endangered species”, 16 U.S.C. section 1533(d) authorizes the Service to issue regulations prohibiting with respect to any “threatened” species any act prohibited under section 1538(a)(1). The Service has thereby extended the “taking” prohibition to all listed species, whether “threatened” or “endangered.” 50 C.F.R. § 17.3 (2001). DISCUSSION In support of their motion for summary judgment, Plaintiffs raise the following seven main contentions: I) the Final Rule is invalid because the designation of critical habitat for the snake does not comport with the statutory definition of critical habitat; II ) the Service admits it failed to adequately evaluate the economic and other relevant impacts of designating critical habitat for the snake; III) the Service failed to provide the public adequate notice of the scope and nature of the critical habitat designation; IV) the Service failed to respond adequately to public comments; V) the Service failed to complete an adequate assessment of environmental impacts under the NEPA; VI) the Service failed to adequately conduct regulatory flexibility analysis as required by the RFA; and VII) the Service failed to adequately complete analysis required by the SBREFA. Each contention will be addressed in turn below. I. Whether Designation Comports with Statutory Definition of Critical Habitat Plaintiffs contend that the Service has failed to complete the basic tasks required under the ESA to designate as critical habitat lands where members of the species in question are present. In lands occupied by members of the species, critical habitat is defined in the ESA as, “the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 1533 of this title, 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.” 16 U.S.C. § 1532(5)(A)(i). Based on this definition, Plaintiffs argue that in order to designate the critical habitat for the snake, the Service must do the four following tasks: (1) identify the “physical or biological features” that are “essential to the conservation of the species;” (2) identify the “specific areas within the geographical area occupied by the species” where the essential “physical or biological features” are found; (3) determine that those “specific areas” where the essential features are found “may require some special management considerations or protection;” and (4) identify the “geographical area occupied by the species” at the time the species was listed. Plaintiffs contend that the Service has not adequately accomplished any of these necessary tasks. Finally, Plaintiffs also contend that the Service has not complied with the requirement under 16 U.S.C. section 1533(b)(2) that in designating the critical habitat for the snake, it consider “the best scientific and commercial data available.” 1. Identification of physical or biological features essential to the conservation of the species In regard to the first task, Plaintiffs argue that as a matter of simple logic, in order to identify the areas on which are found the “physical or biological features” that are “essential to the conservation of the species,” the Service must identify what those physical or biological features are. Plaintiffs claim that in this case, the Service has failed to identify the essential physical or biological features in any meaningful way. That is, Plaintiffs claim that it is impossible to determine from the Service’s description in the Final Rule what physical or biological features are actually essential for the snake. Plaintiffs also complain that when the Service does attempt to describe habitat features that are actually needed by the snake, it does so in a way that is essentially useless, providing no way to determine how the various elements relate to each other. Requirements as to how the Service is to identify essential physical or biological features are set forth in the following regulation: When considering the designation of critical habitat, the Secretary shall focus on the principal biological or physical constituent elements within the defined area that are essential to the conservation of the species. Known primary constituent elements shall be listed with the critical habitat description. Primary constituent elements may include, but are not limited to, the following: roost sites, nesting grounds, spawning sites, feeding sites, seasonal wetland or dryland, water quality or quantity, host species or plant pollinator, geological formation, vegetation type, tide, and specific soil types. 50 C.F.R. § 424.12(b)(5)(emphasis added). The court finds, based on this language, that the Service uses the term “primary constituent elements” to describe those physical or biological features that are considered “essential to the conservation of the species,” as that phrase is used in 16 U.S.C. section 1532(5)(A)(i). Defendants contend that the Service specifically explained in the Final Rule why the lands in question were designated as essential. They rely on the following language from the Final Rule, contending that it demonstrates that the critical habitat designation for the snake is consistent with the ESA regulations in 50 C.F.R. § 424.12: Within these areas, the primary constituent elements are those habitat components that are essential for the primary biological needs of foraging sheltering, breeding, maturation, and dispersal. The primary constituent elements are in areas that support scrub communities, including mixed chaparral, ehamise-redshank chaparral, coastal scrub, and annual grassland and oak woodlands that he adjacent to scrub habitats. In addition, the primary constituent elements for the Alameda whipsnake may be found in grasslands and various oak woodlands that are linked to scrub habitats by substantial rock outcrops or river corridors. Other habitat features that provide a source of cover for the whipsnake during dispersal or are near scrub habitats and contain habitat features (e.g., rock outcrops) that support adequate prey populations may also contain primary constituent elements for the Alameda whipsnake. 65 Fed.Reg. 58949. In addition, Defendants list four particular types of environments — scrub communities, annual grasslands and oak woodlands, rock outcrops, and riparian corridors — and provide citations to portions of the Administrative Record wherein these environments are discussed in various outside references cited in the proposed critical habitat designation. See AR at 1895, 2057 — 2060, 1948 (scrub communities); AR at 1895, 2061-2064 (annual grasslands and oak woodlands); AR at 1895, 2061-2064 (rock outcrops); AR at 1895 (riparian corridors). Defendants claim that these portions of the Administrative Record can be linked to “the analysis of primary constituent elements as described in 50 C.F.R. § 424.12(b).” They argue that the inclusion of discussions of these four environments in the Administrative Record demonstrates that the Service’s designation of critical habitat fulfilled the requirements of the ESA regulations and specifically addressed the primary constituent elements. Under the ESA, critical habitat for lands occupied by the species is defined in part as the specific areas on which are found “those physical and biological features [] essential to the conservation of the species.” 16 U.S.C. § 1532(5)(A)(i). To state the same thing slightly differently, such lands designated as critical habitat must, under the ESA, contain physical and biological features essential to the conservation of the species. The court therefore finds as a matter of law that in order to designate the critical habitat for a species listed as threatened under the ESA in such lands, the Service must determine what physical or biological features are essential to the conservation of the species. This is tacitly acknowledged by the regulatory requirement in 50 C.F.R. section 424.12(b)(5), that “[kjnown primary constituent elements shall be listed with the critical habitat description.” Clearly, if no primary constituent elements are known, the Service may not lawfully designate a critical habitat under the ESA. Applying this requirement to the designation of critical habitat at issue here, the court finds that it is impossible for the Service to comply without determining what physical and biological features are essential to the conservation of the snake. After reviewing the language from the Final Rule relied upon by Defendants, the court concludes that it does not provide the critical information. Rather, this language merely describes where the primary constituent elements may be located, using phrases in three of the four sentences indicating that the primary constituent elements “are in” or “may be found in” particular areas, or that particular habitat features “may also contain” the elements. Relatedly, in the first of the four sentences, the Service merely describes the primary constituent elements as essential for five primary biological needs. None of these sentences tell the reader what the primary constituent elements actually are. The court finds, therefore, that the language from the Final Rule relied upon by Defendants does not identify the physical or biological features which are essential to the conservation of the snake. Further, contrary to what is argued by Defendants, because the language does not identify these features, referred to by the Service as primary constituent elements, the language does not demonstrate that the critical habitat designation for the snake is consistent with the ESA regulations in 50 C.F.R. section 424.12. In regard to the four particular types of environment identified by Defendants, the court finds as an initial matter that 50 C.F.R. section 424.12(b) does not describe primary constituent elements. Rather, it contains a non-exclusive list of special management considerations or protections that may be required by physical and biological features that are essential to the conservation of a species. The court finds, therefore, that Defendants’ attempt to tie the inclusion of the discussions of these environments to the factors in section 424.12(b), even if successful, does not show that these four environments were considered by the Service to be primary constituent elements. More significant, however, is the fact that Defendants do not provide a citation to any part of the Final Rule in which the Service identifies these four environments as essential for the conservation of the species or as primary constituent elements. Counsel may not now attempt to read into the Service’s decision a thought process that is not demonstrated by the Final Rule itself. “Because the central focus of the arbitrary and capricious standard is on the rationality of the agency’s ‘decisionmaking,’ rather than its actual decision, ‘[i]t is well-established that an agency’s action must be upheld, if at all, on the basis articulated by the agency itself.”’ U.S. v. Garner, 767 F.2d 104, 116-17 (5th Cir.1985) (quoting Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 50, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). Finally, in their Reply, Defendants contend that the Service identified specific areas that contained the biological or physical characteristics essential to the snake, and that these primary constituent elements “included availability of lizards for prey, small mammal burrows and rock outcroppings for breeding and shelter, and grasslands for nesting,” citing 65 Fed.Reg. 58935-36 and AR at 1895 and 2057-2064. The court notes initially that the pages of the Administrative Record cited by Defendants contain copies of a document entitled, “Alameda Whipsnake Survey Rossm-oor Neighborhood Four Mitigation Area,” AR at 1895, and a graduate thesis entitled, “Aspects of the Ecology of the Alameda Whipsnake,” AR at 1950—2096. While the Service may have relied on these documents, neither of them provides a statement by the Service of the biological or physical features essential to the conservation of the snake. The first citation provided by Defendants, 65 Fed.Reg. 58935-36, includes a portion of the Final Rule entitled, “Primary Constituent Elements,” which provides as follows (emphasis added): Under section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, we are required to base critical habitat determinations on the best scientific and commercial data available and to consider those physical and biological features that are essential to conservation of the species and that may require special management considerations or protection. Such requirements include, but are not limited to, .space for individual and population growth, and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing of offspring, germination, or seed dispersal; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species. The primary constituent elements for the Alameda whipsnake are those habitat components that are essential for the primary biological needs of foraging, sheltering, breeding, maturation, and dispersal. The primary constituent elements are in areas that support scrub communities, including mixed chaparral, chamise-redshank chaparral, coastal scrub, and annual grassland and oak woodlands that lie adjacent to scrub habitats. In addition, the primary constituent elements for the Alameda whipsnake may be found in grasslands and various oak woodlands that are linked to scrub habitats by substantial rock outcrops or river corridors. Other habitat features that provide a source of cover for the whipsnake during dispersal or are near scrub habitats and contain habitat features (e.g., rock outcrops) that support adequate prey populations may also contain primary constituent elements for the Alameda whipsnake. Within these communities, Alameda whipsnakes require plant canopy covers that supply a suitable range of temperatures for the species’ normal behavioral and physiological requirements (including but not limited to foraging, breeding, and maturation). Openings in the plant canopy or scrub/grassland edge provide sunning and foraging areas. Corridors of plant cover and retreats (including rock outcrops) sufficient to provide for dispersal between areas of habitat, and plant community patches of sufficient size to prevent the deleterious effects of isolation (such as inbreeding or the loss of a subpopulation due to a catastrophic event) are also essential. Within these plant communities, specific habitat features needed by whipsnakes include, but are not limited to, small mammal burrows, rock outcrops, talus, and other forms of cover to provide temperature regulation, shelter from predators, egg laying sites, and winter hibernaculum. Many of these same elements are important in maintaining prey species. Adequate insect populations are necessary to sustain prey populations. The court finds that the initial portion of this excerpt essentially duplicates the language relied upon by Defendants in their initial Memorandum, with additional new language beginning at the word “[wjithin” highlighted above. A carefully reading of this additional language reveals that it, like the portion originally relied upon by Defendants, does not identify the physical or biological features essential to the conservation of the snake in a meaningful way. While the Service explains that “Alameda whipsnakes require plant canopy covers that supply a suitable range of temperatures for the species’ normal behavioral and physiological requirements,” it does not explain what such a suitable range of temperatures would actually be or what the snake’s normal behavioral and physiological requirements are. Likewise, although the Final Rule describes as “essential” “[cjorridors of plant cover and retreats (including rock outcrops) sufficient to provide for dispersal between areas of habitat, and plant community patches of sufficient size to prevent the deleterious effects of isolation (including but not limited to foraging, breeding, and maturation),” it provides no information as to how much of a corridor of plant cover or retreat is “sufficient,” or what size of a plant community patch is “sufficient.” Further, although the Final Rule states that “[adequate insect populations are necessary to sustain prey populations,” it does not define either “adequate” or “prey populations.” Finally, nowhere in this list of primary constituent elements set forth in the Final Rule does the Service cite “lizards for prey” or “grasslands for nesting”as referred to by Defendants in their Reply. The most definitive statement provided by the Service is that “[wjithin these plant communities, specific habitat features needed by whipsnakes include, but are not limited to, small mammal burrows, rock outcrops, talus, and other forms of cover to provide temperature regulation, shelter from predators, egg laying sites, and winter hibernaculum. Many of these same elements are important in maintaining prey species.” Although this statement references the “small mammal burrows” and “rock outcroppings” referred to by Defendants, the statement describes habitat features “needed” by the snake. As set forth above, the ESA requires the Service to identify physical or biological features “essential to the conservation of the species.” 16 U.S.C. § 1532(5)(A)(i). The court finds that it is unclear whether the term “need” used in this context is meant to be synonymous with the term “essential,” particularly in light of the use elsewhere in the same paragraph of the term “essential” in reference to corridors of plant cover and retreats. See SEC v. Chenery Corp., 332 U.S. 194, 196-7, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947)(“[i]t will not do for a court to be compelled to guess at the theory underlying the agency’s action.”). Thus, the court concludes that this statement does not amount to an identification of the features “essential to the conservation of the species,” as required under the ESA. In addition to contending that the Service failed to identify any particular physical or biological features that are essential to the conservation of the species, Plaintiffs make the related contention that the Service failed to adequately determine why any particular physical or biological features are essential, because the Final Rule does not describe any method for determining how or when the snake can be considered conserved. Defendants do not respond to this argument. As set forth above, critical habitat for occupied land is defined in part under 16 U.S.C. section 1532(5)(i), as specific areas “essential to the conservation of the species.” Under 16 U.S.C. section 1532(3), “conservation” is defined for the purposes of the ESA as “to use and 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 this Act are no longer necessary.” The court finds, therefore, that because essential physical or biological features must be essential for “the conservation of the species,” they must be necessary to bring the species, “to the point at which the measures provided pursuant to [the ESA] are no longer necessary.” The court concludes, as Plaintiffs argue, that if the Service has not determined at what point the protections of the ESA will no longer be necessary for the snake, it cannot possibly identify the physical or biological features that are an indispensable part of bringing the snake to that point. In light of the above, the court must conclude that the Service has failed to identify within the Final Rule the physical or biological features essential to the conservation of the species, a required element of occupied land designated as critical habitat under 16 U.S.C. section 1532(5)(A)(i). The Service’s designation of critical habitat for the snake was therefore in violation of the ESA, and Plaintiffs are entitled to judgment as a matter of law on this issue. 2. Specific areas where the essential features are found In regard to the second task identified by Plaintiffs as necessary in designating as critical habitat lands occupied by the species, Plaintiffs contend that the Service failed to identify “the specific areas within the geographical area occupied by the species” on which the “essential physical or biological features” are found, “as set forth in the definition of “critical habitat” under 16 U.S.C. section 1532(5)(A)(i). Plaintiffs argue that to the contrary, the Final Rule makes it clear that the Service designated areas as critical habitat which it knew did not contain essential physical or biological features. Specifically, Plaintiffs claim that the Service admits in the Final Rule that it was unable to map critical habitat in sufficient detail to exclude areas that it knows are unlikely to contribute to Alameda whipsnake conservation. Plaintiffs also argue that the Final Rule states expressly that features such as buildings, roads, canals, railroads, and large bodies of water are included within the critical habitat designation, even though the Service admits that they do not contain, nor are expected to develop, habitat components, and do not contain one or more of the primary constituent elements. Further, Plaintiffs claim that the Service acknowledges that there are areas within the critical habitat boundaries that do not contain essential habitat components. Finally, Plaintiffs argue that the record shows that the Service ignored comments it received from members of the public indicating that areas within the critical habitat boundaries were not in fact critical habitat. The court finds that as Plaintiffs argue, a specific geographical area cannot be both “essential to conservation” of the snake so as to amount to critical habitat and also “unlikely to contribute to Alameda whipsnake conservation.” Thus, the court finds that the passage quoted in footnote four regarding designation as critical habitat a geographic area unlikely to contribute to snake conservation is, in fact, an admission that some areas within the critical habitat boundary are not actually critical habitat. Likewise, the court finds that the passage in footnote five regarding inclusion of features such as buildings, roads, canals, railroads, and large bodies of water that do not contain “habitat components” or “one or more of the primary constituent elements” within the critical habitat boundary is an admission that the Final Rule designates as critical habitat areas that actually do not qualify as critical habitat under the ESA. This is further confirmed by the statement that federal actions limited to these areas “would not trigger a section 7 consultation.” See 16 U.S.C. § 1536(a)(2). Finally, the court finds that in the language quoted in footnote six, the Service implicitly states that it included within the critical habitat boundary areas that are “likely to develop” essential habitat components, but do not contain them now. Yet, the ESA defines critical habitat for the area occupied by the species as the specific areas on which are found the features essential to the conservation of the species. 16 U.S.C. § 1532(5)(A)(i). Defendants contend that the critical habitat designation excludes areas with features and structures not possessing the necessary primary constituent elements, making three arguments. First, Defendants argue that under the “exclusion criteria,” if particular properties within the designated critical habitat have features or structures that do not contain at least one of the primary constituent elements, “then the property is not critical habitat at all.” Defendants define the “exclusion criteria” as comprising the following language from the Final Rule: 3. Critical habitat does not include existing features and structures, such as buildings, roads, railroads, large water bodies, and similar features and structures not containing one or more of the primary constituent elements. 65 Fed.Reg. 58949, C.F.R. § 17.9(c). Defendants claim that later case-by-case review under Section 7 consultation procedures would reveal that based on the exclusion criteria the property was not critical habitat. See 16 U.S.C. § 1586(a)(2)(requiring federal agencies to consult with the Secretary of the Service to insure that any action authorized, funded or carried out by the agency is not likely to result in the destruction or adverse modification of the critical habitat of species listed as threatened or endangered under the ESA). Second, Defendants argue that Plaintiffs argue for an impracticable level of certainty in regard to the designation of the critical habitat, claiming generally that the Service’s interpretations of the ESA and its own regulations regarding primary constituent elements are entitled to deference from the court. See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 514, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994) (holding that the interpretation by the Secretary of Health and Human Services of language in a regulation governing reimbursement of provider hospitals for costs of certain educational activities was entitled to deference). Third, Defendants argue that the Service’s use of a “narrative exclusion of certain lands” from the critical habitat for the snake is supported by the ESA, the record, and the best scientific data available, and the court should defer to the Service’s judgment, particularly given the equivocal evidence. See Central Arizona Water Conservation Dist. v. EPA, 990 F.2d 1531, 1539 (9th Cir.), cert. denied, 510 U.S. 828, 114 S.Ct. 94, 126 L.Ed.2d 61 (1993). The court finds that Defendants are incorrect in arguing that under the exclusion criteria, land that has features or structures that do not contain one of the primary constituent elements “is not critical habitat.” The exclusion criteria, quoted above, excludes only “features and structures,” not the land on which they are located. Thus, Defendants’ dependence on the exclusion criteria to filter out land which should not be included in the critical habitat unwarranted. Further, the court finds considerable merit to Plaintiffs’ contention that the language from the Final Rule quoted above indicates that the Service has relied upon the Section 7 consultation process to justify critical habitat designation without actually identifying the specific areas where essential habitat features are found. Essentially, the Service states that the consideration of what specific areas contain features essential to the conservation of the snake is deferred to a later time. Nothing in the ESA permits the Service to defer the assessment of where the essential habitat features are found until consultation under Section 7 of the ESA is required. To the contrary, such a procedure contradicts the express language of the ESA that critical habitat comprises “specific areas” where “physical or biological features” “essential to the conservation of the species” “are found.” 16 U.S.C. § 1532(5)(A)(i)(emphasis added). Further, the Service is required to “designate any habitat of such species which is then considered to be critical habitat.” 16 U.S.C. § 1533(a)(3)(A)(emphasis added). Although Defendants argue that Plaintiffs demand an unreasonable level of certainty in designating the critical habitat and that the court should defer to the Service’s judgment, the court cannot do so when the Service has acted in direct violation of the statute. Based on all of the above, the court finds that Plaintiffs are correct in contending that the Service designated as critical habitat areas that it knew did not contain essential physical or biological features. The court thus concludes that the Service has failed to identify within the Final Rule the specific areas within the geographic area occupied by the snake on which physical or biological features essential to the conservation of the species are found, a required element of occupied land designated as critical habitat under 16 U.S.C. section 1532(5)(A)(i). The Service’s designation of critical habitat for the snake was therefore in violation of the ESA, and Plaintiffs are entitled to judgment as a matter of law on this issue. In addition to arguing that the Service designated areas as critical habitat which it knew do not contain essential physical or biological features, Plaintiffs contend that the Service violated 16 U.S.C. section 1532(5)(A)(i), by failing to designate an area smaller than the entire geographical area occupied by the snake. This statute, which defines critical habitat, refers to “specific areas within the geographical area occupied by the species.” See also 16 U.S.C. § 1532(5)(C) (“[ejxcept in those circumstances determined by the Secretary, critical habitat shall not include the entire geographic area which can be occupied by the threatened or endangered species.”). Plaintiffs argue that the Final Rule does not contain any finding supporting a determination by the Secretary that the designation of critical habitat needed to “include the entire geographical area which can be occupied” by the snake, and that the Service was therefore required to consider whether designation of an area smaller than the entirety of occupied habitat would be sufficient to conserve the snake. Plaintiffs argue that rather than complying with this requirement, the Service designated as critical habitat for the snake all areas that it found to be “suitable,” maintaining that the entirety of this expanse is “occupied by the Alameda whipsnake.” See 65 Fed.Reg. 59,936; 58,942. Plaintiffs claim that the nothing in the record indicates that the Service fulfilled its obligation to consider whether designation of a smaller area within this geographic area would be sufficient to conserve the snake. Defendants contend to the contrary that they did not designate as critical habitat the entire area that can be occupied by the species, and that the Administrative Record shows that some areas that may presently or could in the future contain the primary constituent elements were excluded. Specifically, Defendants argue that the Administrative Record shows that Alameda whipsnakes were sighted in some locations that were not included in the critical habitat, citing one example. Compare sighting # 16, AR at 2048 with mapped area in Final Rule, 65 Fed.Reg. 58952. Defendants also argue that despite the fact that scientific literature identified all of Alameda and Contra Costa Counties as Alameda whipsnake habitat, the Service designated only part of these counties as critical habitat. Compare AR at 1888 with Final Rule, 65 Fed.Reg. 58949-62. Based on Defendants’ arguments, the court finds that the Service designated as critical habitat less than the entire area that can be occupied by the snake and thus did not violate the letter of the law on this issue. Defendants are thus entitled to judgment on this issue. S. Whether specific areas may require special management considerations or protection In regard to the third task identified by Plaintiffs as necessary in designating occupied critical habitat, Plaintiffs contend that such critical habitat may not be designated unless the Service determines that the areas designated contain physical or biological features that “may require special management considerations or protection.” 16 U.S.C. § 1532(5) (A) (i). Plaintiffs argue that because the Service is required to articulate a “reasonable connection between the facts found and the choice made,” Natural Resources Defense Council, 113 F.3d at 1124, the Service must explain why any given area requires “special management considerations or protection,” providing reasons to support its conclusion. Plaintiffs claim that neither the Final Rule nor the Administrative Record provides these reasons. In response, Defendants first argue that the word “may” indicates that this is not a mandatory, present feature of the area, but rather that the specific area has features which, in the future, could benefit from additional protection, which adds to the justification for including a specific area as critical habitat. Further, Defendants contend that the critical habitat designation took into account special management considerations and protections. Specifically, Defendants argue that the record demonstrates that significant threats to the snake exist, especially due to urban development and fire suppression activities. Defendants claim that in response to these threats, the Service considered whether “the habitats needed by the Whipsnake may require special management considerations.” As an example, Defendants claim that the supplemental information accompanying the Final Rule noted that effects of the critical habitat designation included requiring federal agencies to engage in Section 7 consultations, a process that would address these threats. Defendants also argue that the Administrative Record shows that the Service addressed activities such as land and water management, recreation, and construction management, all of which could affect the snake, and that these activities may require “special management considerations.” Defendants admits the Final Rule does not include specific management recommendations, which were left to “recovery plans” and “other mechanisms.” Defendants stress, however, that the Service “clearly evaluated whether the Whipsnake habitat may require special management considerations or protection,” and so fulfilled the ESA’s requirements. Intervenor argues that the Service did determine that the designated habitat may require special management considerations or protection, referring to several different findings by the Service, including findings that several different kinds of federally approved activities may destroy existing snake habitat. The court agrees with Defendants that the word “may” within the phrases “may require special management considerations or protection” indicates that it is not mandatory that this be a present feature of the area. The court does find, however, that under the express language of the statute, particularly the use of the conjunction “and,” it is mandatory that the specific area designated have features which, in the future, may require special consideration or protection. The court must therefore agree with Plaintiffs that the fact that the Service “took into account” or “considered” whether the specific areas designated as critical habitat in the Final Rule may require special management considerations and protections is insufficient. What Defendants argue, in essence, is that the Service considered whether specific activities, carried out by various governmental entities on the land designated as critical habitat, might require special management considerations. What the Service was required to do, however, was different. It was required to make a finding, prior to designating a particular area as critical habitat, that the area in question might require special management considerations and protections at some time in the future. Nothing in Defendants’ arguments point the court to an indication in the Final Rule or Administrative Record that the Service made that finding prior to the designation of the critical habitat or that it was a factor in the designation. The court therefore con-eludes that in regard to this issue, the Service has not complied with this statutory requirement that under 16 U.S.C. section 1532(5)(A)(i). The Service’s designation of critical habitat for the snake was therefore in violation of the ESA, and the court will grant Plaintiffs judgment on this issue. U. Identification of the geographic areas occupied by the species In regard to the third task identified by Plaintiffs as necessary in designating as critical habitat lands where members of the species are present, Plaintiffs contend that in order to determine the “specific areas within the geographical area occupied by the species ... on which are found those physical or biological features ... essential to the conservation of the species,” under 16 U.S.C. section 1532(5)(A)(i), the Service must identify “the geographic area occupied by the species.” Plaintiffs contend that in this case, the Service has entirely failed to satisfy this requirement, because the record does not support the Service’s conclusion that areas designated as critical habitat are “occupied” by the species. The term “occupied” is not defined in the ESA. “When terms used in a statute are undefined, [the Court] give[s] them their ordinary meaning.” Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187, 115 S.Ct. 788, 130 L.Ed.2d 682 (1995). “Occupy” is defined as “to take up residence in: settle in,” “to hold possession of,” and “to reside in as an owner or tenant.” Webster’s Third New International Dictionary 1561 (1993). Plaintiffs claim that under these definitions, a geographical area is “occupied” by a species only if that species resides there. They find support for this claim in 50 C.F.R. section 424.12(e)(2002), which provides: (e) The Secretary shall designate as critical habitat areas outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species. Plaintiffs argue reasonably that this provision equates “the geographical area presently occupied by a species” with the species’ “present range.” See 50 C.F.R. § 17.11(e)(220) (stating that “[t]he ‘historic range’ indicates the known general distribution of the species or subspecies as reported in the current scientific literature.”). In support of their contention that the Administrative Record does not support the Service’s conclusion that the geographic areas designated as critical habitat are occupied by the snake, Plaintiffs claim that the Service admits in the Final Rule that it does not know where the snake is located. See 65 Fed.Reg. 58,936 (“To date, only initial research has been done to identify and define specific habitat needs of Alame-da whipsnakes, and no comprehensive surveys have been conducted to quantify their distribution or abundance.”) Plaintiffs further claim that the Service admits that its determinations of which areas were “occupied” by the Snake were made not on the basis of the species actually being present, but rather on the basis of the presumed suitability of habitat. See id. at 58,941-42 (“[W]e used data on known Alameda whipsnake locations to initially identify important areas. We have also made the reasonable assumption that areas adjacent to these locations are also within the geographical area occupied by the species based on the suitability of habitat”)- Furthermore, Plaintiffs claim that the Service also considered movement corridors to be occupied by the snake on a basis less than its physical presence. See id. at 58,941 (“[i]n addition, knowledge of the species biology and the need for the genetic connectivity to assure species persistence directs the inclusion of movement corridors where possible”). Based on the above-quoted language from the Final Rule, Plaintiffs contend that the Service’s interpretation of the term “occupied” ignores the distinction between occupied and unoccupied lands and therefore renders 16 U.S.C. section 1532(5)(A) a nullity. See TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (quoting Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001))(holding that “[i]t is ‘a cardinal principle of statutory construction’ that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’ ”). Plaintiffs argue that the term “occupied” cannot be so liberally construed that it would permit geographical areas to be deemed “occupied” by a species merely because the Service believes that the species needs them. Plaintiffs note that the ESA permits unoccupied lands to be designated as critical habitat “upon a determination by the Secretary that such areas are essential for the conservation of the species.” 16 U.S.C. § 1532(5)(A)(ii). They argue that if occupied lands could be designated as critical habitat on the same basis, there would be no purpose in having different requirements for occupied and unoccupied areas. In addition to the above contentions, Plaintiffs contend that in this case, the Service identified as “occupied” geographic areas where it actually knew that the snake was not present, initially citing the Swaim study relied upon by the Service for its understanding of the snake. They argue that many of the sites where Swaim found no whipsnakes were apparently designated as critical habitat and thus deemed “occupied” by the Service. Plaintiffs also cite information from other private parties indicating that the snake was not present in locations the Service ultimately included as part of the critical habitat. Separately, Plaintiffs contend that the Service’s use of the term “occupied” also violates