Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW SAMUEL P. KING, Chief Judge. I. PROCEDURAL HISTORY This is the latest chapter in the continuing saga of (T)H-3, a proposed Interstate Defense Highway which would connect the Kaneohe Marine Corps Air Station (“KMCAS”) to the Pearl Harbor Naval Base and Hickam Air Force Base. Originally, the project was to extend from Halawa to Kaneohe, passing through Moanalua Valley, the Koolau mountains, and Haiku Valley. As more fully discussed below, the highway segment extending from Halawa to the Koolaus has since been realigned through North Halawa Valley. The project has been the subject of extensive litigation. Plaintiff Stop H-3 Association filed the original complaint in Civil No. 72-3606 on July 19, 1972. By injunctions entered by Stipulation and Order dated September 15, 1972 and by Decision and Order dated October 18, 1972, Stop H-3 Ass’n v. Volpe, 349 F.Supp. 1047 (D.Haw. 1972), this court enjoined construction and design work for the portion of the freeway connecting the Halawa and Halekou interchanges until defendants could demonstrate compliance with the National Environmental Protection Act of 1969, 42 U.S.C. § 4321 et seq. (“NEPA”). Two years of hearings, Environmental Impact Statement (EIS) preparation, and other legal and administrative proceedings followed. On December 26, 1974, this court held that the defendants had complied with the applicable environmental and transportation statutes and regulations, and lifted the injunctions. Stop H-3 Ass’n v. Brinegar, 389 F.Supp. 1102 (D.Haw.1974). A key ruling was that since “local officials” had declared that Moanalua Valley was not historically significant, even though the U. S. Secretary of the Interior had determined that it was “likely to be eligible” for inclusion in the National Register of Historic Places, the protections of section 4(f) of the Department of Transportation Act of 1966, as amended, 49 U.S.C. § 1653(f) (1970) and section 18 of the Federal Aid Highway Act of 1968, 23 U.S.C. § 138 (1970), did not apply. These statutes, hereinafter referred to as “section 4(f),” are essentially identical. On appeal, the U. S. Court of Appeals for the Ninth Circuit reversed, holding that Moanalua Valley and Pohaku ka Luahini (petroglyph rock) were entitled to the protections of section 4(f), and reinstating the injunctions until the Secretary of Transportation (the “Secretary”) could demonstrate compliance therewith. Stop H-3 Ass’n v. Coleman, 533 F.2d 434 (9th Cir. 1976) cert. denied, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 610 (1976). The court declined to rule on the other three issues which had been raised on appeal, instructing the district court to reconsider them and the Secretary’s 4(f) determination in the event that the Secretary did conclude that there are no “feasible and prudent” alternatives to the routing of the project through Moanalua Valley. 533 F.2d at 446. Defendants filed a Section 4(f) Statement for Moanalua Valley with the U. S. Dept, of Transportation (“DOT”) in October 1976. In January 1977, the Secretary concluded that since feasible and prudent alternatives existed to the use of Moanalua Valley, he could not approve the project. After the Secretary’s decision, defendants began to prepare a supplemental EIS examining in detail the environmental effects of aligning the project through North Halawa Valley. On August 26,1977, defendants moved to terminate this lawsuit, arguing that since the project would no longer go through Moanalua Valley, the injunctions reimposed by the Ninth Circuit no longer applied. This court held that any freeway segment connecting the Halawa and Halekou interchanges was subject to the injunctions and denied the motion on November 17, 1977. The Draft North Halawa Valley Supplemental EIS (Draft “NHV-SEIS”) was first circulated on November 11, 1977 and public hearings were conducted on December 12, 13, 14 and 15, 1977. On May 5, 1978, Plaintiff Stop H-3 Association filed its 68 page, twelve count, Supplemented Compilation of Complaint for Injunctive and Declaratory Relief, as Amended and Supplemented. The ninth cause of action alleged non-compliance with section 4(f) with respect to the Ho’omaluhia Recreation Project (later designated Ho’omaluhia Park). Defendants moved to dismiss this cause of action, or in the alternative, for partial summary judgment, on July 11, 1978. On November 21, 1978, this court ruled that constructive use of the recreation project triggered the protections of section 4(f), and denied the motion. Defendants subsequently prepared and circulated a 4(f) statement for Ho’omaluhia Park. The final NHV-SEIS and Ho’omaluhia Park 4(f) Statement were processed together, and approved by the Federal Highway Administration (“FHWA”) on December 10, 1980. Location and design approval for the project was given on February 5, 1981. On April 10, 1981, the parties stipulated to the filing of plaintiffs’ present 142 page, 48 count, Amended and Supplemented Complaint for Declaratory and Injunctive Relief. Defendants answered this complaint on April 20,1981. On June 6,1981, defendants again moved to terminate the injunctions. This motion was denied on July 7, 1981. On September 1, 1981, the parties filed a Stipulation and Order Regarding a Plan and Schedule for Identifying Issues for Dismissal, In Limine Ruling, Summary Judgment or Trial on the Merits (“Stipulation”), pursuant to which the plaintiffs voluntarily dismissed their sixth, seventh, ninth and twelfth causes of action. On September 9, 1981, plaintiffs moved for leave to amend their eighth cause of action and to add a forty-ninth cause of action. The court granted their motion as to the eighth cause of action on September 16, 1981 and as to the forty-ninth cause of action on October 14, 1981. During trial, the court permitted plaintiffs to amend their twenty-seventh and forty-ninth causes of action to conform to the evidence. Prior to trial, the court granted defendants’ unopposed motion for summary judgment as to the fourth, fifth, nineteenth and twenty-first causes of action. The court also granted defendants’ motions for summary judgment as to the eighth (as amended) and thirteenth causes of action. On October 23, 1981, the court granted defendants’ motion to dismiss the twenty-second and forty-seventh causes of action. On September 30,1981, the court granted plaintiff Hui Malama Aina 0 Ko’olau’s (“Hui Malama’s”) Motion for Summary Judgment as to the twenty-fifth cause of action, and ordered defendants to initiate formal biological consultation with the U.S. Fish and Wildlife Service (“USFWS”) regarding the Achatinella [Hawaiian Tree Snail], in accordance with section 7(a)(2) of the Endangered Species Act of 1973, 16 U.S.C. § 1536(a)(2), and its associated regulations, 50 C.F.R. § 402.04 (1980). Defendants complied with this order on October 2, 1981. On October 29, 1981, the USFWS issued a formal biological opinion stating that constructing H-3 through North Halawa Valley would not endanger the Achatinella. II. CURRENT POSTURE Trial on Defendants’ Motion to Terminate the Injunctions and Plaintiffs’ Complaint for Injunctive and Declaratory Relief took place from October 14 to October 29, 1981. During closing arguments, Defendants moved for reconsideration of this court’s determination that section 4(f) applied to Ho’omaluhia Park. On November 4, 1981, Plaintiffs moved for summary judgment as to the thirty-fourth cause of action. Since the parties introduced evidence with respect to this cause of action and argued the issue at trial, summary judgment is inappropriate. Accordingly, the issue will be considered together with the other causes of action. This court must now consider the adequacy and validity of: (1) the 1972 Moanalua Valley EIS (“1972 EIS”) and 1973 Supplemental EIS (“1973 Preface”) as of their approval date; (2) the NHV-SEIS; (3) the Pali Golf Course 4(f) determination; and (4) the Ho’omaluhia Park 4(f) determination. III. ISSUES The remaining thirty-eight causes of action fall into ten broad categories, as follows (with their associated issues): A. NHV-SEIS Preparation. 1. Whether defendants improperly delegated preparation of the NHV-SEIS to private consultants (Counts Ten and Eleven). 2. Whether defendants failed to circulate the NHV-SEIS to and obtain and defer to comments from the Board of Water Supply of the City and County of Honolulu (Count Three). B. EIS Adequacy. Whether the EIS is inadequate because it: 1. Relies on outmoded and stale studies (Count One). 2. Fails to address the inconsistency of the project with the Oahu General Plan (Count Thirty-five). 3. Fails to adequately deal with socioeconomic impacts of the project (Counts Sixteen and Thirty-three); 4. Is based upon inaccurate population assumptions. (Count Fifteen). 5. Fails to disclose the impact of the U.S. Coast Guard OMEGA transmitting station upon construction workers and freeway users (Count Seventeen); 6. Is a justification for rather than an examination of the project (Count Eighteen). C. Further Supplemental EIS (Counts Two, Fourteen and Twenty). Whether Defendants are required to prepare an additional Supplemental EIS to reflect: 1. Uncirculated studies concerning H-3’s environmental aspects; 2. The terms upon which the Secretary’s approval of the NHV-SEIS were conditioned; or 3. The applicability of section 4(f) to Ho’omaluhia Park. D. Project Approval. Whether the Secretary’s decision to pursue a “build” alternative was arbitrary and capricious (Count Twenty-three). E. Location and Design Approval. Whether location and design approval for the North Halawa Valley alignment of the project was invalid because: 1. The defendants were committed to the North Halawa Valley corridor prior to the public hearings (Count Twenty-nine); 2. Location and design hearings were improperly held (Counts Thirty, Thirty-one and Thirty-two); 3. The design/location study reports for the project were inadequate (Count Thirty-three). 4. The design/location study reports were untimely filed (Count Thirty-four). F. OMB Circular A-95 Compliance. Whether defendants complied with the coordination process prescribed by OMB Circular A-95 (Count Twenty-four). G. Endangered Species. 1. Whether defendants violated the Endangered Species Act with respect to the Oahu Creeper (Count Twenty-six); 2. Whether defendants violated the Endangered Species Act with respect to the Cyrtandra (Count Twenty-seven, as amended). 3. Whether constructing H-3 through North Halawa Valley would violate the Hawaii Endangered Species Act, Chapter 195D, Haw.Rev.Stat., by “taking” the I’iwi (Count Twenty-eight). H. Coastal Zone Management. Whether defendants have complied with the Coastal Zone Management Act of 1972, 16 U.S.C. § 1451 et seq. (the “CZMA”), and its implementing regulations, codified at 15 C.F.R. part 930 (1981) (Count Forty-nine, as amended). I. Section 4(f) — Ho’omaluhia Park. 1. Whether the 4(f) statutes apply to Ho’omaluhia Park (Defendants’ Motion for Reconsideration). 2. Whether defendants improperly delegated preparation of the Ho’omaluhia Park 4(f) Statement (Count Forty). 3. Whether defendants failed to coordinate preparation of the 4(f) statement with the agency having jurisdiction over the Park, as required by 23 C.F.R. § 771.-19(g)(5) (1980) (Count Thirty-nine). 4. Whether the 4(f) Statement was properly circulated (Count Thirty-six). 5. Whether the 4(f) Statement is inadequate because it fails to: a. Contain the information required by 23 C.F.R. § 771.19(i) (1980) (Count Forty-two); b. Discuss non-highway alternatives (Count Thirty-eight). 6. Whether the Secretary’s approval of the 4(f) Statement was based upon adequate information regarding non-highway alternatives (Count Thirty-seven). 7. Whether the Secretary properly concluded that no feasible and prudent alternatives exist to the use of the park (Counts Forty-three, Forty-four, Forty-five and Forty-six); and 8. Whether the 4(f) statement is deficient because it fails to demonstrate that all possible planning to minimize harm to the park has been done (Count Forty-one). J. Section 4(f) — Pali Golf Course. Whether the Secretary’s section 4(f) determination for the Pali Golf Course was proper (Count Forty-eight). IV. STANDARD OF REVIEW This court’s role in evaluating compliance with the requirements of NEPA is narrowly limited. As stated in Save Lake Washington v. Frank, 641 F.2d 1330 (9th Cir. 1981), Judicial review of an EIS covers only the issue of whether NEPA’s procedural requirements have been met, and whether the EIS performs its primary task of presenting the decision-maker with an environmentally-informed choice. The correct standard is provided in the Administrative Procedure Act, 5 U.S.C. § 706(2)(D), which directs courts to set aside an agency action if taken “without observance of procedure required by law...” [citations omitted] Id. at 1334. A court is not to substitute its judgment for that of the agency as to the environmental consequences of its action. Rather, the court must ensure that the agency has taken a “hard look” at environmental factors. Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 96 S.Ct. 2718, 2730 n.21, 49 L.Ed.2d 576 (1976); Columbia Basin Land Protection Ass’n v. Schlesinger, 643 F.2d 585, 592 (9th Cir. 1981). If the agency has followed the proper procedures, its action will only be set aside if the court finds the action to be “arbitrary and capricious,” given the known environmental consequences. See Columbia Basin Land Protection Ass’n, 643 F.2d at 596; Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 552 (9th Cir. 1977) (per curiam) (“Warm Springs Dam I”). The court should not be used as a quasi-legislative or quasi-executive forum by those who are dissatisfied with policy decisions made by governing bodies. The environmental laws were neither meant to be used as a “crutch” for chronic fault-finding, nor as a means of delaying the implementation of properly approved projects. Moreover, an EIS will be found to be adequate if it was prepared in good faith and contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences. Columbia Basin Land Protection Ass’n, 643 F.2d at 592; see Lathan v. Brinegar, 506 F.2d 677, 693 (9th Cir. 1974) (courts are not permitted to “flyspeck” environmental impact statements). The extent of judicial scrutiny of the Secretary’s 4(f) determination is prescribed by Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1970). In order for the 4(f) determination to have been proper, the Secretary must have (1) properly construed his authority to approve the use of parkland as limited to situations where there are no feasible alternative routes or where feasible alternative routes involve uniquely difficult problems; (2) reasonably believed that such a situation exists in the case at hand; (3) based his decision upon a consideration of the relevant factors; and (4) not made a clear error of judgment. Id. at 416, 91 S.Ct. at 823. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. Id. Finally, the burden of proof is on the plaintiffs to establish that the EIS is inadequate or that the Secretary acted improperly in approving the use of parklands. Monroe County Conservation Council v. Ad ams, 566 F.2d 419, 422 (2d Cir. 1977), cert. denied, 435 U.S. 1006, 98 S.Ct. 1876, 56 L.Ed.2d 388 (1977). V. DISCUSSION In order to evaluate Defendants’ compliance with NEPA, the Court must first determine which version of the Council on Environmental Quality regulations (CEQ Regs.) is applicable. 40 C.F.R. § 1506.12 (1980) states in relevant part: (a) These regulations shall apply to the fullest extent practicable to on-going activities and environmental documents begun before the effective date. These regulations do not apply to an environmental impact statement or supplement if the draft statement was filed before the effective date of these regulations. No completed environmental documents need be redone by reasons of these regulations. Until these regulations are applicable, the Council’s guidelines published in the Federal Register of August 1, 1973, shall continue to be applicable. In cases where these regulations are applicable the guidelines are superseded. However, nothing shall prevent an agency from proceeding under these regulations at an earlier time, [emphasis added] Since the effective date of the regulations is November 30, 1979, and the draft NHVSEIS was filed in 1977, it appears that the environmental documents prepared to date should be evaluated in accordance with the 1973 CEQ guidelines. However, any further documentation ordered by this court should be prepared in accordance with the 1979 Regulations. A. NHV-SEIS Preparation. 1. Delegation of EIS Preparation. 23 C.F.R. § 771.7 (1980) permits consultants to be used in the preparation of environmental impact statements. Plaintiffs allege that to the extent this regulation permits delegation of EIS preparation to other than a State agency or official, it is contrary to 42 U.S.C. § 4332(2XC) (1975 amendment to NEPA) and invalid. Plaintiffs’ arguments for invalidating the regulation are unpersuasive. It appears from the legislative history of the 1975 amendment to NEPA (Public Law 94-83) that the section permitting delegation of EIS preparation to State agencies was added to resolve the split in case law which had developed. The issue of consultants was not addressed. It does not appear that Congress intended to prohibit the delegation of EIS preparation to private consultants. I conclude that the regulation is neither contrary to NEPA nor invalid. See Morton v. Mancari, 417 U.S. 535, 550, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290 (1973). This court has previously decided the question of whether preparation of an EIS may be delegated to a financially interested consultant. NEPA does not prevent the employment of a private contractor who has a financial interest in the project to draft an EIS. NEPA does require that the final EIS be sufficiently reviewed and considered by the “responsible official” to insure that it was a part of the decision making process. Life of the Land v. Brinegar, 363 F.Supp. 1171, 1175 (D.Haw.1972), aff’d 485 F.2d 460 (9th Cir. 1973), cert. denied 416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974). Testimony at trial established that the consultants, Parsons Brinkerhoff Hirota Associates (“Parsons”) prepared the first draft of the NHV-SEIS and submitted it to the State and Federal Agencies for comments and revisions. This process was repeated until the draft was in final form. The FHWA was involved with the preparation of the EIS on an almost daily basis. I find that the FHWA was sufficiently involved in the preparation of the EIS to comply with the requirements of the regulations. See Essex County Preservation Ass’n v. Campbell, 536 F.2d 956 (1st Cir. 1976). Finally, I find that under the circumstances, the consultants’ financial interest in the outcome of the project need not be disclosed in the EIS. It is sufficient that this interest was known to the agencies responsible for the EIS. On October 30,1981, the FHWA adopted a completely revised version of 23 C.F.R. part 771. The new regulations limit the role of private institutions or firms to providing environmental studies and commenting on environmental documents. However, the new regulations also provide that: FEIS’s accepted by the administration prior to July 30, 1981, whose drafts were filed with the Environmental Protection Agency (EPA) prior to July 30, 1979 (for FHWA November 30, 1979), may be developed in accordance with the regulations in effect at the time the draft document was filed. 23 C.F.R. § 771.109(a)(4) (1981). Since the original draft EIS (Moanalua) was filed with the EPA in 1972, and the Draft NHV-SEIS was filed in 1977, defendants properly applied the older regulations in preparing the NHV-SEIS and Ho’omaluhia Park 4(f) Statement. However, the role that consultants may play in the preparation of any new documentation ordered by this Court will be constrained by the requirements of the new regulations. 2. Board of Water Supply. NEPA requires that copies of the EIS and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, be made available to the public and accompany a proposal through the agency review processes. 42 U.S.C. § 4332(2)(C). Plaintiffs contend that this statute required the Defendants to (1) obtain and defer to comments from the City and County of Honolulu Board of Water Supply (the “Board of Water Supply”); and (2) recirculate the Final NHV-SEIS with comments to the public. Since NEPA only requires consultation with Federal agencies having expertise with respect to any environmental impact involved, Defendants were not required to defer to the comments of the Board of Water Supply, a local agency. Nevertheless, it is clear from the testimony and other evidence adduced at trial that the Defendants did circulate the NHV-SEIS to and obtain comments from the Board of Water Supply, and that the concerns of the Board of Water Supply were resolved. Finally, NEPA does not require that a Final EIS, with comments, must be recirculated to the public. B. EIS Adequacy. 1. Outmoded or Stale Studies. Plaintiffs allege that the EIS, as a whole, is inadequate because it relies upon studies conducted between nine and fourteen years ago. It is a sad fact of environmental litigation that the EIS approval process can stretch over many years. To hold that studies become invalid merely because of the passage of time would expand this time horizon to infinity. While it is true that circumstances may change over time, such changes can best be handled through the supplementation process prescribed by section 1502.9 of the CEQ Regs., 40 C.F.R. § 1502.9 (1980). Except for portions of the 1973 EDAW socio-economic impact study, discussed below, plaintiffs have failed to demonstrate that any of the studies contained in the 1972 EIS or 1973 Preface are no longer valid. 2. Consistency with the 1977 Oahu General Plan. The regulations of both the DOT and CEQ require that an EIS discuss the relationship between the proposed action and the land use plans of the affected community. Where conflicts or inconsistencies exist, the EIS “should describe the extent of reconciliation and the reason for proceeding notwithstanding the absence of full reconciliation.” 23 C.F.R. § 771.18(h) (1978); 40 C.F.R. § 1500.8(a)(2) (1978). On January 18,1977, the City and County of Honolulu adopted a revised Oahu General Plan, which became law on February 2, 1977. Plaintiffs allege that H-3 is inconsistent with the population and transportation objectives and policies of this plan, and that these inconsistencies are not resolved in the EIS. It should initially be noted that the H-3 project has been under consideration by Federal, state and local officials for many years. Copies of the NHV-SEIS were circulated to the Oahu Metropolitan Planning Organization (the State/City Cooperating agency), the City and County of Honolulu Department of General Planning and Department of Land Utilization (“DLU”) and several other local agencies, none of which have raised any legal challenges to the project. While it is true that the DLU did express a number of concerns as to the consistency of the project with the General Plan, these comments were responded to by the defendants. These comments and responses are reprinted in Vol. VII of the NHV-SEIS at pp. 192-197. While not conclusive, the failure of the responsible officials to raise any further objections to the project raises an inference that the defendants could reasonably have believed that the project was consistent with the General Plan. The relationship between H-3 and the General Plan Objectives and Policies is described in Vol. I of the NHV-SEIS at pp. 100-110. It is important to recall that the relevant standard of review is whether this discussion reasonably addresses the pertinent issues. I only decide whether the agency could reasonably reach the conclusions that it did, not whether those conclusions were in fact correct. Policies three, seven, nine and ten of Transportation Objective “A” encourage the development and use of public transportation on the island of Oahu. See 1977 Oahu General Plan at 39-40 (hereinafter cited as “General Plan”). Although the NHV-SEIS only directly discusses the public transportation policies in relation to the (T)H-3 alternative, see NHV-SEIS vol. I at 107-109, I find that this issue is adequately addressed in the NHV-SEIS. It is true that this discussion would have been less subject to challenge had the (T)H-3 alternative been approved, but I find that defendants could reasonably have believed that H-3 is consistent with the Transportation Policies of the General Plan. Population Objective “C” of the General Plan establishes the desired Oahu population distribution for the year 2000. The General Plan envisions limited growth on the Windward side of Oahu. If Policy 4 of Population Objective “C” is met, Windward side population will increase in absolute terms, but decrease as a percentage of the total Oahu population from 16.4% in 1975 to 14.4%, plus or minus 0.7%, in 2000. See Oahu General Plan at 21. The population objectives and policies of the General Plan are thoroughly laid out and discussed at pp. 100-104 of the NHVSEIS. Defendants assert that H-3 is not inconsistent with these objectives and policies because the highway will not have any long-term growth impacts. Land use and development on the windward side of Oahu is currently controlled by the State Land Use District Boundaries and the Oahu General Plan, Development Plans, and zoning ordinances. Given these plans and their continued implementation, the H-3 facility will not, in and of itself, induce population growth and further development of windward Oahu. The Preface to the Final Environmental Impact Statement (pp. 5-1 to 5-12) does however indicate that, initially, construction of the H-3 facility could accelerate the rate of development on windward Oahu. Thereafter population growth would level off. In any case, land use densities on windward Oahu can only reach the maximum allowable under the General Plan and Comprehensive Zoning Code with or without H-3. With H-3, these densities may or may not be reached earlier, [emphasis added] NHV-SEIS Vol. I at 127. The court’s role is not that of a “super-planner” to determine the correctness of this assertion. It is sufficient to pass judicial review that the EIS considered the issue and came to a reasoned conclusion. Challenges to assumptions and conclusions are most appropriately handled through the EIS commenting process. 3. Socio-Economic Impacts. NEPA, 40 C.F.R. § 1500.8(a)(3)(h) (1978) and 23 C.F.R. § 771.18(i)(l) (1980), require that an EIS assess and discuss the secondary (socio-economic) effects of a project. To date, the only socio-economic impact study commissioned by the Defendants was the 1973 EDAW study reprinted at pages 211-281 of Appendix “B” of the 1973 Preface. In 1974, I held that this study, in conjunction with the other discussions of socio-economic effects contained in the 1972 EIS and 1973 Preface, constituted adequate consideration of secondary impacts. Stop H-3 Ass’n v. Brinegar, 389 F.Supp. at 1111. Plaintiffs have not persuaded me that this decision was incorrect. A socio-economic assessment does not have to take the form of a formal “study” and need not be all encompassing. The adequacy of the assessment is governed by a “rule of reason”. Conclusions and recommendations may be based upon extrapolations from empirical data, as well as upon the data itself. Although the 1973 EDAW study focused upon the area expected to feel the greatest effects from the implementation of the project, it also considered impacts outside of the study area. While it is apparent that the area of potential impacts may well range wider than the study area as defined above, it also appears that the primary socio-economic concerns rest mainly in the study area. Potential Route H-3 impacts in the balance of the Koolaupoko (windward) district would be less severe, in terms of impacts of degree rather than kinds, and could be characterized principally as “more of the same”. Potential Route H-3 impacts on the Koolauloa District, further north of the study area, would be of the same kind and nature as impacts within the study area but far less severe due to the mitigating effects of distance. 1973 Preface, exhibit “B” at 229. Thus, although the study only dealt directly with a relatively small portion of the affected region, the discussion of socio-economic impacts was sufficient to meet the requirements of law. As noted above in part V.B.2., the 1977 Oahu General Plan significantly altered the planned population distribution for the island of Oahu. The Leeward side of the island will be developed into a secondary urban center, while growth on the Windward side will be limited. Plaintiffs contend that the 1973 EDAW study must be supplemented to reflect this change. It is obvious that the portion of the EDAW study which dealt with the effects of the 1969 General Plan is no longer valid. A more difficult question is whether the adoption of the new general plan invalidates the remainder of the study. I find that it does not. Most of the study addresses growth impacts in general terms. Further, the NHV-SEIS extensively discusses the project’s secondary impacts in light of the planning changes which have occurred. See, e.g., NHV-SEIS Vol. I at 118-129. Finally, plaintiffs have failed to demonstrate that conditions have changed so much that population growth will have significantly different effects than those described in the EDAW study. City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975), heavily relied upon by plaintiffs in support of their contention that defendants cannot attribute growth impacts to the General Plan rather than the highway, is readily distinguishable from the case at hand. In City of Davis, the City itself challenged the construction of a freeway interchange designed to stimulate and service future industrial development in the neighboring Kidwell area. Davis and the Kid-well area were in different counties. Expert opinions and studies that Davis introduced during the litigation showed that such development could place severe demands upon and contaminate Davis’ water supply, disrupt the City's policy of controlled growth, and increase demand for city services without providing a corresponding increase in the city’s tax base. Defendants attempted to justify their failure to prepare an EIS on the basis of a three-page “Negative Declaration of Environmental Impact,” which concluded that the project would have no significant adverse environmental effects. The Negative Declaration did not consider any of the project’s possible impacts upon Davis. Similarly, the Design Study Report submitted to the FHWA dismissed secondary effects as “speculative” and “uncertain”. The court found that although the nature and extent of development which the project will induce is uncertain, it was unreasonable for the defendants to conclude, without further study, that the environmental impact of the proposed interchange would be insignificant. See id. at 675. In the case at hand, a socio-economic assessment was made and included in a properly circulated EIS. Further, Honolulu is in the rather unique position of having a single statement of long-range social, economic, environmental and design objectives for the entire island. Thus, unlike the situation in City of Davis, conflicting growth and development plans for adjoining areas are resolved by a single body. Finally, as previously noted, the City and County of Honolulu has not raised any legal challenges to the EIS or the project itself. I find that it was reasonable for the defendants to assume that construction of H-3 will not adversely affect the City’s efforts to implement the General Plan and that the discussion of socio-economic impacts was sufficient to meet the requirements of NEPA. 4. Population Assumptions. 40 C.F.R. § 1500.8(a)(1) (1978) requires agencies to identify the population and growth characteristics of the area affected by its action and the population and growth assumptions used to justify the project or program or to determine secondary impacts resulting therefrom. The population figures used in the General Plan, and consequently in the NHVSEIS, were derived from the “Series E-2” population projections issued by the State Department of Planning and Economic Development (“DPED”) in 1974 to promote uniformity and consistency in Federal, state, county, and private planning work. Oahu population was forecast to reach 1,039,000 by the year 2000. Applying the General Plan distribution percentages to this figure yielded a target Windward side population of between 142,300 and 156,900. However, as stated in the General Plan, The figure of 1,039,000 for the year 2000 and the corresponding distribution of the population to the various designated areas ... will be revised as the State Department of Planning and Economic Development [“DPED”] revises its population projections. General Plan at 21. On March 1, 1978, the DPED issued a new set of projections, designated “II-F”, designed to refine and update the E-2 series. Projected year 2000 Oahu population was revised downwards from 1,039,000 to 917,400. Applying the General Plan distribution percentages to this new figure yields a target Windward side population of between 125,700 and 138,500. It should be noted, however, that the Series E-2 and II-F projections only forecast total Oahu population and do not provide regional breakdowns. All of the population projections used in developing the traffic projections for the H-3 corridor were derived from the Series E-2 population projections. The NHVSEIS fails to discuss the series II-F projections, even though they were issued nearly two years before the NHV-SEIS was approved. . The Route H-3 Travel Demand Analysis assumed a Windward side population of 150,000, based upon the series E-2 projections. This assumption was reconsidered by the FHWA in light of the Series II-F projections. See FHWA Region 9 Staff Analysis, App. “B”. The FHWA apparently concluded that the General Plan population distribution goals would not be met, and decided that based upon a year 2000 Oahu population of 917,400, it was appropriate to continue to use a Windward population of 150,000 in its travel demand analysis. Defendants’ apparent assumption that the General Plan goals will not be met and year 2000 Windward side population will be approximately 150,000 may be correct. However, this assumption contradicts defendants’ assertion that growth will be limited by the General Plan. It would have been wiser for the FHWA to have considered whether the project would still be viable if General Plan population goals are met. Nonetheless, I find that defendants did meet their responsibility of identifying the population and growth assumptions used to justify the project. 5. The OMEGA Station. The U.S. Coast Guard operates an OMEGA Navigation Station in Haiku Valley. The transmitting antenna consists of six insulated spans which extend across the valley and are fed at the center by a multi-conductor downlead system connected to the transmitter building. The antenna ground system consists of a dense network of copper conductors extending radially outward from the transmitter building for a distance of 1100 feet. Strong electric and magnetic fields exist in the region between the antenna and the ground system. As originally planned, the Windward viaduct of the project would largely have avoided the ground system. Because the location of the trans-Koolau tunnel portal in Haiku Valley had been determined based upon the location of H-3 in Moanalua Valley, the corridor shift to North Halawa Valley increased the tunnel length from just under 5,000 feet to over 8,400 feet. During the preliminary investigations and design of the North Halawa Valley alignment, it was determined that the required tunnel length (and hence construction costs) could be reduced significantly by shifting the location of the Haiku portal and lengthening the Windward viaduct, but that such a shift would require that a portion of the Windward viaduct pass directly over the ground system. In late 1977, Defendants contacted the Coast Guard to pursue the concept of H-3 and OMEGA collocation. Continued coordination with the Coast Guard led to a study which was conducted by the electronics consulting firm of Kershner & Wright. The study was primarily concerned with the effects of the proposed viaduct upon the OMEGA Station, although it also dealt with the effects of the transmitter upon the highway and its users. The consultants considered two alignments of the Windward Viaduct, the original configuration (Alignment “A”) and the proposed change (Alignment “B”). The first phase of the study concluded that the highway could be constructed and operated without reducing the effectiveness of the OMEGA station, and that the hazards involved in the construction and operation of the highway could be controlled or maintained at negligible levels. NHVSEIS Vol. VI, appendix “M” at 26. This conclusion applied to both alignments. Id. Phase II of the study dealt with the technical modifications necessary to maintain the performance of the ground system and the antenna. As a result of the studies, the proposal was modified to reflect the adoption of Alignment “B”. This change is discussed in Vol. I of the Final NHV-SEIS at pp. xxxvi-xxxix. Copies of both reports were included as Appendix “M” in Vol. VI of the NHV-SEIS, but were never circulated to the public, ostensibly because they were prepared too late to be included in the Draft NHV-SEIS. Plaintiffs allege that the reports (1) are substantively inadequate and (2) contain “new and significant” information that must be circulated to the public in the form of a supplemental EIS. In particular, plaintiffs challenge the report’s discussion of the potential hazards of the OMEGA Station’s electromagnetic radiation upon heart pacemaker wearers, construction workers and highway users. Mere disagreements among experts will not invalidate an EIS. Life of the Land v. Brinegar, 485 F.2d 460, 472 (9th Cir. 1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974); Kentucky ex rel. Beshear v. Alexander, 655 F.2d 714, 720 (6th Cir. 1981). An expert opinion contrary to that expressed in an EIS should be submitted to the agency responsible for the EIS for consideration as “new and significant” information. A court cannot be expected to decide the relative merits of conflicting expert opinions. Although a plaintiff cannot quibble with the assumptions and conclusions made by an expert within his area of expertise, he may attempt to demonstrate that the author of a study was incompetent to address particular issues. By his own admission, the preparer of the report in question was not an expert on biological effects of electromagnetic radiation. On the other hand, he was qualified to conclude, as he did, that through proper shielding techniques, the electric field strength in the vicinity of the highway could be reduced to negligible levels. I find that the studies and the discussion of H-3/OMEGA Collocation contained in the Final NHV-SEIS would have been sufficient to meet the requirements of NEPA had the proper procedures been followed. The safety concerns raised by plaintiff are not sufficient to invalidate the reports. Defendants have a responsibility to consider this information if it is presented to them. However, that examination process is outside of the scope of this lawsuit. It is undisputed that the information contained in the studies is “new”. However, defendants contend that since the electric field strength can be reduced to “safe” levels, the new information is not “significant”, citing Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017 (9th Cir. 1980) (“Warm Springs Dam II”). I find that their reliance is misplaced. In that case, information about a potentially serious earthquake hazard came to the attention of the Corps of Engineers after the publication of a supplemental EIS. The study in question challenged a basic design assumption for a proposed dam. The Corps considered the information, conducted an extensive study of their own, and concluded that their original assumptions were correct. The court found that the Corps’ decision not to prepare and circulate a supplemental EIS reflecting the issues raised by the study was reasonable. Here, the highway design must take the OMEGA Station electric field effects into consideration. This fact alone demonstrates that the information is significant. Further, the trans-Koolau tunnel alignment was altered as a result of the studies. The situation here thus differs from that in Warm Springs Dam II, where the new information did not necessitate any changes in the project. 6. Justification vs. Examination. • The purpose of an EIS is to serve as the means of assessing the environmental impact of proposed agency actions, rather than as a justification for decisions already made. See 40 C.F.R. § 1500.7(a) (1978). Plaintiffs allege that defendants violated this regulation because the 1972 EIS, 1973 Preface, Moanalua Valley 4(f) Statement, and 1977 NHV-SEIS were prepared not as a means of assessing the environmental impact of H-3, but rather as justifications for prior decisions to build the project through the designated valleys. I find no merit to this contention. The fact that an agency prefers one alternative over another does not violate NEPA. What is important is that the decision to proceed with the action not be made until the EIS process has been completed. The facts are clear that events followed the required sequence in this case. C. Further Supplemental EIS. A federal agency has a continuing duty to gather and evaluate new information relevant to . the environmental impact of its actions. Warm Springs Dam II at 1023; see 42 U.S.C. §§ 4332(2)(A), (B). Pursuant to 40 C.F.R. § 1502.9(c)(4) (1980) and 23 C.F.R. § 771.15 (1980), the FHWA is required to prepare a supplemental EIS when (1) changes are made in the proposed action that will introduce a new or changed environmental effect of significance to the quality of the human environment, or (2) significant new information becomes available concerning the action’s environmental aspects. A supplemental EIS is to be processed in the same manner as a new EIS (draft and final). The supplementation process applies to both draft and final EISs. Thus, if significant new information becomes available while an EIS is in draft form, the draft must either be recirculated or supplemented. It is not sufficient that the new information is incorporated into the final EIS. An agency’s decision not to supplement an EIS in light of new information will be upheld if reasonable. Warm Springs Dam II, 621 F.2d at 1024. When new information comes to light the agency must consider it, evaluate it, and make a reasoned determination whether it is of such significance as to require implementation of formal NEPA filing procedures. Reasonableness depends on such factors as the environmental significance of the new information, the probable accuracy of the information, the degree of care with which the agency considered the information and evaluated its impact, and the degree to which the agency supported its decision not to supplement with a statement of explanation or additional data. Id. 1. Uncirculated Studies. Vol. VI of the NHV-SEIS contains a number of studies, none of which were circulated to the public. Plaintiffs contend that these studies contain significant new information which must be reflected in a supplemental EIS. As discussed in part V.B.5., supra, I find that the H-3/OMEGA Station Collocation Studies contain “new and significant” information. Although collocation was discussed in the Final NHV-SEIS, defendants failure to circulate the information in draft EIS form necessitates the preparation of a further supplemental EIS. I find that none of the other studies are “new and significant”. It should first be noted that NEPA does not require that supporting studies be physically attached to the EIS. It is sufficient if they are available and accessible. Coalition for Canyon Preservation v. Bowers, 632 F.2d 774 at 782 (9th Cir. 1980); Trout Unlimited v. Morton, 509 F.2d 1276 at 1284 (9th Cir. 1974). Thus, the studies themselves need not be circulated as a supplemental EIS, provided that their findings are discussed and referenced in a properly circulated supplemental EIS. While it is true that Dr. Robert Schallenberger’s 1978 Avifaunal study, NHV-SEIS Vol. VI, appendix “K”, did provide additional information regarding the avian population and habitat of the Central Ko’olau Range, it was reasonable for defendants to conclude that this study did not provide significant new information concerning the project’s environmental effects. At defendants’ direction, Dr. Schallenberger had conducted two prior avifaunal surveys of North Halawa Valley. The results of these surveys were incorporated into an extensive discussion of the effects of the project upon the bird life in the valley. See NHV-SEIS Vol. I at 165-70. These studies concluded that H-3 would have a significant adverse impact upon such life. The 1978 study merely reinforced this conclusion. In consonance with DOT’s urban transportation policy, FHWA Region 9 reexamined the H-3 proposal to insure that the alternatives involving the rehabilitation of existing highways were given adequate consideration. The study, referred to as the “Region 9 Staff Analysis”, covered 16 different alternatives, including contra-flow bus lanes, banning of trucks during peak hours, and one-way operation of either Likelike Highway or Pali Highway during peak hours. The Region 9 Staff Analysis contained a detailed cost-benefit analysis of the different alternatives. The fact that the Secretary’s selection of the H-3 alternative instead of the recommended (T)H-3 alternative was largely based upon the results of the cost-benefit analysis indicates the significance of this information. I therefore conclude that the Region 9 Staff Analysis also is “new and significant” information within the meaning of the relevant regulations. 2. Terms of Approval. One of the terms upon which the Secretary’s concurrence in the EIS was conditioned was: That the project include all FHWA recommendations — construction of a 4-lane H-3; implementation of a one lane reversible bus lane on the Likelike; provision for passenger transfer facilities at the Likelike Highway and the H-3 interchange in conjunction with the proposed Honolulu Area Rapid Transit System; and further study of transportation system mananagement [sic] measures, including peak hour prohibition of trucks on the Likelike and Pali Highways, [emphasis added] Office of the Secretary Concurrence Memorandum (Nov. 21, 1980). Plaintiffs contend that a supplemental EIS must be prepared to reflect the required implementation of the reversible bus lane, provision for passenger transfer facilities, and the approval of the 4-lane H-3 alternative. The FHWA interpreted the condition requiring implementation of the reversible bus lane to mean that the standard highway development process for the bus lane will proceed simultaneously with the design and ultimate construction of H-3. The correctness of this interpretation was confirmed by the Director of the Office of Environment and Safety. There was testimony at trial that a project which undergoes the standard development process will not necessarily be constructed. It thus appears that the highway and the bus lane are separate projects. While it is certainly possible that an EIS for the bus lane may ultimately be necessary, the environmental effects of the bus lane need not be considered in the H-3 EIS. An EIS need not be supplemented merely because an alternative other than the one preferred by the preparer is selected. Indeed, one of the purposes of an EIS is to help a decision maker to choose among competing proposals. I find that since the 4-lane H-3 alternative was adequately discussed in the NHV-SEIS, a further supplemental EIS reflecting the selection of that alternative is not required. 3. Ho’omaluhia Park. As more fully discussed in part V.I., infra, the area surrounding the Kaneohe Flood Control Project was developed into a major regional park (Ho’omaluhia) after the windward alignment of the project was established and the 1972 EIS and 1973 Preface had been prepared. Pursuant to this court’s order of November 21, 1978, Defendants prepared a 4(f) statement addressing alternatives to the proposed constructive use of the park. This statement did not undergo the normal EIS circulation process. I find that the development of Ho’omaluhia Park and the project’s potential impacts upon it are new and significant information which must be reflected in a supplemental EIS. D. Project Approval. Plaintiffs contend a comparison of the projected construction costs and environmental and socio-economic impacts of H-3 with the expected benefits from the project renders the selection of other than a no-build alternative arbitrary and capricious and a clear error in judgment. As noted above, judicial review under NEPA is very narrow. A court may require an agency to follow procedural requirements of NEPA and consider environmental factors, but cannot determine the weight to be accorded such factors. As long as a decision is based upon legitimate considerations, it cannot be set aside as “arbitrary and capricious”. See Columbia Basin Land Protection Ass’n, 643 F.2d at 596. As stated in Strykers’ Bay Neighborhood Council v. Karlen, 444 U.S. 223, 100 S.Ct. 497, 62 L.Ed.2d 433 (1979) (per curiam), Vermont Yankee [Nuclear Power Corp. v. NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978)] cuts sharply against the Court of Appeals’ conclusion that an agency, in selecting a course of action, must elevate environmental concerns over other appropriate considerations. On the contrary, once an agency has made a decision subject to NEPA’s procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot “ ‘interject itself within the area of discretion of the executive as to the choice of the action to be taken.’ ” [citations omitted] Id. at 227, 100 S.Ct. at 500. Defendants have demonstrated the need for an improvement in trans-Koolau transportation. Whether I would have balanced the competing interests in the same manner or reached the same conclusion as did the Secretary is immaterial. I cannot set aside his determination if it was based on legitimate considerations. However, because the defendants have violated the procedural requirements of NEPA and the CEQ and DOT regulations by failing to prepare a supplemental EIS addressing the new and significant information, I must set aside the Secretary’s decision on procedural grounds and need not reach the substantive issue. Had the new information become available after the approval of the NHV-SEIS, potential relief would at best have been limited to requiring the Secretary to reconsider his decision in light of the new information. E. Location and Design Approval. 1. Prior Commitment. Plaintiffs have failed to establish that the defendants were impermissibly “committed” to the North Halawa Valley corridor prior to the H-3 corridor hearings of December 1977. Further, it is doubtful that such a commitment would in itself constitute a violation of the DOT Regs. The first H-3 corridor studies took place in 1965. The trans-Koolau corridors were re-examined in detail during the preparation of and hearings for the 1972 EIS. These studies and hearings removed from further consideration the Manoa Valley, Nuuanu Valley, Kalihi Valley and South Halawa Valley corridors. The Secretary’s 1976 determination that there existed feasible and prudent alternatives to Moanalua Valley eliminated that corridor from consideration. The only remaining trans-Koolau corridor was North Halawa Valley. The alternate corridors were again reexamined prior to the preparation of the NHV-SEIS. There has been no serious suggestion that any of these corridors are viable alternatives to North Halawa Valley or that their prior rejection should be reconsidered. It would thus be absurd to require defendants to hold further hearings as to their desirability. 2. Combined hearings. The relevant facts are not in dispute. Defendants held combined corridor and design hearings as to the H-3 North Halawa Valley (NHV) alignment of December 12-15, 1977. Simultaneous location and design approval was given on February 3, 1981. The issue before this court is whether the defendants properly combined the corridor and design hearings for the H-3 NHV alignment. A key issue with regards to these causes of action is the meaning of “project”. Plaintiffs suggest that the individual sections of the highway, e.g., the Halekou interchange, Windward viaduct and transKoolau tunnels be considered as separate “projects”, since separate construction contracts will be let for each of them. Such a restrictive definition is contrary to the intent of the relevant statutes. A highway connecting two logical termini may be considered a single project for planning purposes, even though the construction phase may be broken down into several separate contracts. See Lathan v. Brinegar, 506 F.2d 677 (9th Cir. 1974). With respect to location approval, this court has previously held that the H-3 “project” encompasses the entire highway connecting the Halawa and Halekou interchanges. [W]hatever administrative convenience may be served by dividing the proposed highway into segments, for purposes of public hearings it is one project. Construction of the Leeward segment up to the Koolau Mountains makes no sense without the Windward segment up to the other side of the Koolau Mountains, and neither segment makes sense unless both are connected by a tunnel through the mountains. Statement of Facts Conclusions of Law and Order, July 13, 1973. Further, in the Order Interpreting Injunction issued April 21, 1981, this court ruled that the NHV and Moanalua Valley alignments of H-3 were alternate routings of the same project. 23 C.F.R. § 790.5(g) (1980) permits combined corridor and design hearings to be held for projects which have had prior public hearings. Public hearings were held for the Moanalua alignment of the project. It was therefore proper for defendants to combine the corridor and design hearings for the NHV alignment. Since a valid design hearing was held, design approval was not improper on the grounds asserted in this cause of action. 3. Adequacy of Study Reports. A request for location or design approval must be accompanied by reports and other documents which, inter alia, discuss the anticipated economic, social, and environmental effects of the proposed action and alternatives under consideration. 23 C.F.R. §§ 790.9(c), 790.8(b)(2)(i) (1980). The H-3 Location/Design Study Report, NHV-SEIS, 1973 Preface and 1972 EIS were submitted as evidence of compliance with this requirement. Plaintiffs challenge the adequacy of these reports with respect to socio-economic impacts and infrastructure availability. As more fully discussed in part V.B.3., supra, the EIS adequately discusses the socio-economic impacts of the project. Similarly, I find that defendants reasonably concluded that the extensive planning process for Oahu in general and the windward side in particular will insure that future infrastructure requirements will be met. 4. Timeliness of Study Report Filing. Location and design approval is governed by 23 C.F.R. part 790 (1980). If locátion or design approval is not requested within three years after the date of the respective hearings, new hearings must be held. 23 C.F.R. §§ 790.5(d), (e) (1980). Location/Design hearings were held from December 12-15, 1977. Location/Design approval was requested on December 10, 1980. Although the reports and studies analyzing the project were somewhere within the FHWA bureaucracy on the date of the request, they did not arrive at FHWA Region 9 Office (the office where the request for approval was filed) until between two and five days after the three-year time period for requesting approval had lapsed. The decision to proceed with the project was not made until all of the required documents had been submitted. The stipulated question for this cause of action is whether the applicable regulations require that the appropriate documentation physically accompany a request for location/design approval, or whether it is sufficient that such documentation may be found as of the day of the request somewhere in the FHWA bureaucracy. To hold that the three year period during which location or design approval may be' requested is tolled only when all of the documents supporting the request are physically present in the particular FHWA office where the request is filed would inject a needless technical requirement into an already complex process. I conclude that it is sufficient that the documents are in the hands of and have been previously reviewed by the FHWA at the time of the request. F. OMB Circular A-95 Compliance. Office of Management and Budget (“OMB”) Circular A-95 (revised), 41 Fed. Reg. 2052 (Jan. 13,1976), provides for coordination between Federal, state and local agencies with respect to Federal and federally assisted projects. 23 C.F.R. part 420, subpart C, implements the regulations in OMB Circular A-95 with respect to FHWA and Urban Mass Transit Administration (“UMTA”) projects. 23 C.F.R. part 450, subpart A, defines the relationship between state Metropolitan Planning Organizations (“MPOs”) and state A-95 coordinating agencies. I find that the Defendants have complied with the above-described coordination requirements. G. Endangered Species. 1. The Oahu Creeper. This cause of action raises two legal issues: (1) whether or not the biological opinion issued by the USFWS regarding the impact of the H-3 project upon the Oahu Creeper was inadequate or otherwise improper as a matter of law and (2) whether defendants are under a legal obligation to continue the biological consultation process with the USFWS. As an initial matter, the USFWS is not a party to this lawsuit, so even if the biological opinion had been legally erroneous, this court would not have the power to force the USFWS to reconsider its decision or reinitiate consultation. Nevertheless, defendants have demonstrated that they have met their initial consultation responsibilities under the Endangered Species Act. On September 11, 1978, the USFWS issued a formal biological opinion, pursuant to section 7(b) of the Endangered Species Act, that the H-3 project was not likely to jeopardize the continued existence of the Oahu Creeper. Plaintiffs contend that this opinion was “arbitrary, capricious, an abuse of discretion, a clear error in judgment and otherwise not in accordance with law.” Complaint ¶ 355 at 74. 50 C.F.R. § 402.04 (1980) governs the consultation process under the Endangered Species Act. Plaintiffs do not allege, nor do I find, that defendants violated the procedural requirements of this regulation. Rather, plaintiffs argue that the conclusion reached by the USFWS was clearly erroneous and based upon inadequate inform