Sierra Club v. GALE NORTON, Secretary of the United States Department of Interior

United States Court of Appeals
Fifth Circuit
F I L E D
August 27, 2003
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________________
No. 03-40710
_____________________________________
SIERRA CLUB,
Plaintiff - Appellant,
v.
GALE NORTON, Secretary of the United States Department of Interior; UNITED
STATES NATIONAL PARK SERVICE; UNITED STATES FISH AND
WILDLIFE SERVICE,
Defendants - Appellees,
BNP PETROLEUM CORP, BNP Petroleum Corporation; COMMISSIONER OF
THE TEXAS GENERAL LAND OFFICE,
Intervenor Defendants -
Appellees.
__________________________________________________
Appeal from the United States District Court
For the Southern District of Texas
(C-02-163)
__________________________________________________
Before DAVIS, SMITH and DUHÉ, Circuit Judges.

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* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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PER CURIAM*:
This is an appeal form the district court’s dismissal of Sierra Club’s claims
under the Endangered Species Act against the Secretary of the Department of the
Interior, the United States National Park Service and the United States Fish and
Wildlife Service. The Sierra Club alleged that the government failed to comply with
Section 7 of the Endangered Species Act when it adopted an Oil and Gas
Management Plan for the Padre Island National Seashore and granted BNP
Petroleum Corporation a site-specific drilling permit for activities on the Seashore.
For the reasons that follow, we affirm.
I.
The Sierra Club brought suit against the United States Department of the
Interior and two of its agencies, the National Park Service (NPS) and the Fish and
Wildlife Service (FWS), alleging that the NPS failed to follow the administrative
procedures in the Endangered Species Act (ESA) before adopting an Oil and Gas
Management Plan (OGM Plan) covering oil and gas operations on the Padre-Island
National Seashore (Seashore). The Sierra Club also claimed that NPS violated the
same ESA provisions when it approved site-specific operations for BNP’s drilling

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activities at Lemon and Lemon Seed well sites without conducting formal
consultation with the FWS. The Sierra Club sought injunctive and declaratory
relief.
Congress created the Seashore in 1962 on Padre Island, a barrier island
located off the coast of Texas. Valuable oil and gas reserves exist under the
Seashore and the adjacent waters. Pursuant to the enabling legislation, Texas and
the individual landowners retained the mineral rights and the right to enter the
Seashore and make reasonable use of the surface subject to regulation by the
Department of the Interior.
The Seashore is one of only two nesting grounds for the Kemp’s ridley sea
turtle, an endangered species under the ESA. The female turtles come onto the
beach between April and July to lay their eggs in nests covered by sand. After
incubating in the sand for about 50 days, the turtles hatch and return to the sea.
The United States Geological Survey (Survey) and the NPS established an
incubation program to encourage the Kemp’s ridleys to use the Seashore as a
nesting site and to improve survival rates. Volunteers comb the beaches on ATV’s
looking for turtle tracks that lead to a nest so that the eggs may be removed to a
nearby incubation facility. The record reflects that not all of the nests are located.

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The baby turtles are then returned to the beach under controlled conditions to
“imprint” and return to the sea. This imprinting allows the turtles to return to the
same beach for breeding. From 1979 through 2001, 45 nests were confirmed on the
Seashore. The largest number of nests, approximately 23, were located on the
Seashore in 2002.
In March 2001, the NPS published an Oil and Gas Management Plan (OGM
Plan) for the Seashore after developing a detailed environmental impact statement as
required by the National Environmental Protection Act. This Plan sets forth the
NPS’s policy for managing the exploration, development and transportation of the
minerals located beneath the Seashore. The OGM Plan specifies some areas as
Sensitive Resource Areas which will be closed to drilling and operations. The OGM
Plan summarizes all of the existing statutory and regulatory requirements for oil and
gas operations on public lands. The OGM Plan also includes a list of operating
stipulations and mitigation measures. The OGM Plan does not provide for granting
final approval for any drilling activities. Before drilling operations may begin, an
operator must obtain a site-specific drilling permit from the NPS which must comply
with all statutes and regulations.
In November 2001, BNP Petroleum Corporation submitted a Plan of

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2 NPS granted BNP a site-specific permit to BNP to drill another well, the Dunn-
Merdoc well, on the Seashore from March to October 2002.
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Operation to the NPS to drill and produce the Lemon/Lemon Seed wells.2
Following the requirements of the National Environmental Policy Act, a draft
environmental assessment was made available for public comment in April 2002.
The environmental assessment was revised and made available for a second round
of public comments in July 2002. In November 2002, the NPS issued a Finding of
No Significant Impact for the Lemon/Lemon Seed wells. This satisfied the
requirements of the National Environmental Protection Act.
To comply with the ESA, the NPS and the FWS engaged in discussions
regarding the potential impacts of the project on the Kemp’s ridleys. NPS drafted a
biological assessment and circulated it to the FWS and the Survey for review.
Following comments made by the FWS, NPS revised the biological assessment and
circulated it again. FWS made additional comments and suggested refinements.
NPS completed the biological assessment in July 2002. The biological assessment
concluded that BNP’s activities were not likely to adversely affect any endangered
species and included numerous mitigation measures and conditions to protect the
Kemp’s ridleys.
As the district court recognized, beaches are considered public roadways

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under the Texas Open Beaches Act. The record reflects that two and four-wheeled
vehicles travel extensively on the Seashore. This traffic obeys a 25 mph speed limit,
but is otherwise mostly unrestricted.
BNP’s operations require the use of eighteen-wheeled vehicles on the beach.
The biological assessment suggested, and BNP has incorporated, several mitigating
measures to reduce the risk that the vehicles will harm the Kemp’s ridleys.
Employees are required to undergo training to learn to detect and avoid nests. Daily
morning patrols canvass the beach before any trucks cross it. BNP’s trucks are
required to “caravan whenever possible” and monitors ride in front of the eighteen-
wheelers to spot for nests. The trucks also obey a 15 mph speed limit, and all of the
ruts left by the trucks must be back-filled. All lights at the drilling site are directed
away from the beach to prevent the turtles from becoming disoriented.
The Sierra Club filed suit against the Secretary of the Department of the
Interior, the NPS and the FWS seeking injunctive and declaratory relief under the
ESA. BNP and the Texas General Land Office intervened. The district court held
that it lacked subject matter jurisdiction over the Sierra Club’s claims regarding the
OGM Plan, and the NPS did not act arbitrarily in informally consulting the FWS
before granting BNP site-specific well permits for the Lemon/ Lemon Seed wells.

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The Sierra Club timely appealed, and this court has jurisdiction to review the district
court’s summary judgment ruling pursuant to 28 U.S.C. § 1291.
II.
The Sierra Club first argues that the NPS violated Section 7 of the ESA by
failing to consult with FWS and failing to prepare a biological opinion before
adopting the OGM Plan for the Padre Island National Seashore. After reviewing the
record, we agree with the district court that we do not have jurisdiction to review
the OGM Plan.
The Sierra club argues that the ESA’s citizen-suit provision, 16 U.S.C. §
1540(g)(1), expressly authorizes judicial review in this case. We agree with the
district court that this argument is foreclosed by the Supreme Court’s decision in
Bennett v. Spear, 520 U.S. 154 (1997). Like the petitioners in Bennett, the Sierra
Club is challenging the Secretary’s failure to comply with a nondiscretionary duty
imposed by 16 U.S.C. § 1536. The Supreme Court clearly held that the ESA does
not provide jurisdiction for this claim.
The Sierra Club next argues that even if the ESA does not provide
independent jurisdiction for this claim, the OGM Plan is subject to judicial review
under the Administrative Procedure Act, “which authorizes a court to ‘set aside

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agency action, findings, and conclusions found to be . . . arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.’” Bennett at 174
(citing 5 U.S.C. § 706). The APA limits judicial review to agency actions made
reviewable by statute and “final agency actions.” See 5 U.S.C. § 704. Final agency
actions are actions that must (1) “mark the ‘consummation of the agency’s
decisionmaking process” and (2) “be one by which ‘rights or obligations have been
determined,’ or from which ‘legal consequences will flow.’” Bennett at 178
(internal citations omitted). For this court to have jurisdiction, the “final agency
action” must be “an identifiable action or event.” Lujan v. National Wildlife Fed’n,
497 U.S. 871, 899 (1990).
After reviewing the OGM Plan, we are satisfied that the district court
correctly held that the OGM Plan did not constitute final agency action subject to
judicial review. As the district court recognized, the OGM Plan does completely
close some Sensitive Resource Areas to drilling and exploration activities.
However, the Plan appears to be nothing more than a general statement of the
NPS’s policy, a collection of the governing statutes and regulations that govern and
affect drilling in the Seashore, and suggested mitigation measures whose purpose is
to “[p]rovide[] pertinent information to oil and gas owners and operators that will
facilitate operations planning and compliance with all applicable regulations.” U.S.

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DEP’T OF THE INTERIOR NAT’L PARK SERV., PADRE ISLAND NAT’L SEASHORE OIL
AND GAS MANAGEMENT PLAN (2000), NPS Doc. #343, p. 1. The Plan is not the
consummation of the agency’s decision making process because it does not
establish any rights or obligations. Before the NPS may allow any drilling on the
Seashore, a complete environmental review is required for each site-specific permit.
Additionally, the Sierra Club’s challenge to the OGM Plan is the type of
programmatic review that this court held to be unreviewable under the APA in
Sierra Club v. Peterson, 228 F.3d 559 (5th Cir. 2000). Although the Sierra Club may
not challenge the OGM Plan as a whole because it is does not represent final agency
action, Peterson clearly supports the Sierra Club’s right to challenge individual
drilling permits later granted by the NPS.
III.
The Sierra Club next argues that the NPS violated Section 7 of the ESA by
granting BNP a drilling permit for the Lemon and Lemon Seed wells without
conducting a formal consultation with the FWS.
Section 7 of the ESA provides:
Each Federal agency shall, in consultation with and with
the assistance of the Secretary, insure that any action
authorized, funded, or carried out by such agency
(hereinafter in this section referred to as an "agency

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action") is not likely to jeopardize the continued existence
of any endangered species or threatened species or result
in the destruction or adverse modification of habitat of
such species which is determined by the Secretary, after
consultation as appropriate with affected States, to be
critical, unless such agency has been granted an
exemption for such action by the Committee pursuant to
subsection (h) of this section. In fulfilling the requirements
of this paragraph each agency shall use the best scientific
and commercial data available.
16 U.S.C. § 1536(a)(2). The regulations promulgated under this statute provide for
two types of consultation procedures between the Secretary and the consulting
federal agency, formal and informal. The first step in the consultation process is the
preparation of a biological assessment by the consulting agency which includes an
initial determination of whether any endangered or threatened species “may be
present in the area of [] proposed action” and whether the species is “likely to be
affected.” 16 U.S.C. § 1536(c); 50 CFR § 402.12. If listed species are present and
likely to be affected by the proposed action, the consulting agency must prepare a
formal biological opinion addressing a detailed discussion of the effects of the
proposed action on the listed species and a recommendation of whether the
proposed action is likely to “jeopardize” the species. 50 C.F.R. § 402.14(h). The
regulations include several exceptions to the preparation of a formal biological
opinion. Relevant to this case, a formal biological opinion is not required if:

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. . . as a result of the preparation of a biological
assessment under § 402.12 or as a result of informal
consultation with the Service under § 402.13, the Federal
agency determines, with the written concurrence of the
Director, that the proposed action is not likely to
adversely affect any listed species or critical habitat.
50 C.F.R. § 402.14(b)(1). The regulations define informal consultation:
Informal consultation is an optional process that includes
all discussions, correspondence, etc., between the Service
and the Federal agency or the designated non-Federal
representative, designed to assist the Federal agency in
determining whether formal consultation or a conference
is required. If during informal consultation it is determined
by the Federal agency, with the written concurrence of the
Service, that the action is not likely to adversely affect
listed species or critical habitat, the consultation process
is terminated, and no further action is necessary.
50 C.F.R. § 402.13(a). During informal consultation, an agency may also suggest
modifications to the proposed action to avoid the likelihood of adverse effects to a
listed species. 50 C.F.R. § 402.13(b).
The Sierra Club argues that in this case, the NPS acted unreasonably in
deciding not to conduct a formal consultation with the FWS. The Sierra Club points
to the environmental assessment as evidence that a formal biological opinion was
necessary in this case to determine the likely affects of BNP’s proposed drilling
activities on the Kemp’s ridley sea turtle. The Sierra Club also argues that the NPS
did not have enough data to determine that the project would not have a likely

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adverse affect on the Kemp’s ridleys. The Sierra Club seeks to enjoin BNP’s
activities during the nesting season until a formal biological opinion is developed.
Although our review of the district court’s summary judgment ruling is de
novo, our review of the NPS’s decision to consult informally with the FWS is
limited to whether the decision was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Sierra Club v.
Yeutter, 926 F.2d 429, 439 (5th Cir. 1991). A reviewing court must determine
whether “the decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment.” Id. (internal citation omitted).
We agree with the district court that the NPS’s decision not to engage in a
formal consultation with the FWS was not arbitrary or capricious. The NPS clearly
identified the possible effects of the project on the Kemp’s ridley in its
environmental assessment and compared those likely impacts with the likely impacts
of taking no action. The NPS considered the impact of BNP’s use of as many as 20
eighteen wheeled trucks during the drilling period in cumulation with the existing
beach traffic which averages more than 500,000 trips annually. The NPS noted that
there has not been a documented case of a Kemp’s ridley being crushed by traffic in
the more than 20 years that the beach has been open to traffic and concluded that

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the risk is low when past nesting activity is taken into consideration. U.S. DEP’T OF
THE INTERIOR NAT’L PARK SERV., BNP PETROLEUM CORP. LEMON/LEMON SEED
UNIT WELLS NO. 1-1000s AND 1-1008s ENVIRONMENTAL ASSESSMENT 74-81
(2002), NPS DOC #612.
The NPS also sought the involvement of the FWS and the record reflects an
extensive amount of correspondence between the two agencies. As a result of these
discussions, the NPS required BNP to implement a long list of mitigation measures
to further reduce or eliminate any possible risk to the Kemp’s ridleys. When the
record is viewed as a whole, we cannot say that the NPS acted unreasonably in
granting BNP site-specific permits for the Lemon and Lemon Seed wells.
IV.
For the reasons stated above, we AFFIRM the Order of the district court
dismissing the Sierra Club’s suit.
AFFIRMED.

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