United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 7, 2002 Decided July 2, 2002
No. 01-5247
John E. Gerber, III and
Defenders of Wildlife,
Appellants
v.
Gale A. Norton, Secretary,
Department of the Interior, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 99cv02374)
Eric R. Glitzenstein argued the cause for appellants. With
him on the briefs was Katherine A. Meyer. Jonathan R.
Lovvorn entered an appearance.
Kathryn E. Kovacs, Attorney, U.S. Department of Justice,
argued the cause for appellees Gale A. Norton, et al. With
her on the brief was M. Alice Thurston, Attorney.
Lawrence R. Liebesman and Rafe Petersen were on the
brief for appellee Winchester Creek Limited Partnership.
Before: Edwards, Henderson, and Garland, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: This case involves a challenge to a
decision by the Fish and Wildlife Service to issue a permit
authorizing the otherwise unlawful "taking" of the endan-
gered Delmarva fox squirrel in connection with a proposed
residential development. Appellants contend that the Service
violated the Endangered Species Act (ESA) because it did not
allow public comment on a key component of the developer's
permit application, and because it did not make the statutori-
ly required finding that the developer's plan reduced the
impact of the taking to the maximum extent practicable.
Because appellants are correct on both counts, we reverse the
district court's grant of summary judgment against appellants
and order the case remanded for further consideration by the
Service.
I
Section 9 of the ESA makes it unlawful to "take" any
endangered species. 16 U.S.C. s 1538(a)(1)(B). A species is
"endangered" if it "is in danger of extinction throughout all or
a significant portion of its range." Id. s 1532(6). The statute
defines "take" as "to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage
in any such conduct." Id. s 1532(19). The Service's regula-
tions further define "harm" to include "significant habitat
modification or degradation where it actually kills or injures
wildlife by significantly impairing essential behavioral pat-
terns, including breeding, feeding or sheltering." 50 C.F.R.
s 17.3.
Section 10 of the ESA creates an exception to the general
ban on taking. Under that section, the Service may issue a
permit allowing "any taking otherwise prohibited by section
1538(a)(1)(B) of this title if such taking is incidental to, and
not the purpose of, the carrying out of an otherwise lawful
activity." 16 U.S.C. s 1539(a)(1)(B). Several conditions must
be met prior to the grant of an incidental take permit. The
applicant for the permit must submit a conservation plan,
known as a "Habitat Conservation Plan" or "HCP," that
describes:
(i) the impact which will likely result from such taking;
(ii) what steps the applicant will take to minimize and
mitigate such impacts ...; (iii) what alternative actions
to such taking the applicant considered and the reasons
why such alternatives are not being utilized; and (iv)
such other measures that the Secretary may require as
being necessary or appropriate for purposes of the plan.
Id. s 1539(a)(2)(A). The Service must publish notice of the
permit application in the Federal Register, and "[i]nformation
received by the [Service] as part of [the] application shall be
available to the public as a matter of public record at every
stage of the proceeding." Id. s 1539(c). The Service also
must provide an "opportunity for public comment" on the
application and related conservation plan. Id.
s 1539(a)(2)(B). Finally, before issuing the permit the Ser-
vice must make certain specified findings. These include
findings that the taking will be incidental, that it "will not
appreciably reduce the likelihood of the survival and recovery
of the species in the wild," and, most relevant here, that "the
applicant will, to the maximum extent practicable, minimize
and mitigate the impacts of such taking." Id.
Appellants John E. Gerber, III and Defenders of Wildlife
(hereinafter Defenders) challenge the issuance of an inciden-
tal take permit to the Winchester Creek Limited Partner-
ship.1 The permit authorizes the incidental taking of Delmar-
__________
1 Gerber is a wildlife biologist who resides near Winchester's
proposed development. He has "enjoyed seeing fox squirrels [in
va fox squirrels on a residential community development site
owned by Winchester. The site, known as Home Port, is
located in Queen Anne's County, Maryland, on the Eastern
Shore of the Chesapeake Bay. It is "one of the last natural
habitats" for the Delmarva fox squirrel, which has been listed
as an endangered species since 1967. Gerber v. Babbitt, 146
F. Supp. 2d 1, 3 (D.D.C. 2001); see Final Environmental
Assessment (EA) at 2 (J.A. at 649). According to the Service,
residential developments may harm fox squirrels by frag-
menting and degrading their habitat, disrupting their normal
behavior patterns, increasing their risk of being struck by
vehicles, and exposing them to attacks from pets. See Draft
HCP at 23-28 (J.A. at 411-16).
In 1997, Winchester asked the Service whether its develop-
ment would result in the taking of fox squirrels and whether
it should apply for a permit. The Service responded that, as
long as speed limits and leash laws were enforced in the area
of the project, a taking would probably not occur and hence
no permit was necessary. Defenders promptly filed a lawsuit
alleging that, in determining that Winchester did not need a
permit, the Service had violated the ESA, the National Envi-
ronmental Policy Act (NEPA), 42 U.S.C. s 4321 et seq., and
the Administrative Procedure Act (APA), 5 U.S.C. s 706.
The Service reconsidered its position and, after conducting an
"in-depth review of the scientific literature," advised Winches-
ter that the Home Port development would likely take fox
squirrels, speed limits and leash laws notwithstanding. Let-
ter from Fish and Wildlife Service (FWS) to Winchester at 1-
2 (May 22, 1998) (J.A. at 289-90). In light of the Service's
shift in position, Defenders agreed to dismiss their lawsuit.
The dismissal was subject to a joint stipulation that the
Service would publish notice of the "availability of a draft
'habitat conservation plan' ('HCP') and application for a[n]
'incidental take permit' ('ITP') for the proposed Homeport on
__________
the area] ... and will continue to enjoy viewing them as long as
they are here." Gerber Aff. p 4 (J.A. at 27). Defenders of Wildlife
is a national conservation organization with members who similarly
"enjoy observing and studying the fox squirrel." Pls.' Second Am.
Compl. p 4 (J.A. at 73).
Winchester Creek residential development project," and that
it would mail Defenders a "courtesy copy of the draft HCP,
ITP application, and NEPA documentation." Joint Stipula-
tion p 1 (J.A. at 107-08).
On December 31, 1998, the Service issued the required
Federal Register notice announcing the receipt of Winches-
ter's application for a permit. The notice stated that persons
"wishing to review the permit application, HCP, EA, and IA
[Implementing Agreement] may obtain a copy by writing the
Service's Chesapeake Bay Field Office." Notice of Availabili-
ty and Receipt of Application, 63 Fed. Reg. 72,321, 72,321
(Dec. 31, 1998). It also stated that "[d]ocuments will be
available for public inspection by written request" to that
office. Id. The draft Environmental Assessment explained
that Winchester planned to designate another "31-acre for-
ested parcel in Queen Anne's County ... for an off-site
conservation easement to compensate in part for [the] take of
[fox squirrels] at Home Port." Draft EA at 53 (J.A. at 517).
In accordance with the stipulation entered into as a condition
of dismissing the earlier lawsuit, the Service mailed Defend-
ers copies of Winchester's permit application and accompany-
ing draft HCP. That material, however, did not include a
map of, or otherwise specify the location of, the proposed 31-
acre mitigation site. Nor was that omission limited to the
package sent to Defenders; the map was absent from all
public distributions made by the agency.
Prior to publication of the Federal Register notice, Defend-
ers had submitted a Freedom of Information Act (FOIA)
request to the Service for "[a]ny and all documents that
relate to or in anyway pertain to the Homeport on Winches-
ter Creek development" or "to the conservation of the endan-
gered Delmarva fox squirrel." FOIA Request at 1 (J.A. at
550).2 After the notice was issued and Defenders received
copies of the application and HCP, the Service responded to
Defender's FOIA request. It advised that, while "the public
__________
2 The Service's HCP Handbook states that interested persons
may request permit-related documents under FOIA. See HCP
Handbook at 6-22 to 6-23 (J.A. at 850-51).
review documents ... were released to you on December 23,
1998," other documents were "subject to withholding." Let-
ter from FWS to Defenders at 1 (Jan. 8, 1999) (J.A. at 552).
Thereafter, Defenders filed extensive comments on Win-
chester's permit application. They maintained, however, that
they could not evaluate the suitability of the mitigation site as
fox squirrel habitat--and hence could not evaluate the overall
impact of Winchester's application--without knowing the
site's location. See Defenders' Comments at 7 (J.A. at 764).
They requested the location information, as well as a 30-day
extension of the comment period to address that information.
See id. at 7, 12 (J.A. at 764, 769).
The Service issued its final decision regarding the permit
on April 11, 1999, and issued the permit itself on May 13,
1999. In approving the permit, the Service stated that the
losses of live squirrels and habitat caused by the Home Port
development "need to be mitigated," and that the developer
planned to place "31.40 acres of wooded habitat off-site in a
perpetual environmental easement" as a "conservation mea-
sure[ ] designed to mitigate" those losses. Findings and
Recommendations at 13 (J.A. at 750). The Service also
acknowledged that there was a "Reduced Impact Alternative"
to Winchester's plan that "would reduce the likelihood of
take" of fox squirrels by relocating the development's access
road "away from the [squirrels'] forested edge habitat." Fi-
nal EA at 5 (J.A. at 652). It noted, however, that this
alternative had been "rejected by the applicant" because it
would entail additional costs and would delay the process of
obtaining approval from the Queen Anne's County zoning
department. Id. And although the Service conceded that
the location of the mitigation parcel was "not adequately
defined" in the documentation released to Defenders, Re-
sponse to Comments at 6 (J.A. at 775), and for the first time
attached a map of the mitigation area to the HCP, see Final
HCP, app. C (J.A. at 639-41), the agency denied Defenders'
request for a 30-day extension of the comment period, see
Response to Comments at 10 (J.A. at 779).
On July 22, 1999, following the Service's announcement of
its approval of the Home Port permit, Defenders sent the
agency a formal notification of their contention that the
Service had violated the ESA by issuing the permit. Defend-
ers again complained that the agency had "precluded the
public from meaningfully commenting" on the permit applica-
tion by failing to disclose "the location of the area relied on
for off-site mitigation of the project's adverse effects on
Delmarva Fox Squirrels." Letter from Defenders to FWS at
2 (July 22, 1999) (J.A. at 825). They noted some of the
"drawbacks to the site chosen" that they "would have pointed
out" had they known of the location during the comment
period, restated their objection to the rejection of the Re-
duced Impact Alternative, and requested a reopening of the
comment period. Id. at 3 (J.A. at 826). The Service denied
Defenders' request, replying that it "cannot find a way to
offer meaningful resolution of your allegations at this time."
Letter from FWS to Defenders (Aug. 26, 1999) (J.A. at 841).
On September 7, 1999, Defenders filed suit against the
Service, alleging (inter alia) that the agency had violated the
ESA and the APA by failing to provide the map during the
comment period, and by stating Winchester's view of the
practicability of the Reduced Impact Alternative rather than
making its own findings. On May 15, 2001, the district court
granted summary judgment in favor of the Service. The
court reasoned that, even if the Service had erred by not
making a map of the mitigation area available for public
comment, the error was harmless. The district court also
ruled that the Service had not failed to find that the Reduced
Impact Alternative was impracticable. See Gerber, 146
F. Supp. 2d at 5.3
II
Defenders appeal the district court's decision regarding
both the map and the impracticability finding. We review the
__________
3 Defenders' complaint alleged other violations of the ESA and
NEPA, which the district court dismissed as well. Defenders have
not appealed those rulings.
issues de novo, as if the agency's decision "had been appealed
to this court directly." Dr. Pepper/Seven-Up Cos. v. FTC,
991 F.2d 859, 862 (D.C. Cir. 1993). We examine those issues
under the provisions of the APA,4 and our task is to deter-
mine whether the agency's decision was made "without ob-
servance of procedure required by law," 5 U.S.C. s 706(2)(D),
or whether it was "arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law," id. s 706(2)(A).
III
Defenders' first contention is that the Service violated
section 10 of the ESA, 16 U.S.C. s 1539, by failing to make
the map of the off-site mitigation area available during the
comment period. We agree with Defenders that the Service
did violate section 10, and further agree that the violation was
not harmless.
A
Although the district court suggested that the Service was
not required to make the map available because there is "no
authority for the proposition that [plaintiffs] were entitled to
know every detail of the HCP," 146 F. Supp. 2d at 4, the
Service abandons that argument on appeal. And rightly so.
Section 10(c) expressly provides that "[i]nformation received
by the [Service] as part of any [incidental take permit]
application shall be available to the public as a matter of
public record at every stage of the proceeding." 16 U.S.C.
s 1539(c). While Winchester apparently did not physically
attach the map to the draft HCP it submitted to the Service,
Appellees' Br. at 16 n.5, there is no dispute that Winchester
did submit the map, that the map was "received by" the
Service, and that it was received "as part of" Winchester's
application for an incidental take permit. Indeed, the Service
expressly made the map part of the final HCP that was
__________
4 See Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678,
685 (D.C. Cir. 1982) ("Since the ESA does not specify a standard of
review, judicial review is governed by section 706 of the Administra-
tive Procedure Act.").
released after the comment period closed. Final HCP, app.
C (J.A. at 639-41). Accordingly, as the Service now concedes,
"[i]n the circumstances presented here, the map of the off-site
mitigation parcel had to be made available to the public,
because it was intended to be part of Winchester's applica-
tion." Appellees' Br. at 17.
The Service was also required to make the map available
pursuant to section 10(a) of the ESA, which instructs the
agency to provide an "opportunity for public comment, with
respect to a permit application and the related conservation
plan." 16 U.S.C. s 1539(a)(2)(B). That opportunity for com-
ment must be a meaningful opportunity. See American Med.
Ass'n v. Reno, 57 F.3d 1129, 1132-33 (D.C. Cir. 1995); En-
gine Mfrs. Ass'n v. EPA, 20 F.3d 1177, 1181 (D.C. Cir. 1994);
Connecticut Light & Power Co. v. Nuclear Regulatory
Comm'n, 673 F.2d 525, 530-31 (D.C. Cir. 1982). But as
Defenders quite reasonably complained, they could not mean-
ingfully comment on the mitigation value of the off-site parcel
without knowing its location. See Defenders' Comments at 7
(J.A. at 764) (noting inability to assess the suitability of the
site without knowing, inter alia, whether it was adjacent to
other development areas). And given the Service's conclusion
that the off-site mitigation area was necessary for approval of
the permit,5 there could not have been a meaningful opportu-
nity to comment on the application without a meaningful
opportunity to comment on the site. See Engine Mfrs. Ass'n,
20 F.3d at 1181 ("[T]he Administrative Procedure Act re-
quires the agency to make available to the public, in a form
that allows for meaningful comment, the data the agency used
to develop the proposed rule."). As the agency concedes,
__________
5 See Draft EA at 53 (J.A. at 517) (concluding that the acreage
was "necessary to compensate for the loss of individual [fox squir-
rels] and reproductive potential" (emphasis added)); Final EA at 26
(J.A. at 702) (stating that the "total mitigation required" included
the "31.40 acre forested parcel" (emphasis added)); Findings and
Recommendations at 13 (J.A. at 750) (stating that the "impacts need
to be mitigated" by measures that include "[p]lacing 31.40 acres of
wooded habitat off-site in a perpetual environmental easement"
(emphasis added)).
"since the parcel had been identified by Winchester [and]
examined for habitat value by the Service, ... the map
should have been included in the draft HCP." Appellees' Br.
at 17 n.7.
Finally, there is no dispute that disclosure of the map was
also mandated by the stipulation that ended the earlier
lawsuit between the parties. That stipulation required the
Service to mail Defenders a "courtesy copy of the draft HCP,
[permit] application, and NEPA documentation." Joint Stip-
ulation p 1 (J.A. at 108). Since the government concedes that
"the map should have been included in the draft HCP,"
Appellees' Br. at 17 nn.5, 7, the stipulation required the
agency to send the map to Defenders.
Although the Service agrees that it had to make the map
publicly available during the comment period, and that it did
not include a copy with the documents mailed to Defenders
and other requesters, the agency nonetheless insists that it
complied with section 10. It did so, the Service claims, by
having the map available for public inspection at its Chesa-
peake Bay Field Office. According to the agency, all Defend-
ers had to do was visit the field office; a resident official
would then gladly have produced the map for their personal
inspection.
There is, however, no contemporaneous evidence that the
map was available for inspection at the field office. When
Defenders complained in their comments that the documents
they received did not disclose "the location of the mitigation
site," Defenders' Comments at 7 (J.A. at 764), the Service did
not immediately respond that Defenders should visit the field
office. Instead, the Service "agree[d]" that the "mitigation
site is not adequately defined." Response to Comments at 6
(J.A. at 775). The Service contends that the initial Federal
Register notice announcing the Winchester application "indi-
cated" that the map was available for examination at the
Service's field office. Appellees' Br. at 16. There was,
however, no such indication in the notice. The notice stated
that documents would be mailed to requesters, and that
"[d]ocuments will be available for public inspection" in the
Chesapeake Bay Field Office. Notice of Availability and
Receipt of Application, 63 Fed. Reg. at 72,321. It did not
suggest that the documents available at the field office would
be different from those available by mail, and certainly not in
such an important respect. Finally, although the Service
submitted a post-complaint affidavit by an Assistant Regional
Endangered Species Coordinator asserting that he would
have provided the map had Defenders "requested the infor-
mation for the off-site mitigation area in a timely manner,"
Smith Decl. p 6 (J.A. at 34), we will not consider that affidavit.
Upon the Service's motion, the district court issued a protec-
tive order denying Defenders' request to conduct "discovery
... to probe the accuracy and veracity of th[at] extra-record
assertion[ ] by defendants' declarant[ ]." Gerber Rule 56(f)
Decl. p 15 (J.A. at 120); see Mem. Order at 1-2 (J.A. at 105-
06); Fed. Defs. Mem. in Supp. of Mot. for Protective Order at
2. It would be extraordinarily unfair to permit the Service to
rely on such a post-complaint factual assertion, and at the
same time allow the agency to deny its opponents the ability
to test the assertion's veracity through discovery.
The District Court suggested that the Service had inten-
tionally refused to make the map public. "[T]he omission of
the map from [plaintiffs'] courtesy copy appears to have been
deliberate," the court said, because "[t]he mitigation site was
apparently the subject of a pending real estate transaction as
to which the Service had provided Winchester Creek some
assurance of confidentiality." Gerber, 146 F. Supp. 2d at 4
n.2. On June 25, 1998, Winchester advised the Service that it
was ready to fax the agency its mitigation plans. "Prior to
doing so," however, Winchester insisted that it "must have
U.S. Fish & Wildlife Service['s] agreement that [the plans]
will not be released under FOIA." Fax from Winchester to
FWS (2:19 p.m., June 25, 1998) (J.A. at 367). The developer
required this agreement, it explained, because it had not yet
purchased the site and "public knowledge of the need could
... result[ ] in higher costs to Winchester." Id. The Service
responded the same day, assuring Winchester that it con-
curred "that the materials you are offering to send ...
qualif[y] for exemption under the Freedom of Information
Act." Letter from FWS to Winchester (June 25, 1998) (J.A.
at 369). Winchester promptly faxed the plans, noting the
agreement that "the location of the proposed site is to be
confidential." Fax from Winchester to FWS (4:06 p.m., June
25, 1998) (J.A. at 362).
We need not determine whether the Service's failure to
disclose the map was in fact deliberate in order to decide the
validity of Defenders' challenge. Whether or not the agency
intentionally kept the map from the public, and whether or
not it would have provided the map had Defenders made the
trip to the field office, we conclude that the map was not
publicly available within the meaning of section 10(c) of the
ESA.6 There is no dispute that, per the stipulation, the
package of documents sent by the Service to Defenders
should have contained the map as part of the permit applica-
tion and draft HCP. See also HCP Handbook at 6-23 (J.A.
at 851) (stating that the incidental take permit "application
package ... must be provided to all affected interests who
request the package or have a record of significant interest in
the planning program"). Defenders were thus justified in
concluding that, had there been a publicly available map, it
would have been included in the package. Nothing in the
Federal Register served "to disabuse an interested party" of
that reasonable conclusion. MCI Telecomms. Corp. v. FCC,
57 F.3d 1136, 1141 (D.C. Cir. 1995). To the contrary, in
responding to Defenders' FOIA request, the Service advised
Defenders--during the comment period--that while "the pub-
lic review documents ... were released to you on December
23, 1998," other documents pertaining to the Home Port
development were "subject to withholding under one or more
of the exceptions to FOIA," including the exemption for
__________
6 Cf. MCI Telecomms. Corp. v. FCC, 57 F.3d 1136, 1142 (D.C.
Cir. 1995) ("We need not speculate ... upon the question whether
the Commission intentionally placed its 'notice' in the most obscure
possible place, intriguing though it is; the agency's intent is beside
the point. The question is whether the notice was 'adequate to
afford interested parties a reasonable opportunity to participate in
the rulemaking process.' ").
"confidential commercial information of the submitter." Let-
ter from FWS to Defenders at 1 (Jan. 8, 1999) (J.A. at 552).
Under these circumstances, Defenders would not reason-
ably have thought that they could obtain the critically impor-
tant location map simply by visiting the Service's field office.
Our cases make clear that "an agency may not turn the
provision of notice into a bureaucratic game of hide and
seek." MCI Telecomms. Corp., 57 F.3d at 1142; see Connect-
icut Light & Power Co., 673 F.2d at 530 ("To allow an agency
to play hunt the peanut with technical information, hiding or
disguising the information that it employs, is to condone a
practice in which the agency treats what should be a genuine
interchange as mere bureaucratic sport."). Whatever the
Service's intention, it plainly misled Defenders and other
interested members of the public into believing that a map of
the mitigation site was not in the public record. It thus
violated the requirement of section 10(c) that it make the
complete permit application "available to the public," as well
as the requirement of section 10(a) that it provide the public
with a meaningful "opportunity to comment" on the applica-
tion.
B
Having concluded that the Service committed an error, we
next consider whether the error was harmless, as the district
court held. Under the APA, courts must take "due account"
of "the rule of prejudicial error." 5 U.S.C. s 706; see First
Am. Discount Corp. v. CFTC, 222 F.3d 1008, 1015 (D.C. Cir.
2000). To show that error was prejudicial, a plaintiff must
"indicate with 'reasonable specificity' what portions of the
documents it objects to and how it might have responded if
given the opportunity." McLouth Steel Prods. Corp. v.
Thomas, 838 F.2d 1317, 1323-24 (D.C. Cir. 1988) (quoting
Small Refiner Lead Phase-Down Task Force v. EPA, 705
F.2d 506, 540-41 (D.C. Cir. 1983)). Defenders have met that
requirement to an extent we have rarely seen in APA cases,
and have demonstrated as well as any plaintiffs could that
they suffered prejudice from the agency's failure to provide
an opportunity for public comment.
As we have just held, it is clear that the map of the off-site
mitigation area was indispensable if Defenders were to have a
meaningful opportunity to comment on Winchester's permit
application. When they finally did obtain the map, Defenders
specified at least three serious problems that suggested the
site would not provide adequate mitigation for the taking that
would occur at Home Port. In their pre-complaint letter,
Defenders stated that if they had known of the site's location,
they would have pointed out, inter alia, that "the site is
bordered on the west by a road (Sportsm[an] Neck Road)
that serves approximately 75 homes, ... thus raising ques-
tions about the survivability of any [fox squirrels] who do
manage to occupy the site." Letter from Defenders to FWS
at 3 (July 22, 1999) (J.A. at 826). In their post-complaint
filings, Defenders further contended that the site borders
another residential subdivision (Mainbrace) that is currently
under development, a circumstance--like the road--that
would expose the fox squirrels to domestic pets and automo-
bile traffic, thus casting further doubt on the suitability of the
mitigation site as a refuge. They also charged that the
mitigation site was already protected by an open-space cove-
nant, and hence that its designation by Winchester would not
add any new protection for the fox squirrels. See Gerber Aff.
p 15 (J.A. at 30).
Although the district court held that "plaintiffs have not
shown that they would have offered any additional commen-
tary if they had been shown the map," 146 F. Supp. 2d at 4,
the Service does not seriously dispute that Defenders have
satisfied the specification requirement. Instead, the agency
contends that, even without benefit of comments from De-
fenders, it "knew about the potential for development adja-
cent to the mitigation" site and was "aware of the location of
Sportsman Neck Road" when it decided to grant the permit.
Appellees' Br. at 23-24. In support of this contention, the
Service principally relies on two documents: a discussion of
the adjacent Mainbrace subdivision submitted by Winchester
and a map of the mitigation site. Id. (citing J.A. at 375-82).
Neither is sufficient to overcome Defenders' showing of prej-
udice.
First, we are not at all convinced from these citations that
the Service did "know" of the three problems that Defenders
have identified with respect to the mitigation site. Having
Winchester's view that "significant development" on the
Mainbrace parcel was "unlikely" was hardly the same as
having Defenders' view, as the developer understandably
downplayed the potential for development in the area of the
mitigation site. See Letter from Winchester to FWS at 1
(July 28, 1998) (J.A. at 377). The Winchester submission did
not even mention Sportsman Neck Road, so the most the
Service can say about that problem is that it was "aware of
the location" because it had a map on which the road was
included. Needless to say, however, possessing a map that
shows the physical location of a road is not the same thing as
knowing the problems that the road may pose. Finally, at
oral argument the Service conceded that there was no pre-
complaint document of any kind that could have drawn the
Service's attention to the third problem identified by Defend-
ers: the fact that an open-space covenant already existed on
the mitigation site, thus drawing into question whether plac-
ing a conservation easement on the site added anything to
existing protections for fox squirrels.
Second, "knowing" is not, in any event, the same as actually
considering the problems raised by Defenders. The Service
cannot point to any discussion in the agency's own decisional
documents that addresses any of the three problems plaintiffs
highlighted. The best the agency can muster is a memoran-
dum to the file, dated more than four months after Defenders
filed their complaint, collecting documentation purportedly
showing that the Mainbrace subdivision and Sportsman Neck
Road "were ... considered during the development and
review of the off-site mitigation package." Mem. to File at 1
(Jan. 31, 2000) (J.A. at 890); see also Letter from FWS to
Defenders at 2 (Feb. 4, 2000) (J.A. at 924) (post-complaint
letter asserting that the agency "was aware of the Mainbrace
development" and "considered" impacts from existing roads
during the decisionmaking process). But the only pre-
complaint documents cited in the memorandum that address
those points were prepared or submitted by the developer,
not by the agency, and so have the same self-interest deficien-
cy noted above.
The Service also contends that any error it may have made
by not providing a meaningful opportunity for comment prior
to approval of the permit was rendered harmless by the fact
that, after hearing Defenders' post-decision comments, the
agency "reaffirmed its decision." Appellees' Br. at 22. The
only pre-complaint evidence of such a reaffirmation cited by
the Service is its August 26, 1999 response to Defenders'
formal notification that the Service had violated the ESA.
That document, however, does not respond to or even men-
tion the substantive concerns raised by Defenders; it merely
asserts, without elaboration, that "it is our opinion that we
acted with proper process and within the law." Letter from
FWS to Defenders (Aug. 26, 1999) (J.A. at 841). It is
therefore insufficient to sustain the agency's decision. See
Appalachian Power Co. v. EPA, 249 F.3d 1032, 1059 (D.C.
Cir. 2001) ("This Court is obligated to overturn a rulemaking
as arbitrary and capricious where the [agency] has failed to
respond to specific challenges that are sufficiently central to
its decision." (internal quotation marks omitted)); see also
Baltimore Gas & Elec. Co. v. United States, 817 F.2d 108, 116
(D.C. Cir. 1987).
The Service is therefore left with the argument that its
procedural error was harmless because, after Defenders filed
their complaint and elaborated on their concerns, the agency
nonetheless concluded that it would not have changed its
decision had it known of those concerns at the time it issued
the permit. See Appellees' Br. at 22; Pennington Decl. pp 8-
13 (J.A. at 38-40) (post-complaint declaration of assistant field
office supervisor); Letter from FWS to Defenders at 1-2
(Feb. 4, 2000) (J.A. at 923-24) (post-complaint letter from
field office supervisor). We do not generally give credence to
such post hoc rationalizations, but rather "consider only the
regulatory rationale actually offered by the agency during the
development of the regulation." Grand Canyon Air Tour
Coalition v. FAA, 154 F.3d 455, 469 (D.C. Cir. 1998); see
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156,
168 (1962). That rule is particularly appropriate in a case like
this, because the alternative is to create a regulatory Catch-
22: If plaintiffs fail to detail the issues upon which they would
have commented, they lose their challenge for failure to
satisfy the "reasonable specificity" requirement of the harm-
less error rule; but if plaintiffs do specify what they would
have said, the agency may simply thank them for their
specificity and announce that it has nonetheless reached the
same conclusion. Such an approach would eviscerate the
ESA's notice requirements, and we therefore cannot condone
it. Cf. Sugar Cane Growers Coop. v. Veneman, 289 F.3d 89,
96 (D.C. Cir. 2002). In this case, appellants "have presented
enough to show that on remand they can mount a credible
challenge to the [issuance of the permit] and were thus
prejudiced by the absence of an opportunity to do so before"
the agency issued the permit. Utility Solid Waste Activities
Group v. EPA, 236 F.3d 749, 755 (D.C. Cir. 2001). That is all
that is required to defeat the Service's claim of harmless
error.7
We conclude that the Service violated the ESA by failing to
inform Defenders of the location of the mitigation site, and
that the violation was not harmless. At the same time, we
__________
7 The principal harmless error cases cited by the Service and
the district court are not to the contrary. In Steel Manufacturers
Ass'n v. EPA, we held that "petitioners' lack of opportunity to
comment on one of the agency's rationales for setting" a zinc
standard was harmless error "because EPA had adequate and
independent grounds" for setting the standard. 27 F.3d 642, 649
(D.C. Cir. 1994) (emphasis added). In Chemical Manufacturers
Ass'n v. EPA, the Fifth Circuit held that EPA's failure to publish
certain data was harmless because, even without that data, the
petitioner "was fully able to make" the challenge that it wanted to
make to an EPA effluent limitation. 870 F.2d 177, 202, clarified,
885 F.2d 252 (5th Cir. 1989). In the instant case, the Service does
not offer a ground independent of the mitigating value of the
designated site that would have justified issuance of the incidental
take permit, and Defenders were not able to challenge the value of
that site without knowing its location.
cannot fail to note that the Service could easily have avoided
the prolonged litigation that has transpired over this issue.
All it had to do was grant Defenders' reasonable request for a
30-day extension to comment on a map that the agency
concedes should have been included in the draft HCP from
the outset.
IV
Defenders' second contention is that the issuance of the
incidental take permit violated section 10 of the ESA because
the Service failed to find that the developer would minimize
the impacts of the taking "to the maximum extent practica-
ble." 16 U.S.C. s 1539(a)(2)(B). It is plain on the face of the
statute that it is the Service (as delegatee of the Secretary of
the Interior) that must make this finding. See id. (providing
that a permit shall issue "[i]f the Secretary finds," inter alia,
that "the applicant will, to the maximum extent practicable,
minimize and mitigate the impacts of such taking"). Indeed,
the agency's own handbook so states. See HCP Handbook at
7-3 (J.A. at 852) (declaring that, while "[t]he applicant decides
during the HCP development phase what measures to include
in the HCP ..., the Service[ ] ultimately decide[s], at the
conclusion of the permit application processing phase, wheth-
er the mitigation program proposed by the applicant has
satisfied this statutory issuance criterion") (emphasis in origi-
nal). Accordingly, both parties agree that, before issuing the
permit, the Service was obliged to find independently that no
practicable alternative to Winchester's development plan
would minimize the taking of fox squirrels.
We cannot conclude that the Service independently made
such a finding. To the contrary, the Service found, both in its
draft and final Environmental Assessment, that there was a
"Reduced Impact Alternative" that "would reduce the likeli-
hood of take" of fox squirrels: relocating the Home Port
project's access road away from the squirrels' habitat. Draft
EA at 5 (J.A. at 467); Final EA at 5 (J.A. at 652). According
to the Service, this alternative would have reduced the num-
ber of animals killed or injured by automobiles, "the leading
cause of fox squirrel 'takes.' " Gerber, 146 F. Supp. 2d at 3;
see Appellees' Br. at 27. Indeed, the developer itself ac-
knowledged that this alternative "would greatly reduce take
of [fox squirrels] by providing an adequate buffer from the
wood's edge to existing structures." Draft HCP at 56 (J.A. at
444). Accordingly, the Service expressly "requested a modifi-
cation to the applicant[']s design plan which would provide for
a relocation (or shift) of the right-of-way entrance road ...
away from the ... forested edge habitat." Draft EA at 5
(J.A. at 467); Final EA at 5 (J.A. at 652).
Winchester, however, rejected the requested alternative,
and the Service nonetheless issued the permit. Given the
Service's finding that moving the road would reduce the
taking of squirrels, the agency could not have issued the
permit consistent with section 10(a) without making a finding
that the Reduced Impact Alternative was impracticable. But
there is no evidence in the record that the Service ever made
such a finding. It did repeatedly observe that the developer
had rejected the alternative. See Final EA at 5 (J.A. at 652)
(stating that "[t]his alternative was rejected by the appli-
cant"); Draft EA at 5 (J.A. at 467) (same). And it noted that
Winchester did so out of concern that changing the design
would entail additional costs and delay the process of obtain-
ing approval from the county zoning department. See Final
EA at 5 (J.A. at 652). But the Service was careful to state
that these were the developer's views. Id. Indeed, the
agency's decisional documents do not contain any analysis
whatsoever as to whether implementation of the Reduced
Impact Alternative would actually result in additional costs
and delay, or whether the magnitude of such costs or delay
would render the alternative impracticable. To the contrary,
the Service declared that "no supporting economic analysis
was sought or considered." Response to Comments at 6 (J.A.
at 775).
When a statute requires an agency to make a finding as a
prerequisite to action, it must do so. Merely "[r]eferencing a
requirement is not the same as complying with that require-
ment." Sugar Cane Growers Coop., 289 F.3d at 97. And
"[s]tating that a factor was considered"--or found--"is not a
substitute for considering" or finding it. Getty v. Federal
Savings & Loan Ins. Corp., 805 F.2d 1050, 1055 (D.C. Cir.
1986); see id. at 1057 (holding that a "conclusory recitation"
failed to satisfy a statutory requirement that the agency
"consider" a specified factor). Nor may the agency delegate
its responsibility to the regulated party. See State of Idaho
v. ICC, 35 F.3d 585, 596 (D.C. Cir. 1994) (holding that the
ICC failed to meet its responsibilities under NEPA by "de-
ferr[ing] not only to the judgments of other agencies, but also
to that of Union Pacific, the licensee"); Illinois Commerce
Comm'n v. ICC, 848 F.2d 1246, 1259 (D.C. Cir. 1988) (holding
that the agency "may not delegate to parties and intervenors
its own responsibility to independently investigate and assess
the environmental impact of the proposal before it"). Be-
cause the Service did not make the independent finding
required by the ESA as a prerequisite to issuance of an
incidental take permit, issuance of the permit violated the
statute.
V
In the course of approving the incidental take permit for
the Home Port development, the Fish and Wildlife Service
violated two requirements of the ESA. It did not make
available for public comment critical information received in
connection with Winchester's permit application. See 16
U.S.C. s 1539(a)(2)(B), (c). And it did not make the statuto-
rily mandated finding that the developer's plan would mini-
mize the negative impact on the endangered Delmarva fox
squirrel to the maximum extent practicable. See id.
s 1539(a)(2)(B)(ii). As a consequence, the Service issued the
permit "without observance of procedure required by law," 5
U.S.C. s 706(2)(D), and acted "otherwise not in accordance
with law," id. s 706(2)(A). We therefore reverse the district
court's grant of summary judgment, and remand to the
district court with instructions to remand to the agency for
further proceedings. See Sugar Cane Growers Coop., 289
F.3d at 98.
So ordered.