                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                 UNITED STATES COURT OF APPEALS                     August 27, 2003
                       FOR THE FIFTH CIRCUIT
                _____________________________________           Charles R. Fulbruge III
                                                                        Clerk
                             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.
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



       *
         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.

                                                 -2-
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.


                                            -3-
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



                                          -4-
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


       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.

                                            -5-
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.



                                            -6-
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


                                           -7-
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.

                                           -8-
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
                                          -9-
             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:



                                          -10-
             . . . 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
                                         -11-
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



                                          -12-
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.




                                         -13-
