Plaintiffs filed action seeking declaratory injunctive relief regarding two incidental take permits (ITPs) issued by the FWS for the construction of two isolated high-density housing complexes in habitat of the endangered Alabama beach mouse (Peromyscus polionotus ammobates).

Take is defined as, "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct.

"[4] In 1982, Congress amended the ESA to allow limited take of listed threatened and endangered species to lawful development projects.

[5] To mitigate possible take of listed species, Section 10(a) of the ESA requires that the parties obtaining an ITP must submit a Habitat Conservation Plan (HCP).

It was founded in 1892 by John Muir in San Francisco, California, and is one of America's oldest, largest, and most influential grassroots environmental organizations.

It is a federal government agency within the United States Department of the Interior dedicated to the management of fish, wildlife, and natural habitats.

The mission of the agency is "working with others to conserve, protect, and enhance fish, wildlife, plants and their habitats for the continuing benefit of the American people.

[12] At the time of listing, 671 acres of beach mouse habitat remained on the Fort Morgan Peninsula on the Alabama coast.

The regional office stated that the effects of the Fort Morgan project were the largest of any beach mouse HCP to date, but provided the least mitigation.

Second, the Sierra Club claimed that the FWS failed to develop standards to determine the appropriate amount of mitigation necessary for the survival of the beach mouse.

[5] The Handbook states that "the Service should not apply inconsistent mitigation policies for the same species, unless differences are based on biological or other good reasons and are clearly explained.

[13] Third, the Sierra Club also challenged the plan because the sources which were intended to fund the offsite mitigation efforts, remained unnamed.

The NEPA requires that federal agencies like the FWS consider the environmental consequences of proposed actions to ensure fully informed and well-considered decisions.

[13] Without analysis or consideration, the court concluded that the FWS cannot support its decision that the amount of mitigation funding was adequate and found the issuance of permits arbitrary and capricious.

[1] Additionally, the court held that the FWS's reliance on unnamed sources for offsite mitigation was contrary to the law and unsupported by any factually reliable basis in the Administrative Record.

[5] Although environmental groups have challenged a number of incidental take permits in court, judges typically defer to the expert judgment of the FWS.

This sets the stage for regulatory federal agencies being held accountable for noncompliance of environmental statutes and irrational decision making.