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<br />. <br /> <br />information that alters their biological opin- <br />ion, new mitigation requirements could be <br />imposed. <br /> <br />(d) Does the "Windy Gap" method comply with the <br />prohibition in the ESA against the irreversible <br />or irretrievable commitment of resources? <br /> <br />Maybe. The key is to what extent the door has <br />been left open for future mitigation measures. <br />Courts will scrutinize biological opinions to <br />assure that projects are not "steamrolled" in <br />order to secure approval regardless of their <br />impact on endangered species. In order words, <br />the court is likely to invoke the ESA prohibi- <br />tion against irreversible or irretrievable <br />commitment if it detects that such steamrolling <br />has occurred. On the other hand, the limited <br />case authority available indicates a judicial <br />reluctance to inhibit future, ongoing biological <br />investigation. Thus, if the "~1indy Gap" actual- <br />ly constitutes n~s's best efforts in gathering <br />available biological information in the first <br />place, and biological investigations are contin- <br />uing, and the action agency has reserved the <br />right to mitigate later-discovered impacts, the <br />likelihood of judicial concurrence is maximized. <br /> <br />-7- <br />