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Opponents of devetopment or a particutar activity affecting tbe environment have at times used tbe ESA to furtber tbeir own Intersts. 14 h '''I ~ ' 002~27 action. 16 U.S.C S; 1536(d). During formal consuhation, FWS is to review all relevant in- formation, evaluate the current status of the listed species, and formulate its biological opin- ion. 50 CF.R. S; 402.14(g). At the conclusion of section 7 formal con- sultation, FWS must provide the agency with its "biological opinion" on whether the agency's action will likely jeopardize the continued ex- istence of the species or adversely impact its critical habitat. 16 u.s.c S; I 536(b)(3)(A) . The biological opinion must contain (I) a summary of the information on which the opinion is based; (2) a detailed discussion of the effects of the action on the species or its critical hab. itat; and (3) the FWS' opinion on whether the action (a) is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of its crit- ical habitat (a "jeopardy" opinion), or (b) will not have such impacts (a "no jeopardy" opin- ion). 50 CF.R. S; 402.14(h) A jeopardy bio- logical opinion must include reasonable and prudent alternatives if any exist. Id. The bio- logical opinion must be based upon "the best scientific and commercial data available," 16 U.S.C S; 1536(a)(2), and failure to perform necessary and feasible tests to obtain such in- formation is a violation ofthe best scientific and commercial data standard. E.g., Roosevelt CampobelIo Int'/ Park Comm'n v. EPA, 684 F.2d 1041 (lstCir. 1982); VitlageofFa/sePass v. Watt, 565 F. Supp. 1123 (D. Alaska 1983), afl'd, 733 F.2d 605 (9th Cir. 1984). Regardless of FWS' opinion Or suggested alternatives, the federal "action agency" is still responsible for making the final decision to proceed with a given action. Roosevelt Campobetlo, 684 F.2d at 1049. Early and Informal Consultation. Early consultation is virtually identical ro formal con- sultation except that it can occur "prior to the filing of an application for a Federal permit or license." 50 C.F.R. S; 402.II(a). Informal con- sultation is a regulatory creation that amounts to little more than a label for "all discussions, correspondence, etc., between (FWS) and the Federal agency. . . .n Id. S; 402.13(a). Al- though FWS may suggest modifications to the proposed action during informal consultation, the sole purpose of informal consultation is to determine whether formal consultation or a sec- tion 7(a)(4) conference is necessal)'. The in. formal consultation period is concluded upon (I) the initiation of formal consultation (or a conference for proposed species), or (2) the federal action agency's finding, with the written concurrence of FWS, that the proposed action "is not likely to adversely affect listed species or critical habitat. . . ." Id. NR&E/SUMMER ]q93 ESA Section 7 Abuses There can be no question that opponents of development or a particular activity affecting the environment have at times used the ESA to funher their own interests. One well.publi. cized illustration was the statement by Andy Stahl of the Sierra Club Legal Defense Fund, "The northern spotted owl is the wildlife spe. cies of choice to act as a surrogate for old growth protection, and rve often thought that thank goodness the spotted owl evolved in the North- west. for if it hadn't, we'd have to genetically engineer it. It's a perfect species for use as a surrogate." Remarks of Rep. Don Young, Tbe Cost of Saving Species, in THE ENV]RONMENTAL FORUM, July/AugUSt 1990 (The Environmental Law Institute, 1990). While many ESA suppon- ers are genuinely committed to the well-being of listed species, the strict prohibitions, de- manding standards, and broad citizen suit pro- vision of the ESA make it a powerful tool of individuals and groups with their own agendas. The Perdldo Key Beach Mouse. The Per. dido Key beach mouse, a subspecies of the com- mon field mouse, was listed as an endangered species by FWS in June 1985. 50 Fed. Reg. 23,872 Oune 6, 1985). FWS also designated eighty-eight acres of critical habitat on the west- ern end of Perdido Key, a barrier island along the gulf coast of Alabama. 50 CF.R. S; 17.95 (1992). In November 1990, a local developer, DeWitt DeWeese, applied for a Corps of Engi. neers permit to construct a pier and bulkhead as part of a planned commercial development on over eight acres of his land. The DeWeese property was not pan of the designated critical habitat, being separated from it b)' a busy four- lane highway. Although studies found no evi. dence of beach mouse presence or activity on the DeWeese property, FWS nevertheless issued a jeopardy opinion on July 24, 1991. Among the "reasonable and prudent alternatives" listed in the draft biological opinion was a proposal for DeWeese to purchase over twenty-one acres of land adjacent to his development and deed ir to rhe srare for preservation as beach mouse habitat. In the face of FWS's jeopardy opinion, DeWeese modified his construction plans by eliminating the pier and bulkhead and with- drew his request for a Corps permit. However, DeWeese's plans were quickly interrupted by the filing oftwo separat'e citizen suits seeking to enjoin the development. The plaintiff marine biologist argued that an injunc. tion should issue because (I) the development constituted a section 9 "taking" under the ESA, and (2) FWS was required to designate the DeWeese property as critical habitat for the mouse. Morrill v. Lujan, 802 F. Supp. 424 (S.D.