113 F.3d 1121 (9th Cir. 1997), 95-56075, Natural Resources Defense Council v. United States Dept. of the Interior

Docket Nº:95-56075.
Citation:113 F.3d 1121
Party Name:97 Cal. Daily Op. Serv. 3815, 97 Daily Journal D.A.R. 6478 NATURAL RESOURCES DEFENSE COUNCIL, a New York non-profit corporation; National Audubon Society, a New York non-profit corporation; Elisabeth Brown, Dr., an individual, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF THE INTERIOR; Secretary of the Interior; Director of the United State
Case Date:May 21, 1997
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1121

113 F.3d 1121 (9th Cir. 1997)

97 Cal. Daily Op. Serv. 3815,

97 Daily Journal D.A.R. 6478

NATURAL RESOURCES DEFENSE COUNCIL, a New York non-profit

corporation; National Audubon Society, a New York

non-profit corporation; Elisabeth

Brown, Dr., an individual,

Plaintiffs-Appellants,

v.

UNITED STATES DEPARTMENT OF THE INTERIOR; Secretary of the

Interior; Director of the United States Fish and Wildlife

Service; Regional Director of the United States Fish and

Wildlife Service, Region 1; Field Supervisor, United States

Fish and Wildlife Service, Carlsbad Field Office; United

States Department of Transportation; Secretary of the

United States Department of Transportation; Federal Highway

Administration; Administrator of the Federal Highway

Administration; Regional Administrator, Region IX, of the

Federal Highway Administration; San Joaquin Hills

Transportation Corridor Agency, Defendants-Appellees.

No. 95-56075.

United States Court of Appeals, Ninth Circuit.

May 21, 1997

Argued and Submitted Dec. 10, 1996.

Page 1122

Joel R. Reynolds and Michael D. Fitts, Natural Resources Defense Council, Inc., Los Angeles, California; Kathleen Rogers, National Audubon Society, Washington, D.C.; Craig S. Bloomgarden, Macklin Tatro, Los Angeles, California, for plaintiffs-appellants.

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Anne S. Almy, Ellen J. Durkee, James C. Kilbourne, Christiana P. Perry, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C.; Kurt Zimmerman, Assistant United States Attorney, Los Angeles, California; Robert D. Thornton, Nossaman, Guthner, Knox & Elliott, Irvine, California, for defendants-appellees.

Appeal from the United States District Court for the Central District of California Linda H. McLaughlin, District Judge, Presiding, D.C. No. CV-93-999-LHM.

Before PREGERSON, D.W. NELSON, and O'SCANNLAIN, Circuit Judges.

OPINION

PREGERSON, Circuit Judge:

This case presents the question whether the defendants violated the Endangered Species Act by failing to designate critical habitat for the coastal California gnatcatcher. Upon cross-motions for summary judgment, the district court denied the plaintiffs' motion and granted summary judgment for the defendants. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse.

FACTS

The coastal California gnatcatcher is a songbird unique to coastal southern California and northern Baja California. The gnatcatcher's survival depends upon certain subassociations of coastal sage scrub, a type of habitat that has been severely depleted by agricultural and urban development. Approximately 2500 pairs of gnatcatchers survive in southern California today.

On March 30, 1993, the U.S. Fish and Wildlife Service (the "Service") listed the gnatcatcher under the Endangered Species Act (the "Act") as a "threatened species." 58 Fed.Reg. 16742 (1993). Under section 4 of the Act, the listing of a threatened species must be accompanied by the concurrent designation of critical habitat for that species "to the maximum extent prudent and determinable." 16 U.S.C. § 1533(a)(3). The designation of critical habitat in turn triggers the protections of section 7 of the Act. Section 7 requires that federal agencies consult with the Secretary of the Interior (the "Secretary") to ensure that actions authorized, funded, or carried out by federal agencies do not harm critical habitat. Id. § 1536(a)(2).

At the time of the gnatcatcher's listing as a threatened species, the Service found that coastal sage scrub habitat loss posed "a significant threat to the continued existence of the coastal California gnatcatcher." 58 Fed.Reg. at 16748. Nevertheless, the Service concluded that critical habitat designation would not be "prudent" within the meaning of section 4 for two reasons. Id. at 16756. First, the Service claimed that the public identification of critical habitat would increase the risk that landowners might deliberately destroy gnatcatcher habitat. Second, the Service claimed that critical habitat designation "would not appreciably benefit" the gnatcatcher because most gnatcatcher habitat is found on private lands to which section 7's consultation requirement does not apply.

The Natural Resources Defense Council, the National Audubon Society, and biologist Elisabeth Brown (collectively, the "plaintiffs") challenged the Service's failure to designate critical habitat in this suit against the Service, various Service officials, the Secretary, and the U.S. Department of the Interior (collectively, the "defendants"). Each side moved for summary judgment. The district court denied the plaintiffs' motion and granted summary judgment to the defendants.

On this appeal, the plaintiffs contend that the district court erred in granting summary judgment to the defendants rather than the plaintiffs. In response, the defendants contend that the case is moot and must therefore be dismissed for lack of jurisdiction; or, in the alternative, that the district court's grant of summary judgment for the defendants should be affirmed.

STANDARD OF REVIEW

We review de novo the district court's grant of summary judgment upholding an agency decision. Southwest Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1447 (9th Cir.1996). The appropriate

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inquiry is whether the agency's decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Resources Ltd., Inc. v. Robertson, 35 F.3d 1300, 1304 (9th Cir.1993) (quoting § 706 of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A)). In making this inquiry, we ask whether the agency "considered the relevant factors and articulated a rational connection between the facts found and the choice made." Id. (quoting Pyramid Lake Paiute Tribe v. U.S. Dep't of Navy, 898 F.2d 1410, 1414 (9th Cir.1990)).

We accord a high degree of deference to an agency's interpretation of the statutory provisions and regulations it is charged with administering. Rainsong Co. v. Federal Energy Regulatory Comm'n, 106 F.3d 269, 271-72 (9th Cir.1997). Nonetheless, "[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent." Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 2781 n. 9, 81 L.Ed.2d 694 (1984).

DISCUSSION

I. Justiciability

The justiciability of the Service's failure to designate critical habitat is a threshold jurisdictional issue that we must address even though the issue was not raised at trial. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986) ("[E]very federal appellate court has a special obligation to satisfy itself ... of its own jurisdiction.") (internal quotation marks omitted).

The complaint filed by the plaintiffs in the district court challenged not only the Service's failure to designate critical gnatcatcher habitat in general, but also the Service's failure to protect the particular gnatcatcher sites disturbed by construction of the San Joaquin Hills Transportation Corridor Tollroad. The Tollroad-related claims were later mooted by the substantial completion of the Tollroad. On May 31, 1995, the parties jointly requested that the district court dismiss all Tollroad-related claims.

The defendants now contend that the mooting of the Tollroad-specific claims deprives this court of jurisdiction because the remaining programmatic challenge to the failure to designate habitat is not ripe for review. We disagree.

The test of ripeness is whether the issue presented is "sufficiently concrete for judicial resolution." Western Oil & Gas Ass'n v. Sonoma County, 905 F.2d 1287, 1290 (9th Cir.1990). In the context of environmental protection claims, we have previously held that "plaintiffs need not wait to challenge a specific project when their grievance is with an overall plan." Seattle Audubon Soc'y v. Espy, 998 F.2d 699, 703 (9th Cir.1993).

In the present case, the plaintiffs challenge the Service's final decision to exclude gnatcatcher sites from critical habitat protection. This decision eliminates the section 7 consultation requirement from the "overall plan" of gnatcatcher habitat conservation. Regardless of the status of site-specific developments, this general programmatic harm is "sufficiently concrete for judicial resolution." Western Oil, 905 F.2d at 1290. Therefore, the Service's decision not to designate critical habitat for gnatcatchers is ripe for immediate review.

II. The Service's Failure to Designate Critical Habitat

Section 4 of the Act requires that the gnatcatcher's listing as a threatened species be accompanied by concurrent designation of critical habitat "to the maximum extent prudent and determinable":

The Secretary, by regulation promulgated in accordance with subsection (b) of this section and to the maximum extent prudent and determinable--

(A) shall, concurrently with making a determination under paragraph (1) that a species is an endangered species or a threatened species, designate any habitat of such species which is then considered to be critical habitat; and

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(B) may, from time-to-time thereafter as appropriate, revise such designation.

16 U.S.C. § 1533(a)(3) (emphasis added).

The Act itself does not define the term "prudent." The Service has defined what would not be prudent, however, in the regulations promulgated under the Act. According to the regulations, critical habitat designation is not prudent "when one or both of the following situations exist":

(i) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of such threat to the species, or

(ii) Such designation of critical habitat would not be...

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