174 F.3d 1178 (10th Cir. 1999), 97-2370, Forest Guardians v. Babbitt

Docket Nº:97-2370.
Citation:174 F.3d 1178
Party Name:FOREST GUARDIANS, a non-profit New Mexico corporation, and Defenders of Wildlife, a non-profit Washington, D.C. corporation, Plaintiffs-Appellants, v. Bruce BABBITT, Secretary of the Interior, Defendant-Appellee.
Case Date:April 22, 1999
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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174 F.3d 1178 (10th Cir. 1999)

FOREST GUARDIANS, a non-profit New Mexico corporation, and

Defenders of Wildlife, a non-profit Washington,

D.C. corporation, Plaintiffs-Appellants,

v.

Bruce BABBITT, Secretary of the Interior, Defendant-Appellee.

No. 97-2370.

United States Court of Appeals, Tenth Circuit

April 22, 1999

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[Copyrighted Material Omitted]

Page 1180

Matt Kenna, Kenna & Hickcox, Durango, Colorado, for Plaintiffs-Appellants.

James C. Kilbourne, Attorney, Department of Justice (Lois J. Schiffer, Assistant Attorney General; John J. Kelly, United States Attorney; John W. Zavitz, Assistant United States Attorney; Ellen J. Durkee, Attorney, Department of Justice; and Warigia Bowman, Attorney, Department of Justice, with him on the briefs), Washington, D.C., for Defendant-Appellee.

Before PORFILIO, EBEL and KELLY, Circuit Judges.

ORDER

This matter comes on for consideration of appellee's petition for rehearing and suggestion for rehearing en banc. Upon consideration whereof, the petition for rehearing is denied by the panel that rendered the decision. The Court will, however, amend the opinion filed on December 22, 1998 [164 F.3d 1261], as follows:

The first sentence of the first full paragraph in column two at 164 F.3d at 1269of the West's Federal Reporter advance sheets (first sentence of first full paragraph on page 20 of our slip opinion) is amended to read: Even in mandamus cases, which inherently involve court discretion, we have often spoken in strong, and occasionally even absolute, language with regard to the court's duty to enforce agency action mandated by Congress.

The first sentence of the first full paragraph in column two at 164 F.3d at 1274 of the West's Federal Reporter advance sheets (first sentence of first full paragraph on page 34 of the slip opinion) is amended to read: While we hold that the Secretary must be ordered to comply with his statutory duty to publish a final regulation regarding designation of the critical habitat for the silvery minnow without regard to his preferred priorities, any order now to impose a new deadline for compliance must consider what work is necessary to publish the final rule and how quickly that can be accomplished.

The last paragraph of the opinion, at 164 F.3d at 1274 of the West's Federal Reporter advance sheets (page 35 of the slip opinion) is amended to read: We REVERSE the district court's denial of plaintiffs' motion to review agency action, VACATE the stay order, and REMAND to the district court to order the Secretary to publish, as soon as possible, "a final regulation, based on such data as may be available at that time, designating, to the maximum extent prudent," the critical habitat for the Rio Grande silvery minnow, as is required by 16 U.S.C. § 1533(b)(6)(C)(ii).

An amended copy of this opinion is attached to this order.

A copy of the petition was circulated to all active judges of the court. No judge called for a poll. Consequently, the en banc suggestion is denied.

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EBEL, Circuit Judge.

In 1991, the administrative process was set in motion to list the Rio Grande silvery minnow as an endangered species and designate its critical habitat under the Endangered Species Act of 1973 and its subsequent amendments ("ESA" or "Act"). In July 1994, the Secretary of the Interior ("Secretary") listed the fish as an endangered species, but failed to issue a rule regarding its critical habitat. By statute, a final rule designating the silvery minnow's critical habitat was due March 1, 1995. That date passed without a critical habitat designation, and to date the Secretary has not designated the critical habitat for the silvery minnow. On April 4, 1997, two environmental organizations brought an action in federal district court to compel the Secretary to designate the critical habitat for the silvery minnow within 30 days. The Secretary, while admitting that he had violated the timing requirements of the ESA, asked the district court to stay the action until October 1999. The Secretary explained that it was impossible for him to meet all of the ESA deadlines because of a backlog created by a 13-month spending moratorium imposed by Congress which lasted from April 1995 through April 1996. Despite the fact that the Secretary's duty to designate critical habitat inured before Congress enacted the moratorium and that the Secretary had not fulfilled his duty in the two-and-one-half years since the moratorium expired, the district court credited the Secretary's impossibility argument, denied the plaintiffs' motion to review agency action, and granted the Secretary's motion to stay the case until October 1999. Because the Secretary failed to comply with a mandatory, non-discretionary duty unambiguously imposed by the ESA, and because the Administrative Procedure Act requires courts to compel agency action unlawfully withheld, we reverse the district court.

I. BACKGROUND

The Rio Grande silvery minnow (Hybognathus amarus ) is a stout silver fish with emerald reflections reaching lengths of up to 3 1/2 inches. Historically, it was one of the most abundant and widespread fishes in the Rio Grande basin. See Final Rule To List the Rio Grande Silvery Minnow as an Endangered Species, 59 Fed.Reg. 36, 988, 36,988 (1994) [hereinafter "Final Rule"]. Over the past 30 years, however, due in large part to dam construction and dewatering of a large percentage of its habitat, the silvery minnow's presence has been reduced to 5% of its historic range. See id. The fish can now be found only along a 170-mile stretch of the middle Rio Grande, extending from the Cochiti Dam, in Sandoval County, New Mexico to the headwaters of the Elephant Butte Reservoir, in Socorro County, New Mexico. See id.

On March 1, 1993, the Fish and Wildlife Service 1 ("FSW" or "Service") published a proposed rule to list the Rio Grande silvery minnow as endangered and to designate its critical habitat. 2 See Proposed Rule to List the Rio Grande Silvery Minnow as Endangered, With Critical Habitat, 58 Fed.Reg. 11,821, 11,822 (1993). After publishing the proposed rule, the ESA required

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the Service to issue a final rule regarding the silvery minnow's endangered status and its critical habitat within one year--in this case, by March 1, 1994. See Endangered Species Act, 16 U.S.C. § 1533(b)(6)(A) [hereinafter "ESA"].

The Service failed to meet its March 1, 1994 deadline. Over four months later, on July 20, 1994, the Service published a final rule listing the Rio Grande silvery minnow as an endangered species. See Final Rule, 59 Fed.Reg. at 36,988. In its July 20 final rule, the Service explained that it could not make a concurrent designation of the silvery minnow's critical habitat as the ESA strongly encourages. See ESA, 16 U.S.C. § 1533(a)(3) ("The Secretary ... to the maximum extent prudent and determinable ... shall, concurrently with making a determination ... that a species is an endangered species ... designate any habitat of such species which is then considered to be critical habitat...."). Instead, the Service concluded that the silvery minnow's critical habitat was "not then determinable," and thereby extended its deadline to make a critical habitat determination under Section 4(b)(6)(C) of the Act. See Final Rule, 59 Fed.Reg. at 36,994. 3 Accordingly, the Service announced that "[t]he final decision on designation of critical habitat for the Rio Grande silvery minnow must be made by March 1, 1995, pursuant to section 4(b)(6)(C)(ii) of the Act." 4 Id. The March 1, 1995 deadline passed without action by the Service, and now, more than three-and-one-half years later, the Service still has not made a final determination of the silvery minnow's critical habitat.

On April 4, 1997, Forest Guardians and Defenders of Wildlife (together "plaintiffs") filed suit against the Secretary, alleging that his failure to designate the silvery minnow's critical habitat violated the ESA. Plaintiffs sought both a declaration that the Secretary was in violation of the ESA and an injunction compelling the Secretary to issue a final rule on designation of critical habitat for the silvery minnow within 30 days of the court's order. In his answer, the Secretary admitted his failure to comply with his statutory duty to designate critical habitat for the silvery minnow, but defended his inaction on the ground that "no resources are available at this time to complete a critical habitat determination for the silvery minnow."

On July 14, 1997, plaintiffs filed a motion captioned Motion for Review of Agency Decision, seeking review of the Secretary's failure to issue a final decision on the silvery minnow's critical habitat. This motion expressly requested that the court declare the Secretary in violation of his non-discretionary ESA duties and order him to carry out his duties within 30 days. That same day, the Secretary filed his opposition to the plaintiffs' motion along with a motion to stay the proceedings until October 30, 1999.

The Secretary opposed plaintiffs' motion to compel a critical habitat designation essentially on the grounds of fiscal impracticability. The Secretary argued that a

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funding moratorium instituted by Congress in 1995 had prevented him from making any critical habitat determinations or listing any species as endangered or threatened, 5 thus creating an enormous backlog of overdue non-discretionary duties.

Beginning in April 1995 Congress passed a number of spending moratoria, prohibiting the Service from listing species as endangered or threatened and prohibiting the designation of critical habitats for species already listed. 6 This moratorium on expenditures for critical habitat determinations lasted through September 30, 1995, the end of the Fiscal Year...

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