240 F.Supp.2d 1090 (D.Ariz. 2003), CV 01-409, Center for Biological Diversity v. Norton

Docket Nº:CV 01-409 TUCDCB.
Citation:240 F.Supp.2d 1090
Party Name:CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. Gale NORTON, Secretary of the Department of the Interior, Defendant.
Case Date:January 13, 2003
Court:United States District Courts, 9th Circuit, District of Arizona
 
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Page 1090

240 F.Supp.2d 1090 (D.Ariz. 2003)

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,

v.

Gale NORTON, Secretary of the Department of the Interior, Defendant.

No. CV 01-409 TUCDCB.

United States District Court, D. Arizona.

Jan. 13, 2003

Matthew Gilbert Kenna, Kenna & Hickcox, PC, Durango, CO, Neil Levine, Denver, CO, for plaintiffs.

Page 1091

Seth M. Barsky, Jason T. Cohen, U.S. Dept. of Justice, Wildlife & Marine Resources Section, Washington, DC, for defendant.

ORDER

BURY, District Judge.

Pending before this Court is Plaintiffs' Motion for Summary Judgment, as well as Defendant's Cross-Motion for Summary Judgment. For the reasons set forth below, Plaintiffs' Motion for Summary Judgment is granted and Defendant's Cross-Motion is denied.

INTRODUCTION

I. General Overview

This lawsuit arises out of the Fish and Wildlife Service's ("FWS") designation of critical habitat for the Mexican spotted owl (Strix occidentalis lucida) under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. FWS, after a series of lawsuits and court orders, designated 4.6 million of a proposed 13.5 million acres of critical habitat in Arizona, Colorado, New Mexico, and Utah. 66 Fed.Reg. 8530. FWS designated only 4.6 million acres, excluding nearly all federal and tribal lands in Arizona and New Mexico, upon determining that adequate management plans already existed on those lands. Id. at 8542-8543. With respect to the lands of the San Carlos Apache Tribe, even though there was no complete management plan, FWS decided to exclude such lands from its critical habitat designation on the bases that the management plan was nonetheless adequate and that the benefits of such exclusion outweighed the benefits of any designation. Id. at 8545.

Plaintiff brought the present suit to enjoin Defendant, through the FWS, from excluding from the spotted owl's critical habitat nearly 9 million acres of federal and tribal lands in Arizona and New Mexico. Plaintiff argues that FWS' designation violates the ESA as well as the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). Defendant argues that its critical habitat designation for the spotted owl is legally sufficient and in full compliance with both the ESA and the APA.

II. BACKGROUND AND PROCEDURAL HISTORY

This is not the first lawsuit arising out of FWS' duty to designate critical habitat for the Mexican spotted owl. To the contrary, numerous lawsuits have been litigated against FWS and the Secretary of the Department of the Interior in order to compel compliance with the ESA.

In a previous suit brought by Plaintiff against Defendant's predecessor and FWS, the District Court for the District of New Mexico provided a "brief chronology summariz[ing] Plaintiff['s] valiant and persistent attempts to extend federal protection to the Mexican spotted owl. Equally important, the chronology also evidences years of delay relating to FWS' compliance obligations." Southwest Center for Biological Diversity v. Department of Interior ("DOI"), CV 99-519 LFG/LCS-ACE (D.N.M.) (Plaintiff's Attachments, p. 101.)

In December 1989, FWS was petitioned to list the Mexican spotted owl as either an endangered or threatened species under the ESA. (Id.) On March 16, 1993, nearly four years later, FWS published its final rule designating the owl as a threatened species. 58 Fed.Reg. 14248. (Id.) In its final rule, FWS noted that it was prudent to designate critical habitat for the owl, but that such habitat was not determinable. (Id.) Subsequently, FWS began gathering data in preparation of designating the owl's critical habitat. However, by February 1994, nearly a year after designating the owl as threatened, FWS had not published any proposed rule regarding critical habitat designation. (Id.)

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In February 1994, a lawsuit was filed in the District Court of Arizona seeking to compel FWS to designate critical habitat for the Mexican spotted owl. Silver v. Babbitt, CV 94-337-PHX-CAM. (Id. at 102.) On October 6, 1994, the court ordered FWS to publish a proposed rule in the Federal Register by December 1, 1994, proposing critical habitat for the owl. The court further ordered that the final rule designating critical habitat was to be published no later than May 30, 1995. (Id.) FWS missed the December deadline and on December 7, 1994, the court ordered FWS to comply with the court's earlier order. Nevertheless, FWS attempted to delay final publication of critical habitat designation for the owl, which the court rejected on May 10, 1995 and again ordered FWS to comply with the court's order. (Id.) However, FWS did not publish its final rule designating critical habitat for the Mexican spotted owl until June 6, 1995. 60 Fed.Reg. 29914. (Id.)

FWS revoked its critical habitat designation for the owl on March 25, 1998 (63 Fed.Reg. 14378) in response to the ruling in Coalition of Arizona/New Mexico Counties v. United States Fish and Wildlife Service, CV 95-1285-M (D.N.M.). (Id.) The court in Coalition enjoined FWS from enforcing the critical habitat designation until it completed review required by the National Environmental Policy Act ("NEPA"), 42 U.S.C. 4321, et seq. (Id.) However, it took over a year after the injunction to revoke the critical habitat designation. (Id.) Thereafter, FWS took no further action to comply with NEPA or to fulfill its obligations under the ESA to properly designate critical habitat for the Mexican spotted owl. (Id.)

As a result of FWS' inaction, yet another lawsuit was required and filed in the District Court of New Mexico. Southwest Center supra. (Id.). In that case, FWS conceded that it was in violation of the ESA for its failure to timely designate critical habitat for the Mexican spotted owl. Id. However, despite the passage of seven years since the designation of the owl as threatened, and having already designated critical habitat once (which was later revoked), FWS requested an additional 18 to 24 months to comply with the ESA.

The court found FWS' request unreasonable, particularly in light of FWS' prior ability to designate critical habitat in less than three months, after a court order. Id. In that situation, FWS was faced with designating critical habitat for more than one species in a short period of time. The court noted that, unlike the previous situation, "the Mexican spotted owl habitat designation involves only one species, the habitat is primarily on National Forest lands as opposed to mixed private and public lands, and FWS has the benefit of a prior critical habitat designation so that it will not have to start completely from scratch." Id. Accordingly, the court ordered FWS to publish its final rule designating critical habitat for the Mexican spotted owl by January 15, 2001. Id.

As a result of the court order, FWS published its Proposed Rule designating critical habitat for the owl on July 21, 2000. 65 Fed.Reg. 45336. In its Proposed Rule, FWS proposed designating approximately 13.5 million acres of critical habitat in Arizona, Colorado, New Mexico, and Utah, largely on federal land. Id. FWS noted that 91 percent of all Mexican spotted owls known to exist in the United States do so on land administered by the United States Forest Service. Id. at 45337. Most of those owls exist in Arizona and New Mexico, including 11 National Forests. Id. Indeed, 55.9 percent of the entire U.S. population of Mexican spotted owls exist through central Arizona and west-central New Mexico. Id.

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In its Proposed Rule, FWS acknowledged that it "may exclude areas from critical habitat designation if [it] determines that the benefits of exclusion outweigh the benefits of including the areas as critical habitat, provided the exclusion will not result in the extinction of the species." Id. at 45339. FWS also noted that a critical habitat designation "identifies areas that may require special management or protection." Id. However, no mention is made of excluding an area from critical habitat if another management system is in place.

According to FWS, the proposed critical habitat areas, including federal and tribal lands in Arizona and New Mexico, "are essential to the conservation" of the owl. Id. at 45340. In fact, it was the belief of FWS that "Mexican spotted owl conservation can be best achieved by management of Federal and Tribal lands." Id. at 5341. As a result, FWS' proposed critical habitat designation included 4.9 million acres in Arizona and 4.6 million acres in New Mexico, all of which were on federal and tribal lands. 1 Id. at Table 1. The Proposed Rule indicated 37 critical habitat units in Arizona and 31 in New Mexico. Id.

In its Proposed Rule, FWS indicated that it would reconsider designating critical habitat on tribal lands of the Navajo Nation and the Mescalero Apache upon the Tribes' submission of management plans. Id. at 45344-45. The FWS indicated it would reevaluate the need to designate critical habitat on those lands in light of the Tribes' management plans. Id. FWS proposed excluding certain lands of the San Carlos Apache and further indicated that it might exclude more upon the San Carlos Apache's completion of its management plan. Id. at 45345. FWS also proposed excluding critical habitat on the tribal lands of the White Mountain Apache and Jicarilla Apache as both Tribes already had owl management plans in place. Id. According to FWS, these lands were not in need of special management or protection and, therefore, did not meet the definition of critical habitat. Id.

FWS published its Final Rule designating critical habitat of the Mexican spotted owl on February 1, 2001. 66 Fed.Reg. 8530. In its Final Rule, FWS again noted that 91 percent of all Mexican spotted owls known to exist in the United States do so on Forest Service...

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