Ctr. for Biological Diversity v. Jewell

• Decision Date: 28 March 2017
• Docket Number: No. CV-14-02506-TUC-RM.,CV-14-02506-TUC-RM.
• Citation: 248 F.Supp.3d 946
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. Sally JEWELL, et al., Defendants.
• Court: U.S. District Court — District of Arizona

248 F.Supp.3d 946

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,

v.Sally JEWELL, et al., Defendants.

No. CV-14-02506-TUC-RM.

United States District Court, D. Arizona.

Signed March 28, 2017

Filed March 29, 2017

Eric Robert Glitzenstein, Meyer Glitzenstein & Eubanks LLP, Washington, DC, William Stewart Eubanks, II, Meyer Glitzenstein & Eubanks LLP, Ft. Collins, CO, for Plaintiffs.

Clifford Eugene Stevens, Jr., U.S. Dept. of Justice—Environment & Natural Resources Div., Washington, DC, for Defendants.

ORDER

Honorable Rosemary Márquez, United States District Judge

Pending before the Court are Cross–Motions for Summary Judgment filed by Plaintiffs Center for Biological Diversity and Defenders of Wildlife ("Plaintiffs")¹ (Doc. 52); Defendants Sally Jewell, Secretary of the United States Department of the Interior ("the Secretary"), and Daniel M. Ashe, Director of the United States Fish and Wildlife Service (collectively, "Federal Defendants") (Doc. 56); and Intervenor–Defendant Southern Arizona Home Builders Association ("Home Builders") (Doc. 62).²

Plaintiffs challenge two interrelated agency actions on the grounds that they violate the Endangered Species Act ("ESA"), 16 U.S.C. § 1532, et seq. and are arbitrary and capricious in violation of the Administrative Procedures Act ("APA"), 5 U.S.C. § 706(2). Specifically, Plaintiffs challenge the Federal Defendants' refusal to list the cactus ferruginous pygmy owl ("pygmy owl") as a threatened or endangered species under the ESA and the Service's interpretation of the phrase "significant portion of its range" in the ESA's definitions of endangered and threatened species.

I. Statutory Framework

The ESA was enacted, in relevant part, to provide for the conservation of endangered and threatened species, as well as the ecosystems upon which such species depend. See 16 U.S.C. § 1531(b). The term "species" is defined by the ESA as including "any subspecies of fish or wildlife or plants, and any distinct population segment" ("DPS")³ "of any species of vertebrate fish or wildlife which interbreeds when mature." Id. § 1532(16). A species is considered "endangered" under the ESA if it "is in danger of extinction throughout all or a significant portion of its range." Id. § 1532(6). A species is considered "threatened" if it "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20).

Any interested person may petition the Secretary to list a species as endangered or threatened. 5 U.S.C. § 553(e) ; 16 U.S.C. § 1533(b)(3)(A). Upon receipt of such a petition, the Secretary must determine "whether the petition presents substantial scientific or commercial information indicating the petitioned action may be warranted," and, if it does, "promptly commence a review of the status of the species concerned." 16 U.S.C. § 1533(b)(3)(A). This initial determination is known as a 90–day finding. The agency's final determination on whether the petitioned action is warranted is known as a 12–month finding. See id. § 1533(b)(3)(B). Negative findings are "subject to judicial review." Id. § 1533(b)(3)(C)(ii) ; see also id. § 1540(g).

In determining whether a species is endangered or threatened for purposes of the ESA, the Secretary must consider: "(A) the present or threatened destruction, modification, or curtailment of [the species'] habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence." Id. § 1533(a)(1). Listing determinations must be made "solely on the basis of the best scientific and commercial data available." Id. § 1533(b)(1)(A).

The ESA requires the Secretary to "establish, and publish in the Federal Register, agency guidelines" regarding "criteria for making" listing determinations. Id. § 1533(h). The Secretary must provide the public with notice of any proposed guidelines and an opportunity to submit written comments. Id.

II. Standard of Review

Agency decisions under the ESA are governed by the APA. Pacific Coast Fed'n of Fishermen's Ass'ns, Inc. v. Nat'l Marine Fisheries Serv. , 265 F.3d 1028, 1034 (9th Cir. 2001). Under the APA, an agency action must be set aside "if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ " Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv. , 475 F.3d 1136, 1140 (9th Cir. 2007) (quoting 5 U.S.C. § 706(2)(A) ). Under this "highly deferential" standard of review, the Court's role is limited to determining whether "a reasonable basis exists" for the agency's decision. Indep. Acceptance Co. v. Cal. , 204 F.3d 1247, 1251 (9th Cir. 2000) (internal quotation marks omitted). The Court may not "substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). So long as the agency "considered the relevant factors and articulated a rational connection between the facts found and the choice made," the agency's action must be affirmed. Balt. Gas & Elec. Co. v. Natural Res. Def. Council , 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). Particular deference is afforded to agency discretion that "is exercised in an area where the agency has special ‘technical expertise,’ " such as "[a]ssessing a species' likelihood of extinction." Trout Unlimited v. Lohn , 559 F.3d 946, 955, 959 (9th Cir. 2009) (quoting Marsh v. Or. Natural Res. Council , 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) ).

However, agency action must be set aside if the agency "relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency," or rendered a decision "so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n , 463 U.S. at 43, 103 S.Ct. 2856. When such deficiencies exist, the Court may not attempt to make up for them by supplying "a reasoned basis for the agency's action that the agency itself has not given." Id. (internal quotation marks omitted); see also Encino Motorcars, LLC v. Navarro , ––– U.S. ––––, 136 S.Ct. 2117, 2125, 195 L.Ed.2d 382 (2016) (courts may not "speculate on reasons that might have supported an agency's decision"); Dioxin/Organochlorine Ctr. v. Clarke , 57 F.3d 1517, 1525 (9th Cir. 1995) (courts may not "attempt to make up for deficiencies in the agency's decision").

Judicial review of agency action is generally limited to evidence contained in the administrative record. Love v. Thomas , 858 F.2d 1347, 1356 (9th Cir. 1988). The Court's role is not to act as a fact finder but, rather, to determine, as a matter of law, whether the agency's decision is supported by the administrative record. See Occidental Eng'g Co. v. INS , 753 F.2d 766, 769 (9th Cir. 1985). Because cases involving review of final agency action under the APA do not generally involve disputed facts, summary judgment is typically the proper mechanism for resolving them. See Nw. Motorcycle Ass'n v. U.S. Dep't of Agric. , 18 F.3d 1468, 1472 (9th Cir. 1994) ; see also Fed. R. Civ. P. 56(a) (summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law").

Under the APA, the Court decides "all relevant questions of law" and interprets statutory provisions. 5 U.S.C. § 706. "If the intent of Congress is clear," the Court must give effect to that "unambiguously expressed intent." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If the statute is ambiguous, the Court must determine how much deference to give to an administrative interpretation of the statute. Nw. Ecosystem Alliance , 475 F.3d at 1141. If Congress has explicitly or implicitly delegated authority to the agency "to elucidate a specific provision of the statute by regulation," such "legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Chevron , 467 U.S. at 843–44, 104 S.Ct. 2778. In other words, an agency's statutory interpretation qualifies for Chevron deference if Congress has "delegated authority to the agency generally to make rules carrying the force of law," and "the agency interpretation claiming deference was promulgated in the exercise of that authority." United States v. Mead Corp. , 533 U.S. 218, 226–27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). When Chevron deference is applicable, an agency's construction of am ambiguous statute must be given controlling effect so long as it is reasonable. Christensen v. Harris Cnty. , 529 U.S. 576, 586–87, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). An agency's statutory construction may be found unreasonable if it "ignores the plain language of the statute," renders statutory language "superfluous," or "frustrate[s] the policy Congress sought to implement" in the statute. Pac. Nw. Generating Coop v. Dep't of Energy , 580 F.3d 792, 806, 812 (9th Cir. 2009).

Agency interpretations that are beyond the pale of the Chevron doctrine, though not controlling, nevertheless "constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Skidmore v. Swift & Co. , 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). The measure of deference afforded to such interpretations varies depending upon the thoroughness of the agency's consideration, the validity of the agency's reasoning, "consistency with earlier and later pronouncements, and all those factors" which give the agency's construction "power to persuade, if lacking power to control." Id. ; see also Mead , 533...