258 F.3d 1136 (9th Cir. 2001), 99-56362, Defenders of Wildlife v. Norton

Docket Nº:99-56362,, 00-55496
Citation:258 F.3d 1136
Party Name:DEFENDERS OF WILDLIFE; TUCSON HERPETOLOGICAL SOCIETY; HORNED LIZARD CONSERVATION SOCIETY; SIERRA CLUB; DESERT PROTECTIVE COUNCIL; BIODIVERSITY LEGAL FOUNDATION; DALE TURNER; WENDY HODGES; FRANCIS ALLAN MUTH, PLAINTIFFS-APPELLANTS v. GALE NORTON, SECRETARY OF THE DEPARTMENT OF THE INTERIOR,[*] JAMIE RAPPAPORT CLARK, DIRECTOR, U.S. FISH AND WILDLIFE
Case Date:July 31, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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258 F.3d 1136 (9th Cir. 2001)

DEFENDERS OF WILDLIFE; TUCSON HERPETOLOGICAL SOCIETY; HORNED LIZARD CONSERVATION SOCIETY; SIERRA CLUB; DESERT PROTECTIVE COUNCIL; BIODIVERSITY LEGAL FOUNDATION; DALE TURNER; WENDY HODGES; FRANCIS ALLAN MUTH, PLAINTIFFS-APPELLANTS

v.

GALE NORTON, SECRETARY OF THE DEPARTMENT OF THE INTERIOR,[*] JAMIE RAPPAPORT CLARK, DIRECTOR, U.S. FISH AND WILDLIFE SERVICE; GAIL KOBETICH, SUPERVISOR, CARLSBAD FIELD OFFICE, DEFENDANTS-APPELLEES.

No. 99-56362,, 00-55496

United States Court of Appeals, Ninth Circuit

July 31, 2001

Argued and Submitted January 9, 2001--Pasadena, California

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Counsel Neil Levine, Earthlaw, Denver, Colorado, for the plaintiffs-appellants.

Robert H. Oakley and Andrew Mergen, U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C., for the defendants-appellees.

D.C. No. CV-97-02330-TJW/LSP Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, District Judge, Presiding

Before: Stephen S. Trott, Sidney R. Thomas, and Marsha S. Berzon, Circuit Judges.

Berzon, Circuit Judge

The Defenders of Wildlife ("Defenders") appeal from an order of the district court granting summary judgment in favor of the Secretary of the Interior (the "Secretary"). The order upheld a decision by the Secretary not to designate the flat-tailed horned lizard for protection as a threatened species under the Endangered Species Act ("ESA"). 16 U.S.C. §§ 1531 et seq. We find that, in making that decision, the Secretary both relied on an improper standard and failed to consider important factors relevant to the listing process. Accordingly, we find her decision arbitrary and capricious and reverse the district court's order.

I. Background

The Endangered Species Act protects species of fish, wildlife and plants which the Secretary identifies as either "endangered" or "threatened." A species is "endangered" if it "is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. §§ 1532(6). Similarly, a species is "threatened" if it "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. §§ 1532(20).

If the Secretary decides that, based on "the best scientific and commercial data available," one or more of five statutorily defined factors demonstrates that a species is endangered or threatened,1 she

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must issue a proposed rule recommending that species for ESA protection. 16 U.S.C. §§ 1533(b)(1)(A). A period of public comment follows. Within one year, the Secretary must either publish a final rule designating the species for protection or, if she finds"that available evidence does not justify the action," withdraw the proposed rule. 50 C.F.R. §§ 424.17(a)(iii); see also 16 U.S.C. §§ 1533(b)(6)(A).2

A. The Flat-Tailed Horned Lizard

At issue in this case is the flat-tailed horned lizard (Phrynosoma mcallii) (the "lizard"), "a small, cryptically colored iguanid" that has adapted to the harsh conditions of the western Sonoran desert. 58 Fed. Reg. 62,624, 62,625/1 (Nov. 29, 1993). "It has the typically flattened body shape of horned lizards, a dark mid-vertebral stripe, a somewhat flattened tail, relatively long head spines or horns, and two rows of fringed scales on each side of the body. Dorsally, the flat-tailed horned lizard is pale gray to light rusty brown; the animal's ventral surface is white and unmarked." Id.

The lizard's natural habitat stretches across parts of southern California (namely, Imperial and eastern San Diego counties), southwestern Arizona and northwestern Mexico. Id. at 62,626/1. Over the last century, human activity has markedly affected this habitat. The filling of the Salton Sea, the conversion of arid desert into productive agricultural land, and the development of urban areas around Yuma, Arizona and El Centro, California have resulted in the disappearance of approximately 34% of the lizard's historic range. Id. As a result, animal conservation groups, including Defenders, have expressed concerns about the lizard's continued viability, and the United States Fish and Wildlife Service ("FWS") had targeted the lizard for ESA protection for much of the past two decades. 62 Fed. Reg. 37,852, 37,854 (July 15, 1997).

B. The Lizard's Listing History

The Secretary first identified the lizard as a category 2 candidate for listing under the ESA in 1982. Candidates are "any species being considered by the Secretary for listing as an endangered or threatened species, but not yet the subject of a proposed rule." 50 C.F.R. §§ 424.02(b). At that time,3 FWS regulations defined candidates designated category 2 as "taxa for which information in the possession of the Service indicated that proposing to list as endangered or threatened was possibly appropriate, but for which sufficient data on biological vulnerability and threats were not currently available to support proposed rules." 61 Fed. Reg. 7596, 7597 (Feb. 28, 1996).

The lizard remained a category 2 candidate until 1989, when the Secretary elevated it to category 1 status. Category 1 included species "for which the Service has on file sufficient information on biological vulnerability and threat(s) to support issuance of a proposed rule." Id. It was not until November 29, 1993, however, that the Secretary finally published a proposed rule listing the lizard as a threatened species.

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58 Fed. Reg. at 62,624/3. Pursuant to the statutory requirements, the Secretary should have completed her review of the lizard and issued her final order by November 29, 1994. 16 U.S.C. §§ 1533(b)(6)(A)(i) (requiring action within one year of publication of the proposed rule). That day passed, however, without further action by the Secretary.

The passage of Public Law No. 104-6, 109 Stat. 73 (1995), in April 1995 interrupted progress on the lizard and other species awaiting listing decisions. Although the statute's primary purpose was to replenish funds for various overseas military operations, it included a rider that withdrew $1.5 million "from the amounts available [to the FWS] for making determinations about whether a species is a threatened or endangered species and whether habitat is critical habitat under the Endangered Species Act of 1973." Id. Furthermore, the rider provided that:

none of the remaining funds appropriated under [the Endangered Species Act] may be made available for making a final determination that a species is threatened or endangered or that habitat constitutes a critical habitat (except a final determination that a species previously determined to be endangered is no longer endangered but continues to be threatened).

To the extent that the Endangered Species Act of 1973 has been interpreted or applied in any court order (including an order approving a settlement between the parties to a civil action) to require the making of a determination respecting any number of species or habitats by a date certain, that Act shall not be applied to require that the determination be made by that date if the making of the determination is made impracticable by the recission made by the preceding sentence.

Id.; see also Environmental Defense Center v. Babbitt, 73 F.3d 867 (9th Cir. 1995) (discussing the impact of Public Law No. 104-6). Thus, while the 1995 rider did not directly repeal the ESA, it imposed a virtual moratorium on all species listings. Id. at 870-71.

The moratorium remained in effect until April 26, 1996, when President Clinton signed an executive waiver allowing the Secretary to once again list species for protection.4 Another year passed, however, without a final decision on the lizard. Finally, on May 16, 1997, in response to a lawsuit brought by Defenders to compel action on the lizard, the district court in Arizona ordered the Secretary to issue a final decision within 60 days.

One month after the court's order, a group of federal and state agencies5 signed a Conservation Agreement ("CA") implementing a recently completed rangewide management strategy to protect the lizard, developed by representatives of the Federal Bureau of Land Management ("BLM"), the FWS, and state and local agencies. Pursuant to the CA, cooperating parties agreed to take voluntary steps aimed at"reducing threats to the species,

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stabilizing the species' populations, and maintaining its ecosystem." The underlying management strategy was based on an earlier effort by the BLM and the California Department of Fish and Game to provide protections for the lizard after it had been elevated to category 1 candidate status by the FWS in 1989.

Critical to the implementation of the CA was the designation of five "management areas" (MAs) subject to protective measures, including the monitoring of lizard populations, limitation of habitat disturbance including off-highway vehicle use, and acquisition of private inholdings. Some of the measures included in the CA had been in place for years, long before the Secretary published the initial proposed rule recommending the lizard for protection. Many of the actions and the overall scope of the MAs effected by the conservation effort, however, were new.

The Secretary issued her final decision on July 15, 1997 (the "Notice") withdrawing the proposed rule that had earlier recommended the lizard for listing as a threatened species. The Notice was premised on three factors: (1) that population trend data did not conclusively demonstrate significant population declines; (2) that some of the threats to the lizard's habitat had grown less serious since the proposed rule was issued; and (3) that the recently devised "conservation agreement w[ould] ensure further reductions in threats. " 62 Fed. Reg. 37852. The Secretary's ultimate conclusion also turned on her determination that, however serious the threats to the lizard on private...

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