American Lands Alliance v. Norton

• Decision Date: 13 May 2003
• Docket Number: No. CIV.A. 00-2339RBW.,CIV.A. 00-2339RBW.
• Citation: 360 F.Supp.2d 1
• Parties: AMERICAN LANDS ALLIANCE, et al., Plaintiffs, v. Gale A. NORTON, Secretary of the Department of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 1

360 F.Supp.2d 1

AMERICAN LANDS ALLIANCE, et al., Plaintiffs, v. Gale A. NORTON, Secretary of the Department of the Interior, et al., Defendants.

No. CIV.A. 00-2339RBW.

United States District Court, District of Columbia.

May 13, 2003.

Amy Lands Atwood, Eugene, OR, Ari Micha Wilkenfeld, Bernabei and Katz, PLLC, Washington, DC, Courtney Brown, Portland, OR, Michael Axline, Eugene, OR, Heather Brinton, Eugene, OR, for Plaintiffs.

Katherine W. Hazard, U.S. Department of Justice Environment & Natural Resources Division Appellate Section, Mauricia Maria Magdalena Baca, U.S. Department of Justice Environment & Natural Resources, Seth M. Barsky, U.S. Department of Justice Wildlife & Marine Resources Section, Enrd, Washington, DC, for Defendants.

ORDER

WALTON, District Judge.

This matter is now before the Court on the Defendants' Motion for Reconsideration ("Defs.' Mot.") of the Court's January 30, 2003 Memorandum Opinion and Order granting summary judgment to the plaintiffs in this case. See Am. Lands Alliance v. Norton, 242 F.Supp.2d 1 (D.D.C.2003). In its January 30, 2003 Opinion, the Court found that the defendants had violated the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531, et seq. (2000), by failing to make the mandatory findings required by 16 U.S.C. § 1533(b)(3), and required that the defendants issue and publish in the Federal Register their finding as to whether the Gunnison sage grouse qualifies for ESA listing. See Am. Lands, 242 F.Supp.2d at 8-12. In addition, the Court found that the United States Fish and Wildlife Service's ("FWS") Petition Management Guidance ("PMG") Policy, that treats public petitions as "redundant" if a species has already been placed on FWS's candidate list pursuant to its internal process, violates the ESA's "notice and comment" requirement embodied in 16 U.S.C. § 1533(h) and therefore is procedurally flawed. See Am. Lands, 242 F.Supp.2d at 12-15. Finally, the Court concluded that the FWS's PMG Policy is facially invalid because it allows the defendants to avoid the mandatory, non-discretionary obligations of 16 U.S.C. § 1533(b)(3)(B) of the ESA. See Am. Lands, 242 F.Supp.2d at 15-18. The defendants now seek reconsideration of the Court's findings that the defendants violated the ESA by failing to issue a 90-day substantial information finding and that the PMG Policy facially violates 16 U.S.C. § 1533(b)(3)(B) of the ESA based upon the position that "the court's opinion appears to be premised on an erroneous assumption that issuance of a candidate notice is tantamount to indefinitely postponing the required 12-month finding under section 4(b)(3)(B) of the ESA, 16 U.S.C. § 1533(b)(3)(B)."¹ Defs.' Mot., Defendants' Memorandum in Support of Motion for Reconsideration ("Defs.' Mem.") at 2. The defendants explain that "[r]ather, the Service's position is that a properly documented candidate notice serves as both the required 90-day finding and a 12-month warranted but precluded finding[, which is] in compliance with ESA section 4(b)(3)(B)(iii)" and note that "in the intervening period since summary judgment briefing, the service has published two Candidate Notices of Review ("CNORs") in which it has made explicit 12-month findings of `warranted but precluded' regarding the Gunnison sage grouse." Id.

Based upon this additional information that was not before the Court when it issued its initial opinion in this case, the Court will now vacate its order requiring that the defendants publish the findings mandated by 16 U.S.C. § 1533(b)(3) because the defendants have already published what purportedly amounts to a 12-month "warranted but precluded" finding. However, the Court will deny the defendants' request to reconsider its ruling that the FWS's PMG Policy, which treats public petitions as "redundant" if a species has already been placed on its candidate list pursuant to its internal process, is facially invalid because it allows the defendants to avoid their obligations mandated by 16 U.S.C. § 1533(b)(3)(B) of the ESA.

I. Standard of Review

The Court must consider the defendants' motion for reconsideration under Federal Rule of Civil Procedure 60(b).² A final judgment or order is one "which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment[,]" Muwekma Tribe v. Babbitt, 133 F.Supp.2d 42, 48 (D.D.C.2001) (quoting Budinich v. Becton Dickinson and Co., 486 U.S. 196, 199, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988) (citation omitted)), as it "dispose[s] of all the issues raised in the complaint[,]" Muwekma Tribe, 133 F.Supp.2d at 48. Here, the only thing left for the Court to do after it issued its January 30, 2003 Opinion and Order was to conduct a hearing to determine the amount of time the defendants' would be given to comply with the Court's Order and whether to impose attorneys fees and costs against the defendants. As neither one of these remaining matters relate to the merits of this lawsuit, the Court's Opinion and Order amounted to a final judgment and order. The Court will therefore consider the defendants' requests under Rule 60(b)(6), which permits a party to seek reconsideration "within a reasonable time" from a final judgment or order for "any reason justifying relief from the operation of the judgment."³ See Defendants' Reply Memorandum in Support of Motion for Reconsideration ("Defs.' Reply") at 5 (defendants acknowledge that if Rule 60(b) standards apply then subsection (6) is applicable).

II. Legal Analysis

(A) Did the Defendants Violate the ESA by Failing to Issue a 90-Day Finding in Response to the Plaintiffs' Petition to List the Gunnison Sage Grouse?

In its January 30, 2003 Memorandum Opinion, the Court found that the defendants violated 16 U.S.C. § 1533(b)(3)(A) when they failed to publish a preliminary substantial information finding. Am. Lands, 242 F.Supp.2d at 12. The Court reached this conclusion because while the "Notice of Designation of the Gunnison Sage Grouse as a Candidate Species[,]" 65 Fed.Reg. 82,310 (Dec. 28, 2000), "may contain the substantive equivalent of what would be contained in a substantial information finding, it is not functionally equivalent because it has allowed the defendants to avoid compliance with their mandatory, non-discretionary duty to make a 12-month finding pursuant to 16 U.S.C. § 1533(b)(3)(B)." 242 F.Supp.2d at 12. The Court therefore held that while it would "not require the defendants [to] issue a 90-day substantial information preliminary finding ... it [would] require the defendants to expeditiously issue a 12-month finding ..." Id.

Now, for the first time, the defendants assert that they have already complied with § 1533(b)(3)(B) by issuing two CNORs, which they claim are the equivalent of 12-month "warranted but precluded" findings. See Defs.' Mem. at 8 (citing 66 Fed.Reg. 54,808 (Oct. 30, 2001); 67 Fed.Reg. 40,657 (June 13, 2002)). As justification for not informing the Court earlier about the publication of these CNORs, the defendants claim that the 12-month finding "was not put at issue by the Plaintiffs in their Amended Complaint." Id. at 5. In response to this claim, the plaintiffs state that the defendants' justifications "are not accurate" because "[w]hether Defendants had made, and whether Defendants' were required to make, a 12-month finding on Plaintiffs' petition, was at issue throughout the parties' briefing on their cross motions for summary judgment." Plaintiffs' Opposition to Defendants' Motion for Reconsideration ("Pls.' Opp'n") at 3-4 (citing numerous excerpts from the plaintiffs' filings indicating that the defendants failed to issue both the 90-day and 12-month findings). The Court must agree with the plaintiffs' position because the essence of their position has been that the defendants' PMG policy permitted the FWS to ignore their obligation to comply with both § 1533(b)(3)(A) (90-day finding requirement) and § 1533(b)(3)(B) (12-month finding requirement). Thus, for the defendants to assert that § 1533(b)(3)(B) was not implicated by the plaintiffs' allegations in their Amended Complaint is simply erroneous.

However, while the Court is troubled that the defendants failed to file a supplemental brief wherein the Court was apprized of the new information about the CNORs,⁴ it will vacate its order requiring the defendants to file a 12-month finding. This result is necessary because the FWS has purportedly now made a "warranted but precluded" 12-month finding, which is what this Court ordered it to do. If the plaintiffs desire to substantively challenge this finding on the grounds that it fails to comply with § 1533(b)(3)(B), they must do so in a separate action, see 16 U.S.C. § 1533(b)(3)(C)(ii) (stating that "warranted but precluded" findings are subject to judicial review), as such a challenge was not raised in this action.

(B) Does the PMG Policy Facially Violate 16 U.S.C. § 1533(b)(3)(B) of the ESA?

This Court concluded that the PMG Policy facially violates 16 U.S.C. § 1533(b)(3)(B) because the PMG Policy treats public petitions to list a species under the ESA as "redundant" if the species has already designated as a candidate for listing pursuant to the FWS' internal process. Am. Lands, 242 F.Supp.2d at 15-18. The relevant language of the PMG Policy on this subject states that:

[a] petition for a candidate species for which the Fish and Wildlife Service has lead, inasmuch as the Service has already made a decision regarding the species status and assigned it a listing priority, the Service considers such candidate species as under petition and covered by a `warranted but precluded' finding under Section 4(b)(3)(B)(iii) of the Act. Therefore, a petition to list a candidate species is redundant and will be treated as a second petition.

Defendants' Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment and in Support of Defendants' Cross-Motion for Summary Judgment, Exhibit ("Ex.") 1, Ex. 1 at 5 ("Endangered Species...