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40 F.Supp.3d 744 (E.D.La. 2014)
MARKLE INTERESTS, LLC
v.
UNITED STATES FISH AND WILDLIFE SERVICE, ET AL
Civil Action Nos. 13-234, 13-362, 13-413 (Pertains to all cases) SECTION " F"
United States District Court, E.D. Louisiana
August 22, 2014
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For Markle Interests, LLC (2:13-cv-00234-MLCF-SS), Plaintiff: M. Reed Hopper, Pacific Legal Foundation, LEAD ATTORNEY, PRO HAC VICE, Bellevue, WA; Andrew J. Harrison , Jr., Madeline Ahlgren, Harrison Law, LLC, Baton Rouge, LA.
For Weyerhaeuser Company (13-0413) (2:13-cv-00234-MLCF-SS), Consol Plaintiff: Dominik J. Cvitanovic, LEAD ATTORNEY, Richard C. Stanley, Stanley, Reuter, Ross, Thornton & Alford, LLC (New Orleans), New Orleans, LA; James R. Johnston, PRO HAC VICE, Zachary R. Hiatt, Weyerhaeuser Company, Federal Way, WA.
For P& F Lumber Company 2000, LLC (13-0362), PF Monroe Properties, L.L.C. (13-0362) (2:13-cv-00234-MLCF-SS), Consol Plaintiffs: Edward B. Poitevent , II, LEAD ATTORNEY, Baker & Associates, P.C., Boston, MA; Brian M. Ballay, Kathlyn G. Perez, Baker Donelson Bearman Caldwell & Berkowitz (New Orleans), New Orleans, LA.
For St. Tammany Land Company, L.L.C. (13-0362) (2:13-cv-00234-MLCF-SS), Consol Plaintiff: Louis E. Buatt, LEAD ATTORNEY, Jones Walker (New Orleans), New Orleans, LA; Andrew J. Harrison , Jr., Madeline Ahlgren, Harrison Law, LLC, Baton Rouge, LA.
For United States Fish & Wildlife Service, Daniel M. Ashe, Director of United States Fish & Wildlife Service, in his official capacity, United States Department of the Interior (2:13-cv-00234-MLCF-SS), Defendants: Mary Elisabeth Hollingsworth, LEAD ATTORNEY, U.S. Department of Justice (ENRD), Washington, DC; Luther Langon Hajek, U.S. Department of Justice (Denver), Environment and Natural Resources Division, Natural Resources Section, Denver, CO.
For Sally Jewell, in her official capacity as Secretary of the Department of Interior (2:13-cv-00234-MLCF-SS), Defendant: Mary Elisabeth Hollingsworth, LEAD ATTORNEY, U.S. Department of Justice (ENRD), Washington, DC.
For United States Fish & Wildlife Service (13-0413), United States Fish & Wildlife Service (13-0362), United States Department of the Interior (13-0362) (2:13-cv-00234-MLCF-SS), Consol Defendants: Mary Elisabeth Hollingsworth, LEAD ATTORNEY, U.S. Department of Justice (ENRD), Washington, DC; Luther Langon Hajek, U.S. Department of Justice (Denver), Environment and Natural Resources Division, Natural Resources Section, Denver, CO.
For Daniel M. Ashe, Director of the United States Fish and Wildlife Service, in his official capacity (13-0413) (2:13-cv-00234-MLCF-SS), Consol Defendant: Mary Elisabeth Hollingsworth, U.S. Department of Justice (ENRD), Washington, DC.
For United States Department of the Interior, (13-0413) (2:13-cv-00234-MLCF-SS), Consol Defendant: Luther Langon Hajek, U.S. Department of Justice (Denver), Environment and Natural Resources Division, Natural Resources Section, Denver, CO; Mary Elisabeth Hollingsworth, U.S. Department of Justice (ENRD), Washington, DC.
For Daniel M. Ashe, Director of U.S. Fish & Wildlife Service, in his official capacity (13-0362), Sally Jewell, in her official capacity as Secretary of the Department of Interior (13-0362), Sally Jewell, in her official capacity as Secretary of the Department of Interior (13-0413) (2:13-cv-00234-MLCF-SS), Consol Defendants: Mary Elisabeth Hollingsworth, LEAD ATTORNEY, U.S. Department of Justice (ENRD), Washington, DC.
For Center for Biological Diversity, Gulf Restoration Network (2:13-cv-00234-MLCF-SS), Intervenor Defendants: Collette A. Giese, LEAD ATTORNEY, Center for Biological Diversity (Circle Pines), Circle Pines, MN; Elizabeth Livingston de Calderon, Tulane Environmental Law Clinic, New Orleans, LA; John Buse, Center for Biological Diversity (San Francisco), San Francisco, CA.
For Center for Biological Diversity 13-362, Gulf Restoration Network 13-362, Center for Biological Diversity 13-413 (2:13-cv-00234-MLCF-SS), Consol Intervenor Defendants: Collette A. Giese, LEAD ATTORNEY, Center for Biological Diversity (Circle Pines), Circle Pines, MN; Elizabeth Livingston de Calderon, Tulane Environmental Law Clinic, New Orleans, LA; John Buse, Center for Biological Diversity (San Francisco), San Francisco, CA.
For P& F Lumber Company 2000, LLC, PF Monroe Properties, L.L.C. (2:13-cv-00362-MLCF-SS), Plaintiffs: Edward B. Poitevent , II, LEAD ATTORNEY, Baker & Associates, P.C., Boston, MA; Brian M. Ballay, Kathlyn G. Perez, Baker Donelson Bearman Caldwell & Berkowitz (New Orleans), New Orleans, LA.
For St. Tammany Land Company, L.L.C. (2:13-cv-00362-MLCF-SS), Plaintiff: Louis E. Buatt, LEAD ATTORNEY, Jones Walker (New Orleans), New Orleans, LA; Andrew J. Harrison , Jr., Madeline Ahlgren, Harrison Law, LLC, Baton Rouge, LA.
For United States Fish & Wildlife Service, United States Department of the Interior (2:13-cv-00362-MLCF-SS), Defendants: Mary Elisabeth Hollingsworth, LEAD ATTORNEY, U.S. Department of Justice (ENRD), Washington, DC; Luther Langon Hajek, U.S. Department of Justice (Denver), Environment and Natural Resources Division, Natural Resources Section, Denver, CO.
For Daniel M. Ashe, Director of U.S. Fish & Wildlife Service, in his official capacity, Kenneth Salazar, Secretary of the Dept. of Interior, in is official capacity (2:13-cv-00362-MLCF-SS), Defendants: Mary Elisabeth Hollingsworth, LEAD ATTORNEY, U.S. Department of Justice (ENRD), Washington, DC.
For Center for Biological Diversity, Gulf Restoration Network (2:13-cv-00362-MLCF-SS), Intervenor Defendants: Collette A. Giese, LEAD ATTORNEY, PRO HAC VICE, Center for Biological Diversity (Circle Pines), Circle Pines, MN; Elizabeth Livingston de Calderon, Tulane Environmental Law Clinic, New Orleans, LA; John Buse, PRO HAC VICE, Center for Biological Diversity (San Francisco), San Francisco, CA.
For Weyerhaeuser Company (2:13-cv-00413-MLCF-SS), Plaintiff: Dominik J. Cvitanovic, LEAD ATTORNEY, Richard C. Stanley, Stanley, Reuter, Ross, Thornton & Alford, LLC (New Orleans), New Orleans, LA; James R. Johnston, Zachary R. Hiatt, Weyerhaeuser Company, Federal Way, WA.
For United States Fish & Wildlife Service, United States Department of the Interior (2:13-cv-00413-MLCF-SS), Defendants: Luther Langon Hajek, U.S. Department of Justice (Denver), Environment and Natural Resources Division, Natural Resources Section, Denver, CO.
For Center for Biological Diversity, Gulf Restoration Network (2:13-cv-00413-MLCF-SS), Intervenor Defendants: Collette A. Giese, LEAD ATTORNEY, PRO HAC VICE, Center for Biological Diversity (Circle Pines), Circle Pines, MN; Elizabeth Livingston de Calderon, Tulane Environmental Law Clinic, New Orleans, LA; John Buse, PRO HAC VICE, Center for Biological Diversity (San Francisco), San Francisco, CA.
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ORDER AND REASONS
MARTIN L. C. FELDMAN, UNITED STATES DISTRICT JUDGE.
These consolidated proceedings ask whether a federal government agency's inclusion of a privately-owned tree farm in its final designation of critical habitat for the dusky gopher frog, pursuant to the Endangered Species Act, was arbitrary or capricious. Before the Court are 11 motions, including nine cross-motions for summary judgment:
(1) Weyerhaeuser Company's motion for summary judgment, (2) the federal defendants' cross-motion, and (3) the intervenor defendants' cross-motion; (4) Markle Interests LLC's motion for summary judgment, (5) the federal defendants' cross-motion, and (6) the intervenor defendants' cross-motion; (7) the Poitevent Landowners' motion for summary judgment; (8) the federal defendants' cross-motion, and (9) the intervenor defendants' cross-motion.
Additionally before the Court are two motions to strike extra-record evidence submitted by Poitevent Landowners, one filed by federal defendants and one by intervenor defendants. For the reasons the follow, the federal and intervenor defendants' motions to strike extra-record evidence are GRANTED; the plaintiffs' motions for summary judgment are GRANTED in part (insofar as they have standing) and DENIED in part; and, finally, the defendants' motions are DENIED in part (insofar as defendants challenge plaintiffs' standing) and GRANTED in part.
Background
Plaintiffs in these consolidated cases -- landowners and a lessee of a tree farm in Louisiana -- challenge the United States Fish and Wildlife Service's (FWS) final rule designating 1,544 acres of a privately-owned timber farm in St. Tammany Parish as critical habitat that is essential for the conservation of the dusky gopher frog, an endangered species.
Only about 100 adult dusky gopher frogs remain in the wild. The frog, listed as endangered in 2001, is now located only in Mississippi; it does not presently occupy the plaintiffs' tree farm and was last sighted there in the 1960s. Nevertheless, FWS included certain acreage of the plaintiffs' tree farm in its rule designating critical habitat for the frog, finding this land essential to conserving the dusky gopher frog. A determination plaintiffs insist is arbitrary. To better understand the factual and procedural background of this challenge to federal agency action, it is helpful first to consider the context of the administrative framework germane to the present controversy.
The Endangered Species Act
Due to the alarming trend toward species extinction " as a consequence of economic growth and development untempered by adequate concern and conservation," Congress enacted the Endangered Species Act, 16 U.S.C. § 1531, et. seq., (ESA) to conserve endangered and threatened species and the ecosystems on which they depend. 16 U.S.C. § 1531(a), (b). By defining " conservation" as " the use of all methods and procedures which are necessary to bring any endangered or threatened species to the point at which the measures provided [by the ESA] are no longer necessary," (16 U.S.C. §...
