Alabama-Tombigbee Rivers Coalition v. Kempthorne

• Decision Date: 08 February 2007
• Docket Number: No. 05-17164.,05-17164.
• Citation: 477 F.3d 1250
• Parties: ALABAMA-TOMBIGBEE RIVERS COALITION, an Alabama nonprofit corporation, Parker Towing Company, Inc., an Alabama corporation, Charles A. Haun, an individual, Plaintiffs-Appellants, v. Dirk KEMPTHORNE, Secretary of the United States Department of the Interior, Sam Hamilton, Regional Director of the United States Fish and Wildlife Service, U.S. Department of the Interior, U.S. Fish and Wildlife Service, an agency of the United States Department of the Interior, Steve Williams, Director of Fish and Wildlife Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

477 F.3d 1250

ALABAMA-TOMBIGBEE RIVERS COALITION, an Alabama nonprofit corporation, Parker Towing Company, Inc., an Alabama corporation, Charles A. Haun, an individual, Plaintiffs-Appellants, v. Dirk KEMPTHORNE, Secretary of the United States Department of the Interior, Sam Hamilton, Regional Director of the United States Fish and Wildlife Service, U.S. Department of the Interior, U.S. Fish and Wildlife Service, an agency of the United States Department of the Interior, Steve Williams, Director of Fish and Wildlife Service, Defendants-Appellees.

No. 05-17164.

United States Court of Appeals, Eleventh Circuit.

February 8, 2007.

Thomas Lee Casey, III, Robert P. Fowler, Jeffrey Heath Wood, William Hughes Satterfield, Balch & Bingham, LLP, Birmingham, AL, for Plaintiffs-Appellants.

Robert H. Oakley, U.S. Dept. of Justice-ENRD-App. Section, Washington, DC, for Defendants-Appelees.

Reed Hopper, Pac. Legal Foundation, Sacramento, CA, Jason C. Rylander, Defenders of Wild Life, Washington, DC, for Amici Curiae.

Appeal from the United States District Court for the Northern District of Alabama.

Before CARNES, MARCUS and KRAVITCH, Circuit Judges.

CARNES, Circuit Judge:

Two fish, or not two fish? That is the question. More specifically, are the Alabama sturgeon and the shovelnose sturgeon separate species? The answer lies primarily in the field of taxonomy, which one observer has noted "is described sometimes as a science and sometimes as an art, but really it's a battleground." Bill Bryson, A Short History of Nearly Everything 437 (2003). The battle over the Alabama sturgeon has been more like the Thirty Years War. A scientist first classified this small freshwater fish found in the Mobile River Basin of Alabama as endangered in 1976. Three decades and three trips to this Court later the fight over whether the Alabama sturgeon is an endangered species continues. On one side are various business interests, including the Alabama-Tombigbee Rivers Coalition, and on the other are the Fish and Wildlife Service and several federal officials involved with it.

I.

The background facts of this litigation are set out in our 2003 opinion. See Alabama-Tombigbee Rivers Coal. v. Norton (Alabama-Tombigbee II), 338 F.3d 1244 (11th Cir.2003). We won't wade back through all of the facts but will instead focus on those essential to the issues raised in this appeal.

The Alabama sturgeon was once so plentiful that it was captured commercially. Id. at 1247-48. At the end of the nineteenth century, an estimated 20,000 of the fish were caught commercially, but its numbers have declined drastically and it is now thought to reside only in small portions of the Alabama River channel in south Alabama and downstream to the mouth of the Tombigbee River. Final Rule to List the Alabama Sturgeon as Endangered, 65 Fed. Reg. 26,438, 26,339-41 (May 5, 2000) (to be codified at 50 C.F.R. pt. 17) ("Final Rule"). The historic decline of the species—if it is a species—is due to a combination of over-fishing, dam construction for power production, dredging and channeling to improve navigation in the Mobile River Basin, and declines in water and habitat quality resulting from river and land management practices. Id. The Service began to study the decline of the Alabama sturgeon in 1980, four years after a scientist first classified it as endangered. Id. at 26,439; Review of Three Southeastern Fishes, 45 Fed. Reg. 58,171 (Sept. 2, 1980).

In June 1993, the Fish and Wildlife Service first proposed listing the fish as an endangered species under the Endangered Species Act of 1973. Final Rule at 26,441. That proposed listing led to these litigants' first visit to our Court, when the Alabama-Tombigbee River Coalition, a group of industries and associations opposed to the listing, obtained an order from the United States District Court for the Northern District of Alabama granting a permanent injunction against the Service's use of a scientific report prepared in violation of the Federal Advisory Committee Act in making its listing determination. Alabama-Tombigbee Rivers Coal. v. Dep't of Interior (Alabama-Tombigbee I), 26 F.3d 1103, 1104 (11th Cir.1994). The Service appealed, and we affirmed. Id. at 1107. Several months later, the Service withdrew the proposed listing "on the basis of insufficient information that the Alabama sturgeon continued to exist." Final Rule at 26,442.

Over the next few years, the capture of several Alabama sturgeon confirmed that the fish was still around, although barely—despite diligent efforts to locate the fish, there were only eight confirmed catches in the 1990s—and in 1999 the Service again proposed listing the Alabama sturgeon as endangered. Id. at 26,439-40, 26,442. On May 5, 2000, it issued a final rule listing the fish as an endangered species. Id. at 26,438. Although the Service is responsible for designating the "critical habitat" of land animals and freshwater fish, it did not do so at the time it issued the Final Rule. Id. at 26,456-57. And it still has not done so.

The Coalition brought suit under the citizen-suit provision of the ESA, 16 U.S.C. § 1540(g)(1), and under the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. §§ 701-06, alleging several defects in the listing process. Alabama-Tombigbee II, 338 F.3d at 1249. The district court dismissed the Coalition's lawsuit for lack of standing, but on appeal we reversed after concluding that the Coalition did have standing to challenge the listing decision. Id. at 1250-51, 1256.

On remand, the district court granted the Service's motion for summary judgment but ordered it to issue both a proposed and a final rule designating critical habitat for the Alabama sturgeon by May 14, 2006 and November 14, 2006, respectively. The Coalition appealed the judgment, which the district court stayed pending review by this Court.

We review the district court's grant of summary judgment de novo, viewing the facts and drawing all reasonable inferences in favor of the nonmoving party. Rowell v. BellSouth Corp., 433 F.3d 794, 798 (11th Cir.2005). However, "even in the context of summary judgment, an agency action is entitled to great deference." Pres. Endangered Areas of Cobb's History, Inc. v. United States Army Corps of Eng'rs (PEACH), 87 F.3d 1242, 1246 (11th Cir. 1996). Under the Administrative Procedure Act, we must set aside any agency action that is arbitrary, capricious, or an abuse of discretion, 5 U.S.C. § 706(2)(A), but we cannot substitute our judgment for that of the agency. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). We look at "whether an agency's decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Sierra Club v. Johnson, 436 F.3d 1269, 1273-74 (11th Cir. 2006) (internal quotation marks and citations omitted).

II.

The Coalition first contends that we must vacate the Final Rule because the Fish and Wildlife Service failed to consider the relevant factors in reaching its listing decision. Section 4(b)(1)(A) of the ESA requires the Service to make listing determinations "solely on the basis of the best scientific and commercial data available." 16 U.S.C. § 1533(b)(1)(A) (codifying Section 4(b)(1)(A)). The Coalition argues that the Service failed to rely on the best scientific data available in three ways: First, it discounted genetic typing in favor of morphological taxonomy. Second, the agency did not examine the best available taxonomic data. Third, it allegedly interfered with the research of one of its employees, Dr. Steven Fain.

The Administrative Procedure Act instructs reviewing courts to "hold unlawful and set aside agency action, findings, and conclusions" that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). We "may not set aside an agency rule that is rational, based on consideration of the relevant factors, and within the scope of the authority delegated to the agency by the statute." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). Under this "narrow" form of review, we may find a rule arbitrary and capricious where "the agency has 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 is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id. at 43, 103 S.Ct. at 2867. The reviewing court may not make up for these deficiencies, which is to say that "we may not supply a reasoned basis for the agency's action that the agency itself has not given." Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974).

A.

The Coalition's first argument in support of its contention that the Service failed to consider the best scientific data is that it used "the older, subjective method of morphological taxonomy" instead of "the modern, objective science of genetics," to classify the Alabama sturgeon as a separate species. Genetics is the superior science, according to the Coalition, and in its view "[a]ll reliable genetic evidence" confirms that the Alabama sturgeon and the more-abundant shovelnose sturgeon are "genetically identical."

The Service responds by arguing that the Coalition is creating a false dichotomy between "taxonomy" and "genetics." "Taxonomy" is "the science or technique of classification" or the "science dealing with the description, identification, naming, and classification of organisms." Random House Unabridged Dictionary 1947 (2d ed.1993). "Genetics," which is "the science of heredity, dealing with resemblances and differences of related organisms resulting from the...