Idaho Farm Bureau Federation v. Babbitt

• Citation: 58 F.3d 1392
• Decision Date: 29 June 1995
• Docket Number: 94-35230,Nos. 94-35164,s. 94-35164
• Parties: , 32 Fed.R.Serv.3d 774, 25 Envtl. L. Rep. 21,265, 95 Daily Journal D.A.R. 8746 IDAHO FARM BUREAU FEDERATION, a non-profit corporation; Idaho Cattle Association, a non-profit corporation, et al., Plaintiffs-Appellees-Cross-Appellants, v. Bruce BABBITT, Secretary of Interior, et al., Defendants-Appellees, and Idaho Conservation League, Inc., an Idaho non-profit corporation; Committee for Idaho's High Desert, Inc., an Idaho non-profit corporation, Intervenors-Appellants-Cross-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1392

58 F.3d 1392

41 ERC 1207, 32 Fed.R.Serv.3d 774, 25

Envtl. L. Rep. 21,265,

95 Daily Journal D.A.R. 8746

IDAHO FARM BUREAU FEDERATION, a non-profit corporation Idaho Cattle Association, a non-profit corporation, et al Plaintiffs-Appellees-Cross-Appellants, v. Bruce BABBITT, Secretary of Interior, et al., Defendants-Appellees and Idaho Conservation League, Inc., an Idaho non-profit corporation; Committee for Idaho's High Desert Inc., an Idaho non-profit corporation, Intervenors-Appellants-Cross-Appellees.

Nos. 94-35164, 94-35230.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 5, 1994.

Decided June 29, 1995.

Scott L. Campbell, and Bobbi K. Dominick, Elam & Burke, Boise, ID, for plaintiffs-appellees-cross-appellants.

Albert M. Ferlo, Jr., and John L. Marshall, U.S. Dept. of Justice, Washington, DC, for defendants-appellees.

Laurence J. Lucas, Land & Water Fund of the Rockies, Boise, ID, for intervenors-appellants-cross-appellees.

Appeals from the United States District Court for the District of Idaho.

Before: WOOD, Jr., ^* HUG, and TANG, Circuit Judges.

TANG, Senior Circuit Judge:

Idaho Conservation League and Committee for Idaho's High Desert ("ICL/CIHD"), intervenors in the district court proceedings, appeal from a district court judgment setting aside the final rule listing the Bruneau Hot Springs Snail as an endangered species. The judgment was entered after a hearing on cross-motions for summary judgment. The district court determined that the listing rule was arbitrary and capricious because the United States Fish and Wildlife Service ("FWS") committed several procedural errors during the period between the initial proposal and the final listing.

We conclude that the district court properly granted intervention to ICL/CIHD and that the intervenors have standing to maintain this appeal. On the merits this appeal raises two major issues. First, does the Endangered Species Act ("ESA"), 16 U.S.C. Sec. 1533(b)(6), proscribe listing a species as endangered once the statutory twelve or eighteen month time limits have passed? We conclude that it does not. Legislative history indicates that Congress established time limits to speed up the listing process so that more species would be listed. The time limits were designed as an impetus to act rather than as a bar on subsequent action. Second, did the Secretary of the Interior, acting through FWS, commit procedural errors that require setting aside the rule listing the Springs Snail as an endangered species? We conclude that the Secretary should have provided the public with the USGS report, along with an opportunity to comment on the report. The report contained key data on which FWS relied, data that was not merely cumulative or responsive to other comments. FWS satisfied the remaining procedural requirements.

We vacate the judgment of the district court and remand the cause to the district court for remand to FWS. The agency must provide the public with notice and an opportunity to comment on the USGS report. The public also must be given the opportunity to submit any other information relevant to the listing decision. Thereafter, FWS must review the record in its entirety and decide whether to list the Springs Snail as an endangered species.

The Bruneau Hot Springs Snail is a species of very small snails first identified in the early 1950's. Thus far, the species has been found only in a narrow band of thermal springs and seeps along a 5.28 mile stretch of the Bruneau River and a tributary, Hot Creek, in Owyhee County in southwest Idaho. Government agencies and other researchers have been unsuccessful in their attempts to locate other Springs Snail habitat. On August 21, 1985, FWS published a proposal to list the snail as an endangered species. 50 Fed.Reg. 33,803 (1985). The proposal was made under the Endangered Species Act ("ESA"), 16 U.S.C. Sec. 1533. At that time, the Springs Snail was known to exist only in two springs in the Bruneau River area. According to FWS, a declining water table, resulting from ground water pumping, had reduced the springs' flow to less than ten percent of the 1954 flow. Reduced habitat due to the lower spring flow posed the primary threat to the Springs Snail. Id. at 33,803-05.

Initially, FWS provided a sixty-day comment period, from August 21 to October 21, 1985. FWS also published notice of the proposal in the Idaho Statesman, a newspaper serving southwest Idaho. Responding to a request for a public hearing, FWS set an additional comment period, from October 31 to December 31, 1985. 50 Fed.Reg. 45,443 (1985). FWS held one public hearing in Boise on December 10, 1985, and a second public hearing on January 15, 1986, near Bruneau. FWS also extended the comment period through February 1, 1986. 50 Fed.Reg. 51,894 (1985).

In December of 1986, over sixteen months after the initial notice, FWS announced that there was substantial disagreement in the data regarding the status of the Springs Snail and extended the period of consideration for six months. 51 Fed.Reg. 47,033 (1986). FWS set another period of public comment from December 30, 1986, to February 6, 1987.

One year later, by letter dated February 23, 1988, the United States Senators for Idaho, James McClure and Steve Symms, wrote the FWS director and asked that he not proceed with listing the Springs Snail. The Senators expressed concern that the listing could have "devastating effects" on the local agricultural community and added that "listing would be meaningless to protection of the snail's natural habitat if the hydrologic cause of the habitat's decline is not fully understood." They urged FWS to determine the connection between pumping of the aquifer and decreasing water levels in the Indian Bathtub spring, and to determine whether Springs Snails existed in other springs. The Senators added that they would assist in securing the funding necessary to conduct further studies. The FWS director agreed to delay listing the Springs Snail pending funding of conservation activities that might eliminate the need for an ESA listing.

Thereafter Congress provided FWS with $400,000 in funding for two additional studies. One study conducted by Idaho State University (ISU) and completed in May, 1992, found 126 previously unknown colonies of Springs Snails in spring and seep sites along a 5.28 mile section of the Bruneau River. The study stated that because information provided by the United States Geological Survey indicated that all springs in the area arise from a common aquifer, the threat to the species posed by depletion of the aquifer was not reduced by finding additional snail colonies in those springs.

A second study, conducted by the United States Geological Survey ("USGS"), analyzed the hydrology of the geothermal system in the Bruneau River valley to determine the cause of declining spring flows. A provisional draft was completed in 1992. USGS gave FWS the draft but did not release the report to the public. The provisional draft is contained in the administrative record. Nonetheless, the record indicates the public did not have access to the report. Idaho Farm Bureau ("IFB") attorney Scott Campbell's affidavit states Campbell asked Duke for the report, but Duke stated he could not provide a copy until it was published. Furthermore, although both the October, 1992, and December, 1992, notices in the Federal Register mention that Congress funded the USGS study, these notices neither discuss the results of the study nor provide a citation for it. 57 Fed.Reg. 45,762, 45,763 (1992); 57 Fed.Reg. 60,160, 60,161 (1992).

In addition to the studies funded by Congress, the Idaho Department of Water Resources ("IDWR"), the state agency charged with administering water rights in Idaho, conducted a third study. In its comments to FWS, IDWR recommended that the Springs Snail not be listed as endangered. IDWR asserted that no available evidence indicates that groundwater pumping uniformly affects the 126 springs and pools that constitute Springs Snails' habitat.

By 1992, FWS still had not made a final decision on the proposed listing. In July, 1992, Idaho Conservation League and Committee for Idaho's High Desert ("ICL/CIHD") (intervenors-appellants in the present action), filed suit to compel a final ruling on the proposed listing. On November 24, 1992, the district court approved a settlement in that action. In the settlement, FWS committed to rendering a final decision on the Springs Snail listing proposal by January 15, 1993 and publishing the decision by February 1, 1993.

After the suit had been filed, FWS set another public comment period from October 5, 1992 through November 4, 1992, to provide the public an opportunity to submit any additional new information. 57 Fed.Reg. 45,762 (1992). The notice in the Federal Register explained that Congress had funded the ISU and USGS studies, but this notice did not provide a citation for the USGS study. Id. at 45,763. FWS did not publish notice of the new comment period in the Idaho Statesman until November 6, 1992, two days after the comment period closed. Therefore, FWS held another comment period from December 18, 1992, through December 28, 1992, and published the required notice in the Federal Register and the Idaho Statesman. 57 Fed.Reg. 60,160 (1992). FWS still did not provide a citation to the USGS study.

FWS issued its final rule listing the Springs Snail as an endangered species on January 25, 1993, seven and one-half years after FWS first proposed the listing on August 21, 1985. 58 Fed.Reg. 5938 (1993). FWS concluded that the Springs Snail risks extinction because agricultural ground water withdrawal has depleted the geothermal aquifer in the Bruneau area, thereby reducing or eliminating the springs constituting Springs Snail habitat.

Idaho Farm Bureau Federation ("IFB") filed a complaint for declaratory and injunctive relief against the Secretary of the Interior and the...