Arizona Cattle Growers' v. U.S. Fish and Wildlife, CV9702416 PHX-SMM (DAE).

• Decision Date: 10 December 1998
• Docket Number: No. CV9702416 PHX-SMM (DAE).,CV9702416 PHX-SMM (DAE).
• Citation: 63 F.Supp.2d 1034
• Parties: ARIZONA CATTLE GROWERS' ASSOC., an Arizona non-profit association, and Jeff Menges, Plaintiffs, v. U.S. FISH AND WILDLIFE SERVICE and Bureau of Land Management, Defendants.
• Court: U.S. District Court — District of Arizona

63 F.Supp.2d 1034

ARIZONA CATTLE GROWERS' ASSOC., an Arizona non-profit association, and Jeff Menges, Plaintiffs, v. U.S. FISH AND WILDLIFE SERVICE and Bureau of Land Management, Defendants.

No. CV9702416 PHX-SMM (DAE).

United States District Court, D. Arizona.

December 10, 1998.

Norman D. James, Jay Lawrence Shapiro, Fennemore Craig, Phoenix, AZ, for Arizona Cattle Growers' Association, an Arizona nonprofit association, plaintiff.

Michael R. Arkfeld, U.S. Attorney's Office, Phoenix, AZ, Christiana P. Perry, U.S. Department of Justice, Washington, DC, Andrea L. Berlowe, U.S. Department of Justice, Environment & Natural Resources Div, Washington, DC, Samuel D Rauch, III, U.S. Department of Justice, Environment & Natural Resources Div., Washington, DC, Kenneth E. Kellner, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Fish and Wildlife Service, defendant.

ORDER GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT

EZRA, Chief Judge.

The court heard Plaintiffs' Motion and Defendants' Cross-Motion on October 21 1998. Norman D. James, Esq., and Jay L. Shapiro, Esq., appeared at the hearing on behalf of Plaintiffs; Assistant United States Attorney Samuel D. Rauch, III, appeared at the hearing on behalf of Defendants. After reviewing the motions and the supporting and opposing memoranda, the court GRANTS Plaintiffs' Motion for Partial Summary Judgment and DENIES Defendants' Motion for Summary Judgment.

BACKGROUND

On September 26, 1997, Defendant United States Fish and Wildlife Service ("FWS") issued the Programmatic Biological Opinion for the Safford and Tucson Field Offices' Livestock Grazing Program, Southeastern Arizona (the "BO"). In the BO, the FWS included "incidental take statements," which are issued to government agencies in order to preserve land for endangered species, by specifying conditions for the land's use. Plaintiffs Arizona Cattle Growers' Association ("ACGA") and Jeff Menges ("Menges"; together, "Plaintiffs") bring this action against the Defendants Bureau of Land Management ("BLM") and FWS (together, "Defendants"), alleging six separate causes of action relating to economic harms they claim will be suffered as a result of the ITS's.

Under the power granted to it by the Endangered Species Act ("ESA"), the FWS may carry out "programs for the conservation of endangered species and threatened species." 16 U.S.C. § 1536(a)(1) (1985). As part of this task, the FWS issues BO's that contain "incidental take statements" ("ITS"). ITS identify areas where members of particular species are at risk and then issue advisory opinions to the appropriate government agency. If the agency adopts the BO, it will then implement the terms and conditions of the ITS that limit or monitor the use of land. In so doing, the agency immunizes itself and its applicants from penalties for takings under § 9 of ESA. Thus, users of the land are permitted to "take" members of the listed species, notwithstanding the prohibition against taking contained in 16 U.S.C. § 1538, but these takings must occur within the guidelines established by the incidental take statements.

At present, there are some 288 grazing allotments on public lands administered by BLM in southeastern Arizona. Together, these allotments total nearly 1.6 million acres of land, most of which is allocated for ranching operations. Pursuant to 43 U.S.C. § 315 (1986), the Secretary of Interior identifies areas that are valuable primarily for grazing, and the land is set aside for that purpose. Landowners in the region are then awarded grazing permits to use the land, and the Secretary of Interior is charged with "safeguarding" these grazing preferences on that land.

In this case, the FWS concluded in the BO that livestock grazing in the affected Bureau administered land was not likely to jeopardize the continued existence of listed species under the ESA, including the Cactus Ferruginous Pygmy Owl and the Razorback Sucker. Nevertheless, the FWS issued ITS to the BLM for each of these species, explaining that even if grazing would not put the species at risk of extinction, it would "take" members of the species and thus grazing should be monitored. The FWS issued the following terms and conditions to control the "taking" of the listed species:

No grazing of cattle shall occur on Bureau-administered lands in the 100-floodplain of the Gila River, and the riparian corridors of Bonita Creek and the San Francisco River through the project area for the life of the project (through December 31, 2006). Actions shall be taken, including fencing, monitoring for and removal of trespass cattle, and other measures to ensure grazing does not occur on these lands.

ARVI-42, at 175.

Plaintiffs ACGA and Jeff Menges ("Menges") claim that the incidental take statements issued by the FWS will cause severe economic losses to ranchers in southeastern Arizona. ACGA is a non-profit corporation with 850 members and its principal office located in the State of Arizona. The organization was formed in 1904 to represent the interests of Arizona's ranching industry. Plaintiff Menges is the owner and operator of the Menges Ranch, a cattle ranch located southeast of Clifton, Arizona. Menges's ranch contains approximately 135 acres of private land owned by Menges, and approximately 220 acres of land owned by a private corporation. The remaining 40 sections of his ranch are public lands administered by the BLM. Menges also owns permits issued by BLM authorizing him to use two additional allotments for cattle grazing. Together, Plaintiffs bring this suit to challenge the ITS contained in the BO. Ultimately, Plaintiffs claim the terms of the ITS will reduce and even eliminate livestock grazing in various parts of southeastern Arizona, causing substantial harm to the communities and citizens in the area who are dependent on the ranching industry. Plaintiffs bring this suit against Defendants, seeking injunctive and declaratory relief on the basis of six counts:

1. The FWS acted arbitrarily and capriciously in issuing the ITS because it applied an Overbroad and Unlawful Definition of "Take" in the Incidental Take Statements;

2. The FWS acted arbitrarily and capriciously in issuing the ITS because it Failed to Specify the Amount or Extent of the Anticipated Take and Provided no Clear Standard for Determining When the Authorized Level of Take is Exceeded;

3. The Reasonable and Prudent Measures and Mandatory Terms and Conditions Unlawfully Modify the Basic Design, Scope, Timing and Duration of the Action;

4. The Reasonable and Prudent Measures and Mandatory Terms and Conditions Contain Requirements that Cannot be Satisfied;

5. FWS Failed to Utilize the Best Scientific and Commercial Information in Developing the Incidental Take Statements ("ITS");

6. FWS Failed to Comply with NEPA in Issuing the Incidental Take Statements.

Pursuant to this court's Order issued concurrently with this Order, Count VI has been dismissed for lack of standing. With respect to the remaining counts, Plaintiffs have filed the instant Motion for Partial Summary Judgment, relating to Counts One, Two and Three. Defendants have filed a Cross-Motion for Summary Judgment.

STANDARD OF REVIEW

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered when:

... the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The moving party has the initial burden of "identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265, (1986)). The movant must be able to show "the absence of a material and triable issue of fact," Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir.1987), although it need not necessarily advance affidavits or similar materials to negate the existence of an issue on which the nonmoving party will bear the burden of proof at trial. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. But cf., id., at 328, 106 S.Ct. 2548 (White, J., concurring).

If the moving party meets its burden, then the opposing party may not defeat a motion for summary judgment in the absence of any significant probative evidence tending to support his legal theory. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282 (9th Cir.1979). The opposing party cannot stand on his pleadings, nor can be simply assert that he will be able to discredit the movant's evidence at trial. See T.W. Elec., 809 F.2d at 630. Similarly, legal memoranda and oral argument are not evidence and do not create issues of fact capable of defeating an otherwise valid motion for summary judgment. British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979). Moreover, "if the factual context makes the nonmoving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." California Architectural Building Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987), (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)) (original emphasis).

The standard for a grant of summary judgment reflects the standard governing the grant of a directed verdict. See Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1289 (9th Cir.1987) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct....