Northern Spotted Owl v. Hodel

• Decision Date: 17 November 1988
• Docket Number: No. C88-573Z.,C88-573Z.
• Parties: NORTHERN SPOTTED OWL (STRIX OCCIDENTALIS CAURINA), et al., Plaintiffs, v. Donald HODEL, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

716 F. Supp. 479

NORTHERN SPOTTED OWL (STRIX OCCIDENTALIS CAURINA), et al., Plaintiffs, v. Donald HODEL, et al., Defendants.

No. C88-573Z.

United States District Court, W.D. Washington at Seattle.

November 17, 1988.

Victor M. Sher, Todd D. True and Corrie J. Yackulic, Sierra Club Legal Defense Fund, Seattle, Wash., and Michael R. Sherwood, Sierra Club Legal Defense Fund, San Francisco, Cal., for plaintiffs.

Donald A. Carr, Acting Asst. Atty. Gen., James C. Kilbourne and Charles W. Brooks, Dept. of Justice, Land and Natural Resources Div., Washington, D.C., for defendants.

ORDER OF REMAND

ZILLY, District Judge.

A number of environmental organizations bring this action against the United States Fish & Wildlife Service ("Service") and others, alleging that the Service's decision not to list the northern spotted owl as endangered or threatened under the Endangered Species Act of 1973, as amended, 16 U.S.C. § 1531 et seq. ("ESA" or "the Act"), was arbitrary and capricious or contrary to law.

Since the 1970s the northern spotted owl has received much scientific attention, beginning with comprehensive studies of its natural history by Dr. Eric Forsman, whose most significant discovery was the close association between spotted owls and old-growth forests. This discovery raised concerns because the majority of remaining old-growth owl habitat is on public land available for harvest.

In January 1987, plaintiff Greenworld, pursuant to Sec. 4(b)(3) of the ESA, 16 U.S.C. § 1533(b)(3), petitioned the Service to list the northern spotted owl as endangered. In August 1987, 29 conservation organizations filed a second petition to list the owl as endangered both in the Olympic Peninsula in Washington and in the Oregon Coast Range, and as threatened throughout the rest of its range.

The ESA directs the Secretary of the Interior to determine whether any species have become endangered or threatened¹ due to habitat destruction, overutilization, disease or predation, or other natural or manmade factors. 16 U.S.C. § 1533(a)(1).² The Act was amended in 1982 to ensure that the decision whether to list a species as endangered or threatened was based solely on an evaluation of the biological risks faced by the species, to the exclusion of all other factors. See Conf.Report 97-835, 97th Cong.2d Sess. (Sept. 17, 1982) at 19, reprinted in 1982 U.S.Code Cong. & Admin.News 2807, 2860.³

The Service's role in deciding whether to list the northern spotted owl as endangered or threatened is to assess the technical and scientific data in the administrative record against the relevant listing criteria in section 4(a)(1) and then to exercise its own expert discretion in reaching its decision. Cayman Turtle Farm, Ltd. v. Andrus, 478 F.Supp. 125, 131 (D.C.Cir.1979).

In July 1987, the Service announced that it would initiate a status review of the spotted owl and requested public comment. 52 Fed.Reg. 34396 (Sept. 11, 1987). The Service assembled a group of Service biologists, including Dr. Mark Shaffer, its staff expert on population viability, to conduct the review. The Service charged Dr. Shaffer with analyzing current scientific information on the owl. Dr. Shaffer concluded that:

the most reasonable interpretation of current data and knowledge indicate continued old growth harvesting is likely to lead to the extinction of the subspecies in the foreseeable future which argues strongly for listing the subspecies as threatened or endangered at this time.

M. Shaffer, letter of November 11, 1987, to Jay Gore, U.S. Fish and Wildlife Service, Region 1, Endangered Species, attached to Final Assessment of Population Viability Projections for the Northern Spotted Owl Administrative Record at III.A.1.

The Service invited a peer review of Dr. Shaffer's analysis by a number of U.S. experts on population viability, all of whom agreed with Dr. Shaffer's prognosis for the owl, although each had some criticisms of his work.

The Service's decision is contained in its 1987 Status Review of the owl ("Status Review") Administrative Record at II.C and summarized in its Finding on Greenworld's petition⁴ ("Finding") Administrative Record at I.D.1. The Status Review was completed on December 14, 1987, and on December 17 the Service announced that listing the owl as endangered under the Act was not warranted at that time.⁵ 52 Fed.Reg. 48552, 48554 (Dec. 23, 1987). This suit followed. Both sides now move for summary judgment on the administrative record before the Court.

In T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Ass'n, 809 F.2d 626, 629-32 (9th Cir.1987), the Court of Appeals for the Ninth Circuit rearticulated the test for summary judgment. The Court said, at 630-31:

Thus, at this stage of the litigation, the district judge does not weigh conflicting evidence with respect to a disputed material fact. Anderson, v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. at 2513 , 91 L.Ed.2d 202. Nor does the judge make credibility determinations with respect to statements made in affidavits, answers to interrogatories, admissions, or depositions. See id. These determinations are within the province of the factfinder at trial. Therefore, at summary judgment, the judge must view the evidence in the light most favorable to the nonmoving party: if direct evidence by the moving party conflicts with direct evidence produced by the nonmoving party, the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact.... Inferences must also be drawn in the light most favorable to the nonmoving party. Anderson, 106 S.Ct. at 2513; Matsushita, Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 106 S.Ct. at 1356-57 , 89 L.Ed.2d 538.

This Court reviews the Service's action under the "arbitrary and capricious" standard of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A). Friends of Endangered Species v. Jantzen, 760 F.2d 976, 980-81 (9th Cir.1985). This standard is narrow and presumes the agency action is valid, Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C.Cir.), cert. denied, 426 U.S. 941, 96 S.Ct. 2662, 49 L.Ed.2d 394 (1976), but it does not shield agency action from a "thorough, probing, in-depth review," Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). Courts must not "rubberstamp the agency decision as correct." Ethyl Corp. v. EPA, supra at 34.

Rather, the reviewing court must assure itself that the agency decision was "based on a consideration of the relevant factors...." Moreover, it must engage in a "substantial inquiry" into the facts, one that is "searching and careful." This is particularly true in highly technical cases....

Id. at 34-35 (citations and footnotes omitted). Agency action is arbitrary and capricious where the agency has failed to "articulate a satisfactory explanation for its action including a `rational connection between the facts found and the choice made.'" Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983) (citations omitted).

The Status Review and the Finding to the listing petition offer little insight into how the Service found that the owl currently has a viable population. Although the Status Review cites extensive empirical data and lists various conclusions, it fails to provide any analysis. The Service asserts that it is entitled to make its own decision, yet it provides no explanation for its findings. An agency must set forth clearly the grounds on which it acted. Atchison T. & S.F. Ry. v. Wichita Bd. of Trade, 412 U.S. 800, 807, 93 S.Ct. 2367, 2374-75, 37 L.Ed.2d 350 (1973). Judicial deference to agency expertise is proper, but the Court will not do so blindly. The Court finds that the Service has not set forth the grounds for its decision against listing the owl.

The Service's documents also lack any expert analysis supporting its conclusion. Rather, the expert opinion is entirely to the contrary. The only reference in the Status Review to an actual opinion that the owl does not face a significant likelihood of extinction is a mischaracterization of a conclusion of Dr. Mark Boyce:

Boyce (1987) in his analysis of the draft preferred alternative⁶ concluded that there is a low probability that the spotted owls will go extinct. He does point out that population fragmentation appears to impose the greatest risks to extinction.

Status Review at 24 (footnote added). Dr. Boyce responded to the Service:

I did not conclude that the Spotted Owl enjoys a low probability of extinction, and I would be very disappointed if efforts to preserve the Spotted Owl were in any way thwarted by a misinterpretation of something I wrote.

M. Boyce, letter of February 18, 1988, to Rolf Wallenstrom, U.S. Fish and Wildlife Service, Region 1, exhibit 7 to Complaint.⁷

Numerous other experts on population viability contributed to or reviewed drafts of the Status Review, or otherwise assessed spotted owl viability. Some were employed by the Service; others were independent. None concluded that the northern spotted owl is not at risk of extinction. For example, as noted above, Dr. Shaffer evaluated the current data and knowledge and determined that continued logging of old growth likely would lead to the extinction of the owl in the foreseeable future. This risk, he concluded, argued strongly for immediate...