Northern Spotted Owl v. Lujan, C88-573Z.

• Citation: 758 F. Supp. 621
• Decision Date: 26 February 1991
• Docket Number: No. C88-573Z.,C88-573Z.
• Parties: NORTHERN SPOTTED OWL (Strix Occidentalis Caurina), et al., Plaintiffs, v. Manual LUJAN, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

758 F. Supp. 621

NORTHERN SPOTTED OWL (Strix Occidentalis Caurina), et al., Plaintiffs, v. Manual LUJAN, et al., Defendants.

No. C88-573Z.

United States District Court, W.D. Washington, N.D.

February 26, 1991.

Victor M. Sher, Todd D. True, Sierra Club Legal Defense Fund, Seattle, Wash., Michael R. Sherwood, Sierra Club Legal Defense Fund, San Francisco, Cal., Mark C. Rutzick, Preston, Thorgrimson, Shidler, Gates & Ellis, Portland, Or., for Nat. Audubon Society and for Northwest Forest Resource Council, Amicus Curiae.

Jean E. Williams Mellor, U.S. Dept. of Justice, Land and Natural Resources Div., Washington, D.C., for Director of Fish & Wildlife Service, Regional Director, Fish & Wildlife Service, Secretary of the Interior, U.S. Dept. of the Interior, U.S. Fish & Wildlife.

Charles W. Brooks, U.S. Dept. of Justice, Washington, D.C., for Frank Dunkle and Donald Hodel.

James C. Kilbourne, U.S. Dept. of Justice, Washington, D.C., for Manual Lujan, in his official capacity as Secretary of the Interior and John F. Turner, in his official capacity as Director of the U.S. Fish and Wildlife Service.

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND MOTION TO COMPEL DESIGNATION OF CRITICAL HABITAT

ZILLY, District Judge.

THIS MATTER comes before the Court upon plaintiffs' motion for summary judgment and their motion to compel the federal defendants to designate critical habitat for the northern spotted owl. The Court took this matter under advisement following oral argument on January 25, 1991. Having reviewed all the materials submitted, including those submitted by the Northwest Forest Resource Council as amicus curiae, and being fully advised, the Court hereby GRANTS plaintiffs' motion for summary judgment, docket no. 113, and GRANTS their motion, docket no. 87, to compel the federal defendants to designate critical habitat for the northern spotted owl.

I. Statement of Facts

In May 1988, twenty-two environmental organizations filed suit against the Secretary of the Interior, the U.S. Fish and Wildlife Service ("Service"), and other federal defendants, alleging the Service's decision not to list the northern spotted owl under the Endangered Species Act of 1973, as amended, 16 U.S.C. § 1531 et seq. ("ESA"), was arbitrary and capricious, and contrary to law. After extensive briefing and argument by counsel, this Court ruled in favor of plaintiffs and remanded this matter to the Service for further proceedings. Northern Spotted Owl v. Hodel, 716 F.Supp. 479 (W.D.Wash.1988).

On June 23, 1989, the Service proposed to list the northern spotted owl as a "threatened" species under the Endangered Species Act.¹ See 54 Fed.Reg. 26,666 (1989). On June 26, 1990, the Service published its final rule confirming that listing decision. See 55 Fed.Reg. 26,114 (1990). In both the proposed and final listing rules, the Service expressly deferred designation of critical habitat for the spotted owl on grounds that it was not "determinable."

Plaintiffs move this Court to order the federal defendants to designate "critical habitat" for the northern spotted owl. As defined under the ESA, "critical habitat" refers to geographic areas which are essential to the conservation of the spotted owl and which may require special management considerations or protection. 16 U.S.C. § 1532(5)(A)(i). Thus, even though more extensive habitat may be essential to maintain the species over the long term, critical habitat only includes the minimum amount of habitat needed to avoid short-term jeopardy or habitat in need of immediate intervention. Habitat not currently occupied by the spotted owl may be designated as critical only upon a determination by the Secretary of the Interior that such areas are essential to ensure the conservation of the species. 16 U.S.C. § 1532(5)(A)(ii). The Secretary must consult with other federal agencies to ensure that governmental actions do not "result in the destruction or adverse modification" of land designated as critical habitat. 16 U.S.C. § 1536(a)(2).

The initial determination of what areas constitute critical habitat is to be made on the basis of "the best scientific data available." 16 U.S.C. § 1533(b)(2). This requires identifying geographic areas containing the physical and biological features considered to be essential to the conservation of the species. See 50 C.F.R. § 424.12(b) (listing criteria for designating critical habitat). In addition, Congress directed the Secretary of the Interior to consider the probable economic or other impacts on human activities resulting from the critical habitat designation. The Secretary is expressly authorized to exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the conservation benefits, unless to do so would result in the extinction of the species. 16 U.S.C. § 1533(b)(2).

Plaintiffs challenge the Service's decision, on behalf of the Secretary, to defer designation of critical habitat for the northern spotted owl. The ESA requires the Secretary, "to the maximum extent prudent and determinable," to designate critical habitat concurrently with his decision to list a species as endangered or threatened. 16 U.S.C. § 1533(a)(3). When critical habitat is not determinable at the time of the final listing rule, the Secretary is authorized up to twelve additional months to complete the designation. 16 U.S.C. § 1533(b)(6)(C). The governing administrative regulations specify that the Secretary must state his reasons for not designating critical habitat in the proposed and final listing rules. 50 C.F.R. § 424.12(a).

The Secretary, through the Service, claims that critical habitat for the spotted owl was not "determinable" when, in June 1989, the Service proposed to list the owl as threatened or when it issued its final rule one year later. The federal defendants contend that, under these circumstances, they are entitled to a twelve-month extension of time pursuant to 16 U.S.C. § 1533(b)(6)(C). Plaintiffs charge that the Secretary has violated the Endangered Species Act and the Administrative Procedure Act by failing to designate critical habitat concurrently with the listing of the northern spotted owl.

II. Standard of Review

The actions of the Secretary of the Interior and his delegates are reviewed in accordance with the Administrative Procedure Act, 5 U.S.C. § 706. Pyramid Lake Paiute Tribe of Indians v. United States Dept. of Navy, 898 F.2d 1410, 1414 (9th Cir.1990); Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 981 (9th Cir.1985). Administrative decisions must be upheld unless "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Conner v. Burford, 848 F.2d 1441, 1453 (9th Cir.1988), cert. denied sub nom. Sun Exploration & Production Co. v. Lujan, 489 U.S. 1012, 109 S.Ct. 1121, 103 L.Ed.2d 184 (1989). The scope of judicial review under this standard is narrow, and the Court is not permitted to substitute its own judgment for that of the administrative decision-maker. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443, 458 (1983). The relevant inquiry is whether the agency "`considered the relevant factors and articulated a rational connection between the facts found and the choice made.'" Pyramid Lake Paiute Tribe, 898 F.2d at 1414 (quoting Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 2256, 76 L.Ed.2d 437, 452 (1983)). This Court must inquire whether the Secretary and his delegates have properly discharged their duties under the Endangered Species Act and appropriate administrative regulations.

III. Analysis

Section 4(a)(3) of the Endangered Species Act requires the Secretary of the Interior, "to the maximum extent prudent and determinable," to designate critical habitat concurrently with the decision to list a species as endangered or threatened under the Act. 16 U.S.C. § 1533(a)(3).² This statutory directive is consistent with Congress' stated objective that the ESA "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved...." 16 U.S.C. § 1531(b); see also 16 U.S.C. § 1533(a)(1)(A); see generally Coggins & Russell, Beyond Shooting Snail Darters in Port Barrels: Endangered Species and Land Use in America, 70 Geo. L.J. 1433 (1982) (reviewing legislative history of Endangered Species Act).

The language employed in Section 4(a)(3) and its place in the overall statutory scheme evidence a clear design by Congress that designation of critical habitat coincide with the species listing determination. The linkage of these issues was not the product of chance; rather, it reflects the studied and deliberate judgment of Congress that destruction of habitat was the most significant cause of species endangerment. See H.R.Rep. No. 1625, 95th Cong., 2d Sess. 5, reprinted in 1978 U.S. Code Cong. & Admin.News 9453, 9455 ("The loss of habitat for many species is universally cited as the major cause for the extinction of species worldwide."); S.Rep. No. 307, 93d Cong., 1st Sess. 1-2, reprinted in 1973 U.S.Code Cong. & Admin.News 2989, 2990.

As originally enacted, the ESA admitted no exceptions to the requirement that the critical habitat designation occur concurrently with the listing determination. 16 U.S.C. § 1536 (requiring federal agencies to avoid "the destruction or modification of habitat ... which is determined by the Secretary ... to be critical") (current version at 16 U.S.C. § 1536(a)(2)); see also 16 U.S.C. § 1533(c)(1) (requiring Secretary to specify range of endangered or threatened species) (amended 1978).

In 1978, Congress clarified that the Secretary was required, "to the maximum extent prudent," to specify critical habitat "at the time the species is proposed for listing." 16 U.S.C. § 1533(a)(1) (current version at 16 U.S.C. § 1533(a)(3)); see...