Ill. Commercial Fishing Ass'n v. Salazar

Decision Date12 June 2012
Docket NumberCivil Action No. 10–1642(JEB).
Citation867 F.Supp.2d 108
PartiesILLINOIS COMMERCIAL FISHING ASSOCIATION, Plaintiff, v. Ken SALAZAR, in his official capacity as Secretary of the United States Department of the Interior, and U.S. Fish and Wildlife Service, Defendants.
CourtU.S. District Court — District of Columbia

OPINION TEXT STARTS HERE

David B. Lamb, Washington, DC, Patrick F. Flanigan, Law Office of Patrick Flanigan, Swarthmore, PA, for Plaintiff.

Ethan Carson Eddy, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, District Judge.

The pallid sturgeon ( Scaphirhynchus albus ) is an endangered fish species that inhabits the Missouri and Mississippi river basins. It closely resembles the shovelnose sturgeon ( Scaphyrhynchus platorynchus ), a more common fish that is not at risk of becoming endangered. In 2010, the U.S. Fish and Wildlife Service issued a rule under the “similarity of appearance” provisions of the Endangered Species Act, requiring the shovelnose sturgeon to be treated as a “threatened” species in the geographic range where it coexists with the pallid sturgeon. Commercial fishermen are accordingly prohibited from harming or killing shovelnose sturgeon in those areas.

Unhappy with such a restriction on its members' ability to catch shovelnose sturgeon, the Illinois Commercial Fishing Association, on behalf its membership and all similarly situated individuals, filed this suit seeking to set aside the rule. The parties have now filed Cross–Motions for Summary Judgment. Because the rule complies with the requirements of the Endangered Species Act and is adequately supported by the administrative record, the Court will grant Defendants' Motion and deny Plaintiff's.

I. BackgroundA. Statutory Background

The Endangered Species Act, 16 U.S.C. §§ 1531–44, was enacted in 1973 “to provide a means whereby ecosystems upon which endangered species and threatened species depend may be conserved” and “to provide a program for the conservation of such endangered species and threatened species....” 16 U.S.C. § 1531(b). Its passage marks Congress's commitment “to halt and reverse the trend toward species extinction, whatever the cost.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978).

Section 4 of the Act directs the Secretary of the Interior or the Secretary of Commerce (depending on the species) to determine which species should be listed as “endangered” or “threatened.” 16 U.S.C. § 1533(a)(1). A species is to be classified as “endangered” if it is “in danger of extinction throughout all or a significant portion of its range ....” § 1532(6). If the species “is likely to become ... endangered ... within the foreseeable future throughout all or a significant portion of its range,” the Secretary should list it as “threatened.” § 1532(20).

Endangered species are entitled to a number of legal protections under the Act, including a prohibition on “take.” See §§ 1538(a)(1)(B)(C). The Act defines to “take” as to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” any endangered species or to “attempt to engage in any such conduct.” § 1532(19); see also Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 704, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (ESA defines “take” in “the broadest possible manner to include every conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife”).

When a species is listed as “threatened,” the Act directs the Secretary to “issue such regulations as he deems necessary and advisable to provide for the conservation of such species.” § 1533(d). Under this provision, he is authorized to extend any prohibition that applies to endangered species to any “threatened” species of fish or wildlife. Id.; see also § 1538(a)(1). The Secretary of the Interior has promulgated a general regulation stating that, in the absence of species-specific regulations, the prohibitions with respect to endangered wildlife shall apply to all “threatened” wildlife within its jurisdiction. See50 C.F.R. § 17.31(a). If, however, the Secretary elects to create a special rule governing a particular threatened species, “all the applicable prohibitions and exceptions” must be contained therein, as the general regulation will not apply. See50 C.F.R. § 17.31(c).

Even if the Secretary determines after considering the relevant factors that a particular species is neither threatened nor endangered, see16 U.S.C. §§ 1533(a)(1)(A)(E), he may nonetheless treat it as such based on its similarity of appearance to a listed species. See§ 1533(e). Specifically, Section 4(e) of the ESA authorizes the Secretary to treat any species as an endangered species or threatened species if he finds that:

(A) such species so closely resembles in appearance, at the point in question, a species which has been listed pursuant to such section that enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species;

(B) the effect of this substantial difficulty is an additional threat to an endangered or threatened species; and

(C) such treatment of an unlisted species will substantially facilitate the enforcement and further the policy of this chapter.

Id.; see also50 C.F.R. § 17.50(b) (regulatory interpretation of 16 U.S.C. §§ 1533(e)(A)(C)). If the Secretary wishes to afford a species special protections and these three criteria are satisfied, the species must “appear in the list in [50 C.F.R.] § 17.11 with an indication of whether it is to be treated as threatened or endangered. See50 C.F.R. § 17.50(a).

B. Factual Background

The pallid sturgeon is a ray-finned, spade-snouted freshwater fish that now resides exclusively in the Missouri and Mississippi river basins, having been extirpated from most if its historical range. SeeEndangered and Threatened Wildlife and Plants; Threatened Status for Shovelnose Sturgeon under the Similarity of Appearance Provisions of the Endangered Species Act, 75 Fed.Reg. 53,598 (Sep. 1, 2010); AR 2618–26. It can grow to five feet in length and weigh up to 80 pounds. See AR at 24. Because its ancestors date back 78 million years, it is sometimes referred to as a “living dinosaur.” Id.

Due to habitat alteration and commercial harvesting, the pallid sturgeon is now in danger of extinction. SeeEndangered and Threatened Wildlife and Plants; Determination of Endangered Status of the Pallid Sturgeon, 55 Fed.Reg. 36,641 (Sep. 6, 1990); AR 2630–36. In 1990, the U.S. Fish and Wildlife Service (FWS) named it an endangered species, making it unlawful to kill or otherwise harm a member of the species. See id.; see also16 U.S.C. §§ 1538(a)(1)(B)(C), 1532(19).

The pallid sturgeon is closely related to the shovelnose sturgeon, a similar looking but more prevalent species whose habitat overlaps with the pallid sturgeon in certain areas. See75 Fed.Reg. 53,598 (AR 2618). Although the shovelnose sturgeon is not itself on the verge of becoming endangered or extinct, FWS has designated it—along with its close relative, the shovelnose-pallid sturgeon hybrid—as a “threatened” species because of its similarity of appearance with the endangered pallid sturgeon. See 75 Fed.Reg. 53598–53605 (Sep. 1, 2010); 50 C.F.R. § 17.44(aa)(1). This designation applies only to those geographic areas where shovelnose and pallid sturgeon cohabitate, which constitutes only a portion of the shovelnose sturgeon's area of habitation. See id. at §§ 17.44(aa)(1)(2); see also75 Fed.Reg. 53,598, 53604–05 (AR 2618, 2624–25) (identifying geographic areas on a map); 75 Fed.Reg. 53,599 (AR 2619) ([T]his rule covers the minimal geographic extent necessary to effectively conserve pallid sturgeon.”). Thus, in areas where the two species live alongside one another, fisherman cannot “take” shovelnose sturgeon for commercial purposes. 50 C.F.R. § 17.44(aa)(1).

C. Procedural History

On September 29, 2010, the Illinois Commercial Fishing Association (ICFA) filed this suit challenging the rule that affords shovelnose sturgeon in the same geographic area as pallid sturgeon the protections of a “threatened” species. 75 Fed.Reg. 53,598 (Sep. 1, 2010). This Court originally dismissed Counts I through III without prejudice for failure to adequately allege standing, and it dismissed Count IV, which alleged Congressional Review Act violations, with prejudice. See Mem. Op. of June 16, 2011.

On June 30, 2011, Plaintiff filed a Second Amended Complaint against Kenneth Salazar, in his official capacity as Secretary of the United States Department of Interior, and FWS, which is the agency within the Department of Interior responsible for administering the ESA for species within the Department's jurisdiction. The Complaint alleges violations of the ESA, 16 U.S.C. §§ 1531–44 (Count I), the National Environmental Policy Act, 42 U.S.C. §§ 4321–47 (Count II), the Regulatory Flexibility Act, 5 U.S.C. §§ 601–12 (Count III), and the Administrative Procedures Act, 5 U.S.C. §§ 701–06. See Second Amended Complaint, ¶ 3. Plaintiff moved for summary judgment on all claims on February 2, 2012, and Defendants cross-moved for summary judgment on March 5. Plaintiff has since expressly conceded their RFA and NEPA claims, see Pl. Reply & Opp. at 11, so only the claims arising under the APA and ESA are now before the Court.

II. Legal Standard

Although styled Motions for Summary Judgment, the pleadings in this case more accurately seek the Court's review of an administrative decision. The standard set forth in Rule 56(c), therefore, does not apply because of the limited role of a court in reviewing the administrative record. See Sierra Club v. Mainella, 459 F.Supp.2d 76, 89–90 (D.D.C.2006) (citing National Wilderness Inst. v. United States Army Corps of Eng'rs, 2005 WL 691775, at *7 (D.D.C.2005); Fund for Animals v. Babbitt, 903 F.Supp. 96, 105 (D.D.C.1995), amended on other grounds,967 F.Supp. 6 (D.D.C.1997))...

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