Southwest Center for Biological Div. V. Babbitt, CIV. 94-2036-PHX-RMB.

• Decision Date: 06 June 1997
• Docket Number: No. CIV. 94-2036-PHX-RMB.,CIV. 94-2036-PHX-RMB.
• Citation: 980 F.Supp. 1080
• Parties: SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY, a non-profit corporation, et al., Plaintiffs, v. Bruce BABBITT, Secretary of the Interior, Defendant.
• Court: U.S. District Court — District of Arizona

980 F.Supp. 1080

SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY, a non-profit corporation, et al., Plaintiffs, v. Bruce BABBITT, Secretary of the Interior, Defendant.

No. CIV. 94-2036-PHX-RMB.

United States District Court, D. Arizona.

June 6, 1997.

Matt Kenna, Kenna & Associates, Durango, CO, Daniel John Rohlf, Portland, OR, for Plaintiffs.

Eileen Sobeck and Teri Thomsen, U.S. Dept. of Justice, Washington, DC, for Defendant.

ORDER

BILBY, Senior District Judge.

I. INTRODUCTION.

This Court has been asked to once again consider government action in relation to listing the northern goshawk (Accipiter gentilis) under the Endangered Species Act ("ESA"). The Plaintiff, Southwest Center for Biological Diversity ("Southwest") has requested this Court to find that the Fish and Wildlife Service's ("FWS") May 26, 1996 Finding ("Finding") denying the Plaintiff's Petition to list the "northern goshawk west of the 100th meridian under the ESA was arbitrary and capricious."

Southwest argues that the Finding is arbitrary and capricious because it is based upon a policy for listing "distinct population segments" ("DPSs") of endangered species which is contrary to the ESA. The policy of the FWS is that there can only be one subspecies in any one particular DPS listing. See 61 Fed.Reg. 4722. The FWS supports its decision by arguing that there is nothing in the ESA which prohibits its current policy for listing DPSs of endangered species under the ESA.

The parties have filed cross-motions for summary judgment. Amici Apache County has filed an amicus brief in support of the Defendant's Motion for Summary Judgment.

Also pending before the Court is Southwests' Motion to Strike the Declaration of Jamie Clark and the accompanying report entitled "Northern Goshawk and Forest Management in the Southwestern United States." Southwest argues that the declaration and report should be stricken because they were not considered by the FWS and are therefore not part of the record below. The FWS has not responded to the motion, allowing this Court to grant the motion pursuant to Local Rule 1.10 of the Rules of Practice of the United States District Court for the District of Arizona. After independent consideration of the merits of Southwest's Motion to Strike, this Court GRANTS the motion and will not consider the Declaration of Jamie Clark, or the accompanying report, in its deliberations in this matter.

II. UNDISPUTED FACTS/PROCEDURAL HISTORY.

This case began in 1991 after Southwest petitioned the FWS to list the "northern goshawk located west of the 100th meridian"¹ as a "distinct population segment" ("DPS") which was endangered under the ESA. Under the ESA, a species or subspecies or a "distinct population segment" of a species or subspecies may be listed as endangered or threatened. See 16 U.S.C. § 1532(16). The FWS denied the Southwest's petition on the grounds that the "northern goshawk located west of the 100th meridian" was not a DPS because there was no evidence of reproductive isolation or genetic differentiation with the goshawk in the eastern United States. See 57 Fed.Reg. 28,474-76. Thus, the FWS concluded that Southwest failed to prove that the "northern goshawk located west of the 100th meridian" was a DPS because the northern goshawk habitat was contiguous from the western United States to the eastern United States. See id. Southwest then filed suit, alleging that the decision of the FWS was arbitrary and capricious.

This Court's decision of February 22, 1996 agreed with Southwest, and found that the decision of the FWS was arbitrary and capricious for two reasons. First, there was no clear and consistent policy in the FWS regarding the definition of a DPS and, in other cases, neither reproductive isolation nor genetic differentiation were required for a finding of a DPS. See Southwest Center for Biological Diversity v. Babbitt, 926 F.Supp. 920, 926 (D.Ariz.1996). Second, the FWS relied upon a 1991 Draft Policy defining DPS when considering Southwest's 1992 Petition regarding the northern goshawk. At the time the Petition was considered, a 1992 Draft Policy was available. FWS should have relied on the 1992 Policy since the ESA requires FWS to use the "best available data". See id. at 927.

After finding that the decision of the FWS was arbitrary and capricious, this Court remanded the Petition to FWS for a new 90-day determination. This time, the FWS evaluated the Petition based upon the Final DPS Policy which was adopted on February 7, 1996. On May 28, 1996, FWS made another negative 90-day Finding, and denied the Petition. See 61 Fed.Reg. 28,834 The reasoning of the FWS in denying the Petition was that the Final DPS Policy only allows for one subspecies per DPS, and the Petition contained three (3) subspecies of goshawks. See id. at 28,835. In its Finding denying the Petition, the FWS claimed that there are three subspecies of northern goshawk west of the 100th meridian, 1) A.g. atricapillus, 2) A.g. laingi, and 3) A.g. apache. See id.

Thereafter, Southwest filed a Motion for Contempt, arguing that FWS did not make a new 90-day Finding based upon statutory obligations as this Court required in its remand. The Motion for Contempt was denied and Southwest was instructed to pursue its administrative remedies regarding the 90-day Finding, and then to move to re-open this case and amend its Complaint if it was dissatisfied with the results of the administrative procedure. Southwest followed the instructions of this Court, and a Supplemental Complaint was filed on October 16, 1996.

III. STANDARD OF REVIEW.

Judicial review of administrative decisions involving the ESA is governed by the Administrative Procedure Act, 5 U.S.C. § 706. See Pyramid Lake Paiute Tribe of Indians v. United States Dep't of the Navy, 898 F.2d 1410, 1414 (9th Cir.1990). Under § 706, the reviewing court must first determine whether the language of the statute is clear. If, through the language of the statute, the intent of Congress is clear, then both the court and agency must give effect to the unambiguously expressed intent of Congress. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). If, however, the statute is "silent or ambiguous with respect to the specific issue, the court does not simply impose its own construction on the statute ... Rather, ... the question for the court to consider is whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. at 2782. Administrative decisions must be upheld unless they are "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Chevron, 467 U.S. at 844, 104 S.Ct. at 2782.

The scope of judicial review is narrow, and this Court is not permitted to substitute its own judgment for a reasonable determination made by the administrative decision-maker. See Chevron, 467 U.S. at 844, 104 S.Ct. at 2782. Although a court must defer to a reasonable statutory interpretation by an agency if a statute is not clear, the agency is "entitled to considerably less deference" where an agency's interpretation of a relevant provision conflicts with the agency's earlier interpretation than where there is a consistently held agency view. See INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n. 30, 107 S.Ct. 1207, 1221 n. 30, 94 L.Ed.2d 434 (1987), quoting Watt v. Alaska, 451 U.S. 259, 273, 101 S.Ct. 1673, 1681, 68 L.Ed.2d 80 (1981).

The parties agree that summary judgment is the appropriate vehicle for resolving a challenge to a federal agency's administrative decision when review is based primarily upon a preexisting administrative record. See Florida Fruit and Vegetable Ass'n v. Brock, 771 F.2d 1455, 1459 (11th Cir.1985).

IV. DISCUSSION.

There are two issues which must be decided by this Court. First, has the FWS acted arbitrarily and capriciously and abused its discretion in rejecting Southwest's Petition on remand? Second, does the policy for identification of DPSs, which was adopted by the FWS on February 7, 1996, violate the ESA?

Under the ESA, a threatened species must be listed when it "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20). Species is defined as "any subspecies of fish or wildlife or plant and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." 16 U.S.C. § 1532(16)(emphasis added). The term "distinct population segment" is not defined in the ESA, nor does the ESA set forth any restrictive criteria for defining a "distinct population segment".

A. Has the FWS Acted Arbitrarily and Capriciously and Abused Its Discretion in Rejecting Southwest's Petition on Remand?

The Court notes that the FWS has been less than clear on the qualifications for a DPS. As noted above, the first time that Southwest petitioned for a listing for goshawks, the Petition was rejected by the FWS because it failed to show evidence of reproductive isolation or genetic differentiation with the goshawk of the eastern United States. See 57 Fed.Reg. 28,474-76. After the FWS Finding was reversed and remanded by this Court, FWS then rejected the Petition under its new Policy of "only one subspecies per DPS". In other words, Southwest's Petition was first rejected because the goshawks are too homogeneous throughout North America, and then rejected because there are too many variations of goshawks to justify a DPS in the west. The actions of the FWS show the Court that the agency's handling of listing petitions involving DPSs has not been clear and consistent. The Court's view of the lack of consistency in the agency's actions is also furthered by the examples of handling DPS petitions involving other species, such as the silver rice rat and the "least tern". See 56 Fed.Reg. 19,809, 19,811-12 (April 30, 1991); ...