Am. Forest Res. Council v. Ashe

• Decision Date: 30 March 2013
• Docket Number: Civil Action No. 12-111 (JDB)
• Parties: AMERICAN FOREST RESOURCE COUNCIL, CARPENTERS INDUSTRIAL COUNCIL, and DOUGLAS COUNTY, OREGON, Plaintiffs, v. DANIEL M. ASHE, Director, U.S. Fish and Wildlife Service, and KEN SALAZAR, Secretary of the Interior, Defendants, and AUDUBON SOCIETY OF PORTLAND, SEATTLE AUDUBON SOCIETY, CENTER FOR BIOLOGICAL DIVERSITY, OREGON WILD, CONSERVATION NORTHWEST, ENVIRONMENTAL PROTECTION INFORMATION CENTER, and SIERRA CLUB, Defendant-Intervenors.
• Court: U.S. District Court — District of Columbia

AMERICAN FOREST RESOURCE COUNCIL, CARPENTERS INDUSTRIAL COUNCIL,and DOUGLAS COUNTY, OREGON, Plaintiffs,

v. DANIEL M. ASHE, Director, U.S. Fish and Wildlife Service,and KEN SALAZAR, Secretary of the Interior, Defendants,and AUDUBON SOCIETY OF PORTLAND, SEATTLE AUDUBON SOCIETY,CENTER FOR BIOLOGICAL DIVERSITY, OREGON WILD,CONSERVATION NORTHWEST, ENVIRONMENTAL PROTECTIONINFORMATION CENTER, and SIERRA CLUB, Defendant-Intervenors.

Civil Action No. 12-111 (JDB)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Dated: March 30, 2013

MEMORANDUM OPINION

Plaintiffs American Forest Resource Council, Carpenters Industrial Council, and Douglas County, Oregon (collectively, "AFRC") bring this action for declaratory and injunctive relief against defendants Daniel M. Ashe, Director of the U.S. Fish and Wildlife Service, and Ken Salazar, Secretary of the Interior (collectively, "FWS"). AFRC alleges that FWS violated theEndangered Species Act, 16 U.S.C. §§ 1531 et seq., and the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq., in its listing and critical habitat decisions concerning the marbled murrelet, a small Pacific seabird. In three of its seven claims for relief, AFRC challenges FWS's determination that removing the Washington, Oregon, and California population of the murrelet from the Endangered Species Act list of threatened species was not warranted. AFRC has moved for summary judgment on these three claims. AFRC's other four claims challenge FWS's designation of critical habitat for the murrelet. As to these claims, AFRC and FWS ask the Court to enter a proposed consent decree, pursuant to which the murrelet critical habitat designation would be vacated and FWS would issue a revised critical habitat designation by September 2018. Intervenors, a group of conservation organizations, oppose both AFRC's summary judgment motion and the entry of the proposed consent decree. For the reasons stated below, AFRC's motion for summary judgment will be granted in part and denied in part, and the joint motion for entry of a consent decree will be denied.

BACKGROUND

I. Statutory and Regulatory Background

The Endangered Species Act ("ESA" or "Act") is "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). It is intended "to provide a means whereby the 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).

The ESA directs the Secretary of the Interior ("the Secretary"), who acts through FWS, tolist species that he determines are endangered or threatened. See id. § 1533(a); Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1064 (D.C. Cir. 2003); 50 C.F.R. § 402.01. An "endangered species" is one that is "in danger of extinction throughout all or a significant portion of its range"; a "threatened species" is one that 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(6), (20).

The term "species" includes "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." Id. § 1532(16). The term "distinct population segment" ("DPS") is not defined in the ESA, but has been interpreted in a 1996 joint policy issued by FWS and the National Marine Fisheries Service ("NMFS"). See Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act ("DPS Policy"), 61 Fed. Reg. 4722 (Feb. 7, 1996); see also Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1145 (9th Cir. 2007) (holding that "the DPS Policy is a reasonable construction of 'distinct population segment'"). The DPS Policy identifies three elements to be considered in deciding whether a DPS exists: (1) the discreteness of the population segment in relation to the remainder of its species; (2) the significance of the population segment to its species; and (3) the population segment's conservation status in relation to the ESA's listing standards. See 61 Fed. Reg. at 4725.

An interested party may file a petition to list or delist a species. See 16 U.S.C. § 1533(b)(3). Within 90 days of receiving such a petition, FWS must, to the extent practicable, "make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted" and publish this finding inthe Federal Register. Id. § 1533(b)(3)(A). FWS then has one year to conduct a status review to determine whether the petitioned action is warranted, not warranted, or warranted but precluded. Id. § 1533(b)(3)(B).

The ESA also directs the Secretary to designate certain geographical areas as "critical habitat." See 16 U.S.C. § 1533(c). Critical habitat is defined as:

(i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 1533 of this title, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and

(ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title, upon a determination by the Secretary that such areas are essential for the conservation of the species.

Id. § 1532(5)(A). Physical and biological features that are essential to the conservation of a species and that may require special management considerations or protection are known as "primary constituent elements" or "PCEs." See 50 C.F.R. § 424.12(b).

Critical habitat designations must be made "on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat." Id. § 1533(b)(2). Under section 4(b)(2) of the Act, FWS "may exclude any area from critical habitat if [it] determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat," unless it determines that "the failure to designate such area as critical habitat will result in the extinction of the species concerned." Id.

Once a species is listed under the ESA, it gains the benefit of a host of protectivemeasures. Prominent among these is what is known as the section 7 consultation requirement. Under section 7(a)(2) of the Act, every federal agency is required to ensure that any action it authorizes, funds, or carries out "is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species." 16 U.S.C. § 1536(a)(2). Also, the ESA prohibits the "take" of any listed species. Id. § 1538(a)(1); 50 C.F.R. § 17.31(a). The term "take" means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(9).

II. Factual and Procedural Background

The marbled murrelet is a small, diving seabird that inhabits the waters along the Pacific coast of North America and nests primarily in old-growth forests near the coast. AR 6747. The murrelet's range is from central California to the Aleutian Islands of Alaska. Id. at 6748. Marbled murrelets have been recognized as comprising three genetic units: (1) the western and central Aleutian Islands, (2) the eastern Aleutian Islands to northern California, and (3) central California. Id. at 7, 6789. Murrelets face threats from the logging of old-growth nesting habitat and other sources and are declining throughout their range. Id. at 6885, 8415.

FWS listed the Washington, Oregon, and California ("tri-state") population of the marbled murrelet as a threatened species in 1992. 57 Fed. Reg. 45,328 (Oct. 1, 1992). At that time, FWS deemed the tri-state population of the murrelet "to constitute a distinct population segment comprising a significant portion of the eastern Pacific subspecies of the marbled murrelet." Id. at 45,330. But in the final rule listing the murrelet FWS noted: "[S]ome question remains whether the population listed in this rule qualifies for protection under the Act'sdefinition of 'species.'" Id. FWS did not designate critical habitat for the murrelet at that time, stating that it "lack[ed] sufficient information to perform required analyses of the impacts of a critical habitat designation." Id. at 45,336.

In 1994 FWS published a proposed rule for the designation of murrelet critical habitat. 59 Fed. Reg. 3811 (Jan. 27, 1994). After receiving public comments, FWS issued a final designation of critical habitat on May 24, 1996; it designated 3,887,800 acres of federal and non-federal lands in Washington, Oregon, and California as critical habitat for the murrelet. 61 Fed. Reg. 26,256 (May 24, 1996).

In March 2002, AFRC and three of its members filed suit in the District of Oregon, seeking to compel FWS to conduct a five-year status review of the murrelet DPS and challenging the 1996 critical habitat designation. See Am. Forest Res. Council v. Dep't of Interior ("AFRC I"), No. 02-6087 (D. Or.). The parties subsequently entered into a settlement agreement, pursuant to which FWS agreed to do a five-year status review and initiate a rulemaking to consider potential revisions to the murrelet critical habitat designation.

FWS completed the five-year status review in 2004, and in it concluded that the tri-state population of the murrelet remained threatened. See AR 8388. However, FWS also concluded that the tri-state population did not qualify as a DPS under the DPS Policy because the...