Am. Forest Resource Council v. Hall

• Decision Date: 05 February 2008
• Docket Number: Civil Action No. 07-0484 (JDB).
• Citation: 533 F.Supp.2d 84
• Court: U.S. District Court — District of Columbia
• Parties: AM. FOREST RESOURCE COUNCIL, Plaintiff, v. H. Dale HALL, Director, U.S. Fish & Wildlife Serv., et al., Defendants.

533 F.Supp.2d 84

AM. FOREST RESOURCE COUNCIL, Plaintiff, v. H. Dale HALL, Director, U.S. Fish & Wildlife Serv., et al., Defendants.

Civil Action No. 07-0484 (JDB).

United States District Court, District of Columbia.

February 5, 2008.

James T. McDermott, Ball Janik L.L.P., Mark C. Rutzick, Mark C. Rutzick, P.C., Portland, OR, for Plaintiff.

Courtney O. Taylor, Meredith L. Flax, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Plaintiff American Forest Resource Council ("AFRC"), a forest products trade association located in Portland, Oregon, brings this action for declaratory and injunctive relief against defendants H. Dale Hall, Director of the United States Fish and Wildlife Service, David M. Verhey, Acting Assistant Secretary for Fish, Wildlife, and Parks, and Dirk Kempthorne, Secretary of the Interior. The case is brought pursuant to the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., the Regulatory Flexibility Act, 5 U.S.C. § 601 et seq., the Unfunded. Mandates Reform Act, 2 U.S.C. § 1501 et seq., and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., to remedy defendants' alleged violations of those statutes in conducting a five-year status review for a small seabird in Washington, Oregon, and California, known as the marbled murrelet. Currently before the Court are the cross-motions for summary judgment filed by plaintiff, defendants, and intervenor-defendants.¹ Finding the jurisdictional arguments of defendants and intervenor-defendants persuasive, the Court will grant defendants' and intervenor-defendants' motions and will deny plaintiffs motion.

BACKGROUND

I. Statutory and Regulatory Background

The ESA is "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tennessee Valley Authority v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). In order to carry out the purpose of the ESA to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved," 16 U.S.C. § 1531(b); Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 699, 115 S.Ct. 2407, 132 L.Ed.2d 597, the Secretary of the Interior ("the Secretary"), acting through the U.S. Fish and Wildlife Service ("FWS"), lists those species that he has determined to be endangered or threatened, 16 U.S.C. § 1533(a); Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1064 (D.C.Cir.2003).

Under the ESA, 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." 16 U.S.C. § 1532(16).² According to the ESA, an endangered species is "in danger of extinction throughout all or a significant portion of its range," id. § 1532(6), while a threatened species "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range," id. § 1532(20). To determine whether a species is threatened or endangered, FWS must consider the following factors:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;

(B) overutilization for commercial, recreational, scientific, or educational purposes;

(C) disease or predation;

(D) the inadequacy of existing regulatory mechanisms; or

(E) other natural or manmade factors affecting its continued existence.

Id. § 1533(a)(1). At any time, FWS may propose to list a species and must proceed by the APA notice and comment procedures applicable to rulemaking to do so. Id. § 1533(b)(4).

A listing decision may also be made pursuant to a citizen petition. See id. § 1533(b)(3). An interested party may file a petition to list or delist a species, which triggers a series of statutory deadlines. Within 90 days of receiving a citizen petition, FWS must, "to the maximum 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 in the Federal Register. Id. § 1533(b)(3)(A). FWS then has one year to conduct a status review to decide if the action actually is warranted, not warranted, or warranted but precluded. See id. § 1533(b)(3)(B). If the action is warranted, FWS must publish a proposed rule to implement the action in the Federal Register, id. § 1533(b)(3)(B), and FWS must act on the proposal within one year of its publication, id. § 1533(b)(6)(A).

Once a species has been placed on the list of endangered or threatened species it becomes unlawful under § 9 of the ESA for any person to "take" the species. See id. § 1538(a)(1); 50 C.F.R. § 17.31(a). The term `lake" is defined under the ESA as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" any listed species, and includes an "attempt to engage in any such conduct." Id, § 1532(19). Landowners and other nonfederal entities may, however, apply for and receive a permit to "take" listed species, so long as: (1) the take is incidental to any otherwise lawful activity; (2) the applicant submits an acceptable habitat conservation plan designed to minimize and mitigate the effects of the incidental take; and (3) the take will not appreciably reduce the species' likelihood of survival and recovery. Id. § 1539(a)(1)(B), (a)(2)(A)-(B). The ESA also provides for the granting of scientific or "recovery" permits. Section 10(a)(1)(A) of the ESA allows the Service to "permit, under such terms and conditions as [it] shall prescribe, ... any act otherwise prohibited by [§ 9] for scientific purposes or to enhance the propagation or survival of the affected species." Id. § 1539(a)(1)(A); see also 50 C.F.R. 17.22(a). Both types of permits are subject to revocation if the Service finds that the permittee is not in compliance with the terms and conditions of the permit. See id. § 1539(a)(2)(C).

Of significance here, at least once every five years, the Secretary must conduct a status review of each species listed as threatened or endangered ("the five-year status review"). Id. § 143(c)(2)(A). According to the statute, the Secretary shall conduct the five-year status review and "determine on the basis of such' review whether any such species should — (i) be removed from such list; (ii) be changed in status from an endangered species to a threatened species; or (iii) be changed in status from a threatened species to an endangered species." Id. § 1533(c)(2)(B). "Each determination under subparagraph (B) shall be made in accordance with the provisions of subsections (a) and (b) of this section." Id. The statute does not require the Secretary to take any further action pending completion of the five-year status review.

The ESA also contains a citizen suit provision, which allows private parties to enforce the substantive provisions of the ESA against regulated parties. See id. § 1540(g)(1)(A); see also Bennett v. Spear, 520 U.S. 154, 173, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).

II. Factual Background

The following facts are undisputed. The marbled murrelet is a robin-sized seabird that nests almost exclusively in marine and inland forests along the pacific coast of North America. See Pl.'s Statement of Mat. Facts Not in Dispute ¶ 6 ("Pl.'s Statement"). In 1988, the National Audubon Society submitted a petition to FWS requesting that the marbled murrelet in California, Oregon, and Washington ("the tri-state population") be listed as a threatened species under the ESA. Administrative Record ("AR") 929. When FWS failed to meet its statutory deadlines, several conservation organizations filed suit against FWS in the Western District of Washington, seeking an order compelling FWS to issue a final rule listing the tri-state population. See Marbled Murrelet v. Lujan, C91-522R (W.D.Wash. Sept. 17, 1992); AR 902-04, 907. On October 1, 1992, FWS published a final rule listing the tri-state population of marbled murrelets as threatened. 57 Fed.Reg. 45328; AR 887. FWS recognized in the final, listing rule that "[t]he three states encompass roughly one-third of the geographic area occupied by this subspecies, comprising a significant portion of its range." 57 Fed.Reg. 45330; AR 889.

From 1992 to 2002, FWS never conducted the mandatory five-year status review for the tri-state population of marbled murrelets as required under the ESA. Pl.'s Statement ¶ 8. Therefore, in March 2002, AFRC and three of its members filed suit in the U.S. District Court for the District of Oregon seeking to compel FWS to conduct the five-year status review for this species. See Am. Forest Resource Council v. Dep't of Interior, Civil No. 02-6087-AA (D.Or.). The parties entered Into a settlement agreement and twice agreed to an extension of the deadline for completing the five-year status review. AR 349-50. FWS published two notices in the Federal Register announcing that the five-year status, review was underway and inviting the public to submit comments and relevant information. 68 Fed.Reg. 19569 (AR 875); 68 Fed.Reg. 44093 (AR 861). On August 31, 2004, FWS completed the status review, and the FWS Regional Director indicated his concurrence with the outcome by signing the status review report on September 1, 2004. AR 321, 348.

FWS concluded that "[t]he threat situation has not changed such that the murrelet DPS is no longer likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." AR 341. However, FWS also concluded that the tri-state population did not qualify as a DPS under the DPS Policy. AR 334-36. In light of this conclusion, FWS indicated that it would undertake a range-wide status review before deciding whether to propose delisting the tri-state population. In the meantime, FWS...