American Lands Alliance v. Norton

• Decision Date: 30 January 2003
• Docket Number: Civil Action No. 00-2339 (RBW).
• Citation: 242 F.Supp.2d 1
• Parties: AMERICAN LANDS ALLIANCE, et al., Plaintiffs, v. Gale A. NORTON, Secretary of the Department of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 1

242 F.Supp.2d 1

AMERICAN LANDS ALLIANCE, et al., Plaintiffs, v. Gale A. NORTON, Secretary of the Department of the Interior, et al., Defendants.

Civil Action No. 00-2339 (RBW).

United States District Court, District of Columbia.

January 30, 2003.

Ari Micha Wilkenfeld, Bernabei & Katz, Washington, DC, Michael Axline, Carrie Stilwell, Heather Brinton, Eugene, OR, for plaintiffs.

Mauricia M.M. Baca, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, Seth M. Barsky, Debra Susan Katz, Bernabei & Katz, Washington, DC, for federal defendants/plaintiff.

MEMORANDUM OPINION

WALTON, District Judge.

This matter comes before the Court on plaintiffs' (American Lands Alliance, The Larch Company, and Sinapu) lawsuit against the Secretary of the Department of the Interior ("Secretary") and the Director of the United States Fish and Wildlife Service ("FWS"), in their official capacities, which seeks both declaratory and injunctive relief, and alleges violations of the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531, et seq. (2000), and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706 (2000). At the heart of the parties' dispute is the interaction of the two methods by which fish, wildlife, and plant species can be listed as an "endangered" or "threatened" species under the ESA.¹ These two methods are either an internal initiative that is instituted by the FWS itself (the "internal process") or an external initiative that is instituted by a petition submitted by the public (the "petition process"). 16 U.S.C. § 1533. On January 25, 2000, the plaintiffs, along with several other petitioners, submitted a petition to the Secretary to list the Gunnison sage grouse (Centrocercus minimus) as an endangered species under the ESA. Plaintiffs' Material Facts Not in Dispute ("Pls.' Mat. Facts"), Exhibit ("Ex.") E ("Status Review and Petition to List the Gunnison Sage Grouse"). The defendants responded to the plaintiffs' petition by informing them that "[o]n January 19, 2000, the Regional Director of the Mountain-Prairie Region of the FWS initiated the placement of the Gunnison sage grouse on the FWS's `candidate' list by signing a `Candidate and Listing Priority Assignment Form.'" Pls.' Mat. Facts at ¶3 (citing Pls.' Mat. Facts, Ex. B). Thus began the debate that has given rise to the instant cause of action. At issue is: (1) whether the FWS's treatment of a species in its own internal process satisfies the requirements that the FWS must adhere to when considering a petition submitted by the public requesting the listing of a species as "endangered" or "threatened" under the ESA; (2) whether the defendants violated the "notice and comment" provisions of either the ESA or the APA when promulgating their guideline that treats such public petitions as "redundant" once a species has been identified as a candidate within the FWS's internal listing process; and (3) whether this guideline substantively violates Congressional requirements mandated in the ESA. Because the Court concludes that the FWS cannot ignore the specific requirements of the ESA when a petition is submitted by the public, even when an internal process has already been initiated by the FWS, and that the guideline the FWS relies upon as the basis for ignoring the ESA is both procedurally and substantively flawed, the Court must award summary judgment to the plaintiffs.²

I. Background

A brief description of the reasons for the enactment of the ESA, the two methods by which a species can be listed as "endangered" or "threatened" under the ESA, the FWS's Endangered Species Petition Management Guidance policy, the Gunnison sage grouse, and the underlying facts of this case is necessary prior to addressing the legal merits of the parties' positions.

(A) The Endangered Species Act and the Two Listing Methods

The Supreme Court has commented that the ESA is "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Congress explained that the purpose underlying the ESA is "to provide a means whereby the ecosystem upon which endangered species and threatened species depend may be conserved" and declared that it was "the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter." 16 U.S.C. § 1531(b), (c). In Tennessee Valley Authority, the Supreme Court went on to note that "[t]he plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost. This is reflected not only in the stated policies of the Act, but in literally every section of the statute." 437 U.S. at 184, 98 S.Ct. 2279.

(1) The Two ESA Listing Methods

(i) The Internal Process

As briefly mentioned above, there are two methods by which a species can be listed as "endangered" or "threatened" under the ESA: the internal process and the petition process. First, the Secretary may initiate a review of whether a species is eligible for listing as "endangered" or "threatened". When determining whether to list a species, the Secretary must consider "any of 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." 16 U.S.C. § 1533(a)(1). If the Secretary determines that a species should be listed under the ESA "on the basis of the best scientific and commercial data available[,]" 16 U.S.C. § 1533(b)(1)(A), then she must publish a proposed rule in the Federal Register, 16 U.S.C. § 1533(b)(5); 50 C.F.R. § 424.11(c). Thereafter, an opportunity for public comment must be afforded, 16 U.S.C. § 1533(b)(5), and within one year the Secretary must either publish a final rule or withdraw the proposed rule, 16 U.S.C. § 1533(b)(6)(A); 50 C.F.R. § 424.17(a). The Secretary may extend this one-year period by "not more than six months for purposes of soliciting additional data" by publishing a notice in the Federal Register if she finds that "there is substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the determination or revision concerned ..." 16 U.S.C. § 1533(b)(6)(B)(i); see 50 C.F.R. § 424.17(a)(iv).

The Secretary also has the option of designating the species as a "candidate species[,]" which means that the species is "being considered by the Secretary for listing as an endangered or threatened species, but [is] not yet the subject of a proposed rule." 50 C.F.R. § 424.02(b). Although, as recognized by the Ninth Circuit in Center for Biological Diversity v. Norton, 254 F.3d 833, 835 (9th Cir.2001), this "candidate" status is not expressly provided for in the ESA, the Secretary's regulations recognize that a species will be categorized as a "candidate" if "listing may be warranted, but that the available evidence is not sufficiently definitive to justify proposing the action at that time." 50 C.F.R. § 424.15(a). This regulation further provides that the Secretary "from time to time" may update the review status of the species that are candidates for listing. 50 C.F.R. § 424.15(b). However, the regulation is clear that "none of the substantive or procedural provisions of the Act apply to a species that is designated as a candidate for listing." Id. Therefore, once a species is listed as a "candidate" through the internal process, there is "no specific time frame during which the Secretary must act on the substantive or procedural provisions of the Act ..." Id.

(ii) Petition Process

The second method by which a species may be listed under the ESA as "endangered" or "threatened" is through the submission of a petition by the public. Upon receiving such a petition, the Secretary, [t]o the maximum extent practicable, within 90 days ... shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. If such a petition is found to present such information, the Secretary shall promptly commence a review of the status of the species concerned. The Secretary shall promptly publish each finding made under this subparagraph in the Federal Register.

16 U.S.C. § 1533(b)(3)(A). Within 12 months after receiving this petition, the Secretary must determine either that

(1) the petitioned action is warranted, in which case she must publish a proposed rule designating the species for protection; (2) the petitioned action is not warranted; or (3) the petitioned action is warranted but immediate promulgation of a rule is precluded by other pending proposals. If the Secretary finds that action is `warranted but precluded,' she must promptly publish that finding along with `a description and evaluation of the reasons and data on which the finding is based.'

Ctr. for Biological Diversity, 254 F.3d at 835 (quoting 16 U.S.C. § 1533(b)(3)(B)). If the Secretary publishes a "warranted but precluded" finding, the FWS must effectively review this finding each year until final action is taken. See 16 U.S.C. § 1533(b)(3)(C)(i) (once the Secretary publishes a "warranted but precluded" finding, the petition "shall be treated as a petition that is resubmitted to the Secretary under subparagraph (A) on the date of such finding and that presents substantial scientific or commercial information that the petitioned action may be warranted."). Finally, it is important to note that findings that a petition is not warranted or "warranted but precluded" are subject to judicial review. 16 U.S.C. § 1533(b)(3)(C)(ii).

(B) The...