Arizona Cattle Growers' Ass'n v. Kempthorne, 06-CV-1744-PHX-SRB.

Citation534 F.Supp.2d 1013
Decision Date04 February 2008
Docket NumberNo. 06-CV-1744-PHX-SRB.,06-CV-1744-PHX-SRB.
PartiesARIZONA CATTLE GROWERS' ASSOCIATION, Plaintiff, v. Dirk KEMPTHORNE, et al., Defendants, and Center for Biological Diversity, Intervenor-Defendant.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona

Damien M. Schiff, M. Reed Hopper, R.S. Radford, Pacific Legal Foundation, Sacramento, CA, Norman D. James, Fennemore Craig PC, Phoenix, AZ, for Plaintiff.

Rebecca J. Riley, U.S. Dept. of Justice, Env't & Nat'l Resources Div., Washington, DC, for Defendants.

Matthew Gilbert Kenna, Western Environmental Law Ctr., Durango, CO, Erik Bowers Ryberg, Ctr. for Biological Diversity, Tucson, AZ, for Intervenor Defendant.

OPINION AND ORDER

SUSAN R. BOLTON, District Judge.

This matter arises out of the United States Department of the Interior and its Fish and Wildlife Service's (collectively the "Service") promulgation of the Final Designation of Critical Habitat for the Mexican Spotted Owl, 69 Fed.Reg. 53,182 (Aug. 31, 2004), under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531, et seq. At issue are Plaintiff Arizona Cattle Growers' Association's Motion for Summary Judgment (Doc. 37), Defendants Dirk Kempthorne, et al.'s Cross Motion for Summary Judgment (Doc. 44), and Intervenor-Defendant Center for Biological Diversity's ("CBD") Motion for Summary Judgment (Doc. 45).

I. BACKGROUND
A. Procedural History

The events that precipitated this litigation began on December 22, 1989, when Dr. Robin D. Silver submitted a petition requesting that the Service consider listing the Mexican Spotted Owl (Strix occidentalis lucida) (the "Owl") as a threatened or endangered species under the ESA. Final Rule to List the Mexican Spotted Owl as a Threatened Species, 58 Fed.Reg. 14, 248, 14,252 (March 16, 1993); Ctr. for Biological Diversify v. Norton, 240 F.Supp.2d 1090, 1091 (D.Ariz.2003). Almost four years later, on March 16, 1993, the Service issued the final rule listing the Owl as a threatened species. 58 Fed.Reg. at 14,248. At the time of listing, the Service opined that "[d]esignation of critical habitat is prudent, but not determinable at this time." Id.

In addition to vesting the Service with listing responsibilities, Congress has directed it to determine those areas that constitute critical habitat for listed species. 16 U.S.C. § 1533(a)(3). The Service must, "to the maximum extent prudent and determinable," designate critical habitat concurrent with the listing of any species as threatened or endangered. Id. If critical habitat is not determinable at the time of listing, then the Service "may extend the one-year period ... by not more than one additional year." Id. § 1533(b)(6)(C)(ii). By February of 1994 the Service had yet to propose a rule designating critical habitat for the Owl, so a group of concerned citizens and environmental organizations filed suit to compel the Service to designate the Owl's critical habitat. Silver v. Babbitt, 94-CV-337-PHX-RGS; Norton, 240 F.Supp.2d at 1092. The court responded by ordering the Service to designate critical habitat in a final rule to be published no later than May 30, 1995. Id. On June 6, 1995, the Service designated 4.6 million acres of critical Owl habitat. Final Rule Designating Critical Habitat for the Mexican Spotted Owl, 60 Fed.Reg. 29, 914.

Shortly after publication, the Owl's critical habitat designation was challenged in Coalition of Arizona/New Mexico Counties for Stable Economic Growth v. U.S. Fish and Wildlife Service, CV-95-1258-M (D.N.M.1997), for failure to complete the review required by the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. ("NEPA").1 The court enjoined the Service from enforcing the critical habitat designation until completion of a NEPA review, leading the Service to revoke the critical habitat designation for the Owl on March 25, 1998. 63 Fed.Reg. 14,378; Norton, 240 F.Supp.2d at 1092. Following the revocation, when no new proposed rule designating the Owl's critical habitat had yet been published, a new lawsuit was filed asking the United States District Court for the District of New Mexico to order the Service into action. Proposed Designation of Critical Habitat for the Mexican Spotted Owl, 65 Fed.Reg. 45,336, 45,339 (citing Sw. Center for Biological Diversity and Silver v. Babbitt and Clark, CIV 99-519 LFG/LCS-ACE (D.N.M.2000)); Norton, 240 F.Supp.2d at 1092. While recognizing that it was in violation of the ESA, the Service requested still more time for publication of the proposed and final rules. Norton, 240 F.Supp.2d at 1092. These requests were denied and, on February 1, 2001, the service published a final rule designating 4.6 million acres of critical habitat. Final Designation of Critical Habitat for the Mexican Spotted Owl, 66 Fed.Reg. 8,530.

On August 27, 2001, the Center for Biological Diversity filed suit alleging that the Service's decision to designate roughly 4.6 of the proposed 13.5 million acres, and to exclude all National Forest Service lands, was in violation of the ESA and the Administrative Procedure Act ("APA"). Norton, 240 F.Supp.2d at 1109. The court agreed and, on January 13, 2003, ordered the Service to publish a revised proposed order within three months with a final order due following an additional three month period. Id. The Service then sought, and the court begrudgingly granted, an extension of these deadlines, although not to the extent that the Service requested. Center for Biological Diversity v. Norton, 2003 WL 22849594, *1 (D.Ariz. Feb.19, 2003). On August 31, 2004 the Service published the Final Rule designating critical habitat, which is now challenged by Plaintiff. 69 Fed.Reg. at 53,182.

B. The ESA and Critical Habitat Designation

The ESA was enacted to, among other things, "provide a means whereby the ecosystems upon which endangered species arid threatened species depend may be conserved." 16 U.S.C. § 1531(b). To further this policy, Congress directed the Secretaries of Commerce and the Interior to list threatened and endangered species and designate their critical habitats. Id. § 1532(15). ESA listing and critical habitat designation responsibilities for animals such as the Owl have been further delegated to the Service.

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. § 1632(5)(A). The Service must designate critical habitat "on the basis of the best scientific data available and after taking into consideration the economic impact" of the designation. Id. § 1633(b)(2).

C. Plaintiff's Challenge to the August 31, 2004 Critical Habitat Designation

At present the Service has designated approximately 8.6 million acres of federal land as critical Owl habitat including canyon and forest land in Arizona, New Mexico, Colorado, and Utah. 69 Fed.Reg. at 53, 182. Plaintiff challenges the legality of this critical habitat designation on the following grounds: (1) the Service failed to identify the "physical or biological features ... essential to the conservation of the species"; (2) the Service failed to determine at what point the Owl will be conserved, and thus cannot identify the features essential to that end; (3) the Service unlawfully designated areas not occupied by the Owl as occupied critical habitat; (4) the Service failed to determine which areas contain the "physical or biological features ... essential to the conservation of the species" and thus designated areas as critical habitat that are missing one or more of the essential features; (5) the Service improperly included as critical habitat areas without first determining whether they "may require special management considerations or protection"; (6) the Service did not designate Owl critical habitat using the best scientific data available; and (7) the Service failed to properly take into account the economic impacts of specifying the area as critical habitat.

In its Motion for Summary Judgment, Plaintiff asks the Court to set aside the Final Rule and remand to the. Service. Defendants and Intervenor respond that the-Service complied with both the ESA and the APA in promulgating the critical habitat designation, and thus no grounds exist for invalidating the Final Rule. In addition, they argue that even if the Court were, to find that the Service was not in complete compliance with the statutory requirements, the Final Rule should remain in effect pending any remand.

The Court, having considered the Cross-Motions for Summary Judgment, Intervenor's Brief, and the oral argument made to the Court, now turns to address each of Plaintiffs arguments.

II. LEGAL STANDARDS AND ANALYSIS

Summary judgment is appropriately granted when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). When the district court reviews an administrative agency decision under the Administrative Procedure Act ("APA"), "summary judgment is an appropriate mechanism for deciding the legal question of whether the agency could reasonably have found the facts as it did." Occidental Eng'g Co. v. INS, 753 F.2d 766, 770 (9th Cir.1985); City & County of San Francisco v. United States, 130 F.3d 873, 877 (9th Cir.1997). "[T]he function of the district court is to determine whether or not as a matter of law the evidence in the administrative...

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