Biodiversity Legal Foundation v. Norton

• Decision Date: 30 September 2003
• Docket Number: No. CIV.A.00-3030(RMC).,CIV.A.00-3030(RMC).
• Citation: 285 F.Supp.2d 1
• Parties: BIODIVERSITY LEGAL FOUNDATION, et al., Plaintiffs, v. Gale NORTON, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 1

285 F.Supp.2d 1

BIODIVERSITY LEGAL FOUNDATION, et al., Plaintiffs, v. Gale NORTON, et al., Defendants.

No. CIV.A.00-3030(RMC).

United States District Court, District of Columbia.

September 30, 2003.

Eric Robert Glitzenstein, Meyer & Glitzenstein, Washington, DC, Daniel Ryan Vice, Brady Center, Washington, DC, for plaintiffs.

S. Jay Govindan, Matthew Love, U.S. Department of Justice, Environmental Division, Washington, DC, Bridget L. McNeil, U.S. Department of Justice, Washington, DC, for defendants.

MEMORANDUM OPINION

COLLYER, District Judge.

This lawsuit, brought under the Endangered Species Act, 16 U.S.C. § 1531 et seq. ("ESA"), and the unreasonable delay provisions of the Administrative Procedure Act, 5 U.S.C. §§ 555(b), 706(1) ("APA"), puts the Secretary of the Interior, Gale Norton, between the proverbial rock and a hard place. Three individuals and two environmental groups, led by Biodiversity Legal Foundation (collectively, "Foundation"), complain that the United States Department of Interior ("DOI") and the United States Fish and Wildlife Service (collectively, "FWS" or "Service") have failed to revise the "critical habitat designation" of the Cape Sable seaside sparrow,¹ despite finding on October 23, 2001, that such a revision is warranted and despite twenty years of agency studies to the same effect. FWS agrees that revising the bird's critical habitat designation "would be a good thing." Defs. Reply at 4. The Service advises the Court that chronic underfunding by Congress and outstanding court orders and settlements from other lawsuits preclude immediate action, but promises that it will revise this critical habitat designation "as soon as feasible," given these constraints. Not satisfied with this response, the Foundation sues to force FWS to propose and carry out such a revision in accordance with a strict timetable to be imposed by the Court. Citing the Service's own studies, the Foundation fears that the seaside sparrow will become extinct before FWS devotes sufficient resources to this important task.

Pending before the Court are the parties' cross motions for summary judgment. The Foundation seeks judgment in its favor as to (1) FWS's violation of section 4 of the ESA based on the Service's publication of an allegedly-deficient finding under 16 U.S.C. § 1533(b)(3)(D)(ii) ("12-Month Finding"); (2) FWS's reliance on its Listing Priority Guidance ("LPG"); and (3) FWS's delay in revising the seaside sparrow's critical habitat designation. FWS counters that (1) the 12-Month Finding fully complies with the ESA section 4 requirement that the Service publish "how [it] intends to proceed with the requested revision[;]" (2) FWS did not actually rely on the LPG in making the 12-Month Finding; and (3) there has been no unreasonable delay in proposing a rule to revise the critical habitat designation.²

The Court finds that the ESA grants FWS discretion as to revising a critical habitat designation, but that the APA requires reasonable timeliness once an obligation to undertake a revision attaches. The Court also concludes that the Foundation's LPG claim is moot. Under these circumstances, as described below, the Court recognizes the Service's continuing discretion within a very small window. Four years have passed since FWS undertook to revise the seaside sparrow's critical habitat designation and the bird is close to extinction. In the context of this reality, the Service will be given 60 days to notify the Court of a specific schedule to revise this critical habitat designation. Accordingly, the Foundation's renewed motion for summary judgment will be denied in part and FWS's cross motion will be granted in part. The Court will retain jurisdiction over this matter to ensure FWS is proceeding diligently. Given the disposition of these cross motions, FWS's motion for reconsideration will be denied as moot.

I. BACKGROUND

A. Statutory Framework

The ESA is the "most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 698, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (quoting TVA v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978)) (internal quotation marks omitted). Enacted by Congress in 1973, the statute aims "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).

Section 4 of the ESA directs FWS to determine by regulation whether any species is endangered or threatened.³ 16 U.S.C. § 1533(a)(1). An endangered species is one that "is in danger of extinction throughout all or a significant portion of its range." Id. §§ 1532(6). There is no dispute in this case that the Cape Sable seaside sparrow is endangered and was properly placed on the Endangered Species List in 1967.

Listing a species as endangered only begins the process of working for its survival and recovery. As amended, the ESA now requires that, if FWS determines that a species is endangered under ESA section 4(a)(1), it must concurrently "designate any habitat of such species which is then considered to be critical habitat." Id. § 1533(a)(3)(A).

The term "critical habitat" for a threatened or endangered species means -

(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 4 of this Act, 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 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species.

Id. § 1532(5)(A).

The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.

Id. § 1533(b)(2).

Endangered species are entitled to significant protection under the ESA. Section 9 makes it unlawful for any person to "take" such a species. 16 U.S.C. § 1538(a)(1)(B). The term "take" is defined very broadly to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."⁴ 16 U.S.C. § 1532(19). In addition, endangered species are safeguarded by the section 7 requirement that all other federal agencies "shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species ... or result in the destruction or adverse modification of habitat of such species[.]" 16 U.S.C. § 1536(a)(2).

Section 4 of the ESA provides two methods for revising a critical habitat designation. FWS "may, from time-to-time ... as appropriate, revise [the critical habitat] designation" of an endangered species. Id. § 1533(a)(3)(B). Any "interested person" may also petition FWS to make such a revision. Id. § 1533(b)(3)(D); 50 C.F.R. § 424.14. Once a petition is submitted by an interested person, "[t]o the maximum extent practicable," the Service has 90 days to issue "a finding as to whether the petition presents substantial scientific information indicating that the revision may be warranted." 16 U.S.C. § 1533(b)(3)(D)(i). If FWS decides in the affirmative, then it "shall determine how [it] intends to proceed with the requested revision, and shall promptly publish notice of such intention in the Federal Register." Id. § 1533(b)(3)(D)(ii). This determination must be made within 12 months after receiving a petition, regardless of when FWS made its finding under section 4(b)(3)(D)(i) ("90-Day Finding"). Cf. Biodiversity Legal Found. v. Babbitt, 63 F.Supp.2d 31, 34 (D.D.C.1999).

"[T]he Service has issued a series of Listing Priority Guidance (`LPG') documents over the years, pursuant to its authority under ESA section 4(h)." Defs. Cross Mot. for Summ. J. and Opp. at 7 ("Defs.Motion"). That section requires FWS to "establish, and publish in the Federal Register, agency guidelines to insure that the purposes of this section are achieved efficiently and effectively." 16 U.S.C. § 1533(h). "The overriding goal of the LPGs was to set up a biologically-based system to prioritize the various listing activities to secure the most protection for the greatest number of imperiled species. In accordance with Section 4(h), the LPG[s] are adopted after a public notice and comment period." Defs. Motion at 7-8 (citation omitted).

B. Cape Sable Seaside Sparrow

The Cape Sable seaside sparrow is a medium-sized sparrow, about five inches long. Arthur Howell discovered the bird in 1918 on Cape Sable, which is located in southwest Florida. The Cape Sable Seaside Sparrow: An Endangered Bird in a Vulnerable Landscape, A.R. Vol. 8, Doc. II-10, at 5. As a result of hurricanes in 1935 and 1960, which helped change the vegetation in Cape Sable from freshwater to salt tolerant, reduced freshwater flows due to "upstream water management practices," and sea level rise, the Cape Sable seaside sparrow "no longer use[s] this...