Center for Biological Diversity v. Kempthorne

• Decision Date: 30 March 2009
• Docket Number: No. CV 08-335 TUC JMR.,No. CV 07-372 TUC JMR.,CV 07-372 TUC JMR.,CV 08-335 TUC JMR.
• Citation: 607 F.Supp.2d 1078
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff, v. Dirk KEMPTHORNE, Secretary of the Interior, et al., Defendants. Defenders of Wildlife, Plaintiff, v. Dale Hall, Director, U.S. Fish and Wildlife Service, et al., Defendants.
• Court: U.S. District Court — District of Arizona

Page 1078

607 F.Supp.2d 1078

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff, v. Dirk KEMPTHORNE, Secretary of the Interior, et al., Defendants.

Defenders of Wildlife, Plaintiff, v. Dale Hall, Director, U.S. Fish and Wildlife Service, et al., Defendants.

No. CV 07-372 TUC JMR.

No. CV 08-335 TUC JMR.

United States District Court, D. Arizona.

March 30, 2009.

COPYRIGHT MATERIAL OMITTED

John T. Buse, Chicago, IL, Erik Bowers Ryberg, Attorney at Law, Tucson, AZ, Justin J. Augustine, CTR for Biological Diversity, San Francisco, CA, Brian Segee, Defenders of Wildlife, Washington, DC, for Plaintiff.

John Brett Grosko, U.S. Dept of Justice, Washington, DC, for Defendants.

JOHN M. ROLL, Chief Judge.

Pending before the Court in this consolidated matter are competing motions for summary judgment. Plaintiffs Defenders of Wildlife ("DOW") and Center for Biological Diversity ("CBD") filed their motions for summary judgment on August 14, 2008 (Doc. Nos. 44 & 45). Defendants filed their cross-motion for summary judgment on October 6, 2008 (Doc. No. 53). All parties filed their respective responses and replies, and oral argument was heard on March 23, 2009.

Plaintiffs claim that the Endangered Species Act, 16 U.S.C. §§ 1531-1544 ("ESA"), mandates that the Secretary of the Interior ("Secretary") designate critical habitat and prepare a recovery plan for the jaguar (Panthera onca); they contend that the Secretary's failure to do either is unlawful. Defendants, to the contrary, maintain that, based upon the administrative record, their scientific expertise, and the relevant statutory and regulatory standards, they reasonably declined to designate critical habitat and develop a recovery plan for the jaguar. For the reasons stated herein, Plaintiffs' Motions for Summary Judgment (Doc. Nos. 44 & 45) are GRANTED in PART and DENIED in PART, and Defendants' Cross-Motion for Summary Judgment (Doc. No. 53) is DENIED. This matter is remanded for further consideration of available scientific research and reports.

Factual and Procedural Background¹

The jaguar (Panthera onca) is the largest species of cat native to the Western hemisphere. 62 Fed. Reg. 39147 (July 22, 1997). Jaguars are generally buff-colored with distinctive black rosettes and can grow as large as 2.5 meters when standing on all fours; they have massive heads, wide chests, and heavy-set bodies with powerful limbs. SAR 143.² The range of the species stretches from southernmost Arizona and New Mexico south throughout North, Central, and South America. 62 Fed. Reg. 39147; 71 Fed. Reg. 39335 (July 12, 2006); SAR 1146-1149, 1195. Jaguars are top predators in the ecosystems they inhabit and provide important services for these ecosystems in their predation of various ungulates and rodents. 62 Fed. Reg. 39150. They are habitat generalists and utilize a wide range of habitat types. CAR 7. Habitat suitable for jaguar breeding is not readily distinguishable from habitat suitable for other jaguar behavior, CAR 7; RAR 506, and while habitat preferences of female jaguars are narrower than those of their male counterparts, they are otherwise similar. RAR 5028.

Jaguars in the United States historically occupied portions of California, Arizona, New Mexico, Texas, and possibly Louisiana. 71 Fed. Reg. at 39335; SAR 1148. The last jaguar sightings in California and Louisiana were documented in the late 1800s or early 1900s, 71 Fed. Reg. 39335; SAR 1148, and the last record of a jaguar in Texas was in Kleberg County in 1948. RAR 414, 497. Jaguars were known to southwestern Indians and were widely reported in historical frontier accounts, and frontier hunters and biologists considered jaguars to be "thinly scattered but widespread residents" of Arizona well into the 20th Century. CAR 750. Studies recording jaguar kills in Arizona are consistent with the overexploitation of a resident jaguar population, rather than the exploitation of a transient population. CAR 749-750. The range and numbers of jaguars in the United States has declined due to habitat loss and fragmentation, direct persecution (including through predator control), destruction of riparian corridors and other areas used as movement corridors, and the introduction of livestock in historic jaguar range. 62 Fed. Reg. 39154-55; RAR 506, 4906 (jaguar decline in United States attributed to indiscriminate killing by federal, state, and private predator control programs).

While jaguars have been documented as far north as the Grand Canyon,³ sightings in the late 20th century to the present have occurred mainly along the international boundary of the United States and Mexico. 71 Fed. Reg. 39335; SAR 1148. From 1996 to 2007, four male jaguars were documented in the United States. Of those four, in 1996, two male jaguars were photographed in the United States: one on March 7, in the Peloncillo Mountains, located along the Arizona-New Mexico border, and another on August 31, in the Baboquivari Mountains in southern Arizona. 71 Fed. Reg. 39335; SAR 1154. In February 2006, a jaguar was observed and photographed in Hidalgo County, New Mexico. SAR 1154. Using remote trail cameras, jaguars were photographed in the United States near the Arizona-Mexico border beginning in 2001, and as recently as July 2007. 71 Fed. Reg. 39335; SAR 471. Researchers obtained 69 photographs of jaguars, 5 video clips, and 28 sets of jaguar tracks during this time period, leading them to conclude that the jaguars were part of a resident and not a dispersing or transient population. SAR 792-800. The sightings indicate that some male jaguars may reside permanently in the United States. 71 Fed. Reg. 39335-36. The four or five jaguars periodically spotted in the United States since 1996 are part of a larger population, or populations, that are found predominantly in Mexico. 71 Fed. Reg. 39335; SAR 1148, 1152. Males in the Mexican jaguar population tend to be more broadly distributed than females due to dispersing or non-territorial males in search of areas without male competitors. SAR 107. Only three female jaguars with kittens have been documented in the United States, the last in 1910. 71 Fed. Reg. 39335. No females have been confirmed in the United States since 1963. Id. There has been no recent evidence of breeding, or even presence of female jaguars in the U.S. since the current sightings began in 1996, SAR 57, although the absence of confirmed observations of female jaguars is not unusual. RAR 2935 (camera projects even in high occupancy jaguar areas in the tropics rarely observe females).

ESA Listing

The Service originally listed the jaguar as an endangered foreign species (one not occurring in the United States) in 1972 under the ESA's predecessor, the Endangered Species Conservation Act, Pub.L. No. 91-135, 83 Stat. 275 (Dec. 5, 1969), and later proposed the jaguar for listing in 1979 and 1994. 59 Fed. Reg. 35674 (July 13, 1994). In September 1996, Plaintiff Center for Biological Diversity filed suit to compel the Secretary to make a final listing decision for the jaguar. The Service listed the jaguar as an endangered species in U.S. territory on July 22, 1997. Final Rule to Extend Endangered Listing Status for the Jaguar in the United States, 62 Fed. Reg. 39147 (July 22, 1997). In determining that jaguars within the U.S. should be listed as an endangered species, the FWS found that the species met four of the five statutory factors contained at section 4(a)(1) of the ESA, 16 U.S.C. § 1533(a)(1): (1) the present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) the inadequacy of existing regulatory mechanisms; and (4) other natural or manmade factors affecting its continued existence. 62 Fed. Reg. 39154.⁴ The FWS placed particular emphasis on the maintenance of cross-border wildlife corridors along the U.S.-Mexico border as a critical element in ensuring the species' recovery within the U.S. Id. ("Clearing of habitat, destruction of riparian areas, and fragmentation or blocking of corridors may prevent jaguars from recolonizing previously inhabited areas ... [although] there is currently no known resident population of jaguars in the United States, wanderers from Mexico may cross the border and take up residency in available habitat."). Additionally, the FWS noted at that time that illegal shooting was a primary threat to the jaguar as a species. 62 Fed. Reg. 39147.

Critical Habitat Designation

The FWS found in its 1997 Final Listing Rule that critical habitat for the jaguar was "not prudent," based on the fact that the main threat to the jaguar in the United States was from taking. The FWS concluded that "[p]ublication of detailed critical habitat maps and descriptions in the Federal Register would likely make the species more vulnerable" to taking. 62 Fed. Reg. at 39155. Additionally, the FWS justified its decision not to designate critical habitat by committing to address the identification of species' habitat preferences "through the recovery process." Id. In 2003, the Center for Biological Diversity challenged the Secretary's "not prudent" determination for jaguar critical habitat designation. As part of a settlement agreement in the suit, the Secretary agreed to revisit the jaguar critical habitat designation at a later date. CAR 1. The FWS later reviewed the rationale for the original "not prudent" finding and determined it was no longer valid because the Arizona Game and Fish Department ("AGFD") and other parties had begun publishing "specific and general locations of jaguars through web sites, public notifications, reports, books, and meeting notes." Determination that Designation of Critical Habitat is Not Prudent for the Jaguar, 71 Fed. Reg. 39335-36. Nevertheless, on July, 12, 2006, the FWS reaffirmed its decision not to designate critical habitat citing several reasons: 1) only four or (at most) five males were...