Coos County Bd. of County Com'Rs v. Kempthorne

• Decision Date: 26 June 2008
• Docket Number: No. 06-35634.,06-35634.
• Citation: 531 F.3d 792
• Parties: COOS COUNTY BOARD OF COUNTY COMMISSIONERS, Plaintiff-Appellant, v. Dirk KEMPTHORNE,<SMALL><SUP>*</SUP></SMALL> in his official capacity as Secretary of the Interior; United States Fish & Wildlife Service; H. Dale Hall, in his official capacity as Director, United States Fish and Wildlife Services, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

531 F.3d 792

COOS COUNTY BOARD OF COUNTY COMMISSIONERS, Plaintiff-Appellant, v. Dirk KEMPTHORNE,^* in his official capacity as Secretary of the Interior; United States Fish & Wildlife Service; H. Dale Hall, in his official capacity as Director, United States Fish and Wildlife Services, Defendants-Appellees.

No. 06-35634.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 2008.

Filed June 26, 2008.

Ralph Kasarda (argued), J. David Breemer, M. Reed Hopper, and Scott Andrew Shepard, of the Pacific Legal Foundation, for plaintiff-appellant Coos County Board of County Commissioners.

Ellen J. Durkee (argued), Courtney Taylor, and Lisa Jones, Environment & Natural Resources Division, U.S. Department of Justice, Sue Ellen Wooldridge, Assistant Attorney General, and Benjamin C. Jessup and Eric Nagle, Office of the Solicitor, U.S. Department of the Interior, for defendants-appellees Dirk Kempthorne, Secretary of the Interior, United States Fish and Wildlife Service, and H. Dale Hall, Director, United States Fish and Wildlife Service.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, District Judge, Presiding. D.C. No. CV-06-06010-MRH.

Before: FERDINAND F. FERNANDEZ and MARSHA S. BERZON, Circuit Judges, and OTIS D. WRIGHT II,^** District Judge.

BERZON, Circuit Judge:

We are asked to decide whether the Fish and Wildlife Service ("FWS")¹ has an enforceable duty promptly to withdraw a threatened species from the protections of the Endangered Species Act (the "ESA" or the "Act"), 16 U.S.C. §§ 1531-1544, after a five-year agency review mandated by the Act found that the species does not fit into one of the several types of population categories protected under the ESA. We answer that FWS does not have such a duty.

I. BACKGROUND

The Coos County Board of County Commissioners ("Coos County") brought this action under the ESA's citizen suit provision, 16 U.S.C. § 1540(g), and under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-559. The suit rests on the results of a FWS species status review of the marbled murrelet, a rare seabird that nests in mature and old-growth forests. See generally U.S. Fish & Wildlife Service, Marbled Murrelet 5-Year Review ("Five Year Review"). The murrelets living in Washington, Oregon, and California — which we will refer to as the tri-state murrelets — are the protected population. The tri-state murrelets — and only the tri-state murrelets — were listed under the ESA as a "threatened species," after the detailed consideration required by the statute. See Determination of Threatened Status for the Washington, Oregon, and California Population of the Marbled Murrelet, 57 Fed.Reg. 45,328, 45,328-29 (Oct. 1, 1992) ("Listing Rule").

FWS is required to "conduct, at least once every five years, a review of all species" protected under the ESA and to "determine on the basis of such review whether" the listing status of protected species should be changed. 16 U.S.C. § 1533(c)(2). The five-year review of the tri-state murrelet listing, released in 2004, concluded that the tri-state murrelets do not meet the definition of a "distinct population segment," one of the population categories which may be protected under the ESA, see 16 U.S.C. § 1532(16), but determined that they nonetheless remained threatened. Five-Year Review at 6, 28. FWS also noted that a district court had held that the tri-state murrelets could be protected even if they did not constitute a distinct population segment, because they occupied a significant portion of the range of the entire species. Id. at 6. FWS therefore determined not to alter the protections afforded the species pending a more complete review. Id. at 28.

Coos County maintains that this cautious approach to species protection is illegal, and that, instead, FWS had a mandatory duty promptly to remove the tri-state murrelets from the ESA's threatened species list, "delisting" the birds, as a result of the Five-Year Review. Seizing on a statutory deadline for "promptly publish[ing]" proposed regulations in response to a citizen petition so warranting, Coos County argues that FWS had such a duty here and must follow the same deadline, even though no petition has been filed. To explain why Coos County is mistaken, and why the dismissal of its suit was appropriate, we first set out the biological and legal history of the tri-state murrelet listing and of the subsequent litigation.

A. The Marbled Murrelet

In 1988, the National Audubon Society petitioned FWS to list the California, Oregon, and Washington population of the marbled murrelet as a threatened species. See Proposed Threatened Status for the Marbled Murrelet in Washington, Oregon and California, 56 Fed.Reg. 28,362, 28,364 (June 20, 1991) ("Proposed Rule").² A "threatened" species is one which "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20). The Audubon Society alleged that the marbled murrelet population in the three states was dangerously depleted.

Murrelets — small, dove-sized birds — feed primarily on sea life and nest in coastal mature and old-growth forests. See Listing Rule, 57 Fed.Reg. at 45,328-29. "[T]he main cause of population decline has been the loss of older forest and associated nest sites," in large part because of timber harvesting. Id. at 45,330. At the time the tri-state murrelets were listed for ESA protection, over 80% of their habitat had been lost in Washington and Oregon and as much as 96% had been lost in California. Id. at 45,333. Murrelet nests in the remaining fragments of old growth forest are more accessible to predators than they were before the forests were lost, further threatening the species. Id. at 45,334. Also, when murrelets leave the forest to feed at sea, they are threatened by gill-net fishing boats and by oil spills. Id. at 45,335. Because murrelets do not reproduce every year and generally lay only one egg when they do, the species recovers slowly from population losses. Id. at 45,336.

As a result of these various forces, murrelet populations crashed. Historically, as many as 60,000 murrelets may have lived in California alone. Id. at 45,329. By 1992, when the tri-state murrelets were listed as threatened, FWS believed that only 9,000 birds all together then remained in all three states. Id. at 45,329. Some years after listing, FWS estimated the annual rate of population decline in the three states as between four and six percent. See Final Designation of Critical Habitat for the Marbled Murrelet, 61 Fed.Reg. 26,256, 26,259 (May 24, 1996) ("Critical Habitat Rule"). These population losses are important, as the three states comprise roughly one-third of the murrelet's range, which extends north to Alaska. See Proposed Rule, 56 Fed.Reg. at 28,364, 28,366. The Proposed Rule concluded that "California, Oregon, and Washington constitute a significant portion of the marbled murrelet's range." Id. at 28,366.

B. Legal Protections for the Marbled Murrelet

FWS moved slowly in considering the Audubon Society's petition to list the tri-state murrelets. Eventually, the Audubon Society sued, contending that FWS had missed mandatory ESA deadlines triggered by a listing petition. See Marbled Murrelet v. Lujan, No. C91-522R, 4-7 (D.Wash. Sept. 17, 1992).

At issue in that case was whether there was a "substantial disagreement," see 16 U.S.C. § 1533(b)(6)(B)(i), concerning whether the tri-state population of the marbled murrelet was a "distinct population segment" of the larger species. The ESA defines species to "include[] . . . any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." 16 U.S.C. § 1532(16) (emphasis added). FWS maintained that the tri-state murrelets could be listed only as a distinct population segment, and that there was a substantial scientific disagreement as to that question, justifying a six-month delay. Notice of Extension of the Final Decision to List the Washington, Oregon, and California Population of the Marbled Murrelet as a Threatened Species, 57 Fed.Reg. 33,478, 33,479 (July 29, 1992) ("Extension Notice"); see 16 U.S.C. § 1533(b)(6)(B)(i) (providing for such a delay for the purpose of "soliciting additional data").

The district court in Marbled Murrelet disagreed with both FWS's premises and its conclusion. It first held that FWS could list the tri-state population whether or not that population was a distinct population segment, rendering any substantial disagreement as to that question irrelevant. Marbled Murrelet, No. C91-522R at 11-12. The court observed that a threatened species is one which "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. at 11 (quoting 16 U.S.C. § 1532(20), emphasis added). In light of this definition, the court reasoned as follows:

Plaintiffs argue that, in order to support listing the marbled murrelet as threatened under the ESA, the Secretary [of the Interior] need only find that the North American subspecies of the marbled murrelet is threatened throughout a significant portion of its range. Plaintiffs then point out that the Secretary reached those very conclusions in his [Proposed Rule] and that he has never retreated from or retracted them.

Indeed, the [Proposed Rule] cites the definition of a "threatened species" quoted above and then states that "California, Oregon, and Washington constitute a significant portion of the marbled murrelet's range. In those states the species is immediately threatened by the loss of nesting habitat (old-growth and mature forests)." [Citation omitted] Nothing in the [Extension Notice] contradicts or casts any doubt on these conclusions. Therefore, the court concludes that, based on the uncontradicted findings that the marbled murrelet qualifies for listing as a threatened...