Ctr. for Biological Diversity v. Moore

• Court: U.S. District Court — District of Arizona
• Docket Number: CV-22-00412-TUC-JAS (AMM)
• Decision Date: 16 February 2024
• Citation: Ctr. for Biological Diversity v. Moore, CV-22-00412-TUC-JAS (AMM) (D. Ariz. Feb 16, 2024)
• Parties: Center for Biological Diversity, et al., Plaintiffs, v. Randy Moore, et al., Defendants.
• topic: Administrative Law,Environmental Law,Civil Procedure

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Center for Biological Diversity, et al., Plaintiffs, v. Randy Moore, et al., Defendants.

No. CV-22-00412-TUC-JAS (AMM)

United States District Court, D. Arizona

February 16, 2024

REPORT AND RECOMMENDATION

Plaintiffs Center for Biological Diversity (“CBD”), the Maricopa Audubon Society, and the Mount Graham Coalition (collectively, “Plaintiffs”), brought this action against Defendants Randy Moore, Chief of the United States Forest Service (“USFS”), Martha Williams Director of the United States Fish and Wildlife Service (“FWS”), Tom Vilsack, Secretary of the United States Department of Agriculture, and Deb Haaland, Secretary of the United States Department of the Interior, pursuant to the Endangered Species Act (“ESA”) and Administrative Procedure Act (“APA”).^[1] (Doc. 1.) Plaintiffs filed a Motion for Summary Judgment (docs. 129, 130), to which Defendants responded and filed a CrossMotion for Summary Judgment (docs 133, 134). Plaintiffs filed a Response to Defendants' Cross-Motion and a Reply. (Docs. 136, 137.) Defendants filed a Reply to their CrossMotion. (Doc. 140.) The matter was referred to Magistrate Judge Angela M. Martinez for pretrial proceedings. (Doc. 128.)

I. Introduction

This action challenges two Biological Opinions (“BiOps”) and Incidental Take Statements (“ITSs”) prepared by FWS pursuant to Section 7 of the ESA. (See Doc. 134 at 3.) The BiOps and ITSs evaluate the effects on the endangered Mount Graham red squirrel (“MGRS” or “the squirrel”) of the proposed actions of re-issuing Special Use Permits (“SUPs”) for two recreational sites on Mount Graham: (1) 14 summer homes, known as the “Cabins” and (2) an organizational summer camp, known as the “Camp.” (Doc. 134 at 1; doc. 130 at 9.) In Count One, Plaintiffs allege that FWS violated the ESA and the APA by determining that re-issuance of the Cabins and Camp SUPs would not jeopardize the squirrel's survival or recovery prospects. (Doc. 1 at ¶ 85.) Specifically, Plaintiffs claim the Cabins and Camp BiOps and ITSs should be set aside and remanded for (1) failing to identify the squirrel's survival and recovery needs, i.e., its “tipping point;” (2) incorrectly evaluating the squirrel's population and environmental baselines; (3) failing to rely on the best available scientific evidence; and (4) failing to provide a clear trigger for re-initiating consultation. (Doc. 1 at ¶¶ 85-94.) In Count Two, Plaintiffs allege that USFS violated the ESA by relying on the Cabins BiOp to authorize the SUP for the Cabins. (Doc. 1 at ¶ 96.)

As discussed below, the Court finds that (1) the Cabins BiOp complies with the ESA and APA; (2) the Camp BiOp lacks a rational basis for its no-jeopardy finding and thus violates the ESA and APA; and (3) the ITSs for both the Cabins and Camp lack a clear standard for when take has been exceeded, and therefore violate the ESA and APA. Accordingly, the Court recommends that Plaintiffs' Motion for Summary Judgment be granted in part and denied in part, and Defendants' Cross-Motion for Summary Judgment be granted in part and denied in part.

II. Procedural Background

In 2008, USFS and FWS completed a consultation and BiOp pursuant to Section 7 of the ESA for the proposed re-issuance of the SUP for the Cabins for the period from January 1, 2009, through December 1, 2028. (Doc. 134 at 14.) The 2008 BiOp concluded that continued use of the Cabins was not likely to jeopardize the squirrel's survival. (Doc. 134 at 14.) In June 2020, Plaintiffs filed a lawsuit seeking re-initiation of the 2008 BiOp consultation for the Cabins. See Ctr. for Biological Diversity v. Christiansen, No. 4:20-cv-00251-BGM (D. Ariz. 2020) (docs. 19, 20). That lawsuit settled in December 2020 and USFS agreed to complete a re-initiated consultation by August 2021. (Doc. 134 at 14.) On March 31, 2021, FWS completed a renewed BiOp for the Cabins, which concluded that the Cabins' continued operation and existence through 2028 was not likely to jeopardize the squirrel's survival. (Doc. 134 at 14; doc. 122 at ¶ 01743.) On August 9, 2021, FWS completed a BiOp for the Camp, which concluded that the Camp's continued operation and existence was not likely to jeopardize the squirrel's survival. (Doc. 134 at 14-15; doc. 123 at ¶ 01787.) These “no-jeopardy” BiOps were amended on May 6, 2022, to incorporate additional information and further explain certain issues.^[2] (Doc. 134 at 15; doc. 32 at FWS01221-22; FWS01161-62.) On September 13, 2022, Plaintiffs filed the instant lawsuit challenging (1) FWS's findings in the amended BiOps and (2) USFS's reliance on the Cabins BiOp. (Doc. 1.)

III. Factual Background

The Mount Graham red squirrel exists solely in the Pinaleno Mountains of the Coronado National Forest, in the Safford Ranger District, and was listed as an endangered species in 1987. (Doc. 130 at 12; doc. 32 at FWS01171; doc. 99 at ¶ 01056.) In 1990, FWS designated critical habitat for the squirrel at three locations in the Pinaleno Mountains above 9,200 feet.^[3] (Doc. 32 at FWS01171; doc. 99 at ¶ 01056.) MGRS habitat is comprised of “mature spruce-fir and mesic mixed-conifer forest at elevations above 2,400 meters [7,874 feet].” (Doc. 130 at 12; doc. 66 at FWS04365.) However, only approximately 34.6 acres of spruce-fir forest remain in the Pinaleno Mountains, such that “much of MGRS critical habitat . . . no longer contains . . . dense stands of mature spruce-fir forest.” (Doc. 32 at FWS01171.) Therefore most, if not all, MGRS are found in lower-elevation areas outside their designated critical habitat. (Doc. 130 at 13; doc. 99 at ¶ 01056-57; doc. 84 at FWS06379 (“Insect mortality, along with the effects of drought over the last several years, have rendered most, if not all, of the area within the boundaries of the MGRS critical habitat useless to MGRS.”).)

Human and environmental stressors have impacted the MGRS population over the last several decades. (Doc. 130 at 13-16.) In 1996, the Clark Peak Fire destroyed approximately 6,500 acres of squirrel habitat and 50 percent of middens within the burned area.^[4] (Id. at 14.) The squirrel population reached approximately 550 in 2004, but that year, the Nutall-Gibson Complex Fires burned nearly 30,000 acres of the Coronado National Forest, including approximately half of the squirrel's critical habitat. (Doc. 130 at 14-15; doc. 84 at FWS06383.) Between 2004 and 2017 the population remained relatively stable, consisting of between 200 and 350 squirrels. (Doc. 130 at 15; doc. 66 at FWS04370.) Then, in 2017, the Frye Fire burned 48,443 acres of the National Forest, including approximately 78 percent of the squirrel's habitat. (Doc. 130 at 15; doc. 32 at FWS01169.) The Frye Fire permanently destroyed significant habitat and reduced the population to approximately 35 squirrels. (Doc. 130 at 15; doc. 66 at FWS04370, doc. 85 at FWS07360.) As of 2020, approximately 109 squirrels remain, making it the most endangered terrestrial mammal in the United States. (Doc. 130 at 12; doc. 122 at ¶ 001752-53.)

Ongoing drought, insect outbreaks, wildfire suppression activities, competition with the non-native Abert's squirrel, and climate change pose additional, known threats to the squirrel's survival. (Doc. 130 at 15; doc. 84 at FWS06379; doc. 125 at ¶ 01952-53.)

IV. Legal Standard

A. Summary Judgment

A court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). At summary judgment, the court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986). In its analysis, the court must accept the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255. The court need consider only the cited materials, but it may consider any other materials in the record. Fed.R.Civ.P. 56(c)(3).

Pure questions of law, where there is no disputed issue of fact, are appropriate for summary judgment. Schrader v. Idaho Dep't of Health & Welfare, 768 F.2d 1107, 1110 (9th Cir. 1985). “Summary judgment is a particularly appropriate tool for resolving claims challenging agency action.” Ctr. for Biological Diversity v. Haaland, 562 F.Supp.3d 68, 76 (D. Ariz. 2021) (citation omitted). In such cases the court's role is to “determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Id. (citation omitted).

B. The Administrative Procedure Act

The BiOps and accompanying ITSs are final agency actions subject to judicial review. Oregon Nat. Res. Council v. Allen, 476 F.3d 1031, 1035-36 (9th Cir. 2007) (citation omitted). Thus, the BiOps and ITSs are reviewable under the APA's arbitrary and capricious standard. Id. (citing 5 U.S.C. §§ 704, 706). Under this standard, the court must determine “whether there is a rational connection between the facts found and the choices made by the [federal agency] and whether it has committed a clear error of judgment.” Id.

Under the APA, an agency's decision may be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010) (citing 5 U.S.C. 706(2)(A)). The standard is deferential, and the court “may not substitute its judgment for that of the agency.” Id. (citation omitted). “Under the arbitrary and capricious standard, a reviewing court must determine whether an agency's decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.”...