Ctr. For Biological Diversity v. Tidwell

• Decision Date: 04 June 2010
• Docket Number: Related Case Nos. 08-151-HA, 03-381-HA.,Civil No. 07-1871-HA.
• Citation: 716 F.Supp.2d 982
• Parties: OREGON NATURAL DESERT ASS'N, Western Watersheds Project, and Center for Biological Diversity, Plaintiffs, v. Tom TIDWELL, et al., Defendants, v. Harley & Sherrie Allen, et al., Defendants-Intervenors.
• Court: U.S. District Court — District of Oregon

716 F.Supp.2d 982

OREGON NATURAL DESERT ASS'N, Western Watersheds Project, and Center for Biological Diversity, Plaintiffs,

v.Tom TIDWELL, et al., Defendants,

v.Harley & Sherrie Allen, et al., Defendants-Intervenors.

Civil No. 07-1871-HA.

Related Case Nos. 08-151-HA, 03-381-HA.

United States District Court,

D. Oregon,

Pendleton Division.

June 4, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

David H. Becker, Peter MacNamara Lacy, Oregon Natural Desert Association, Portland, OR, Kristin F. Ruether, Advocates for the West, Boise, ID, for Plaintiffs.

Erik Edward Petersen, U.S. Department of Justice, Washington, DC, Val J. Black, Office of the General Counsel, USDA, Stephen J. Odell, United States Attorney's Office, Portland, OR, for Defendants.

Anne Devlan Foster, Elizabeth E. Howard, Kate L. Moore, Dominic M. Carollo, Dunn Carney Allen Higgins & Tongue, LLP, Portland, OR, Karen J. Budd-Falen, Budd-Falen Law Offices, LLC, Cheyenne, WY, for Defendants-Intervenors.

OPINION AND ORDER

HAGGERTY, District Judge:

Plaintiffs in case number 07-1871-HA (intervenor defendants in 08-151-HA) Oregon Natural Desert Association, Western Watersheds Project, and Center for Biological Diversity (collectively referred to as “plaintiffs” or “ONDA”) seek declaratory and injunctive relief against defendants Tom Tidwell, Chief, United States Forest Service; Doug Gochnour, Supervisor, Malheur National Forest (MNF); the United States Forest Service (Forest Service); Barry Thom, Acting Regional Administrator, National Marine Fisheries Service; and the National Marine Fisheries Service (NMFS) (collectively referred to as “federal defendants”). Plaintiffs allege federal defendants have violated the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-43, and the National Forest Management Act (NFMA), 16 U.S.C. §§ 1600-1614, in managing grazing on public lands supporting threatened steelhead trout in Oregon's MNF. Plaintiffs in case number 08-151-HA (intervenor defendants in 07-1871-HA), a group of ranchers ¹ permitted to graze cattle on allotments contained within the MNF (collectively referred to as “permittees” or “intervenors”), also seek declaratory and injunctive relief against federal defendants for alleged violations of the ESA.

Plaintiffs, intervenors, and federal defendants have each moved for summary judgment. Plaintiffs and intervenors have also moved to supplement the administrative record. Amici curiae ² have filed a memorandum [400] in support of intervenors' Motion for Summary Judgement. For the following reasons, plaintiffs' Motion to Supplement the Administrative Record [404] is GRANTED and plaintiffs' Motion for Summary Judgment [401] is GRANTED IN PART, intervenors' Motion to File Extra Record Evidence [398] is GRANTED and intervenors' Motion for Summary Judgment [379] is GRANTED IN PART, and federal defendants' Motion for Summary Judgment is GRANTED IN PART [429].

MOTIONS TO SUPPLEMENT THE ADMINISTRATIVE RECORD

Plaintiffs and intervenors each move this court to consider extra-record evidence in its consideration of their respective motions for summary judgment. Plaintiffs urge this court to consider the expert reports and rebuttals of Dr. Robert Beschta and Jonathon Rhodes and the declarations of Christopher Christie and Linda Driskill. Intervenors request that this court consider the expert reports of Drs. Victor W. Kaczynski and William C. Krueger, several factual declarations, and numerous published scientific articles attached to counsel's declaration (Howard Decl.).

This court has previously ruled that ONDA's substantive claims under §§ 7 and 9 of the ESA may be supported by extra-record evidence and are not limited to the administrative record review restrictions of the Administrative Procedures Act (APA), 5 U.S.C. § 706. Order of Jan. 9, 2009[147]; see also Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1034 (9th Cir.2005) (holding that the APA's record review provisions do not apply to claims brought pursuant to “the substantive provisions of the ESA”); Defenders of Wildlife v. Martin, 454 F.Supp.2d 1085, 1094 (E.D.Wash.2006). The court now reaffirms that ruling, and has considered extra-record evidence submitted by the parties relevant to ONDA's substantive claims arising under the ESA's citizen suit provision. 16 U.S.C. § 1540(g).

Judicial review of the remainder of the parties' claims in these actions is governed by the record review provisions of the APA. Under the APA, judicial review of administrative decisions is generally limited to the administrative record before the agency at the time the challenged decisions were made. Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). The Ninth Circuit has allowed extra-record materials to be considered in four situations: (1) to determine whether the agency has considered all relevant factors, (2) when it appears the agency has relied on extra-record evidence, (3) when necessary to explain technical terms or complex subject matter, or (4) when there is a showing of bad faith or improper behavior by the agency. Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir.1996) (citations omitted).

The court has considered extra-record ³ evidence submitted by the parties, including federal defendants, where that evidence assists the court in interpreting the complex scientific subject matter of this litigation. The court has also considered documents germane to the question of whether federal defendants considered all relevant factors in making the challenged decisions. Although this court has considered extra-record evidence in evaluating the parties' motions for summary judgment, and grants the parties' motions to consider extra-record evidence, federal defendants are not required to formally supplement the administrative record.

STANDARDS

The APA sets forth standards for judicial review of decisions made by federal administrative remedies. Dickinson v. Zurko, 527 U.S. 150, 152, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999). Under the APA, a district court may overturn an agency action only if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir.1998). In determining whether an agency decision is arbitrary and capricious, courts “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Marsh, 490 U.S. at 378, 109 S.Ct. 1851.

A decision is arbitrary and capricious if the agency:

[H]as relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

O'Keeffe's, Inc. v. U.S. Consumer Product Safety Comm., 92 F.3d 940, 942 (9th Cir.1996) (quoting

Motor Vehicle Mfrs. Ass'n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). The agency need only articulate a rational connection between the facts found and the conclusions made. Or. Natural Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir.1997). Review under this standard is narrow, and the court may not substitute its judgment for the judgment of the agency. O'Keeffe's, 92 F.3d at 942. The role of the court is to ensure that the agency “made no clear error of judgment,” and the court must “defer to an agency's determination in an area involving a high level of technical expertise.” The Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir.2008) (quotations and citations omitted).

BACKGROUND

Plaintiffs are non-profit environmental organizations. Plaintiffs contend that the NMFS and Forest Service have violated the ESA and NFMA in managing grazing on the MNF in ways that are alleged to harm steelhead listed as threatened under the ESA. Intervenors are ranchers permitted to graze cattle on the MNF. Intervenors allege that the NMFS and Forest Service have violated the ESA by arbitrarily limiting grazing on the MNF. Federal defendants contend that the agency actions taken in relation to grazing on the MNF were not arbitrary and capricious and have not harmed protected steelhead.

A. Overview of the Endangered Species Act

The purpose of the ESA is “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 species. 16 U.S.C. § 1531(b). Section 4 of the ESA directs the Secretary of the Interior to list any species as endangered or threatened, and to designate “critical habitat” for that species. Id. § 1533(a). “Critical habitat” includes those “areas within the geographical area occupied by the species” that are “essential to the conservation of the species.” Id. § 1532(5)(a). In furtherance of the purposes of the ESA, citizens are authorized to file suit against any person, including the United States, to enforce any provision of the Act. Id. § 1540(g).

1. Section 9

Section 9 of the ESA prohibits, among other things, the “take” of any listed species. 16 U.S.C. § 1538(a)(1). The ESA defines “take” to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Id. § 1532(19). The ESA's implementing regulations further define “harm” as an “act which actually kills or injures wildlife” and “may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” 50 C.F.R. § 17.3; Babbitt v. Sweet Home Chapter of...