Defenders of Wildlife v. Tuggle

• Decision Date: 31 March 2009
• Docket Number: No. CV 08-280 TUC DCB.,No. CV 08-820 PHX DCB.,CV 08-280 TUC DCB.,CV 08-820 PHX DCB.
• Citation: 607 F.Supp.2d 1095
• Parties: DEFENDERS OF WILDLIFE, et al., Plaintiffs, v. Benjamin TUGGLE, Director, Region 2, United States Fish and Wildlife Service, et al., Defendant. WildEarth Guardians and the Rewilding Institute, Plaintiff, v. United States Fish and Wildlife Service, and United States Forest Service, Defendants.
• Court: U.S. District Court — District of Arizona

607 F.Supp.2d 1095

DEFENDERS OF WILDLIFE, et al., Plaintiffs, v. Benjamin TUGGLE, Director, Region 2, United States Fish and Wildlife Service, et al., Defendant.

WildEarth Guardians and the Rewilding Institute, Plaintiff, v. United States Fish and Wildlife Service, and United States Forest Service, Defendants.

No. CV 08-280 TUC DCB.

No. CV 08-820 PHX DCB.

United States District Court, D. Arizona.

March 31, 2009.

COPYRIGHT MATERIAL OMITTED

Brian Segee, Defenders of Wildlife, Washington, DC, Matthew Gilbert Kenna, Western Environmental Law Ctr., Durango, CO, James Jay Tutchton, Wild Earth Guardians, University of Denver College of Law, Denver, CO, Melissa A. Hailey, Wild Earth Guardians, Santa Fe, NM, for Plaintiffs.

Erik E. Petersen, US DOJ, Washington, DC, for Defendants.

ORDER

DAVID C. BURY, District Judge.

Plaintiffs, WildEarth Guardians and the Rewilding Institute (Guardians) and the Defenders of Wildlife (Defenders) challenge procedures for wolf control actions taken as part of the administration of the Mexican wolf reintroduction project within the Blue Range Recovery Area (BRWRA) by the United States Fish and Wildlife Service (USFWS¹) and others. Defenders' Amended Complaint, claims one through four, allege NEPA and ESA violations based on USFWS' adoption of a Memorandum of Understanding in 2003(MOU) and issuance of Standard Operating Procedure 13 (SOP 13). Guardians' Complaint, claim one, also challenges the 2003 MOU and SOP 13.

USFWS filed Motions to Dismiss these claims for lack of jurisdiction because Plaintiffs rely on the judicial review provisions of the Administrative Procedures Act (APA), 5 U.S.C. §§ 702, 704, 706, which limit review to a "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704. USFWS argues that neither the MOU nor SOP 13 was a final agency action.

The Court finds SOP 13 crystalized final agency action begun with the adoption of the 2003 MOU and denies the Motion to Dismiss Defenders' claims one through four and Guardians' claim one. Plaintiffs may proceed under the APA.

Defenders Amended Complaint also alleges a fifth claim for violations of ESA section 4(d) because the Final Rule for relocation of the Mexican wolf does not promote conservation of the species under the taking provisions adopted by USFWS in the 2003 MOU and SOP 13. Claim five is based on ESA's citizen suit provision, 16 U.S.C. § 1540(g)(1)(C), which authorizes suits against the Secretary for failing to perform a non-discretionary act or duty under § 1533 of ESA. In its Reply to USFWS' Motion to Dismiss, Guardians argue that its first claim may also be based on ESA's citizen suit provision, 16 U.S.C. § 1540(g)(1)(A), which authorizes a person to sue to enjoin violations of any provision of ESA or regulation issued to implement ESA. Guardians argue that with the adoption of SOP 13, USFWS is in violation of its mandatory duty under section 10(j) of ESA to reintroduce species like the Mexican wolf "if it determines that such release will further the conservation of such species." Guardians argue that under SOP 13, USFWS completely fails to perform its mandatory duty to conserve the species.

USFWS argues Defenders' citizen suit claim must be dismissed because there is no rule under ESA section 4(d), a prerequisite for a citizen suit under 16 U.S.C. § 1540(g)(1)(C). USFWS argues Guardians' citizen suit must be dismissed because it is a programmatic challenge which is impermissible. For other reasons not argued by USFWS, the Court grants the motion as to Defenders fifth claim, but denies it as to Guardians' claim one. Defenders and Guardians may proceed under the ESA citizen suit provision 16 U.S.C. § 1540(g)(1)(A).

The Administrative Procedures Act (APA): Standard and Scope of Review

Federal courts have limited jurisdiction, possessing only the power authorized by the Constitution and statute. It is presumed that a cause of action lies outside this limited jurisdiction and the burden of establishing the contrary rests on the party asserting jurisdiction. Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).

The APA does not create subject matter jurisdiction, but it does provide a generic cause of action for people aggrieved by agency action, Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), which waives federal sovereign immunity, allowing a plaintiff to obtain judicial review where a statute does not provide for a private right of action. 5 §§ 701-706; Lujan v. National Wildlife Federation, 497 U.S. 871, 882-883, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). The APA "creates a strong presumption of reviewability that can be rebutted only by a clear showing that judicial review would be inappropriate." Natural Res. Defense Council, Inc. v. Sec. & Exchange Commission, 606 F.2d 1031, 1043 (D.C.Cir.1979).

As long as the agency "has considered the relevant factors and articulated a rational connection between the facts found and the choice made," the court will uphold the administrative action. Baltimore Gas & Electric Comp. v. Natural Resources Defense Council, 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). The courts only ask whether the agency action was "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." 5 U.S.C. § 706(2). Under § 706(2), the Court will hold unlawful and set aside such agency action.

A court may also compel agency action that has been unlawfully withheld or unreasonably delayed. 5 U.S.C. § 706(1). This permits the courts to review agency inaction, when an agency fails to act in accordance with its statutory duties; only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take. Norton v. Southern Utah Wilderness Alliance (SUWA), 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). In other words, under § 706(1), an agency's failure to act constitutes agency action subject to judicial review only if the agency failed to perform a legally required, non-discretionary duty.

The APA authorizes lawsuits by a "person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of the relevant statute." 5 U.S.C. § 702. "Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." 5 U.S.C. § 704. The standard of review is applicable to all ESA claims, including those brought under its citizen suit provisions because ESA, like NEPA, contains no statutory mandated standard. City of Sausalito v. O'Neill, 386 F.3d 1186, 1205 (9th Cir.2004) (claims brought under ESA are governed by APA arbitrary and capricious standard of review). The deferential standard of review and the final agency action requirements protect agencies from undue judicial interference with their lawful discretion and avoid judicial entanglement in abstract policy disagreements which courts lack the expertise and information to resolve. SUWA, 542 U.S. at 66, 124 S.Ct. 2373; Rattlesnake Coal. v. EPA, 509 F.3d 1095, 1103 (9th Cir.2007).

In the Ninth Circuit, agency action is final: 1) if it marks the consummation of the agency's decisionmaking process and 2) if it is one by which rights or obligations have been determined, or from which legal consequences will flow. Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). "The core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties." Oregon Nat. Desert Ass'n. v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir.2006); Bennett, 520 U.S. at 177-78, 117 S.Ct. 1154.

The finality requirement is interpreted in a pragmatic and flexible manner. Oregon Nat'l Desert, 465 F.3d at 982. Plaintiffs have the burden of identifying specific federal conduct and explaining how it is "final agency action," Lujan, 497 U.S. at 882, 110 S.Ct. 3177, and identifying a discrete agency action that the federal agency was legally required to take but failed to do so, SUWA, 542 U.S. at 64, 124 S.Ct. 2373.

Background: Reintroduction of Mexican Wolf under Endangered Species Act (ESA)

On January 12, 1998, USFWS issued a Final Rule that it would reintroduce the endangered Mexican wolf² into the BRWRA, which covers the entire Apache and Gila National Forests in east-central Arizona and west-central New Mexico. Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of the Mexican Gray Wolf in Arizona and New Mexico (Final Rule), 63 Fed. Reg. 1752 (January 12, 1998) (codified at 50 C.F.R. 17.84(k)). The Service classified the wolf as a nonessential experimental population, subject to release under the Endangered Species Act (ESA), section 10(j). Id.

Section 10(j) was added to ESA in 1982 to address federal agencies' frustration over political opposition to reintroduction efforts being taken under ESA provisions that protect a species once it is listed as endangered or threatened. Specifically, ESA requires the Secretary of the Department of Interior to develop and implement recovery plans for the conservation and survival of listed species unless he finds that such a plan will not promote the conservation of a species. 16 U.S.C. § 1533(f). ESA authorizes the Secretary to "live" trap and transplant (reintroduce) rare species, if necessary, to bring an endangered or threatened species to the point at which protection under ESA is no longer necessary. 16 U.S.C. § 1536(a)(1); 16 U.S.C. § 1532(3). Section 10(j) mitigated perceived conflicts with human activity from reintroduction of endangered or threatened species by clarifying and limiting ESA responsibilities incumbent with experimental populations in the hope of encouraging private parties to host experimental populations like the...