Defenders of Wildlife v. Norton

• Decision Date: 26 December 2002
• Docket Number: No. 00CV2996.,00CV2996.
• Parties: DEFENDERS OF WILDLIFE, et al. Plaintiffs, v. Gale NORTON, et al., Defendants.
• Court: U.S. District Court — District of Columbia

239 F.Supp.2d 9

DEFENDERS OF WILDLIFE, et al. Plaintiffs, v. Gale NORTON, et al., Defendants.

No. 00CV2996.

United States District Court, District of Columbia.

December 26, 2002.

COPYRIGHT MATERIAL OMITTED

Eric Glitzenstein, Meyer & Glitzenstein, Washington, DC, for Plaintiffs.

Mauricia M.M. Baca, Trial Attorney, Jean Williams, Chief Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

KESSLER, District Judge.

Plaintiffs, twelve conservation organizations committed to preserving animal and plant species in their natural habitats and one individual involved in Lynx conservation efforts,¹ challenge a final decision by the United States Fish and Wildlife Service ("FWS" or the "Service") declaring the Lynx in the contiguous United States to be a "threatened," rather than "endangered," species under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. Plaintiffs allege that the designation of the Lynx as threatened is "arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law," in violation of § 706(2)(A) of the Administrative Procedure Act ("APA"), 5 U.S.C § 706(2)(A). Plaintiffs also contend that the Service has violated the ESA by failing to designate "critical habitat" for the Lynx as required by that statute.

Defendants are Gale Norton, Secretary of the Interior, who has ultimate responsibility for implementing the ESA, and Steven Williams, Director of FWS, the agency that has been delegated the day-to-day responsibility for implementing the ESA.

The matter is now before the Court on cross-motions for summary judgment. Having considered the parties' motions, oppositions and replies thereto, as well as the Administrative Record in this case, and having heard the parties' oral arguments on November 13, 2002, for the reasons set forth below, the Court grants Plaintiffs' Motion for Summary Judgment and denies Defendants' Motion for Summary Judgment.

I. STATUTORY FRAMEWORK

A. Overview

The ESA is the "`most comprehensive legislation for the preservation of endangered species ever enacted by any nation.'" Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 698, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (quoting Tennessee Valley Authority v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978)). When Congress enacted the statute in 1973, it intended to bring about the "better safeguarding, for the benefit of all citizens, [of] the Nation's heritage in fish, wildlife, and plants." 16 U.S.C. § 1531(a)(5). Having found that a number of species of fish, wildlife, and plants in the United States had become extinct "as a consequence of economic growth and development untempered by adequate concern and conservation," Congress intended the ESA to "provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species." Id. § 1531(a)(1), (b). In particular, the legislative history of the statute reflects a "consistent policy decision by Congress that the United States should not wait until an entire species faces global extinction before affording a domestic population segment of a species protected status." Southwest Ctr. for Biological Diversity v. Babbitt, 926 F.Supp. 920, 924 (D.Ariz. 1996); see H.R.Rep. No. 412, 93d Cong., 1st Sess. 10 (1973), reprinted in 1978 U.S.C.C.A.N. 2989, 2998.

The Act imposes certain responsibilities on the Secretary of the Interior, and the Secretary of the Interior has in turn delegated day-to-day authority for implementation of the ESA to FWS, an entity within the Department of the Interior. 16 U.S.C. § 1531(b); 50 C.F.R. § 402.01(b). The ESA's protection of a species and its habitat is triggered only when FWS "lists" a species in danger of becoming extinct as either "endangered" or "threatened." 16 U.S.C. § 1533. The Act defines a "species" as "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." Id. § 1532(16). FWS has issued a "Vertebrate Population Policy" delineating the circumstances under which the Service will list, as endangered or threatened, a "distinct population segment" or "DPS" of a species. 61 Fed.Reg. 4722.

A species is "endangered" when it is in "danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A species is defined as "threatened" when it is "likely to become an endangered species within the foreseeable future." Id. § 1532(20).

Endangered species are entitled to greater legal protection under the ESA than threatened species. For any species listed as endangered, the ESA makes it unlawful for any person to, among other activities, "import any such species into, or export any such species from the United States," or to "take any such species within the United States." Id. § 1538(a)(1)(A), (B). The term "take" includes "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Id. § 1532(19). For species that are listed as threatened, rather than endangered, the Secretary of the Interior "may," but is not required to, extend these prohibitions on taking and export. Id. § 1533(d).

B. Critical Habitat

When FWS lists a species, it is also required to "concurrently" designate "critical habitat" for the species, unless it determines that such habitat "is not then determinable." Id. § 1533(a)(6)(C). In that event, FWS "must publish a final regulation" designating critical habitat "to the maximum extent prudent" within one year following the final listing decision. Id.

Critical habitat is defined to include those specific areas which are presently "occupied by the species ... on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection." Id. § 1532(5)(A)(I). Critical habitat may also include habitat that is unoccupied by the species at the time of the listing, if FWS determines that such areas are "essential for the conservation of the species." Id.

C. Section 7 Consultation

Under Section 7(a)(2) of the ESA, after a species is listed as endangered or threatened, each federal agency that takes or authorizes an action that may affect a listed species must "insure," in "consultation" with the Service, that such action "is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of [the species' designated critical] habitat." Id. § 1536(a)(2).

If the Service or federal agency determines that any contemplated agency action "may affect listed species or critical habitat," the agency and the Service must engage in "formal consultation." 50 C.F.R. § 402.14(a). Formal consultation is not required, however, if FWS issues a "written concurrence" that the proposed agency action "is not likely to adversely affect any listed species or critical habitat." Id. § (b); 16 U.S.C. § 1536.

The formal consultation process requires FWS to issue a Biological Opinion "detailing how the agency action affects the species or its critical habitat." 16 U.S.C. § 1536(b)(3)(A). If the Service finds that the action under review will jeopardize the continued existence of the species or destroy or "adversely modify" the species' critical habitat, then the Service must set forth those "reasonable and prudent alternatives" which would avoid these results. Id.

II. FACTUAL AND PROCEDURAL BACKGROUND²

A. The Canada Lynx

The Canada Lynx, Felix lynx canadensis ("Lynx"), is a medium-sized cat comparable in size to a bobcat. Adult males average 22 pounds in weight and 33.5 inches in length, and adult females average 19 pounds and 32 inches. The Lynx is distinguished from other cats of similar size, such as the bobcat, by its long legs and large paws which make it particularly well-adapted for hunting in deep snow. See Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Contiguous U.S. Distinct Population Segment of the Canada Lynx and Related Rule, 65 Fed.Reg. 16052 ("Lynx Final Rule" or "Final Rule"). In contrast to the bobcat, coyote, and other predators, which consume a variety of different kinds of animals, the Lynx is a "specialized carnivore" that depends heavily on one particular prey—the snowshoe hare. Id.

The North American range of the Lynx currently extends from Alaska, through Canada, and into the northern part of the contiguous United States. Id. In Canada and Alaska, Lynx inhabit the classic boreal whereas in the contiguous United States, the distribution of the Lynx is associated with the southern boreal forest, comprised of subalpine coniferous forest in the West and primarily mixed coniferous/diciduous forest in the East Id.

In the lower forty-eight states, the Lynx range extends into four different regions that are separated from each other by ecological barriers consisting of unsuitable Lynx habitat. These regions are (1) the Northeast, (2) the Great Lakes, (3) the Southern Rocky Mountains, and (4) the Northern Rocky Mountains/Cascades. Id. at 16054. There is evidence that the Lynx may currently be extirpated from New Hampshire, Vermont and New York in the Northeast region, and from Colorado and southeastern Wyoming in the Southern Rockies region. The largest presence of Lynx population in the contiguous United States is in the Northern Rocky Mountains/Cascades region. Id. at 16055-59.

B. The Lynx's Listing History

The Lynx has been the subject of either administrative action or judicial proceedings for the last ten years. In 1982, FWS formally identified the Lynx as a potential "candidate" for ESA listing. During the next ten years, however, the Service "took no formal steps to make a decision on listing." Defenders...