Federation of Fly Fishers v. Daley

• Decision Date: 25 October 2000
• Docket Number: No. C 99-0981 SI.,C 99-0981 SI.
• Parties: FEDERATION OF FLY FISHERS, et al., Plaintiffs, v. William M. DALEY, Secretary of Commerce, et al., Defendants.
• Court: U.S. District Court — Northern District of California

131 F.Supp.2d 1158

FEDERATION OF FLY FISHERS, et al., Plaintiffs, v. William M. DALEY, Secretary of Commerce, et al., Defendants.

No. C 99-0981 SI.

United States District Court, N.D. California.

October 25, 2000.

Michael R. Sherwood, Earthjustice Legal Defense Fund, San Francisco, CA, for plaintiffs.

Robert S. Mueller, III, United States Attorney, James A. Coda, Assistant United States Attorney, Office of the United States Attorney, San Francisco, CA, for defendants.

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT, AND REMANDING TO DEFENDANT SECRETARY FOR FURTHER CONSIDERATION AND DECISION

ILLSTON, District Judge.

On October 13, 2000, the Court heard argument on the parties' cross-motions for summary judgment. Having carefully considered the arguments of the parties and the papers submitted, the Court GRANTS plaintiffs' motion for summary judgment and DENIES defendants' cross-motion for summary judgment for the reasons set forth below.

BACKGROUND

Plaintiffs Federation of Fly Fishers, et al. ("Fly Fishers")challenge a March 19, 1998 Final Rule by the Secretary of Commerce, acting through the National Marine Fisheries Service ("NMFS"), not to list the Klamath Mountains Province Evolutionarily Significant Unit ("ESU")of steelhead as a threatened species under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq. For purposes of listing under the ESA, a "species" is defined by geographical population segments called ESUs. Administrative Record ("AR")Ex. 15 at 3. The Klamath Mountains Province ESU of steelhead occupies river basins in the Elk River in southern Oregon through the Klamath River in Northern California. AR Ex. 1 at 13352. Steelhead (Oncorhynchus mykiss)are a salmonid species that occur on the west coast in two distinct genetic groups — coastal and inland. AR Ex. 1 at 13347. Steelhead can also be classified as winter-run or summer-run depending on their sexual maturity and spawning patterns. AR Ex. 1 at 13348, 13352. The Klamath Mountains Province ESU steelhead are coastal and include both winter-run and summer-run steelhead. AR Ex. 1 at 133352.

In May 1992, several of the plaintiffs in this case submitted a petition to NMFS requesting that the winter-run steelhead occupying the Illinois River in southern Oregon be listed under the ESA. Plaintiffs' Motion 7. NMFS determined that the request "may be warranted" and directed its Biological Review Team ("BRT")to conduct a status review. AR Ex. 449 at 33939. The BRT determined that the Illinois River steelhead are part of a larger ESU, known as the Klamath Mountains Province ESU. Defendants' Opposition 5. The BRT analyzed scientific data and historical and present conditions affecting the larger Klamath Mountains Province ESU. Plaintiffs' Motion at 7. The status review culminated in a report issued to NMFS in December 1994 ("1994 Status Report"). Id. The BRT stated that it was "unable to identify any steelhead populations that are naturally self-sustaining" within the Klamath Mountains Province ESU, and thus concluded, "steelhead within this ESU are likely to become endangered in the foreseeable future" if present conditions continue. Id.; Defendants' Motion 5.

In February 1994, a second petition was submitted to NMFS requesting listing of all west coast steelhead populations. Plaintiffs' Motion 7. NMFS again determined that the request to list "may be warranted." AR Ex. 230. NMFS stated that the petition would be incorporated into the on-going review of west coast steelhead populations it was already conducting.¹ Plaintiffs' Motion 7. The on-going review produced a comprehensive report issued in August 1996 assessing the biological status of steelhead populations in Washington, Idaho, Oregon, and California ("1996 Status Report"). AR Ex. 15.

The 1996 Status Report identified five ESUs of steelhead that were presently in danger of extinction and five ESUs that were likely to become endangered in the foreseeable future. AR Ex. 15 at vii. The Klamath Mountains Province ESU was identified among the ESUs likely to become endangered. Id. The BRT's determination was based on scientific conclusions and did not consider whether any then existing federal or state conservation efforts could ameliorate the decline in steelhead population. AR Ex. 15 at 4. Hence, the BRT did not give a recommendation as to whether the Klamath Mountains Province ESU should be listed as threatened.

On August 9, 1996, based on the 1996 Status Report, NMFS proposed to list the Klamath Mountains Province ESU as threatened, in addition to the nine other ESUs identified in the status report as endangered or threatened. NMFS based its Proposed Rule on the recognition that numerous efforts to halt the decline of the steelhead population were inadequate. AR Ex. 13 at 41556. On August 18, 1997, NMFS issued the Final Rule to list five of the ESUs in the proposed listing. AR Ex. 8 at 43974. The Klamath Mountains Province ESU was not among those listed. Id. Instead, final determination on the Klamath Mountains Province ESU along with the other ESUs not listed was postponed. NMFS invoked a six-month extension period because it found that a scientific disagreement existed regarding the proposed listing of these ESUs. AR Ex. 8 at 43974. The extension period allowed NMFS to collect and review new information received from California and Oregon since the 1996 status review. Plaintiff's Motion 8. NMFS additionally held public hearings and considered comments from a number of peer reviewers. Id.

The extended status review produced a third report concerning the Klamath Mountains Province ESU in December 1997 ("1997 Status Report"). AR Ex. 6. As with the first two status reports, the BRT gave scientific conclusions that the Klamath Mountains Province ESU is "likely to become endangered in the foreseeable future" if present trends continue. AR Ex. 6 at iv, 29. Having considered the BRT's status review, NMFS on March 19, 1998 issued the Final Rule. AR Ex. 1. NMFS declined to list the Klamath Mountains Province ESU as a threatened species and withdrew its 1996 Proposed Rule with respect to this ESU. AR Ex. 1 at 13347. NMFS reasoned that the Klamath Mountains Province ESU was not threatened in light of available conservation measures that were adequate to ameliorate the declining trend. Defendants' Opposition 8. NMFS did, however, list two of the five candidate ESUs — Lower Columbia River and California Central Valley. Id.

Plaintiffs brought this action under the Administrative Procedure Act, 5 U.S.C. § 706(2), challenging NMFS's Final Rule of 1998 as arbitrary and capricious.² Before the Court is plaintiffs' motion for summary judgment and defendants' cross-motion for summary judgment.

LEGAL STANDARD

A. Summary Judgment

The Federal Rules of Civil Procedure provide for summary adjudication when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

In a motion for summary judgment, "[if] the moving party for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact, the burden of production then shifts so that the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, `specific facts showing that there is a genuine issue for trial.'" See T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the non-moving party. See T.W. Electric, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir.1991). The evidence presented by the parties must be admissible. Fed. R.Civ.P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49 (2d Cir.1985); Thornhill Publ'g Co., Inc. v. GT & E Corp., 594 F.2d 730, 738 (9th Cir.1979). Hearsay statements found in affidavits are inadmissible. See, e.g., Fong v. American Airlines, Inc., 626 F.2d 759, 762-63 (9th Cir.1980).

B. Review of Administrative Action

1. The Administrative Procedure Act Applies

This Court's review of NMFS's decision not to list the Klamath Mountains Province ESU is governed by the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2). Pyramid Lake Paiute Tribe v. U.S. Dep't of the Navy, 898 F.2d 1410, 1413 (9th Cir.1990). The Court "shall" set aside any agency decision that the Court finds is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. 706(2)(A). The APA restricts the trial court reviewing an agency action from considering any evidence outside of the administrative record available to the agency at the time of the challenged decision. See 5 U.S.C. § 706(2)(E); Florida Power & Light Co. v Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985); Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th Cir.1991), cert. denied, 503 U.S. 959, 112 S.Ct. 1559, 118 L.Ed.2d 207 (1992).

The Court must determine whether the agency decision "was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). The...