Friends of Blackwater v. Salazar

• Decision Date: 25 March 2011
• Docket Number: Civ. Action No. 09–2122 (EGS).
• Citation: 772 F.Supp.2d 232
• Court: U.S. District Court — District of Columbia
• Parties: FRIENDS OF BLACKWATER, et al., Plaintiffs,v.Kenneth SALAZAR, et al., Defendants.

772 F.Supp.2d 232

FRIENDS OF BLACKWATER, et al., Plaintiffs,

v.Kenneth SALAZAR, et al., Defendants.

Civ. Action No. 09–2122 (EGS).

United States District Court, District of Columbia.

March 25, 2011.

Eric Robert Glitzenstein, Howard M. Crystal, Jessica Almy, Meyer Glitzenstein & Crystal, Washington, DC, for Plaintiffs.Rickey D. Turner, U.S. Department of Justice, Washington, DC, M. Reed Hopper, Theodore Hadzi–Antich, Pacific Legal Foundation, Sacramento, CA, for Defendants.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

In 1985, the Virginia Northern Flying Squirrel, Glaucomys sabrinus fuscus, (the “Squirrel”) was listed as an endangered species under the Endangered Species Act (“ESA”) by the U.S. Fish and Wildlife Service (“FWS”). Over two decades later, in 2008, the FWS delisted the Squirrel pursuant to the Final Rule Removing the Virginia Northern Flying Squirrel From the Federal List of Endangered and Threatened Wildlife (“Delisting Rule”), 73 Fed. Reg. 50,226 (Aug. 26, 2008). Plaintiffs brought this suit challenging the delisting.¹

Pending before the Court are plaintiffs' motion for summary judgment and defendants' cross-motion for summary judgment. Upon consideration of the motions, the responses and replies thereto, the applicable law, the administrative record, the arguments by counsel at the November 17, 2010 motions hearing, and for the reasons set forth below, plaintiffs' motion for summary judgment is hereby GRANTED, and defendants' cross-motion for summary judgment is hereby DENIED. The Court concludes that the agency violated Section 4(f) of the ESA, 16 U.S.C. § 1533(f), when it effectively revised its recovery plan for the Squirrel without employing notice-and-comment rulemaking. Accordingly, the Court hereby VACATES the Delisting Rule and REMANDS to the agency for further proceedings consistent with this Opinion.

I. BACKGROUNDA. The Endangered Species Act

By 1973 when the Endangered Species Act was enacted, Congress had concluded that “various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation[.]” 16 U.S.C. § 1531(a)(1). In addition, Congress found that “other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction,” and “these species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people[.]” Id. § 1531(a). The ESA was therefore enacted in order “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 endangered species and threatened species[.]” Id. § 1531(b).²

On his own initiative or in response to the petition of an “interested person,” the Secretary of the Interior determines whether a species is an endangered species or a threatened species ³ based on the evaluation of five factors, “(A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.” Id. § 1533(a)(1). The Secretary is required to make this determination “solely on the basis of the best scientific and commercial data available[.]” Id. § 1533(b)(1).

Once a species is designated an endangered or threatened species, certain legal protections are triggered. Among other things, the ESA directs the Secretary to develop and implement “[recovery] plans ... for the conservation and survival of endangered species and threatened species ... unless he finds that such a plan will not promote the conservation of the species.” Id. § 1533(f)(1). Prior to the final approval of a new or revised recovery plan, the Secretary is required to “provide public notice and an opportunity for public review and comment on such plan.” Id. § 1533(f)(4). Furthermore, each recovery plan “shall, to the maximum extent practicable, ... incorporate in each plan—(i) a description of such site-specific management actions as may be necessary to achieve the plan's goal for the conservation and survival of the species; (ii) objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list; and (iii) estimates of the time required and the cost to carry out those measures needed to achieve the plan's goal and to achieve intermediate steps toward that goal.” Id. § 1533(f)(1)(B).

At least once every five years, the Secretary must conduct a review of all listed species to determine whether any species should be delisted, or whether the status of any species should be changed from threatened to endangered or vice versa. See id. § 1533(c)(2). A determination to delist or change the status of an endangered or threatened species is made on the basis of the same five factors in § 1533(a)(1) that govern the initial listing of a species. See id. § 1533(c)(2); 50 C.F.R. § 424.11(d).

B. Factual Background

i. The Virginia Northern Flying Squirrel and Its Listing as an Endangered Species

At stake in the instant action is a subspecies of the northern flying squirrel: the Virginia Northern Flying Squirrel, also known as the West Virginia Northern Flying Squirrel ( Glaucomys sabrinus fuscus ) (the “Squirrel”).⁴ The Squirrel is a “small, nocturnal, gliding mammal” with “distinctive patagia (folds of skin between the wrists and ankles) ... supported by slender cartilages extending from the wrist bones; these plus the broad tail create a large gliding surface area and are the structural basis for the squirrel's characteristic gliding locomotion. Adults are dorsally gray with a brownish, tan, or reddish wash, and grayish white or buffy white ventrally.” AR at 15075 (internal citations omitted).⁵

The historic range of the Squirrel is believed to correspond roughly to the distribution of old-growth red spruce and northern hardwood forests that existed prior to the extensive logging and accompanying fires that occurred at the turn of the 20th century in the Allegheny Highlands, a section of the Appalachian Mountains extending into West Virginia and Virginia. This historic range encompassed an estimated 500,000 to 600,000 acres of old-growth red spruce forests. AR at 172.

In 1985, the FWS determined that the Virginia Northern Flying Squirrel and the Carolina Northern Flying Squirrel ⁶ were endangered subspecies within the meaning of the ESA. Determination of Endangered Status for Two Kinds of Northern Flying Squirrel (“1985 Listing Rule”), 50 Fed. Reg. 26,999. In particular, the 1985 Listing Rule stated that “[a]vailable evidence indicates that [the two subspecies] are rare and that their historical decline is continuing.” Id. Efforts to capture and identify individual squirrels, for the purpose of evaluating the population, had resulted in the capture of very few squirrels. Id. Considering the first of the five factors outlined by the ESA under § 1533(a)(1), the FWS explained in the 1985 Listing Rule that:

[The two subspecies] now have a relictual distribution, restricted to isolated areas at high elevations, separated by vast stretches of unsuitable habitat. In these last occupied zones, the squirrels and their habitat may be coming under increasing pressure from human disturbance, such as logging and development of skiing and other recreational facilities. 50 Fed. Reg. 26,999, 27,000.⁷

ii. The Recovery Plan

In 1990, in accordance with the requirements of § 1533(f), the FWS issued an Appalachian Northern Flying Squirrels Recovery Plan (“Recovery Plan”). Ultimately, the objective of the Recovery Plan was to set forth a plan that, if accomplished, would “remove [the Squirrel] from the list of endangered and threatened species.” AR at 15092. The agency envisioned that this would occur in two stages. The Squirrel would first be “downlisted” from endangered status to threatened status and then later delisted altogether. AR at 15092. Accordingly, the agency first outlined three criteria necessary for downlisting the species from endangered to threatened status, stating that:

Downlisting from endangered to threatened status will be possible when it can be documented that: [1] squirrel populations are stable or expanding (based on biennial sampling over a 10–year period) in a minimum of 80% of all Geographic Recovery Areas designated for the subspecies, [2] sufficient ecological data and timber management data have been accumulated to assure future protection and management, and [3] [Geographic Recovery Areas] are managed in perpetuity to ensure: (a) sufficient habitat for population maintenance/expansion and (b) habitat corridors, where appropriate elevations exist, to permit migration among [Geographic Recovery Areas].

AR at 15092.⁸

In addition to the three factors necessary for downlisting, the agency identified a fourth factor that would need to be met to warrant delisting the Squirrel completely. Specifically, the agency stated in the Recovery Plan that:

De-listing will be possible when, in addition to the above factors, it can be demonstrated that ... the existence of the high elevation forests on which the squirrels depend is not itself threatened by introduced pests, such as the balsam wooly adelgid or by environmental pollutants, such as acid precipitation or toxic substance contamination.

AR at 15092.

Accompanying the criteria necessary for downlisting and ultimately delisting the species, the Recovery Plan also contained a detailed narrative describing numerous recovery tasks identified by the agency.⁹ A detailed implementation schedule was also included in the Recovery...