Guardians v. United States Fish And Wildlife Serv.

• Decision Date: 07 July 2010
• Docket Number: No. 08-2226.,08-2226.
• Citation: 611 F.3d 692
• Parties: FOREST GUARDIANS, Plaintiff-Appellant,v.UNITED STATES FISH AND WILDLIFE SERVICE, Defendant-Appellee,andThe Peregrine Fund, Defendant-Intervenor-Appellee.Environmental Defense Fund, New Mexico Cattle Growers' Association, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

611 F.3d 692

FOREST GUARDIANS, Plaintiff-Appellant,v. UNITED STATES FISH AND WILDLIFE SERVICE, Defendant-Appellee,andThe Peregrine Fund, Defendant-Intervenor-Appellee.Environmental Defense Fund, New Mexico Cattle Growers' Association, Amicus Curiae.

No. 08-2226.

United States Court of Appeals Tenth Circuit.

July 7, 2010.

COPYRIGHT MATERIAL OMITTED

James J. Tutchton (Melissa Hailey with him on the briefs), Forest Guardians, Denver, CO, for Plaintiff-Appellant.

Anna T. Katselas, Attorney, U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C. (John C. Cruden, Acting Assistant Attorney General; M. Alice Thurston, Joseph H. Kim, and Brian McLachlan, Attorneys, U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C.; Justin S. Tade, Attorney-Advisor, U.S. Department of the Interior, Southwest Regional Solicitor's Office, with her on the brief), for Defendant-Appellee.

Frank M. Bond (Faith Kalman Reyes with him on the brief), Simons & Slattery, LLP, Sante Fe, NM, for Defendant-Intervenor-Appellee.

Daniel Grossman, Environmental Defense Fund, Boulder, CO, as Amicus Curiae in support of Appellees.

Karen Budd-Falen and Kathryn Brack Morrow, Budd-Falen Law Offices, LLC, Cheyenne, WY, for New Mexico Cattle Growers' Association, as Amicus Curiae in support of Appellees.

Before GORSUCH, McKAY, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Forest Guardians ¹ appeals the denial of its petition for review of the U.S. Fish and Wildlife Service's (“FWS”) decision to reintroduce a nonessential experimental population of endangered Northern Aplomado Falcons (“Falcons”) into southern New Mexico. Forest Guardians contends that the FWS violated section 10(j) of the Endangered Species Act (“ESA”), 16 U.S.C. § 1539(j), when it allegedly promulgated a final rule to release captive-bred Falcons within the current range of the species and in an area that is not wholly separate geographically from an existing Falcon population. Forest Guardians also argues that the FWS violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321- 4370f, when it decided to release captive-bred Falcons before completing its environmental impact analysis. Because the FWS allegedly had predetermined the outcome of its NEPA analysis, Forest Guardians claims that the FWS failed to take the requisite “hard look” at the environmental impacts of its proposed action. The district court rejected both arguments. We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM the district court's denial of the petition for review.

I. BACKGROUND

Forest Guardians contends that the Falcon, an endangered species, should be permitted to repopulate the United States naturally, while enjoying full protection of its yet-to-be-designated critical habitat under the ESA. On the other hand, the FWS and The Peregrine Fund, which intervened in this action, advocate the release of captive-bred Falcons into southern New Mexico, while decreasing the Falcon's protection under the ESA. Our task is not to decide which strategy is more scientifically sound; rather, we must review the 10(j) rule under the Administrative Procedure Act (“APA”) to determine if the rule was promulgated in accordance with the ESA and NEPA.

A. Extirpation and Possible Restoration of the Falcon in the United States

The Falcon, “perhaps one of our most colorful birds of prey,” ² Determination of the Northern Aplomado Falcon To Be an Endangered Species, 51 Fed.Reg. 6686, 6686 (Feb. 25, 1986) (to be codified at 50 C.F.R. pt. 17), is a medium-sized subspecies of the aplomado falcon historically located in the “savannas, coastal prairies, and higher-elevation grasslands” stretching across the southwestern United States through Mexico and into Guatemala and Nicaragua. Dean P. Keddy-Hector Aplomado Falcon, The Birds of North America, No. 549, at 1, 1 (2000); accord Determination of the Northern Aplomado Falcon to Be an Endangered Species, 51 Fed.Reg. at 6686. The Falcon is the only subspecies of the aplomado falcon to be recorded in the United States. Establishment of a Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona, 71 Fed.Reg. 42,298, 42,298 (July 26, 2006) (to be codified at 50 C.F.R. pt. 17).

In 1986, the Secretary of the Interior (“Secretary”) listed the Falcon as endangered ³ because it had been extirpated from its historic range in Arizona, New Mexico, and Texas for approximately thirty years and was known to nest only in Mexico. Determination of the Northern Aplomado Falcon To Be an Endangered Species, 51 Fed.Reg. at 6686. As of 1986, the Falcon had not nested in the United States or northern Mexico since the discovery of nests near Deming, New Mexico, and in northern Chihuahua in 1952. Id. The Secretary determined that the main factor leading to the Falcon's disappearance was “habitat degradation due to brush encroachment” and that “the most serious threat to th[e] falcon [wa]s the continued use of DDT and other persistent pesticides within the ranges of the falcon and some of its prey species.” Id. at 6686; see also id. at 6687, 6688. The Secretary concluded that “the species is sensitive to habitat degradation and chemical contamination, and needs the type of active management and protective measures provided for in the [ESA].” Id. at 6688.

In listing the Falcon as endangered, the Secretary did not designate a critical habitat.⁴ Id. The Secretary found that such a designation “[w]as not prudent ... because there [wer]e no known active nesting areas within the past 25 years in the United States.” Id. Although the Falcon continued to reside in portions of Mexico, the Secretary noted that “[c]ritical habitat is not designated in areas outside U.S. jurisdiction.” Id. (citing 50 C.F.R. § 424.12(h)).

In September 2002, Forest Guardians petitioned the FWS to designate critical habitat for the Falcon, pursuant to 16 U.S.C. § 1533(b)(3)(D)( ), after a pair of Falcons successfully nested in Luna County, New Mexico in 2001 and bred chicks in 2002. Forest Guardians contended that the FWS should designate a critical habitat for the Falcon in Arizona, New Mexico, and Texas because the Falcon was no longer extirpated from the United States. In subsequent years, other wild Falcons were increasingly sighted in that area. Nevertheless, the FWS did not respond to the petition.

B. Proposed 10(j) Rule

In 2005, the FWS proposed a rule under section 10(j) of the ESA that would reintroduce captive-bred Falcons into New Mexico and Arizona in an attempt to establish a viable resident population of Falcons.⁵ Establishment of a Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona and Availability of Draft Environmental Assessment, 70 Fed.Reg. 6819, 6819 (Feb. 9, 2005) (to be codified at 50 C.F.R. pt. 17). Section 10(j) allows the Secretary to authorize the release of an experimental population of an endangered species “outside the current range of such species if the Secretary determines that such release will further the conservation of such species.” 16 U.S.C. § 1539(j)(2)(A). Ordinarily, such a population “shall be treated as a threatened species,” ⁶ rather than as an endangered species. Id. § 1539(j)(2)(C). If “an[ ] experimental population [is] determined ... to be not essential to the continued existence of a species,” the Secretary may not designate critical habitat for that population. Id. § 1539(j)(2)(C)(ii) (emphasis added). The FWS intended the proposed 10(j) rule to fulfill one of the goals identified in the Falcon's Recovery Plan viz., to reestablish the Falcon in the United States.

The FWS proposed to release captive-bred Falcons and “to designate this reintroduced population as a nonessential experimental population ... according to section 10(j) of the [ESA].” ⁷ Establishment of a Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona and Availability of Draft Environmental Assessment, 70 Fed.Reg. at 6819. In support of this proposed 10(j) rule, the FWS stated that “the continued pesticide influence, shrub encroachment into Chihuahuan grasslands, low densities of avian prey in some areas, and the increased presence of the great horned owl ..., which preys upon the falcon, may be limiting recovery of the species.” Id. at 6821. The FWS noted that there had been “no documented nesting attempts by wild birds in New Mexico between 1952 and 2001 ... [and] no verified sightings of falcons in Arizona since 1940.” Id. The FWS acknowledged that “[s]poradic sightings of falcons have occurred in New Mexico with sightings from every decade since the 1970s.” Id. However,

at least some of these sightings may be juvenile birds that are dispersing from existing populations in the Mexican state of Chihuahua. Any significant natural re-colonization of habitats in Arizona and New Mexico would likely take decades, if it occurred at all, because the reproductive rate of the population in Mexico has declined....

Id.

The FWS concluded that the presence of Falcons in the proposed nonessential experimental population area was too minimal to constitute a population. See id. at 6822. Based on annual Falcon surveys in New Mexico, the first documented successful nesting attempt in fifty years occurred in Luna County, New Mexico, in 2001. Id. That nesting pair fledged three chicks in 2002. Id. However, “[i]n 2003, only a single female [Falcon] was seen in the area of [that] nest.” Id. “In 2004, a pair of falcons was seen on one monitoring site visit and a single falcon was seen on several other occasions.” Id.

“Based on definitions of ‘population’ used in other experimental population rules ..., [the FWS] believe[d] that a determination that a falcon population already exists in a designated area would require a minimum of two successfully-reproducing falcon pairs over multiple years.” Id. The FWS concluded that “[b]iologically, the term ‘population...