Home Builders Ass'n v. U.S. Fish and Wildlife, No. CVF01-5722AWISMS.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtIshii
Citation268 F.Supp.2d 1197
Decision Date09 May 2003
Docket NumberNo. CVF01-5722AWISMS.
PartiesHOME BUILDERS ASSOCIATION OF NORTHERN CALIFORNIA; California Chamber of Commerce; Construction Materials Association of California; Building Industry Legal Defense Foundation; California Alliance for Jobs; Steven M. DeLucchi; and Mary O. DeLucchi, Plaintiffs, v. UNITED STATES FISH AND WILLIFE SERVICE; Department of the Interior; Gale A. Norton, Secretary of the Interior; and Marshall P. Jones, Jr., Acting Director of the United States Fish and Wildlife Service, Defendants. Center for Biological Diversity, Defendant—Intervenor.
268 F.Supp.2d 1197
HOME BUILDERS ASSOCIATION OF NORTHERN CALIFORNIA; California Chamber of Commerce; Construction Materials Association of California; Building Industry Legal Defense Foundation; California Alliance for Jobs; Steven M. DeLucchi; and Mary O. DeLucchi, Plaintiffs,
v.
UNITED STATES FISH AND WILLIFE SERVICE; Department of the Interior; Gale A. Norton, Secretary of the Interior; and Marshall P. Jones, Jr., Acting Director of the United States Fish and Wildlife Service, Defendants.
Center for Biological Diversity, Defendant—Intervenor.
No. CVF01-5722AWISMS.
United States District Court, E.D. California.
May 9, 2003.

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John C. Cruden, Acting Assistant Attorney General, Jean E. Williams, Section Chief, Seth M. Barsky, Assistant Section Chief, Lisa Lynne Russell, Trial Attorney, U.S. Department of Justice, Environment & Natural Resources Division, Wildlife & Marine Resources Section, Washington, DC, John K. Vincent, United States Attorney, Edmund Brennan, Assistant United States Attorney, Sacramento, CA, for Federal Defendants.

Deborah A. Sivas, Michael R. Lozeau, Earthjustice Legal Defense Fund, Stanford, CA, for DefendanHntervenor Center for Biological Diversity.

Robin L. Rivett, M. Reed Hopper, David E. Haddock, Pacific Legal Foundation, Sacramento, CA, for Plaintiffs.

MEMORANDUM OPINION AND ODDER RE PLAINTIFFS' MOTION FOR MOTION FOR SUMMARY JUDGMENT AND DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT

ISHII, District Judge.


This is an action for declaratory judgment and injunctive relief in which Home Builders Association of Northern California, California Chamber of Commerce, Construction Materials Association of California, Building Industry Legal Defense Foundation, California Alliance for Jobs, Steven M. DeLucchi, and Mary O. DeLucchi ("Plaintiffs") challenge the final designation or "rule" designating critical habitat for the Alameda whipsnake, Masticophis lateralis euryxanthus, issued by the United States Fish and Wildlife Service ("the Service"). See 62 Fed.Reg. 64306. The court has federal question subject matter jurisdiction over this action under 28 U.S.C. section 1331 and pursuant to the Administrative Procedures Act, 5 U.S.C. sections 701-706 (providing for judicial review of agency action).

Plaintiffs move for summary judgment, contending that the Service designated critical habitat for the Alameda whipsnake ("the snake") without adequate delineation of the area or sufficient analysis of the economic and other impacts of the designation in violation of the Endangered Species Act ("the ESA"), 16 U.S.C. sections 1531 et seq.; the Administrative Procedures Act ("the APA"), 5 U.S.C. sections 551, et seq.; the National Environmental Policy Act ("the NEPA"), 42 U.S.C. sections 4321, et seq.; the Regulatory Flexibility Act (the "RFA"), 5 U.S.C. sections 601, et seq.; and the Small Business Regulatory Enforcement Fairness Act ("the SBREFA"), 5 U.S.C. sections 801, et seq. Plaintiffs contend that the final rule designating critical habitat for the snake should therefore be overturned and remanded to the Service.

Defendants the Service; the Department of the Interior; Gale A. Norton, Secretary of the Interior; and Marshall P. Jones, Jr., Acting Director of the United States Fish and Wildlife Service ("Defendants") also move for summary judgment, contending that the final rule designating the habitat for the snake should be upheld,

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but also arguing that the court should order a limited remand of the rule to the Service for reconsideration of the economic analysis required by the ESA in light of the decision in New Mexico Cattle Growers Ass'n v. U.S. Fish & Wildlife Service, 248 F.3d 1277 (10th Cir.2001) and for revision of the legal descriptions of the seven critical habitat units designated by the Service.

BACKGROUND

The Service formally proposed listing the snake as a threatened species under the ESA in 1994, 59 Fed.Reg. 5,3774 (Feb. 7, 1994), and published a final listing rule in 1997, 62 Fed.Reg. 64,306 (Dec. 5, 1997). The Service did not designate critical habitat for the snake at that time. Pursuant to the ESA, a designation of critical habitat is to be done concurrently with the listing. 16 U.S.C. sections 1533(a)(3)(A), 1533(b)(6)(C)(ii). Intervenor filed suit in 1999 in the United States District Court for the Northern District of California to compel the designation of the critical habitat for the snake, as well as six other species. See Southwest Center for Biological Diversity, et al. v. United States Fish and Wildlife Service, et al, case no. CIV 99-1003 WHA. Pursuant to a settlement agreement in that case, the Service agreed to submit for publication in the Federal Register a proposal to withdraw the existing "not prudent" critical habitat designation for the snake, together with a new proposed critical habitat on or before March 1, 2000. See Exhibit A, Interveners' Memorandum of Points and Authorities in Opposition to Defendants' Motion for Voluntary Remand. The Service further agreed that if it determined that designation of critical habitat for the snake was prudent, it would, by September 1, 2000, submit for publication a final critical habitat designation for the snake and simultaneously withdraw the existing "not prudent" designation. Id. The September 1, 2000 deadline was subsequently extended to September 22, 2000, by stipulation of the parties, and the final designation of critical habitat was published in the Federal Register on October 3, 2000. 65 Fed. Reg. 58,933. It is that final designation of critical habitat for the snake ("the Final Rule") that Plaintiffs challenge in this action.

PROCEDURAL HISTORY

The complaint in this action was filed on June 7, 2001, and Defendants filed an answer on September 13, 2001. On October 19, 2001, the Center for Biological Diversity ("Intervenor") filed a motion to intervene as a matter of right pursuant to Rule 24(a), Federal Rules of Civil Procedure. In its moving papers, Intervenor explained that it had initiated the administrative and legal actions that led to the listing of the snake as a threatened species and to the designation of its critical habitat. The Magistrate Judge found that Intervenor met the four requirements for intervention of right and therefore granted Intervenor's motion. See Cabazon Band of Mission Indians v. Wilson, 124 F.3d 1050, 1061 (9th Cir.1997), cert. denied, 524 U.S. 926, 118 S.Ct. 2319, 141 L.Ed.2d 694 (1998) (the four requirements for intervention of right are timeliness, a significant protectable interest relating to the subject of the action, practical impairment of the intervenor's ability to protect that interest, and inadequate representation by the parties to the suit).

On February 22, 2002, Defendants filed a motion for voluntary remand, the stated basis for which was the Service's desire to voluntarily reconsider its designation of critical habitat for the snake in light of the decision in New Mexico Cattle Growers Ass'n. v. U.S. Fish & Wildlife Service, 248 F.3d 1277 (10th Cir.2001). Defendants sought an order from the court vacating the Final Rule, and Plaintiffs filed a brief

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in support of Defendants' motion. Intervenor, however, opposed Defendants' motion. After taking the matter under submission on the papers, the court issued a Memorandum Opinion and Order denying Defendants' motion for voluntary remand, and holding as follows:

In summary, the court finds that the Service has been unable to provide sufficient legal authority to support the method by which it is attempting to change a duly promulgated rule. Instead of utilizing the clearly established administrative procedures for amending or revising a rule, the Service, finding itself in a litigation posture, has conceded that the rule was not promulgated in compliance with ESA and asks the court to vacate the rule and remand the matter to it so that it can create a new rule. The court notes that this is not a case in which later-acquired information has caused the Service to rethink its decision. Rather, the Service's only stated reason for seeking this remand is the Service's own conclusion that its decision does not comply with a later-issued decision by the Tenth Circuit. Implicit throughout the Service's papers is the assumption that the existence of this decision makes the Alameda whipsnake critical habitat determination per se invalid or illegal. The Service even refers to its "duty to abide by recent judicial interpretations of the ESA." As stated above, the court finds that this assumption is faulty, for the obvious reason that this court is not within the Tenth Circuit. Further, the court finds that the existence of the Tenth Circuit opinion is insufficient to overcome the Service's duty to comply with the statutorily mandated procedures for revising or amending a critical habitat rule. In summary, the Service has failed to demonstrate that this court can properly remand an ESA rule to the Service without making a determination on the merits and without the Service complying with the statutory procedures for revising a rule.

Memorandum Opinion and Order Re Defendants' Motion for Voluntary Remand, July 2, 2002, 17:12-18:4.

On September 20, 2002, Defendants filed a "renewed" motion for remand, which Plaintiffs and Intervenor opposed. The court took the matter under submission without oral argument and denied the motion, finding as follows:

In their original motion, Defendants asked the court to vacate the rule and then remand the matter to the agency. In their current motion, Defendants again ask the court to remand this matter, but ask the court to do so without vacating the current rule, thus allowing the current rule to stay in effect until a new rule is issued. The court finds that this...

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24 practice notes
  • Cape Hatteras Access Pres. All. v. U.S. Int. Dept., No. CIV.A.03-217(RCL).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • November 1, 2004
    ...be eligible for critical habitat designation. 16 U.S.C. § 1532(5)(A)(i); Home Builders Ass'n of N. Cal. v. U.S. Fish & Wildlife Serv., 268 F.Supp.2d 1197, 1214 It appears that, incredibly, the Service admits in the final rule that some designated areas do not contain PCEs. AR 13359 ("While ......
  • Am. Forest Res. Council v. Ashe, Civil Action No. 12–111 (JDB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 5, 2013
    ...FWS determined to be “occupied” but on which PCEs were not “found”); Home Builders Ass'n of N. Cal. v. U.S. Fish & Wildlife Serv., 268 F.Supp.2d 1197, 1237–39 (E.D.Cal.2003) (rejecting intervenor's argument for remand without vacatur and vacating critical habitat, in significant part becaus......
  • Otay Mesa Prop., L.P. v. U.S. Dep't of the Interior, No. 13-cv-0240 (KBJ)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 25, 2018
    ...land, a distinction Congress expressly included within the ESA." Home Builders Ass'n of N. Cal. v. U.S. Fish & Wildlife Serv. , 268 F.Supp.2d 1197, 1221 (E.D. Cal. 2003), abrogated in part on other grounds by Home Builders Ass'n of N. Cal. v. U.S. Fish & Wildlife Serv. , 616 F.3d 983 (9th C......
  • Arizona Cattle Growers' Ass'n v. Kempthorne, No. 06-CV-1744-PHX-SRB.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • February 4, 2008
    ...Fish and Wildlife Serv., 75 F.3d 1429, 1435-36 (10th Cir.1996); but see Home Builders Ass'n of N. Cal. v. U.S. Fish and Wildlife Serv., 268 F.Supp.2d 1197, 1233 (E.D.Cal.2003) ("Home Builders I") (citing Douglas County v. Babbitt, 48 F.3d 1495, 1507 (9th Cir.1995)) (rejecting Catron and quo......
  • Request a trial to view additional results
10 cases
  • Cape Hatteras Access Pres. All. v. U.S. Int. Dept., No. CIV.A.03-217(RCL).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • November 1, 2004
    ...be eligible for critical habitat designation. 16 U.S.C. § 1532(5)(A)(i); Home Builders Ass'n of N. Cal. v. U.S. Fish & Wildlife Serv., 268 F.Supp.2d 1197, 1214 It appears that, incredibly, the Service admits in the final rule that some designated areas do not contain PCEs. AR 13359 ("While ......
  • Am. Forest Res. Council v. Ashe, Civil Action No. 12–111 (JDB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 5, 2013
    ...FWS determined to be “occupied” but on which PCEs were not “found”); Home Builders Ass'n of N. Cal. v. U.S. Fish & Wildlife Serv., 268 F.Supp.2d 1197, 1237–39 (E.D.Cal.2003) (rejecting intervenor's argument for remand without vacatur and vacating critical habitat, in significant part becaus......
  • Otay Mesa Prop., L.P. v. U.S. Dep't of the Interior, No. 13-cv-0240 (KBJ)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 25, 2018
    ...land, a distinction Congress expressly included within the ESA." Home Builders Ass'n of N. Cal. v. U.S. Fish & Wildlife Serv. , 268 F.Supp.2d 1197, 1221 (E.D. Cal. 2003), abrogated in part on other grounds by Home Builders Ass'n of N. Cal. v. U.S. Fish & Wildlife Serv. , 616 F.3d 983 (9th C......
  • Arizona Cattle Growers' Ass'n v. Kempthorne, No. 06-CV-1744-PHX-SRB.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • February 4, 2008
    ...Fish and Wildlife Serv., 75 F.3d 1429, 1435-36 (10th Cir.1996); but see Home Builders Ass'n of N. Cal. v. U.S. Fish and Wildlife Serv., 268 F.Supp.2d 1197, 1233 (E.D.Cal.2003) ("Home Builders I") (citing Douglas County v. Babbitt, 48 F.3d 1495, 1507 (9th Cir.1995)) (rejecting Catron and quo......
  • Request a trial to view additional results
1 books & journal articles
  • Critical Habitat Designation
    • United States
    • Endangered species deskbook
    • April 22, 2010
    ...large projects that posed real dangers to the gnatcatcher habitat at issue during the remand); Home Builders Ass’n of N. Cal. v. FWS, 268 F. Supp. 2d 1197 (E.D. Cal. 2003) (the court denied motion for voluntary remand regarding designations for the Alameda whipsnake because the FWS had not ......

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