Idaho Farm Bureau Federation v. Babbitt, Civ. No. 93-0168-E-HLR.

• Decision Date: 14 December 1993
• Docket Number: Civ. No. 93-0168-E-HLR.
• Citation: 839 F. Supp. 739
• Parties: IDAHO FARM BUREAU FEDERATION, a non-profit corporation; Owyhee County Farm Bureau, a non-profit corporation; Idaho Cattle Association, a non-profit corporation; Owyhee County Cattlemen's Association, a non-profit corporation, and Owyhee County Board of Commissioners, Plaintiffs, v. Bruce BABBITT, Secretary of Interior; John F. Turner, Director, U.S. Fish & Wildlife Service; Marvin Plenert, Regional Director, U.S. Fish & Wildlife Service; Charles Lobdell, Field Supervisor, Boise District Office, U.S. Fish and Wildlife Service; U.S. Fish & Wildlife Service; United States of America, Defendants. Idaho Conservation League, Inc., an Idaho non-profit corporation, and Committee for Idaho's High Desert, Inc., an Idaho non-profit corporation, Intervenors.
• Court: U.S. District Court — District of Idaho

839 F. Supp. 739

IDAHO FARM BUREAU FEDERATION, a non-profit corporation; Owyhee County Farm Bureau, a non-profit corporation; Idaho Cattle Association, a non-profit corporation; Owyhee County Cattlemen's Association, a non-profit corporation, and Owyhee County Board of Commissioners, Plaintiffs, v. Bruce BABBITT, Secretary of Interior; John F. Turner, Director, U.S. Fish & Wildlife Service; Marvin Plenert, Regional Director, U.S. Fish & Wildlife Service; Charles Lobdell, Field Supervisor, Boise District Office, U.S. Fish and Wildlife Service; U.S. Fish & Wildlife Service; United States of America, Defendants Idaho Conservation League, Inc., an Idaho non-profit corporation, and Committee for Idaho's High Desert, Inc., an Idaho non-profit corporation, Intervenors.

Civ. No. 93-0168-E-HLR.

United States District Court, D. Idaho.

December 14, 1993.

COPYRIGHT MATERIAL OMITTED

Scott L. Campbell, Gary G. Allen, Susan E. Buxton, Davis Wright Tremaine, Boise, ID, John J. Rademacher, Richard Krause, American Farm Bureau Federation, Park Ridge, IL, for plaintiffs.

John L. Marshall, Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for defendants.

Laird J. Lucas, Land & Water Fund of the Rockies, Boise, ID, for intervenors Id. Cons. League & Committee for Idaho's High Desert.

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

RYAN, Senior District Judge.

I. FACTS AND PROCEDURE

On May 7, 1993, the plaintiffs in the above-entitled action filed a Complaint for Declarator and Injunctive Relief against the United States Fish and Wildlife Service and other federal agencies and officers (hereinafter collectively "the F & W Service" or "the defendants"). The complaint alleges violations of the Endangered Species Act, 16 U.S.C. § 1531, et seq., and the Administrative Procedures Act ("APA"), 5 U.S.C. § 551, et seq., with respect to the listing of the Bruneau Hot Springsnail (hereinafter "springsnail") under the Endangered Species Act.

Now before the court are cross-motions for summary judgment filed by the plaintiffs and the defendants on October 8, 1993. These motions have been fully briefed, and the court held a hearing on December 2, 1993. The court has carefully reviewed the memoranda filed by the parties, the cases cited therein, the arguments of counsel made at the hearing, as well as the pertinent portions of the administrative record filed with the court. Therefore, the cross-motions for summary judgment are now ripe for decision.

Briefly, the facts of the case are as follows.¹ The springsnail is a species of very small snails (4mm in diameter) first collected and identified as a distinct species in 1952 and 1953. Thus far, the species has been found only in thermal springs along the Bruneau River and a tributary, Hot Creek, in Owyhee County in southwest Idaho. At present it appears that the efforts on the part of the F & W Service and others to find the springsnail in other areas outside the identified habitat have been unsuccessful.

In early 1987, officials of the United States Bureau of Land Management ("BLM") searched potential habitat areas outside of the Hot Creek/Bruneau River area. BLM and F & W Service employees conducted tests at other hot springs in southwest Idaho, parts of northern Nevada, and southeastern Oregon. No populations of the springsnail were found in these other areas at that time. See 7 Administrative Record § III.F.28 (filed July 16, 1993), Brunner Letter dated Jan. 28, 1987.

Other researchers have described unsuccessful efforts to locate the springsnail outside the Hot Creek/Bruneau River area. See 4 Adm.R. § III.A.6 at 811 n. 1 (July 16, 1993), Hershler Article, Dec. 9, 1990, and 4 Adm.R. § III.A.8 at 68 (July 16, 1993), Mladenka Article, May of 1992. Nevertheless, the F & W Service appears to concede that not all possible habitat areas and/or springsnail populations have necessarily been located.

On August 21, 1985, the F & W Service published a proposal to list the springsnail as an endangered species. See 50 Fed.Reg. 33,803 (Aug. 21, 1985).² At that time, there were only two known populations or colonies of springsnail found in two locations in the Hot Creek/Bruneau River area. In its notice proposing the listing, the F & W Service identified the "reduction of ... habitat by reduced spring flows caused by drawdown of the water table by ground water pumping for agricultural and other uses" as the primary threat to the continued existence of this minute species of snail. Id. The proposed rule provided for 60 days, from August 21, 1985, through October 21, 1985, for public comment on the proposed listing. The F & W Service also published a summary notice of the proposal in a newspaper serving the southwest region of Idaho. Thereafter, the F & W Service held a public hearing on the proposed listing in Boise, Idaho, on December 10, 1985.

In order to include the date of the public hearing, the F & W Service reopened the public comment period from October 31, 1985, through December 31, 1985. See 50 Fed.Reg. 45,443 (Oct. 31, 1985).³ A second public hearing was held in Owyhee County in the town of Bruneau, Idaho, on January 15, 1986. The F & W Service then provided additional opportunity for public input by again extending the public comment period through February 1, 1986. See 50 Fed.Reg. 51,894 (Dec. 20, 1985).⁴

The F & W Service announced in 1986 that substantial disagreement existed in the evidence regarding the status of the springsnail and extended the period of consideration of the proposed rule for six months, pursuant to Section 4(b)(6)(B)(i) of the Endangered Species Act, 16 U.S.C. § 1533(b)(6)(A)(i)(III) and (b)(6)(B)(i). See 51 Fed.Reg. 47,033 (Dec. 30, 1986).⁵ The F & W Service then set another period for public comment from December 30, 1986, through February 6, 1987.

By letter dated February 23, 1988, the United States Senators for Idaho wrote to the Director of the F & W Service, asking that he not proceed with the listing of the springsnail until the matter was studied further. The senators expressed their concern about the potentially significant impacts which listing the species could have on the agricultural communities in the area, and expressed their hope that the springsnail could be adequately protected without a formal listing under the Endangered Species Act.⁶

The F & W Service agreed to delay the decision, but reserved the right to take emergency action if necessary to protect the species.⁷ Thereafter, Congress provided the F & W Service with funds for additional studies to be undertaken in an effort to develop a conservation plan for the species short of a formal listing under the Endangered Species Act.

One of the studies, conducted by Idaho State University and completed in May of 1992, found 126 new populations or colonies of the springsnail. Another study, conducted by the United States Geological Survey ("USGS") and completed in November of 1992 (hereinafter "USGS provisional report"), analyzed the hydrology of the geothermal system and surrounding hot springs in the Bruaneau River valley to determine the cause of declining spring flows affecting the springsnail. A third study, conducted by the Idaho Department of Water Resources ("IDWR") and completed in November of 1992,⁸ was undertaken to provide a comprehensive data base from which to make management decisions, consider alternatives, and predict impacts on the aquifer system. The IDWR is the state agency charged with administering water rights in the State of Idaho. The IDWR ultimately recommended that the springsnail not be listed as endangered under the Endangered Species Act. See 1 Adm.R. § II.A.44 (July 16, 1993), Official Comments of the Idaho Department of Water Resources dated Dec. 28, 1992.

By 1992, the F & W Service had still not taken final action with respect to the proposed listing. The F & W Service represents that during the time the additional studies were conducted, Indian Bathtub Spring, the site of the original discovery of the springsnail, had dried up. Whether or not there is now water flowing from Indian Bathtub Spring is in dispute.

In July of 1992, the intervenors in the present action filed suit against the F & W Service, pursuant to 16 U.S.C. § 1540(g), to compel a final ruling on the proposed listing. See Idaho Conservation League v. Lujan, Civil No. 92-260-S-HLR (D.Idaho July 6, 1992). On November 24, 1992, this court approved a settlement in that action. Pursuant to the stipulated settlement, the F & W Service committed itself to rendering a final decision on the springsnail by January 15, 1993.

After that previous suit had been filed and after the studies described above were completed, the F & W Service set another public comment period from October 5, 1992, through November 4, 1992. See 57 Fed.Reg. 45,762 (Oct. 5, 1992).⁹ It appears that through inadvertence on the part of either the F & W Service or the local newspaper, the notice of the fifth comment period was not published in the newspaper until November 6, 1992, two days after the close of the proposed comment period. Therefore, the F & W Service provided another brief public comment period from December 18, 1992, through December 28, 1992, which was announced in the Federal Register and the local newspaper. See 57 Fed.Reg. 60,160 (Dec. 18, 1992).¹⁰

On December 9, 1992, the Field Supervisor for the F & W Service Boise Field Office, Charles H. Lobdell, sent a draft of the final rule listing the springsnail as endangered to the Regional Director of the F & W Service.¹¹ The last public, comment period closed on December 28, 1992. The F & W Service issued its final rule listing the springsnail as an endangered species on January 25, 1993. See 58 Fed.Reg. 5938 (Jan. 25, 1993).¹² At the time the final rule was issued, the springsnail was known to exist in a total of 128 locations. The final rule was issued seven and a half years after the F & W Service first proposed the listing on August 21,...