Maine v. Norton, CIV. 00-250-BC.

• Court: United States District Courts. 1st Circuit. United States District Court (Maine)
• Writing for the Court: Gene Carter
• Citation: 257 F.Supp.2d 357
• Parties: State of MAINE, Maine Chamber of Commerce, Atlantic Salmon of Maine, LLC, Stolt Sea Farm, Inc., Maine Aquaculture Association, Maine Pulp and Paper Association, Wild Blueberry Commission of Maine, Jasper Wyman & Sons, Cherryfield Foods, Inc., Plaintiffs v. Gale A. NORTON, in her Official Capacity as Secretary of the United States Department of the Interior, Steven A. Williams, in his Official Capacity as Director of the United States Fish and Wildlife Service, Donald L. Evans, in his Official Capacity as Secretary of the United States Department of Commerce, William T. Hogarth, in his Official Capacity as the Assistant Administrator for Fisheries of the National Marine Fisheries Service, Defendants
• Docket Number: No. CIV. 00-250-BC.,CIV. 00-250-BC.
• Decision Date: 24 April 2003

Page 357

257 F.Supp.2d 357 State of MAINE, Maine Chamber of Commerce, Atlantic Salmon of Maine, LLC, Stolt Sea Farm, Inc., Maine Aquaculture Association, Maine Pulp and Paper Association, Wild Blueberry Commission of Maine, Jasper Wyman & Sons, Cherryfield Foods, Inc., Plaintiffs
v.
Gale A. NORTON, in her Official Capacity as Secretary of the United States Department of the Interior, Steven A. Williams, in his Official Capacity as Director of the United States Fish and Wildlife Service, Donald L. Evans, in his Official Capacity as Secretary of the United States Department of Commerce, William T. Hogarth, in his Official Capacity as the Assistant Administrator for Fisheries of the National Marine Fisheries Service, Defendants No. CIV. 00-250-BC. United States District Court, D. Maine. April 24, 2003.

Page 358

COPYRIGHT MATERIAL OMITTED

Page 359

COPYRIGHT MATERIAL OMITTED

Page 360

COPYRIGHT MATERIAL OMITTED

Page 361

Peter W. Culley, Pierce, Atwood, Portland, ME, for Maine State Chamber of Commerce, Atlantic Salmon of Maine, LLC, Maine Acquaculture Ass'n, Stolt Sea Farm Inc., Maine Pulp & Paper Ass'n, Wild Blueberry Com'n of Maine, Jasper Wyman & Sons, Cherryfield Foods Inc.

Christopher C. Taub, Augusta, ME, Paul A. Lenzini, Alexandria, VA, for Maine, State of, Plaintiff.

Adam Issenberg, U.S. Dept. of Justice, Mary Whittle, U.S. Department of Justice, Washington, DC, for All Defendants.

Adam Issenberg, U.S. Dept. of Justice, U.S. Dept. of Justice, Washington, DC, for U.S. Secretary of the Interior, Defendants.

Eric Glitzenstein, Howard M. Crystal, Meyer & Gilitzenstein, washington, DC, Kirk G. Siegel, Hanley & Assoc., South Paris, ME, for Defenders of Wildlife, Biodiversity Foundation, Conservation Action Project, Forest Ecology Nework, Coastal Waters Project, David Carle, Charles Fitzgerald, Douglas Watts, and Amicus Plus.

Howard M. Crystal, Meyer & Glitzenstein, Washington, DC, for Arthur Taylor.

MEMORANDUM OF DECISION AND ORDER

GENE CARTER, Senior District Judge.

On November 17, 2000, the United States Fish and Wildlife Service ("FWS") and National Marine Fisheries Service ("NMFS") (collectively "the Services") published their determination listing the Gulf of Maine distinct population segment ("DPS") of Atlantic salmon as endangered under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. See 65 Fed.Reg. 69459, reproduced at 2000 AR 5040. The Court now has before it Plaintiffs', the State of Maine ("the State"), Maine Chamber of Commerce, Atlantic Salmon of Maine, LLC, Stolt Sea Farm, Inc., Maine Aquaculture Association, Maine Pulp & Paper Association, Wild Blueberry Commission of Maine, Jasper Wyman & Sons, Cherryfield Foods, Inc. ("the Maine Businesses") motions for summary judgment which challenge the listing of the Gulf of Maine Atlantic salmon. See Plaintiff Maine Businesses' Motion for Summary Judgment (Docket Item No. 61); Plaintiff State of Maine's Motion for Summary Judgment (Docket Item No. 62). The State's Complaint asserts that, on nine separately listed grounds pursuant to the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq., the listing decision "is arbitrary, capricious, an abuse of discretion and/or otherwise not in accordance with law." The Maine Businesses raise four separate claims: (1) that the distinct population segment designation

Page 362

is both procedurally and factually illegal because it was not based on the best scientific and commercial data; (2) that the listing failed to provide a summary showing the relationship of the data relied upon to the final listing rule and that the designation of the Gulf of Maine distinct population segment is overly broad and unduly vague so as to violate the constitutional requirements of due process; (3) that the decision to list the Gulf of Maine distinct population segment now, without extending time for decision to allow for consideration of the National Academy of Sciences' study and without allowing interested parties sufficient notice and opportunity to comment, is arbitrary and capricious, an abuse of discretion, and against substantial evidence; and (4) that the ESA unconstitutionally delegates legislative authority regarding what constitutes a distinct population segment and that the ESA provision authorizing the listing of a distinct population segment is an unconstitutional violation of the Commerce Clause. See Complaint of the Maine Businesses. Defendants, Gale A. Norton, U.S. Secretary of the Interior, Steven A. Williams, Director of the United States Fish and Wildlife Service, Donald L. Evans, U.S. Secretary of Commerce, and William T. Hogarth, Assistant Administrator for Fisheries, National Marine Fisheries Service also move for summary judgment. Defendants' Cross Motion for Summary Judgment (Docket Item No. 70).

The ESA is "`the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.'" Strahan v. Coxe, 127 F.3d 155, 161 (1st Cir.1997) (quoting Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 2294, 57 L.Ed.2d 117 (1978)). The ESA was enacted based on the finding that many "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," while other species "have been so depleted in numbers that they are in danger of or threatened with extinction." 16 U.S.C. § 1531(a). As the Supreme Court has explained, "[t]he plain intent of Congress in enacting th[e] statute was to halt and reverse the trend toward species extinction, whatever the cost." Hill, 437 U.S. at 184, 98 S.Ct. at 2297. Responsibility for implementing the ESA rests with the Secretaries of Commerce and Interior, who have delegated these responsibilities to the FWS and NMFS. See 16 U.S.C. § 1532(15); 50 C.F.R. § 402.01(b). The ESA requires the Services to issue rules to protect "species"—defined to include "any distinct population segment of any species." 16 U.S.C. § 1532(16). Species are required to be protected, or "listed," if they are "endangered" or "threatened." 16 U.S.C. § 1533(a)(1).

A species is "endangered" where it "is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A species is "threatened" if it "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20). Section 4 of the Act sets forth a non-discretionary duty requiring the Services to list a species if one or more of five factors are met:

(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.

Page 363

16 U.S.C. § 1533(a)(1). In addition, the Act requires that the Services make their listing decisions "solely on the basis of the best scientific and commercial data available." 16 U.S.C. § 1533(b)(1)(A). Once listed, the ESA requires that the Services take affirmative steps to recover listed species. 16 U.S.C. § 1533(f). Unless issued a permit, it is illegal to "take" a listed species, 16 U.S.C. § 1538(a)(1). See 16 U.S.C. § 1536 (federal agency permitting process), § 1539 (private party permitting process).

STATEMENT OF FACTS

A Statement of Material Facts "as to which the moving party contends there is no genuine issue of material fact to be tried" serves limited purpose in cases brought pursuant to the APA because, as a general rule, all relevant facts are contained in the administrative record for such a case, and, as a result, there are no material facts in dispute. Under section 706 of the APA, the Court's role is to determine whether the administrative agency was "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law" in making the findings challenged by Plaintiffs. 5 U.S.C. § 706(2)(A). Because this case involves a challenge to a final administrative action, the Court's review is limited to the administrative record. See 5 U.S.C. § 706; Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). Summary judgment is an appropriate procedure for resolving a challenge to a federal agency's administrative decision when review is based upon the administrative record, even though the court does not employ the standard of review set forth in Rule 56. See, e.g., Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Richards v. I.N.S., 554 F.2d 1173, 1177 n. 28 (D.C.Cir.1977).

Notwithstanding the foregoing, the Court provides the factual materials, taken from the Statements of Material Facts submitted by the parties in support of their respective summary judgment motions, to highlight appropriate portions of the complex administrative record of this case. The Court notes, however, that the listing decision was based on the entire administrative record.

The Atlantic Salmon

Atlantic salmon (Salmo salar) are an anadromous species of fish that is born and reared as a juvenile in freshwater rivers before migrating to the marine environment for ocean feeding as an adult. After spending one or more winters in the northwest Atlantic Ocean, adults return to their native freshwater rivers to spawn. See, e.g., 60 Fed.Reg. 14410-11 (March 17, 1995), reproduced at 1997 AR 1294; 1999 Status Review, reproduced at 2000 AR 3064-72. Adult salmon generally spawn in October and November and deposit their eggs into nests in the beds of rivers, referred to as "redds." 60 Fed.Reg. 14410-11, reproduced at 1997 AR 1294. The eggs generally hatch in March and April, and the young...