Mausolf v. Babbitt, 5-94-CV-8.

• Decision Date: 23 January 1996
• Docket Number: No. 5-94-CV-8.,5-94-CV-8.
• Citation: 913 F. Supp. 1334
• Parties: Jeffrey MAUSOLF; William Kullberg; Arlys Strehlo; and Minnesota United Snowmobilers Association v. Bruce BABBITT, Secretary, Department of Interior; Roger Kennedy, Director, National Park Service; Mollie Beattie, Director, U.S. Fish and Wildlife Service; and Ben Clary, Superintendent, Voyageurs National Park.
• Court: U.S. District Court — District of Minnesota

913 F. Supp. 1334

Jeffrey MAUSOLF; William Kullberg; Arlys Strehlo; and Minnesota United Snowmobilers Association v. Bruce BABBITT, Secretary, Department of Interior; Roger Kennedy, Director, National Park Service; Mollie Beattie, Director, U.S. Fish and Wildlife Service; and Ben Clary, Superintendent, Voyageurs National Park.

No. 5-94-CV-8.

United States District Court, D. Minnesota, Fifth Division.

January 23, 1996.

Rebecca J. Heltzer, Bernick & Lifson, Mpls, MN, Corey John Ayling, McGrann Shea Franzen Carnival Straughn & Lamb, Mpls, MN, for Jeffrey Mausolf, William Kullberg, Arlys Strehlo, Minnesota United Snowmobilers Association.

Friedrich Anson Paul Siekert, David Lee Lillehaug, U.S. Atty. Office, Mpls, MN, Joseph R. Perella, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for Bruce Babbitt, Secretary, Department of the Interior, Roger Kennedy, Director, National Park Service, Mollie Beattie, Director, U.S. Fish and Wildlife Service, Ben Clary, Superintendent, Voyageurs National Park.

Richard A. Duncan, Brian Boru O'Neill, Michael A. Ponto, Laura A. Lundquist, Faegre & Benson, Mpls, MN, for amici curiae Voyageurs Region National Park Association, Sierra Club, North Star Chapter, Humane Society of U.S., Friends of Boundary Waters Wilderness, National Park and Conservation Association, Izaak Walton League of America.

ORDER

ROSENBAUM, District Judge.

In December, 1992, the National Park Service ("NPS" or "Park Service") closed certain lakeshore areas in Voyageurs National Park ("Voyageurs" or "Park") to snowmobiles and motor vehicles. The closed areas are home to gray wolves and bald eagles, each of which is protected under the Endangered Species Act ("ESA" or "Act").¹ The Park Service's closure was imposed without notice or public consideration, ostensibly to prevent the possible taking of individual wolves and bald eagles and to protect the species' population and habitat.²

Plaintiffs are snowmobilers who claim the lakeshore closures violated the ESA and the Administrative Procedure Act ("APA"). They seek declaratory and injunctive relief. Defendants, in turn, deny that plaintiffs have standing to make their claim; assert the closures were neither arbitrary nor capricious; and deny the NPS was required to initiate or participate in any rulemaking procedures before closing the areas to snowmobiles. Each party has submitted briefs and argued before the Court seeking summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Fed.R.Civ.P."). The parties agree there are no disputed facts and this case raises purely legal issues that can be resolved on these motions.

I. Background

A. The Endangered Species Act

In 1973, Congress enacted the Endangered Species Act, 16 U.S.C. § 1531 et seq., to protect America's endangered and threatened wildlife. Section 9 of the Act makes it unlawful for any person to "take" any species listed as endangered or threatened. 16 U.S.C. § 1538(a)(1)(B)-(D). "Take" is statutorily defined to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). Federal regulations define "harassment" as any act "which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding or sheltering." 50 C.F.R. § 17.3. The regulations define "harm" as "an act which actually kills or injures wildlife," and provide that "such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." Id.

Section 7 of the ESA prohibits federal agencies from taking any action "likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary of the Interior ... to be critical." 16 U.S.C. § 1536(a)(2). Federal agencies must formally consult the United States Fish and Wildlife Service ("FWS" or "Fish and Wildlife") concerning any prospective agency action that may affect listed species or their critical habitat. 16 U.S.C. § 1536(a)(3). After consultation, the FWS issues a biological opinion and determines whether the particular action is likely to jeopardize a species or adversely modify its critical habitat. 16 U.S.C. § 1536(b)(3)(A). Federal regulations require that the biological opinion be formulated using "the best scientific and commercial data available." 50 C.F.R. § 402.14(g)(8).

At section 10, the ESA authorizes the Secretary of the Interior ("Secretary") to issue permits allowing any taking, which section 9 would otherwise prohibit, "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539(a)(1)(B). To issue such a permit, the FWS must provide an "incidental take" statement specifying the take's impact on the species and identifying "those reasonable and prudent measures ... necessary or appropriate to minimize such impact." 16 U.S.C. § 1536(b)(4).

B. Voyageurs National Park

Congress authorized the creation of Voyageurs National Park in 1971 and established it in 1975. Pub.L. No. 91-661. The Park is a northern Minnesota forest area, adjacent to the Canadian border. Glaciers have shaped its land to produce a system of internal waterways. The Park covers nearly 220,000 acres, of which 85,506 (39 percent) are water. The Kabetogama Peninsula accounts for almost half of the Park's land area.

Prior to the Park's establishment, its land was freely logged, mined, and used for recreation. In establishing the Park, Congress sought "to preserve for the inspiration and enjoyment of present and future generations, the outstanding scenery, geological conditions, and waterway system which constituted a part of the historic route of the Voyageurs who contributed significantly to the opening of the Northwestern United States." 16 U.S.C. § 160.

C. Bald Eagles

The bald eagle is classified under the ESA as a threatened species in Minnesota. Between 13 and 21 breeding eagle pairs have occupied Voyageurs since annual surveys began in 1973. U.S. Fish & Wildlife Service, Administrative Record for the Voyageurs National Park Wilderness Plan Consultation, Tab 13, at 8 hereinafter Admin.Rec.. Although the Park's bald eagle population is presently stable, its reproductive success has been below replacement. The Park's eagles reproduce at lower rates than do eagles in the adjacent Superior and Chippewa National Forests. Admin.Rec., Tab 46.

The causes of these low reproductive rates are unknown. Many theories have been posited, but none is recognized as the "cause" by wildlife experts. Among the possibilities is human disturbance during the breeding cycle, which may cause eagles to metabolize fat reserves containing polychlorobiphenyl ("PCB") and mercury. According to this theory, such metabolism increases contaminant levels in eagle eggs.³ Id., Tab 46, at 12.

Bald eagles return to Voyageurs in late February. Upon their arrival, eagles scavenge on fish and wolf kill remains until the ice melt in late April or early May. Under the PCB metabolism theory, the critical disturbance period for bald eagles extends from courtship in late February through incubation in mid-May. Id., Tab 29, at 14-15. As a result, the plaintiffs do not dispute the validity of temporary closures of trails within a quarter mile of bald eagle nests during the eagles' breeding season, but do challenge the validity of permanent closures of such trails outside the breeding period.

D. Gray Wolves

The gray wolf is also classified as threatened in Minnesota. Northeastern Minnesota contains one of the United States' most significant gray wolf populations. The best estimates count between 1,200 and 1,400 wolves in Minnesota. Wildlife experts recognize that the gray wolf's numbers are slowly increasing and their range is expanding. Id., Tab 29, at 16. Voyageurs maintains an average population of 35 individual wolves with an annual survival rate of 85 percent. These wolves comprise between 6 and 9 wolf packs, with 2 to 11 wolves per pack. Only half of Voyageurs' identified packs have territories completely within the Park.

Frozen surfaces of major lakes are important hunting areas for Voyageurs wolves. This is especially true during light-snow winters; during periods of heavy snow, wolves make most kills in wooded areas. Id., Tab 15. It is recognized that snowmobiles can cause temporary dispersal of wolves. As a result, the Park Service has groomed and marked trails on lake surfaces to channel snowmobilers away from the shoreline, thereby preventing disruption of wolves feeding on kills. Id., Tab 19, at 11. Beyond this temporary dispersal, snowmobiles seem to pose no other threat to wolves.

An estimated 80 percent of wolf mortality within Minnesota is caused by humans. This includes animals shot, hit by cars, or snared and killed by trappers. Wolf packs having territories extending outside the Park, and wolves that venture beyond its borders, are especially vulnerable to human-caused mortality.⁴ Id., Tab 29, at 16. Wolves within the Park, which have adapted their behavior to human recreational activities such as snowmobiling, cross-country skiing, ice fishing, and motor vehicle use, are not as vulnerable to human-caused mortality as those beyond the Park's borders. Id.

E. Snowmobiles and Voyageurs National Park

The Voyageurs National Park Act recognized the land's historic recreational use by providing that "the Secretary may, when planning development of the park, include appropriate provisions for (1) winter sports, including the use of snowmobiles." 16 U.S.C. § 160h. This express authorization of snowmobiling in Voyageurs is unique to...