Otay Mesa Prop., L.P. v. U.S. Dep't of the Interior

• Decision Date: 13 November 2015
• Docket Number: Civil Action No. 13–cv–0240 (KBJ)
• Citation: 144 F.Supp.3d 35
• Parties: Otay Mesa Property, L.P., et al., Plaintiffs, v. United States Department of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Columbia

144 F.Supp.3d 35

Otay Mesa Property, L.P., et al., Plaintiffs,

v.United States Department of the Interior, et al., Defendants.

Civil Action No. 13–cv–0240 (KBJ)

United States District Court, District of Columbia.

Signed November 13, 2015

Roger Joseph Marzulla, Nancie G. Marzulla, Marzulla Law, LLC, Washington, DC, for Plaintiffs.

Kristen Byrnes Floom, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

KETANJI BROWN JACKSON

, District Judge

Plaintiffs Otay Mesa Property, L.P., Rancho Vista Del Mar, and Otay International, LLC (collectively “Otay Mesa” or “Plaintiffs”) own land that is located in San Diego County, California, near the border between the United States and Mexico. In 2012, the United States Fish and Wildlife Service (“the FWS”) promulgated a rule that designates 57 acres of Otay Mesa's land as a “critical habit” for the endangered Riverside fairy shrimp. See 50 C.F.R. § 17.95

. Otay Mesa has plans to build a recycling facility and landfill on a portion of the designated property, and it has filed the instant action against the U.S. Department of the Interior and its Secretary, the FWS and its Director, and the Assistant Secretary of the Interior for Fish, Wildlife, and Parks (collectively “Defendants”), seeking a court order that declares unlawful and sets aside the portion of the FWS rule that designates the property as a critical habitat. Otay Mesa's one-count complaint asserts that the FWS's critical habitat determination, which will likely result in various restrictions on Plaintiffs' use of the land, violates the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701

–706, because it is arbitrary, capricious, and contrary to the provisions of the Endangered Species Act (“ESA”), 16 U.S.C §§ 1531 –1544, and the National Environmental Policy Act (“NEPA”), 42 U.S.C §§ 4321 –4347.

Before this Court at present are the parties' cross-motions for summary judgment. Otay Mesa maintains that it is entitled to judgment as a matter of law because the record clearly demonstrates that the process that the FWS used to determine whether or not Otay Mesa's property should be declared a critical habit for the Riverside fairy shrimp was flawed, and thus the agency reached the wrong conclusion. Specifically, Otay Mesa maintains that the FWS (1) wrongly designated the property as a critical habitat even though it does not qualify as such under the ESA; (2) conducted a faulty economic analysis with respect to the critical habitat designation; (3) improperly neglected to perform a NEPA analysis of possible environmental impacts of the critical habitat designation; and (4) failed to articulate its reasons for determining that preservation of all 57 acres is essential to conservation of the species. (Pls.' Mem. in Supp. of Summ. J. (“Pls.' Mem.”), ECF No. 9–1, at 9–10, 13–14.)¹ Defendants assert that they are entitled to summary judgment because Otay Mesa does not have standing to sue (Defs.' Combined Opp'n to Pls.' Mot. for Summ. J. & Mem. in Supp. of Cross–Mot. for Summ. J. (“Defs.' Mem.”), ECF No. 14–1, at 10), and with respect to the merits of Otay Mesa's APA claim, Defendants argue that the FWS's critical habitat determination was not arbitrary or capricious in violation of the APA because the agency conducted a proper economic analysis, reasonably determined that a NEPA analysis was not warranted, and has articulated rational and well-supported reasons for concluding that Otay Mesa's property qualifies a critical habitat for ESA purposes (id. at 10–11).

On September 30, 2015, this Court issued an order that DENIED both parties' cross motions for summary judgment WITHOUT PREJUDICE . (ECF No. 29.) This Memorandum Opinion explains the reasons for that order. In short, this Court finds that Otay Mesa has standing to bring this action and that the FWS did not act arbitrarily or capriciously with respect to its economic analysis and NEPA determination. In addition, this Court concludes that the FWS made a rational determination that the watershed area surrounding the pond on Otay Mesa's property where the Riverside fairy shrimp live is essential to the conservation of the species, and thus, at least some portion of the land at issue qualifies as a critical habitat under the ESA. However, this Court cannot determine on the record before it whether the FWS has acted arbitrarily in concluding that 56 acres of land surrounding the one-acre pond is, in fact, watershed, because the portion of the administrative record that was submitted to the Court does not explain how the FWS determined that all of the geographic area that it designated as critical habitat qualifies as such. Consequently, and as set forth in the order this Court previously issued, each side will have an opportunity to augment the Administrative Record Appendix and to file supplemental briefs that are limited to this factual issue.

I. BACKGROUND

A. Statutory And Regulatory Framework

1. The FWS's Role In Implementing The Endangered Species Act

Congress enacted the Endangered Species Act in 1973 with the aim of conserving and protecting endangered and threatened species and the ecosystems on which those species depend. See 16 U.S.C. § 1531(b)

. A species is “endangered” under the ESA if it is “in danger of extinction throughout all or a significant portion of its range[,]” and a species is “threatened” under the ESA if it is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. § 1532(6), (20). The Department of the Interior administers the ESA for non-marine species and has delegated to the Fish and Wildlife Service (an agency within the Interior Department) the authority to list such species as “endangered” or “threatened” through rulemaking. See 50 C.F.R. § 402.01 (2015) ; see also

Bangor Hydro–Elec. Co. v. FERC, 78 F.3d 659, 661 (D.C.Cir.1996) (noting that the FWS is “an arm of the Department of Interior”).²

Species that the FWS lists as endangered or threatened receive certain protections under Federal, State, and local law, which the FWS refers to as “baseline” protections. For example, Section 7 of the ESA requires federal agencies to consult with the FWS to “insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered or threatened species[.]” 16 U.S.C. § 1536(a)(2)

. Section 9 of the ESA prohibits the “take” of endangered wildlife, where “take” means 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), 1538(a)(1) ; 50 C.F.R. § 17.21(c). And Section 10(a)(1)(B) authorizes landowners and local governments who desire to engage in activities or projects that may incidentally result in the take of a protected species to apply for a permit by demonstrating, among other things, that “the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking [and that] the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild[.]” 16 U.S.C. § 1539(a)(1)(B), (2)(A)–(B). Similar protections for endangered and threatened species exist on the state level; for example, California requires state government entities that are responsible for project approval under the California Environmental Quality Act to consider the environmental effects of certain proposed projects. See Cal. Pub. Res. Code §§ 21000

–21189.3 ; see also id. § 21002.1.

Pursuant to the ESA, the FWS is required to employ the best available scientific and commercial data when it makes the initial determination regarding whether or not a particular species should be listed as endangered or threatened. See 16 U.S.C. § 1533(a)

–(b). Moreover, the agency's decision to list a species as fitting within one of these protected categories “must be made without reference to economic costs or private property impacts.” Safari Club Int'l v. Jewell, 960 F.Supp.2d 17, 30 (D.D.C.2013) (emphasis added) (internal quotation marks and citations omitted); see also 16 U.S.C. § 1533(b)(1)(A) (stating that listing determinations must be made “solely on the basis of the best scientific and commercial data available”). The FWS is also required to utilize standard administrative rulemaking processes when it makes the listing decision: it must provide public notice of its proposed listing determination through the issuance of a proposed rule, and thereafter receive public comment, followed by the promulgation of a final rule that lists the species. 16 U.S.C § 1533(b)(5)–(6).

Notably, the ESA specifically states that, “to the maximum extent prudent and determinable[,]” the FWS should publish a rule that designates the “critical habit” for a listed species at the same time the agency publishes the final rule that lists the species as endangered or threatened. Id. § 1533(a)(3)(A)

. In practice, the FWS often “put[s] off” this critical habitat designation. See

N.M. Cattle Growers Ass'n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277, 1283 (10th Cir.2001) (explaining that, because the FWS has long believed that critical habitat designations “are unhelpful, duplicative and unnecessary[,]” the agency often fails to makes such designation “until forced to do so by court order” (citation omitted)). However, when the FWS does undertake to engage in the critical habitat assessment, its exercise of discretion regarding the designation of an area as a critical habitat for a listed species is governed by a specific set of statutory and regulatory criteria.

First, the ESA defines a “critical habitat” as:

(i) the specific areas within the geographical area occupied by the species, at the time it is listed [as endangered or threatened under the statute], on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management

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