Schoeffler v. Kempthorne

• Decision Date: 26 June 2007
• Docket Number: Civil Action No. 05-1573.
• Citation: 493 F.Supp.2d 805
• Parties: Harold SCHOEFFLER and Louisiana Crawfish Producers Association-West v. Dirk KEMPTHORNE, United States Secretary of the Interior.
• Court: U.S. District Court — Western District of Louisiana

493 F.Supp.2d 805

Harold SCHOEFFLER and Louisiana Crawfish Producers Association-West v. Dirk KEMPTHORNE, United States Secretary of the Interior.

Civil Action No. 05-1573.

United States District Court, W.D. Louisiana, Lafayette-Opelousas Division.

June 26, 2007.

COPYRIGHT MATERIAL OMITTED

Leigh Ann Haynie, Carencro, LA, James Jay Tuchton, Univ. of Denver School of Law, Denver, CO, for Harold Schoeffler and Louisiana Crawfish Producers Association-West.

MEMORANDUM RULING

MELANCON, District Judge.

The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, and both should be checks upon that. — John Adams, "Thoughts on Government," Papers 4:86-93, April 1776

There can be no law, much less "the rule of law," if the administrative agencies that have been entrusted to implement the law as enacted by Congress can fail to fulfill their statutory duty without consequence. Article III courts are charged with the constitutional duty of protecting and ensuring the rule of law. On occasion, as under the statute at issue in this case, Congress has provided citizens a direct means of redress to force a government agency to comply with its statutory duty and to implement that law.

If this Court were to accept the position espoused by the United States Department of Interior in this proceeding, based on the uncontested facts in the record before the Court, there would be no law. The crux of the Secretary's position is: we did not do our job; we did not follow the law; but ... too bad, plaintiffs did not file suit in time ... this, despite our misrepresentations to plaintiffs and to the public to the contrary.

I. THE ENDANGERED SPECIES ACT

"The nation behaves well if it treats the natural resources as assets which it must turn over to the next generation increased, and not impaired, in value." Theodore Roosevelt, 26th President of the United States and inspiration for the teddy bear, "The New Nationalism" (1910), NWTR, XVII, p. 52.1¹

In 1973, Congress enacted the Endangered Species Act (ESA), 16 U.S.C § 1531, et seq., "to provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species." 16 U.S.C. § 1531(b). Recognizing that habitat is key to a species' survival, the statutory scheme mandates the establishment of important procedural and substantive protection for contemplated animals and the ecosystems or habitats upon which a species depends.²

Procedurally, section 4 of the ESA first requires the Secretary of the Interior (the Secretary) to make status determinations about a species, including whether the species qualifies as "endangered" or "threatened."³ 16 U.S.C. § 1533 et seq. The ESA further requires that, upon officially listing a species as "endangered" or u"threatened, the Secretary shall concurrently make a determination regarding the species'"critical habitat," and publish the regulation listing the habitat in the Federal Register.⁴ 16 U.S.C. § 1533(a)(3).

The Secretary's duty to designate the critical habitat concurrent with the listing of the species has two limited exceptions: (1) where it would not be "prudent" to designate critical habitat;⁵ or (2) where the boundaries of the habitat are "not determinable.⁶ 6 16 U.S.C. § 1533(a). If the Secretary determines that critical habitat is "not determinable," the Secretary is allowed additional time of up to one year to designate the critical habitat. At the end of that one year extension, the Secretary must publish a final listing of critical habitat regulation in the Federal Register, to the extent prudent, based on the then available information. 16 U.S.C. § 1533(b)(6)(C)(emphasis added).

If the Secretary does not make a final critical habitat determination within the allotted time period, a citizen suit may lie. Section 11 of the ESA authorizes suits against the Secretary:

Any person may commence a civil suit on his own behalf ... (C) against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary.

16 U.S.C. § 1540(g)(1)(c)(emphasis added). Because the ESA does not have a specific statute of limitations provision, the general statute of limitations provision which governs civil actions brought against the federal government codified at 28 U.S.C. § 2401(a) controls. 28 U.S.C. § 2401 provides, "[e]very civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." (emphasis added).

This case involves such a citizen suit, jurisdiction grounded in the statute, seeking declaratory and injunctive relief for the Secretary's failure to perform his non-discretionary duty to designate the critical habitat of the Louisiana Black Bear. This is not the first instance where a Court has been called upon by citizens to compel the Secretary of the Interior to execute his congressional mandate and non-discretionary duty to designate critical habitat. As noted by the presiding judge in Southern Appalachian Biodiversity Project v. U.S. Fish and Wildlife Services, 181 F.Supp.2d 883, 886 (E.D.Tenn.2001):

Stated crassly and starkly, it is money — more accurately, the lack of money — that has precipitated this suit and others like it. Congress has charged the Fish and Wildlife Service with the responsibility of identifying endangered or threatened species and the critical habitat for those species. To state the obvious, it requires money to fulfill this statutory duty. Unfortunately for all concerned, Congress has declined to curtail the scope of the Fish and Wildlife Service's duties under the Endangered Species Act, yet has refused to adequately fund the Service to enable it to carry out those duties. As a result, the designation of critical habitat is now driven almost exclusively by litigation. Of course, a court is concerned only with the issues and parties before it in any given suit. Upon finding that the Fish and Wildlife Service has not fulfilled its statutory duty to designate critical habitat, an injunction to do so is essentially the only alternative available to the court. As time has passed, the Service now finds itself confronted with a plethora of suits and injunctions; it must devote its limited resources to comply with judicial orders at the expense of curtailing or even abandoning its search for as-yet-unidentified endangered species. As injunction is heaped upon injunction, the Service's problems are compounded; to comply with the requirements of one court's injunction may require it to delay compliance with the orders of another court, and so it goes.

II. PROCEDURAL HISTORY

"It is dangerous to be right when the government is wrong." — Voltaire (1694-1778)⁷

The facts underlying this litigation are not disputed.⁸ On March 6, 1987, plaintiff Harold Schoeffler (Schoeffler) and others petitioned the Secretary of the Interior to list the Louisiana Black Bear as a threatened species under the Endangered Species Act, 16 U.S.0 § 1531, et seq. On August 19, 1988, the Secretary, acting through the United States Fish and Wildlife Service (hereinafter collectively referred to as "defendant" or "the Secretary"), determined that "petitioners have presented substantial information that petitions to list the Louisiana Black Bear ... may be warranted."⁹ The Secretary further stated that "the actions requested are warranted but precluded by other actions to amend the lists."¹⁰ On August 10, 1989, the Secretary again determined that listing the Louisiana Black Bear was "warranted but precluded by other actions to amend the lists." Plaintiffs point out that "[i]n doing so, the Secretary concluded [that] the Bear's continued existence was threatened by habitat loss and illegal killing." Despite recognition that the loss of habitat threatened the bear's survival, the Secretary concluded incongruously, that it was not prudent to propose a critical habitat designation for the Bear.¹¹ On June 21, 1990, the Secretary proposed listing the Louisiana Black Bear as a threatened species throughout its historic range and requested comment and relevant data from the public.¹² When this expected legal protection again did not materialize, Schoeffler joined others in filing suit in the Eastern District of Louisiana, on December 23, 1991, seeking a final ruling listing the Louisiana Black Bear as a threatened species under the ESA.¹³

On January 7, 1992, the Secretary listed the Louisiana Black Bear as a threatened species under the ESA, and stated that the bear's critical habitat was "not then determinable." This determination provided the Secretary a one year extension in which to fulfill his congressional mandate. 16 U.S.C. § 1533 et seq. Nonetheless, January 7, 1993 passed without the Secretary publishing a critical habitat as required by the ESA.

On December 2, 1993, the Secretary proposed to designate critical habitat in the Tensas River Basin, the Atchafalaya River Floodway, and in lower Iberia and St. Mary's Parishes.¹⁴ Again, the proposal did not develop into a final determination, and on March 7, 1994, the Secretary again proposed designated habitat and set a hearing to solicit public comment.¹⁵ The proffering again proved unproductive. On April 1, 1994, the Secretary yet again announced solicitation of public comment and gave notice of public hearings on the proposed designation of critical habitat.¹⁶ On September 27, 1995, the Secretary, in conjunction with the Black Bear Conservation Committee, published a Recovery Plan that acknowledged that the...