Sierra Club v. Salazar

• Decision Date: 22 July 2013
• Docket Number: No. 12–cv–5669–RBL.,12–cv–5669–RBL.
• Citation: 961 F.Supp.2d 1172
• Parties: SIERRA CLUB, et al., Plaintiffs, v. Ken SALAZAR, Secretary of the Department of the Interior, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

961 F.Supp.2d 1172

SIERRA CLUB, et al., Plaintiffs,

v.Ken SALAZAR, Secretary of the Department of the Interior, et al., Defendants.

No. 12–cv–5669–RBL.

United States District Court,

W.D. Washington,

at Tacoma.

July 22, 2013.

Paul August Kampmeier, Wyatt Foster Golding, Washington Forest Law Center, Seattle, WA, for Plaintiffs.

Bradley H. Oliphant, Rickey Doyle Turner, Jr., U.S. Department of Justice, Denver, CO, Brian C. Kipnis, U.S. Attorney's Office, Seattle, WA, for Defendants.

ORDER

RONALD B. LEIGHTON, District Judge.

In May 2012, the Washington Department of Natural Resources (“DNR”) proposed, and the Fish & Wildlife Service approved, an amendment to a habitat conservation plan governing the logging of forests in southwest Washington. Plaintiffs brought suit alleging that Fish & Wildlife failed to take certain statutory steps under the Endangered Species Act, 16 U.S.C. § 1531 et seq. (“ESA”), before approving the amendment. Plaintiffs sent a notice of intent to sue, which is required by the ESA 60 days before filing suit. However, 35 days later, Plaintiffs filed suit. Plaintiffs argue that they have pled only claims under the Administrative Procedures Act, 5 U.S.C. § 701 et seq. (“APA”)—which contains no 60–day notice requirement—rather than the ESA. The Government contends that the claims fall in fact under the ESA, and the suit must be dismissed and re-initiated in 60 days.

I. Factual Background

The background to the case is only marginally relevant to the Motion, and only a bare recitation is necessary.

A. Washington Department of Natural Resources' Habitat Conservation Plan and the Marbled Murrelet

In 1997, the Washington DNR drafted a habit conservation plan covering approximately 1.8 million acres of land in the state. The conservation plan controls both logging and protection of endangered and threatened species, including the marbled murrelet, a “dove sized bird ... in the same family as puffins.” (Pl.'s Resp. at 4, Dkt. # 36). After reviewing the conservation plan, Fish & Wildlife issued an “incidental take permit,” a permit created by the ESA that allows limited taking of endangered or threatened species.

Although the facts are not entirely clear at this early stage of litigation, DNR set out to study the marbled murrelet and its habit in order to better classify the land, separating areas that are high-quality nesting areas from areas that are less hospitable. This conservation plan already classifies the land into separate management areas, and it is a shift in logging between these areas that is in dispute.

In 2012, Fish & Wildlife approved a “minor amendment” to the conservation plan. The Government argues that the amendment moved logging from higher-quality nesting areas to “marginal habit,” and thus, the logging will decrease incidental taking. Because the amendment decreases take, the Government contends, the statutory requirements for a major amendment do not apply.

Plaintiffs argue that the amendment authorized logging in 60% of the higher-quality habitat in southwest Washington, an area much larger than used in Fish & Wildlife's biological opinion.

B. Plaintiffs' Notice of Intent to Sue

In their notice letter, Plaintiffs first alleged violations of ESA §§ 7 and 10. Specifically, Plaintiffs alleged that under § 7, Fish & Wildlife should have re-initiated consultation with DNR and completed a new biological opinion before approving the amendment. (Oliphant Decl., Ex. 1 at 4–9, Dkt. # 18–1.) Second, Plaintiffs alleged that Fish & Wildlife violated § 10 by processing DNR's amendment as a “minor” amendment rather than a “major” amendment. ( Id., Ex. 1 at 12, Dkt. # 18–1.) Major amendments to conservation plans require public comment and the statutory findings required of all incidental take permits (i.e., that takings will be incidental, the agency will minimize impacts and adequately fund the conservation plan, and that the takings will not appreciably reduce a species' chance of survival). As it considered the amendment to be minor, Fish & Wildlife bypassed these steps.

According to Plaintiffs, after sending their notice of intent to sue, they concluded that their § 10 claims were properly pled not as ESA claims, but as APA claims. They therefore filed suit 36 days after the notice letter.

The Complaint largely tracks Plaintiffs' notice letter. In their first claim (the only claim the Government challenges here), Plaintiffs alleged that Fish & Wildlife violated ESA § 10 and the APA by approving the amendment without public comment or the statutory findings. Further, Plaintiffs alleged that Fish & Wildlife approved the amendment “without first evaluating the effects of the proposed amendment under ESA section 7.” (Pl.'s Compl. ¶ 61, Dkt. # 1.) Plaintiffs later amended their Complaint removing that language—i.e., the reference to § 7. (Pl.'s Am. Compl. ¶ 61, Dkt. # 15.) Despite removing the reference to § 7, the Government here asserts that Plaintiffs' first claim is intrinsically tied or analogous to § 7; it is therefore an ESA claim, and 60–days notice is required.

II. Governing Law

Dismissal under Rule 12(b)(6) may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). A complaint must allege facts to state a claim for relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). A claim has “facial plausibility” when the party seeking relief “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Although the Court must accept as true a complaint's well-pled facts, conclusory allegations of law and unwarranted inferences will not defeat an otherwise proper Rule 12(b)(6) motion. Vasquez v. L.A. County, 487 F.3d 1246, 1249 (9th Cir.2007); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations and footnote omitted). This requires a plaintiff to plead “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S.Ct. at 1949 (citing Twombly ).

A. Overview of the Endangered Species Act

In order to enforce its provisions, the ESA creates what is called a “citizen suit,” a cause of action that may be filed for certain violations. Under U.S. Supreme Court precedent, however, certain causes of action are pled under the APA. This unfortunate return to form pleading has a crucial impact: the ESA citizen suit requires 60–days notice; the APA claim does not. If the Court allows the suit to proceed as an APA claim, and the Ninth Circuit later disagrees, then all the work of the parties and the Court is lost, and the case must begin again.

In their notice letter, Plaintiffs alleged violations of two sections of the ESA: § 7 and § 10. These two sections are the central characters in this Motion; however, a background to the ESA, and specifically, to §§ 4, 9, and 11, is helpful.

1. ESA § 4: “Determination of Endangered Species and Threatened Species,” 16 U.S.C. § 1533

Under § 4, the Secretary of the Interior ¹ must create the endangered species list. 16 U.S.C. § 1533(a)(1). The section compels the Secretary to use the “best scientific and commercial data” in reviewing the status of species and mandates the designation of “critical habitat.” 16 U.S.C. § 1533(b)(1, 2).

2. ESA § 7: “Interagency Cooperation,” 16 U.S.C. § 1536

Under § 7, all federal agencies must consult with the Secretary to “insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species ....” 16 U.S.C. § 1536(a)(2). Thus, any “action agency,” must coordinate with, for example, Fish & Wildlife, to ensure that its projects do not harm threatened species.

Section 7 also mandates that the Secretary issue what is called a “biological opinion,” which details “how the agency action affects the species or its critical habitat.” 16 U.S.C. § 1536(b)(3)(A).

3. ESA § 9: “Prohibited Acts,” 16 U.S.C. § 1538

Section 9 is the core of the ESA. It prohibits the taking, import, possession, and sale of endangered species. 16 U.S.C. § 1538(a)(1).

4. ESA § 10: “Exceptions,” 16 U.S.C. § 1539

Despite its bland name, § 10 plays a large role in regulating endangered species—and it is this section that is at the heart of the dispute. Under § 10, the Secretary may issue a permit for the taking of endangered species—takings otherwise prohibited by § 9—if the 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) (emphasis added). To issue this permit (an “incidental take permit”), an applicant must submit a conservation plan (like the one submitted by the Washington DNR) and detail how agency actions will impact species, how the agency will mitigate harm, and possible alternative actions. 16 U.S.C. § 1539(a)(2)(A).

Before approving a conservation plan, the Secretary must open the plan to public comment and make certain findings, including that the applicant's actions will result in only “incidental” taking, that the applicant will mitigate impacts, that it will fund the conservation plan, and that the proposed taking will not “appreciably reduce the likelihood of the survival and recovery of the species ....” 16 U.S.C. § 1539(a)(2)(B). Plaintiffs believe that Fish & Wildlife needed to make these findings and allow public comment before approving DNR's amendment to its conservation...