Sierra Club v. U.S. Fish & Wildlife Serv., No. 00-30117

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore HIGGINBOTHAM, WIENER, and DENNIS; PATRICK E. HIGGINBOTHAM
Citation245 F.3d 434
Parties(5th Cir. 2001) SIERRA CLUB, Plaintiff-Appellant, v. U.S. FISH AND WILDLIFE SERVICE; NATIONAL MARINE FISHERIES SERVICE, Defendants-Appellees
Docket NumberNo. 00-30117
Decision Date15 March 2001

Page 434

245 F.3d 434 (5th Cir. 2001)
SIERRA CLUB, Plaintiff-Appellant,
v.
U.S. FISH AND WILDLIFE SERVICE; NATIONAL MARINE FISHERIES SERVICE, Defendants-Appellees.
No. 00-30117
UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT
March 15, 2001

Page 435

Copyrighted Material Omitted

Page 436

Appeal from the United States District Court For the Eastern District of Louisiana

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This case requires us to assess the validity of agency action under the Endangered Species Act (ESA).1 Appellant challenges the refusal of the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) to designate "critical habitat" for the Gulf sturgeon. Appellant contends that this decision relied on an invalid regulation and is therefore arbitrary and capricious. We agree and now reverse.

I

The Gulf sturgeon is a large, wide-ranging fish that can reach up to fifty years of age and five-hundred pounds in size. The sturgeon is one of the few anadromous species in the Gulf of Mexico, migrating between fresh and salt water. The sturgeon spends spring and summer in the Gulf Coast rivers from Louisiana to Florida.2 In the winter months, the sturgeon returns to the waters of the Gulf of Mexico to feed. Although the sturgeon once supported a major commercial fishery, habitat destruction and overfishing conspired to bring about a population collapse.3 This alarming decrease in population led to the sturgeon's listing as a threatened species in 1991.4

The listing of the sturgeon as a threatened species triggered the "critical habitat" provisions of the ESA. The ESA requires the Secretary of the Interior to "designate any habitat of such species which is then considered to be critical habitat" concurrently with the listing of the threatened species, unless a statutory exception applies.5 Although the Secretary invoked two one-year statutory extensions

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from the listing date,6 no critical habitat was designated for the sturgeon by the deadline.7

In 1994, the Orleans Audubon Society filed suit in the United States District Court for the Eastern District of Louisiana, seeking to compel the Department of the Interior to decide whether to designate critical habitat for the sturgeon. While the litigation was pending, the Department assured the Orleans Audubon Society and the district court that it was in the process of designating critical habitat for the sturgeon. The FWS prepared a draft proposal to this effect, which stated that critical habitat designation would provide additional benefit to the sturgeon. The court ordered the Department on August 9, 1995, to "take all appropriate action," prompting the Department to render a decision.

On August 23, 1995, the FWS and the NMFS8 signaled an abrupt change of course. The Services decided not to designate critical habitat for the sturgeon, finding that it was "not prudent" to do so.9 The Services concluded that designation would not provide additional benefit to the species beyond other statutory regimes and conservation programs in place.10 In the wake of this decision, the Gulf States Marine Fisheries Commission approved a comprehensive Recovery/Management Plan for the Gulf sturgeon.11

The Orleans Audubon Society amended its complaint to challenge the Services' refusal to designate critical habitat. The district court found that the Services had failed to articulate a rational basis for their finding that designation was "not prudent."12 Although the Services' decision described various programs that would ostensibly provide benefit to the sturgeon in lieu of designation, the court found no evidence in the record to support this assertion. It therefore remanded to the Services for action in accordance with the best scientific evidence available.

On February 27, 1998, the Services decided on remand that critical habitat designation remained "not prudent."13 The Services found that designation would not provide any additional benefit to the sturgeon.14 The Sierra Club challenged this decision in the U.S. District Court for the Eastern District of Louisiana. Although the district court conceded that the regulation

Page 438

on which the Services based much of their reasoning, 50 C.F.R. 402.02, appeared to conflict with the language of the ESA, the district court granted summary judgment in favor of the Services. The court found that the Services's conclusions were "minimally rational" and supported by the best scientific evidence available. Sierra Club appeals the court's ruling.

II

In 1973, Congress enacted the ESA as a "means whereby the ecosystems upon which endangered species and threatened species depend may be conserved," and "to provide a program for the conservation of such endangered species and threatened species."15 The ESA defines "conservation" as "the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided [by the ESA] are no longer necessary."16 As the district court observed, the objective of the ESA is to enable listed species not merely to survive, but to recover from their endangered or threatened status.17

To achieve this objective, Congress required the Secretary of the Interior to designate a "critical habitat" for all listed species.18 The ESA defines occupied critical habitat as "the specific areas within the geographic area occupied by the species, at the time it is listed . . . on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection."19 In addition to "occupied habitat," the ESA contemplates the designation of "unoccupied critical habitat." Unoccupied habitat is composed of the "specific areas outside the geographical area occupied by the species at the time it is listed . . . upon a determination by the Secretary that such areas are essential for the conservation of the species."20

Once a species has been listed as endangered or threatened, the ESA states that the Secretary "shall" designate a critical habitat "to the maximum extent prudent or determinable."21 The ESA leaves to the Secretary the task of defining "prudent" and "determinable."22 According to Interior Department regulations, critical habitat designation is "not prudent" where either of two conditions is met: "(i) [t]he species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of such threat to the species, or (ii) [s]uch designation of critical habitat would not be beneficial to the species."23

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Although the ESA does not define the scope of the "not prudent" exception, the statute requires the Secretary to make the designation decision "on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat."24

Critical habitat designation primarily benefits listed species through the ESA's consultation mechanism. Section 7(a)(2) of the statute requires federal agencies to 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 or threatened species or result in the destruction or adverse modification" of that species's critical habitat.25 Thus, regardless of whether critical habitat is designated, an agency must consult with the Secretary where an action will "jeopardize the continued existence" of a species. If critical habitat has been designated, the statute imposes an additional consultation requirement where an action will result in the "destruction or adverse modification" of critical habitat.

Although the ESA does not elaborate on the two consultation scenarios discussed above, 50 C.F.R. 402.02 defines each in terms of the effects of agency action on both the survival and recovery of the species. Thus, to "jeopardize the continued existence of" a species is "to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild."26 This "jeopardy standard" is similar to the regulation's description of "destruction or adverse modification" of critical habitat. The regulation defines "destruction or adverse modification" as "a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species."27

III

The 1998 critical habitat decision by the Services relied on the "not prudent" exception to the ESA. The Services noted, first, that "[c]ritical habitat, by definition, applies only to Federal agency actions."28 They observed that agencies would have to engage in "jeopardy consultation" under the ESA where agency action could jeopardize the existence of a listed species.29 The Services reasoned that virtually any federal action that would adversely modify or destroy the Gulf sturgeon's critical habitat would also jeopardize the species' existence and trigger jeopardy consultation. Relying on the definitions of the destruction/adverse modification and jeopardy standards in 50 C.F.R. 402.02, the Services concluded that designation of critical habitat would provide no additional benefit to the sturgeon beyond the protections currently available through jeopardy consultation.30

The Services also considered the merits of critical habitat designation in light of

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federal and state statutory prohibitions against taking members of the species; the water quality standards set by Gulf Coast states; the federal Clean Water Act; and the priority tasks of the Recovery/Management Plan established for the sturgeon.31 The...

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285 practice notes
  • Center for Biological Diversity v. Bureau of Land, No. C 03-02509 SI.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 14, 2006
    ...they produce are inconsistent with the intent and language of the ESA." Id. at n. 2 (citing Sierra Club v. U.S. Fish and Wildlife Serv., 245 F.3d 434 (5th Cir.2001)).29 Because the ESA bars economic considerations when a listing determination is made, the New Mexico Cattle Growers court con......
  • Markle Interests, LLC v. U.S. Fish & Wildlife Serv., Civil Action Nos. 13–234
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • August 22, 2014
    ...not only “to enable listed species ... to survive, but [also] to recover from their endangered or threatened status.” Sierra Club v. FWS, 245 F.3d 434, 438 (5th Cir.2001) ; Tenn. Valley Authority v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) ( “The plain intent of Congres......
  • Natural Resources Defense Council, Inc. v. Evans, No. C-02-3805 EDL.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • October 31, 2002
    ...affects the value of critical habitat to both the recovery and survival of a species." Sierra Club v. U.S. Fish and Wildlife Service, 245 F.3d 434, 442 (5th Cir.2001) (emphasis in original). Instead, the ESA requires consultation where an action affects species' recovery through alteration ......
  • Outdoor Amusement Bus. Ass'n, Inc. v. Dep't of Homeland Sec., Civil Action No. ELH-16-1015
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • July 27, 2017
    ...ECF 69 at 43 (citing Am. Bankers Ass'n v. NCUA, 271 F.3d 262, 266 (D.C. Cir. 2001); Sierra Club v. United States Fish & Wildlife Serv., 245 F.3d 434, 440 n.37 (5th Cir. 2001)); see also ECF 69 at 45. Notwithstanding the Court's finding that the record must be supplemented with regard to the......
  • Request a trial to view additional results
62 cases
  • Center for Biological Diversity v. Bureau of Land, No. C 03-02509 SI.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 14, 2006
    ...they produce are inconsistent with the intent and language of the ESA." Id. at n. 2 (citing Sierra Club v. U.S. Fish and Wildlife Serv., 245 F.3d 434 (5th Cir.2001)).29 Because the ESA bars economic considerations when a listing determination is made, the New Mexico Cattle Growers court con......
  • Markle Interests, LLC v. U.S. Fish & Wildlife Serv., Civil Action Nos. 13–234
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • August 22, 2014
    ...not only “to enable listed species ... to survive, but [also] to recover from their endangered or threatened status.” Sierra Club v. FWS, 245 F.3d 434, 438 (5th Cir.2001) ; Tenn. Valley Authority v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) ( “The plain intent of Congres......
  • Natural Resources Defense Council, Inc. v. Evans, No. C-02-3805 EDL.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • October 31, 2002
    ...affects the value of critical habitat to both the recovery and survival of a species." Sierra Club v. U.S. Fish and Wildlife Service, 245 F.3d 434, 442 (5th Cir.2001) (emphasis in original). Instead, the ESA requires consultation where an action affects species' recovery through alteration ......
  • Outdoor Amusement Bus. Ass'n, Inc. v. Dep't of Homeland Sec., Civil Action No. ELH-16-1015
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • July 27, 2017
    ...ECF 69 at 43 (citing Am. Bankers Ass'n v. NCUA, 271 F.3d 262, 266 (D.C. Cir. 2001); Sierra Club v. United States Fish & Wildlife Serv., 245 F.3d 434, 440 n.37 (5th Cir. 2001)); see also ECF 69 at 45. Notwithstanding the Court's finding that the record must be supplemented with regard to the......
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6 books & journal articles
  • Building a Better State Endangered Species Act: An Integrated Approach Toward Recovery
    • United States
    • Environmental Law Reporter Nbr. 40-3, March 2010
    • March 1, 2010
    ...254. he proposed standard would be consistent with the Fifth Circuit’s ruling in Sierra Club v. U.S. Fish & Wildlife Serv. , 245 F.3d 434, 441-42, 31 ELR 20500 (5th Cir. 2001), which struck down the regulatory deinition of “destruction or adverse modiication” requiring consultation under th......
  • Critical Habitat Designation
    • United States
    • Endangered species deskbook
    • April 22, 2010
    ...529 F.2d 359, 6 ELR 20344 (5th Cir. 1976)). 34. MRGCD , 206 F. Supp. 2d at 1181. 35. 75 F.3d 1429, 26 ELR 20808 (10th Cir. 1996). 36. 245 F.3d 434, 441, 31 ELR 20500 (5th Cir. 2001). 37. he deinition can be found in Appendix B, infra , p. 204. 38. 248 F.3d 1277, 1285, 31 ELR 20614 (10th Cir......
  • Habitat Conservation Plans and Climate Change: Recommendations for Policy
    • United States
    • Environmental Law Reporter Nbr. 45-9, September 2015
    • September 1, 2015
    ...17. Giford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004); Sierra Club v. U.S. Fish & Wildlife Serv., 245 F.3d 434, 31 ELR 20500 (5th Cir. 2001). 18. New Mexico Cattle Growers Ass’n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277, 31 ELR 20614 (10th Cir. 2001);......
  • The Bear Essentials: How Landscape-Level Conservation May Help Save Florida's Biodiversity and Realize the Vision of the National Wildlife Refuge System Improvement Act
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    • Environmental Law Reporter Nbr. 47-1, January 2017
    • January 1, 2017
    ...of conservation speaks to the recovery of a threatened or endangered species.” Sierra Club v. United States Fish & Wildlife Serv., 245 F.3d 434, 441-42, 31 ELR 20500 (5th Cir. 2001). Just as refuge management planning across multiple scales is important, so too is providing a stakeholder pr......
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