Sierra Club v. U.S. Fish and Wildlife Service, 1:00-CV-762.

• Citation: 189 F.Supp.2d 684
• Decision Date: 06 March 2002
• Docket Number: No. 1:00-CV-762.,1:00-CV-762.
• Parties: THE SIERRA CLUB, Ann Woiwode, Marvin Roberson, and Tim Flynn, Plaintiffs, v. UNITED STATES FISH AND WILDLIFE SERVICE, William Hartwig, K.L. Cool, and Rebecca Humphries, Defendants.
• Court: U.S. District Court — Western District of Michigan

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189 F.Supp.2d 684 THE SIERRA CLUB, Ann Woiwode, Marvin Roberson, and Tim Flynn, Plaintiffs,
v.
UNITED STATES FISH AND WILDLIFE SERVICE, William Hartwig, K.L. Cool, and Rebecca Humphries, Defendants. No. 1:00-CV-762. United States District Court, W.D. Michigan, Southern Division. March 6, 2002.

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COPYRIGHT MATERIAL OMITTED

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Thomas C. Buchele, Pittsburgh, PA, for plaintiffs.

Robert I. Dodge, U.S. Attorney's Office, Grand Rapids, MI, for Department of Interior, Fish & Wildlife Service, William Hartwig, defendants.

Christopher D. Dobyns, Jennifer M. Granholm, Atty. Gen, Natural Resources Div., Lansing, MI, for Michigan Dept. of Natural Resources, Rebecca Humphries, K.L. Cool, defendants.

J. Kevin Winters, Michigan United Conservation Clubs, Lansing, MI, for Conservation Fund of America, Ruffed Grouse Society, Michigan United Conservation Club, National Wild Turkey Federation, Safari Club International, amicus.

Thomas M. Hitch, McGinty Jakubiak Frankland Hitch, et al., East Lansing, MI, for International Ass'n of Fish and Wildlife, amicus.

OPINION

ENSLEN, District Judge.

This lawsuit is before the Court on the parties' cross-motions for summary judgment. This suit involves legal challenges to the federal and state governments' administration of certain wildlife grants in the State of Michigan. For the reasons which follow, summary judgment will be granted in favor of Defendants.

FACTS

Plaintiffs are a private, not-for-profit conservation group and three individual residents of the State of Michigan. These Plaintiffs have brought this suit challenging the federal and state administration of four conservation grants (for the grant years of 1998 to 2002) made pursuant to the Federal Aid to Wildlife Restoration Act, 16 U.S.C. §§ 669 et seq., commonly known as the Pittman-Robertson Act. The challenge is made under the Administrative Procedures Act, 5 U.S.C. § 706(2)(A) on the grounds that the administrative action was "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." The administrative action is alleged to be "arbitrary and capricious" in light of the requirements of the Pittman-Robertson Act, the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332, the Endangered Species Act ("ESA"), 16 U.S.C. § 1540(g), and the administrative

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regulations and agency interpretations made under those Acts.

More particularly, Plaintiffs allege in Count One of their Amended Complaint that Defendants violated NEPA by segmenting their federal activities into four separate grant requests. Plaintiffs allege in Count Two that Defendants violated NEPA by utilizing a categorical exclusion as to the Operations and Management Grant. Plaintiffs allege in Count Three that Defendants violated NEPA by failing to prepare an environmental assessment or an environmental impact statement as to the continuation of the State habitat management activities, after discontinuing participation in the Habitat Management Grant, in the fall of 2000. Plaintiffs allege in Count Four that the USFWS and Defendant William Hartwig violated the ESA by failing to conduct section 7 consultations as to endangered species in connection with each of the four grants. Plaintiffs allege in Count Five that Defendants violated the Pittman-Robertson Act by inadequately specifying the activities to be done with funds granted for the Operations and Management Grant and the Habitat Management Grants. Plaintiffs have also made similar arguments as to their own Motion for Summary Judgment. (See Dkt. No. 70.) Defendants have each made a Cross-Motion for Summary Judgment relating to the allegations in Plaintiffs' Amended Complaint. (See Dkt. Nos. 77 and 79.) The Court has also received briefing from Amici Curiae, who are principally conservation groups, including hunting groups, who side with Defendants.

These Pittman-Robertson grants were made by the federal government after public administrative processes including notice and extensive citizen comment. For the years 1996 and 1997, Michigan received its Pittman-Robertson Act grant in the form of a single grant, named the Consolidated Statewide Habitat Management Grant. (Dkt. No. 77, Exhibit 1; Dkt. No. 86, Exhibit A.) The Consolidated Grant, which was also known as Grant 139-D, was $6,556,571.00 for 1996 and $6,200,079.00 for 1997. (Id.) Prior to the 1996 and 1997 grants, the State of Michigan had received separate grants to address specific wildlife restoration goals, some of which were based on specific geographical areas within Michigan. (See Dkt. No. 79 at 8; Exhibits B-F.) The Consolidated Grant proposals in 1996 and 1997 were done by Penney S. Melchoir of the Michigan Department of Natural Resources ("MDNR") at the urging of Rick Julian of the USFWS for the purpose of streamlining record-keeping. (Affidavit of Penney Melchoir at ¶¶ 3-7.)¹

In 1997, the USFWS's staff changed and Brad Johnson of the USFWS (Regional Director of Region 3 of the USFWS) advised the MDNR to abandon the consolidated grant approach (which was then in the middle of a five-year grant authorization) in favor of separate grant applications based on separate chapters of the Federal Aid Handbook. (Melchoir Affidavit at ¶ 8. See also A.R. at 609, 614-619.) Thus, beginning in 1997, the MDNR applied for a five-year approval for several separate Pittman-Robertson grants, four of which are at issue in this suit: the Operations and Maintenance Grant (141-D Grant); the Hunting Access Grant (142-L Grant); the Planning Grant (143-P Grant); and the Habitat Management Grant (144-D Grant). (Dkt. No. 77, Exhibit 1; Dkt. No. 86, Exhibit A.) The total funds granted to the MDNR by the Department of Interior

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under the Pittman-Robertson Act between 1998 and 2002 has varied from year to year with a high in 2000 of $6,175,158.75 and a low of $3,629,263.00 in 2001. (Id.) Beginning with the 2001 grant year, the MDNR decided to discontinue seeking Pittman-Robertson Habitat Management Grants, i.e., its funds used for habitat management purposes are derived solely from state funds. (Id.)

Of the four grant areas, the largest individual grant for each of the years between 1998 and 2002 has been the Operations and Maintenance Grant. (Id.) The Maintenance portion of the Grant covers funds to repair and upkeep 84 bridges, 77 buildings, 996 parking lots, 218 miles of roads and trails, 20,640 signs, 76 dams, 56 miles of dikes, 80 miles of ditches, 221 gates/tubes, 11 pumps, 1,060 nesting platforms and wildlife structures, and 8-12 public structures (including boardwalks, hunting blinds and observation platforms). (Administrative Record at 826-40.) These structures are existing wildlife structures as to which the State has a statutory duty to maintain as part of its participation in the Pittman-Robertson Program. See 16 U.S.C. § 669g. The Operations activities funded by the Grant cover trash cleanup of approximately 400,000 acres, boundary surveys, a natural features inventory review, employee training and distribution of public information. (A.R. at 826-40; Dkt. No. 77, Exhibit 1.) The MDNR made the five-year grant proposal, for the period of November 7, 1997 until September 30, 2002, for the Operations and Maintenance Grant, Grant 141-D, dated November 7, 1997, which was approved by the USFWS on November 25, 1997. (A.R. at 826, 829-867.) Thereafter, the USFWS and the MDNR on a yearly basis entered into a series of agreements describing their obligations for each of the grant years. (A.R. 907-1001.) Because the activities covered by Grant 141-D were almost exclusively in the nature of ongoing maintenance of existing structures and trash cleanup activities, the USFWS and MDNR indicated in their grant paperwork that the agency activity was categorically excluded under categorical exclusion 1.4(B)(2) of the Forest Service Manual (A.R. at 3831) from requirements under NEPA of performing an environmental assessment or preparing an environmental impact statement. (A.R. at 839 and 867.) The grant paperwork also contained Section 7 materials relating to consultation about the effects on endangered species and both the MDNR and USFWS concurred that there would be no adverse impacts on endangered species and that formal consultation was unnecessary. (A.R. 838, 862-63, 872-73; see also Dkt. No. 77, Exhibits 3.)²

Grant 142-L, the Hunting Access Grant, was, in terms of dollars allocated, a small fraction of the size of the Operations and Planning Grant. (Dkt. No. 77, Exhibit 1; Dkt No. 86, Exhibit A.) The Hunting Grant between 1998 and 2002 varied from a low in 1998 of $176,250 to a high of $203,375 in 2000. (Id.) The Hunting Grant is used to lease private lands for hunting, information distribution, program administration, and hunting tags and signs. (A.R. at 1027-1031, 1065-67.) The Hunting Grant results, on a yearly basis, in the lease of an estimated 120,000 acres a year for hunting. (A.R. at 1068.) The five-year Hunting Access Grant was approved on November 25...