SOUTHWEST CENTER v. Babbitt, Civil Action No. 95-02138 (SS).

• Decision Date: 25 September 1996
• Docket Number: Civil Action No. 95-02138 (SS).
• Citation: 939 F. Supp. 49
• Parties: SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. Bruce BABBITT, Secretary, U.S. Department of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Columbia

939 F. Supp. 49

SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. Bruce BABBITT, Secretary, U.S. Department of the Interior, et al., Defendants.

Civil Action No. 95-02138 (SS).

United States District Court, District of Columbia.

September 25, 1996.

Katherine Anne Meyer, Kimberley Kerry Walley, Meyer & Glitzenstein, Washington, DC, for plaintiffs.

Teri Ronelle Thomsen, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, Edward A. Boling, Department of Justice, Environmental Division, Washington, DC, for defendants.

Philip Anthony Nacke, Hopkins & Sutter, Washington, DC, for amicus Ketchikan Pulp Company.

MEMORANDUM OPINION

SPORKIN, District Judge.

This matter is before the Court on parties cross-motions for summary judgment.¹ Plaintiffs claim that the United States Fish and Wildlife Service (FWS) should have found "warranted" plaintiffs' petition to list as threatened or endangered the Queen Charlotte goshawk, a bird found in the Tongass National Forest in Alaska. Plaintiffs contend that the FWS's decision to find such a listing unwarranted improperly relied on illegal considerations and was arbitrary and capricious in ignoring the overwhelming evidence in favor of listing the goshawk. Defendants assert that they properly relied on the "basis of the best scientific and commercial data available," 16 U.S.C. § 1533(b)(1)(A), in concluding that listing was not warranted, and that the so-called illegal considerations were not factors in their decision.

BACKGROUND

The Queen Charlotte goshawk is a large, but rarely-seen bird, residing almost exclusively in the old growth forests of Southeast Alaska and coastal British Columbia. It lives in the tree-top canopy, above the forests and survives by diving into the forest to capture smaller birds and squirrels. An adult goshawk has a wingspan of approximately two-and-a-half feet; it typically has a dark gray or black back, with a dark gray front, red eyes and vibrant yellow feet. (Pl. motion at 8-9)

The population of goshawks at issue here are those that live in Alaska's Tongass National Forest, an area of islands of approximately 50,000 square miles that extends from the southeast corner of Alaska along the Pacific coastline. Portions of the Tongass are the subject of harvesting for timber. That harvesting is regulated by the Forest Service, an agency of the Department of Agriculture, pursuant to the National Forest Management Act, 16 U.S.C. § 1600. Pursuant to that Act, the Forest Service has a longstanding plan for the Tongass that limits the amount and location of old-growth trees that may be harvested. That plan, the Tongass Land Management Plan (TLMP), was adopted in 1979 and revised in 1986 and 1991. Its guidelines for harvesting look as far into the future as the year 2140. Since 1987, the Forest Service has been considering proposals for major revisions of the plan.

The goshawk and the harvesting of the Tongass

Largely as a result of the Forest Service's consideration of revisions, concerns have arisen about the viability of the goshawk (as well as other species) in light of the proposed harvesting. Since 1990, representatives from the Forest Service, FWS and Alaskan state agencies have been studying the goshawk. Despite at least two recommendations for large scale revisions to the TLMP, the Forest Service has failed to create a plan for conservation of goshawk habitat that satisfies plaintiff, or even the FWS.

Plaintiff's petition

In May 1994, rather than waiting any longer for the Forest Service to act, Plaintiff petitioned to have the goshawk listed by the FWS as threatened or endangered. Such a listing would essentially take responsibility for the bird's future out of the hands of the Forest Service and put it directly with FWS. Plaintiff's petitioned pursuant to 5 U.S.C. § 553(e) and 16 U.S.C. § 1533(b)(3)(A), which require FWS to consider a third-party petition for listing of a species under the Endangered Species Act. In August 1994, FWS made its 90-day finding that plaintiff's petition "presents substantial scientific or commercial information indicating that the petitioned action may be warranted." The FWS then had 12 months from the date of the petition to decide whether a listing was actually "warranted." 16 U.S.C. § 1533(b)(3)(B)

Over the 12-month period, FWS collected data and received public comment, as required by statute. On April 24, 1995, near the end of the 12-month period, FWS's acting regional director for the region encompassing the Tongass Forest sent a detailed 22-page memorandum to the national director recommending that the service issue a "not warranted" finding. That recommendation was approved by the Director on May 19, 1995.

In his memorandum, the regional director summarizes FWS's findings. Ultimately, the Service had no clear sense of exactly how many goshawks live in the Tongass, or how much they depend on the old-growth forest for survival. The memorandum concludes, however, "that past and planned harvest of old growth forest may remove and fragment substantial portions of preferred habitat within the range of the Queen Charlotte goshawk in the United States if previously implemented land management plans and practices continue unabated." Regional Director's Memorandum, April 24, 1995, at 21 (A.R.I.A). The memorandum goes on to state that:

Recent proposals and actions by the Forest Service have or would modify historic management practices on the Tongass National Forest to conserve goshawk habitat. Although FWS has expressed concerns regarding the effectiveness of some habitat management strategies previously produced or implemented by the Forest Service, the Forest Service is conducting an assessment of current knowledge of goshawk biology that they stated will be used in addressing land management options to ensure goshawk habitat conservation.... The Service does not currently possess sufficient information to determine or predict the effectiveness of proposed conservation actions.

Id. (emphasis added). In his final recommendation, the regional director concludes that:

it is likely that continued large scale removal of old growth forest ... would result in significant adverse effects on the Queen Charlotte goshawk population in southeast Alaska. However, the Forest Service has indicated that it will address land management options to ensure goshawk habitat conservation.

Id. (emphasis added).

Consistent with the regional director's recommendation, on May 19, 1995 FWS made its official 12-month finding. That finding was published in the Federal Register on June 29, 1995. The finding stated that "on the basis of the best scientific and commercial information available, the Service finds the petition is not warranted at this time." (A.R.I.B). In the next paragraph, however, the Service acknowledged that it shares petitioners' concerns for "the long-term survival of the Queen Charlotte goshawk," noting that "it is clear that without significant changes by the Forest Service to the existing TLMP, the long-term viability of the Queen Charlotte goshawk may be seriously imperiled." (A.R.I.B) (emphasis added).

ANALYSIS & DECISION

Judicial review of agency action under the Endangered Species Act (ESA) is pursuant to the Administrative Procedure Act, 5 U.S.C. § 706. See City of Las Vegas v. Lujan, 891 F.2d 927, 932 (D.C.Cir.1989). Under the APA, this Court may set aside the actions of the Federal defendants only if they are "`arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,'" 5 U.S.C. § 706(2)(A). This standard of review is "highly deferential.... and presumes agency action to be valid." Ethyl Corp. v....