WildEarth Guardians v. U.S. Fish & Wildlife Serv.
| Decision Date | 11 September 2019 |
| Docket Number | No. CV-13-00151-TUC-RCC,CV-13-00151-TUC-RCC |
| Citation | 416 F.Supp.3d 909 |
| Parties | WILDEARTH GUARDIANS, Plaintiff, v. UNITED STATES FISH AND WILDLIFE SERVICE, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Steven Charles Sugarman, Pro Hac Vice, Cerrillos, NM, for Plaintiff.
Andrew Allen Smith, US Dept. of Justice, Albuquerque, NM, Rickey Doyle Turner, US Dept. of Justice-ENRD Wildlife & Marine Resources Section, Denver, CO, for Defendants.
The Mexican Spotted Owl ("MSO")1 is an elusive creature, making it conceptually and financially difficult to track despite provisions in the 2012 Biological Opinions ("BiOps") recommending population monitoring. Because of this quandary, United States Forest Service ("USFS") and United States Fish and Wildlife Service ("FWS") have been unable to conduct range-wide population monitoring, a measure necessary to remove the MSO from the listing of threatened species. Plaintiff WildEarth Guardians' Amended Complaint claims that FWS' 2012 BiOps, issued for the protection of the MSO, are arbitrary and capricious in violation of the Endangered Species Act ("ESA"). (Doc. 10.)2 Plaintiff contends that Defendants' inability to monitor the MSO makes the conclusions in the 2012 BiOps faulty, and the resulting incidental take statement invalid. Id.
Currently before the Court are the parties' cross-motions for summary judgment. (Docs. 50, 52.) Plaintiff seeks declaratory and injunctive relief against Defendants, including: (1) an order enjoining all USFS management actions in Region 3 national forests3 that are non-compliant and (2) an order requiring re-initiation of ESA Section 7(a)(2) formal consultation. (Doc. 10 at 34-35.)
Neither party requested oral argument, and the Court finds that oral argument is unnecessary for a just adjudication of this matter. See LRCiv 7.2(f). Upon review of the record, the Court will grant Plaintiff's Motion for Summary Judgment insofar as it alleges the BiOps violate the ESA because the jeopardy analysis fails to account for recovery of the MSO; and grant Defendants' Cross-Motion for Summary Judgment in part.
A. Statutory Framework: The Endangered Species Act
The ESA, 16 U.S.C. § 1531, et seq., "is a comprehensive scheme with the broad purpose of protecting endangered and threatened species." Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt. ("CBD v. USBLM "), 698 F.3d 1101, 1106 (9th Cir. 2012) (citation and quotation marks omitted); see also 16 U.S.C. § 1531. When enacting the ESA, Congress was primarily concerned with "halt[ing] and revers[ing] the trend toward species extinction, whatever the cost." Tenn. Valley Auth. v. Hill , 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Yet, "the ESA was enacted not merely to forestall the extinction of the species (i.e., promote species survival), but to allow a species to recover to the point where it may be delisted." Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv. , 378 F.3d 1059, 1070 (9th Cir. 2004).
To address these concerns, the ESA imposes procedural and substantive duties on some federal agencies. Forest Guardians v. Johanns , 450 F.3d 455, 457 (9th Cir. 2006). These duties are as follows:
1. Recovery Plan
When a species is listed as threatened or endangered, ESA Section 4(f) mandates the development and implementation of a Recovery Plan ("RP").
16 U.S.C. § 1533(f)(1). RPs should include site-specific recommendations discussing the management actions necessary to permit the survival of the listed species. Id. § 1533(f)(1)(B)(i). Also, RPs must detail how the FWS can determine whether a species should be delisted, id. § 1533(f)(1)(B)(ii), the timeline for the implementation of these measures, as well as the approximate cost, id. § 1533(f)(1)(B)(iii). RPs serve as guidance for recovery, but do not create legally enforceable duties. See Fund for Animals v. Rice , 85 F.3d 535, 548 (11th Cir. 1996) ; Cal. Native Plant Soc'y v. EPA , No. C06-03604 MJJ, 2007 WL 2021796, at *21 n.7 (N.D. Cal. Jul. 10, 2007) ; Grand Canyon Tr. v. Norton , No. 04-CV-636PHXFJM, 2006 WL 167560, at *2 (D. Ariz. Jan. 18, 2006).
2. Informal Consultation and Biological Assessment
"Procedurally, before initiating any action in an area that contains endangered or threatened land-based species," federal action agencies (in this instance, USFS) must informally consult with the appropriate consulting agency (in this instance, FWS) "to determine the likely effects of any proposed action on the species and its critical habitat." Conservation Cong. v. U.S. Forest Serv., 720 F.3d 1048, 1051 (9th Cir. 2013) (citing Nat. Res. Defense Council v. Houston , 146 F.3d 1118, 1126 (9th Cir. 1998) ). If a listed species may be present in an action area, the action agency must create a Biological Assessment. 16 U.S.C. § 1536(c)(1). This is used to determine whether to engage in formal consultation or in "formulating a biological opinion." 50 C.F.R. §§ 402.12(k)(1)-(2).
3. Formal Consultation and Biological Opinion
If an action agency finds that an action may affect a listed species or its habitat under the ESA, the action agency must typically initiate a formal consultation with the appropriate consulting agency. 50 C.F.R. §§ 402.14(a) - (c). The formal consultation process culminates in the FWS' production of a BiOp that advises the action agency as to whether the proposed action, either alone or in combination with other effects, would endanger the existence of the listed species or adversely modify its habitat. Conservation Cong., 720 F.3d at 1051 (citing 50 C.F.R. § 402.14(g)(4) ). BiOps are considered final actions that may be reviewed by the District Court. Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv. , 524 F.3d 917, 925 (9th Cir. 2008).
The BiOp must decide whether or not an agency action jeopardizes the listed species and then issue a "jeopardy" or "no jeopardy" opinion, 50 C.F.R. § 402.14(h)(3), based on "the best scientific and commercial data available," 16 U.S.C. § 1536(a)(2). An action that jeopardizes a species is one that "reduce[s] appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." 50 C.F.R. § 402.02. When a no-jeopardy opinion issues, the BiOp must also include reasonable and prudent alternatives ("RPA") to promote the listed species' continued existence. 50 C.F.R. § 402.14(h)(3).
The ESA imposes a substantive duty upon the action agency to "take" listed species only in specified instances. 16 U.S.C. § 1535(a)(2). "Take" means "to harass, harm, pursue, hunt, shoot, wound
, kill, trap, capture, or collect" a protected species "or to attempt to engage in any such conduct." Id. § 1532(19).
If, as here, the FWS issues a "no jeopardy" and "no adverse modification of critical habitat" opinion, but determines that the action may incidentally "take" individual members of a listed species, FWS must issue an incidental take statement ("ITS"). 16 U.S.C. § 1536(b)(4) ; 50 C.F.R. § 402.14(i). The ITS must articulate: (1) the amount or extent of the incidental take on the species, (2) "reasonable and prudent measures" ("RPMs") needed to minimize the amount or extent of take, and (3) the "terms and conditions" that the action agency must follow to implement the RPMs. 16 U.S.C. §§ 1536(b)(4)(i)-(iv). Take is permissible if it complies with the ITS' terms and conditions. Id. § 1536(o )(2). However, action agencies like the USFS must reinitiate consultation if the specified level of take is exceeded, 50 C.F.R. § 402.14(i)(4), or if the action considered in the BiOp is "subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the BiOp," Id. § 402.16(c).
4. Independent Obligation to Avoid Excess Take
Finally, ESA Section 7 imposes an independent and continuing obligation upon action agencies to avoid taking action that would jeopardize the existence of a listed species or adversely modify its habitat. 16 U.S.C. § 1536(a)(2) ; Pyramid Lake Paiute Tribe of Indians v. U.S. Dep't of the Navy , 898 F.2d 1410, 1415 (9th Cir. 1990). Therefore, the action agency cannot be relieved of its duty to adhere to the ESA simply through compliance with the BiOp; it has an independent duty to ensure that its reliance on a BiOp is not arbitrary or capricious. Id. ; Wild Fish Conservancy v. Salazar , 628 F.3d 513, 532 (9th Cir. 2010).
On March 16, 1993, FWS listed the MSO as a "threatened" species under the ESA. USFS 1. At the time of listing, FWS determined that most of the MSOs known to exist were found on national forest lands. See USFS 71. The listing decision acknowledged that, due to the MSO's secretive nature, no historic or current MSO population data existed. USFS 1; FWS 7902-06. What was known includes that MSOs nest and forage in canyons and on mountains with mature-growth forests consisting primarily of high, enclosed, thick, multilayered canopies with uneven-aged tree stands. USFS 1-2.
In the listing, FWS discussed threats to the MSO's habitat or range, including an estimate that historically, 1,037,000 acres of MSO habitat had been converted from suitable to "unsuitable ... [but] capable of becoming suitable ... sometime in the future." USFS 19. Over seventy-five percent of that conversion was attributed to "human activities (primarily timber harvest)" and over twenty-one percent to "natural causes (primarily fire)." Id. FWS explained how historic and contemporary timber management practices, specifically even-aged silviculture,4 compromised the MSO's habitat. USFS 20. FWS surmised that, under the then-existing USFS' Forest Plans5 for Region 3, such timber management practices could be expected to continue. Id. Furthermore, FWS also...
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