Wyo. State Snowmobile Ass'n v. Fish

• Citation: 741 F.Supp.2d 1245
• Decision Date: 10 September 2010
• Docket Number: Case No. 09–cv–00095–F.
• Parties: WYOMING STATE SNOWMOBILE ASSOCIATION and the Washington State Snowmobile Association, Petitioners,v.U.S. FISH AND WILDLIFE SERVICE and Kenneth Salazar, Secretary of the Interior, Respondents,andDefenders of Wildlife, Center for Biological Diversity, Conservation Northwest, Friends of the Wild Swan, Jackson Hole Conservation Alliance, and Lands Council, Intervenor–Respondents.
• Court: U.S. District Court — District of Wyoming

741 F.Supp.2d 1245

WYOMING STATE SNOWMOBILE ASSOCIATION and the Washington State Snowmobile Association, Petitioners,

v.U.S. FISH AND WILDLIFE SERVICE and Kenneth Salazar, Secretary of the Interior, Respondents,andDefenders of Wildlife, Center for Biological Diversity, Conservation Northwest, Friends of the Wild Swan, Jackson Hole Conservation Alliance, and Lands Council, Intervenor–Respondents.

Case No. 09–cv–00095–F.

United States District Court, D. Wyoming.

Sept. 10, 2010.

Beth S. Ginsberg, Jason T. Morgan, Stoel Rives, Seattle, WA, Paul J. Hickey, Roger Fransen, Hickey & Evans, Cheyenne, WY, for Petitioners.John H. Martin, III, Department of Justice, Wildlife & Marine Resources Section, Denver, CO, Nicholas Vassallo, U.S. Attorney's Office, Cheyenne, WY, for Respondents.Timothy J. Preso, Sean M. Helle, Earthjustice Legal Defense Fund, Bozeman, MT, James S. Angell, Earthjustice Legal Defense Fund, Denver, CO, for Intervenor–Respondents.

OPINION AND ORDER

NANCY D. FREUDENTHAL, District Judge.

This matter is before the Court upon Petitioners' Complaint against Respondents, the U.S. Fish and Wildlife Service and Kenneth Salazar, Secretary of the Interior (the Service). On September 15, 2009, Defenders of Wildlife, Center for Biological Diversity, Conservation Northwest, Friends of the Wild Swan, Jackson Hole Conservation Alliance, and Lands Council (Intervenors) were allowed to intervene in support of the Service.¹ After considering the administrative record, reading the briefs of the parties, reviewing the materials on file, having heard oral argument, and being fully advised in the premises, the Court FINDS and ORDERS as follows:

I. Introduction

On February 25, 2009, the Service designated revised critical habitat for the contiguous United States distinct population segment of the Canada lynx (lynx) under the Endangered Species Act of 1973, as amended (ESA). 74 Fed. Reg. 8616, codified at 50 CFR Part 17 (2009 CHD Rule). Approximately 1,836 square miles of land in the Northern Cascades (north-central Washington), 9,500 square miles in the Greater Yellowstone Area (southwestern Montana and northwestern Wyoming), and 27,664 square miles of land in three other areas fall within the boundaries of the revised designation (totaling approximately 39,000 square miles of land). Petitioners, the Wyoming and Washington State Snowmobile Associations (the Associations) argue the designation violates the National Environmental Policy Act (NEPA), 42 U.S.C. § 4331, et seq., the ESA, 16 U.S.C. § 1533(a)(3)(A) and (B), and the Administrative Procedure Act (APA), 5 U.S.C. § 706. The Associations challenge the designation in four ways. First, the Associations argue the Service violated NEPA by relying on an inadequate Environmental Assessment to issue a pro forma Finding of No Significant Impact (FONSI), rather than issuing a thorough Environmental Impact Statement. Second, the Associations argue the critical habitat designation (CHD) violated the ESA by including lands that lacked the physical and biological features necessary for the conservation of the species as well as lands that did not require special management considerations or protection. Third, the Associations argue the Service violated the ESA by producing an inadequate economic analysis. Finally, the Washington Association argues the Service failed to make the exclusion determination under ESA Section 4(b)(2) on whether the benefits of excluding federal lands in Washington State currently managed under the Lynx Conservation Assessment Strategy (LCAS) outweighed the benefits of including these lands. The Associations request the Court declare the 2009 CHD Rule unlawful, enjoin its implementation, and remand the Rule to the Service for further consideration in compliance with NEPA and the ESA. For the reasons that follow, the Court finds the ESA challenge is well taken in part.

II. Background

The lynx are medium-sized cats comparable to a bobcat. The lynx are distinguishable from bobcats by their large, well-furred feet and long legs for traversing snow. 74 Fed. Reg. 8616. Also in contrast to the bobcat, lynx are highly specialized predators of snowshoe hare. Both the lynx and snowshoe hares are strongly associated with what is broadly described as boreal forest or cold temperate forest with extended cold, snowy winters. “In mountainous areas, the boreal forests that lynx use are characterized by scattered moist forest types with high hare densities in a matrix of other habitats (e.g., hardwoods, dry forest, non-forest) with low hare densities. In these areas, the lynx incorporate the matrix habitat (non-boreal forest habitat elements) into their home ranges and use it for traveling between patches of boreal forest that support high hare densities.” Id. Lynx are highly mobile and generally move long distances. Id. at 8617. The largest presence of lynx population in the contiguous United States is in the Northern Rocky Mountains/Cascades region. 65 Fed. Reg. 16055–59.

Since March 24, 2000, the lynx has been protected by its listing as a “threatened” species under the ESA. Id. at 16,052; 16 U.S.C. § 1533. The ESA is the “ ‘most comprehensive legislation for the preservation of endangered species ever enacted by any nation.’ ” Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 698, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (quoting Tennessee Valley Authority v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978)). When Congress enacted the statute in 1973, it intended to bring about the “better safeguarding, for the benefit of all citizens, [of] the Nation's heritage in fish, wildlife, and plants.” 16 U.S.C. § 1531(a)(5).

The ESA listing protection extends throughout the entire range for the lynx without regard to whether the lynx inhabits any designated critical habitat or not. However, when the lynx was listed as “threatened,” the Service was also required to “concurrently” designate “critical habitat” unless a determination was made that such habitat “is not then determinable.” 16 U.S.C. § 1533(a)(6)(c).

Critical habitat is defined in the ESA to include those specific areas which are presently “occupied by the species ... 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.” 16 U.S.C. § 1532(5)(A). Critical habitat may also include habitat that is unoccupied by the species at the time of the listing, if the Service determines that such areas are “essential for the conservation of the species.” Id. Finally, the Secretary of the Interior may exclude any area from critical habitat if the benefits of exclusion outweigh the benefits of inclusion, as long as the exclusion would not result in the extinction of the species. Id. § 1533(b)(2). The overarching mandate for the CHD process is the mandate that the Service use the best scientific data available and take into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. Id.

Notwithstanding the ESA mandate to “concurrently” designate “critical habitat,” it took litigation for the Service to undertake rulemaking for the designation of critical habitat for the lynx. Defenders of Wildlife v. Norton, 239 F.Supp.2d 9 (D.D.C.2002). That rulemaking resulted in a 2006 final rule designating 1,841 square miles of critical habitat for lynx (2006 CHD Rule). 71 Fed. Reg. 66007.

The 2006 CHD Rule was not the end of the story. In July 2007, the Service announced it would review the 2006 CHD Rule after questions were raised about the integrity of scientific information used and whether the 2006 decision was consistent with the appropriate legal standards. Based on its review, the Service decided that the 2006 CHD Rule was improperly influenced by then deputy assistant secretary of the Interior Julie MacDonald and, as a result, was not supported by law or science. 74 Fed. Reg. 8617–18. That decision initiated a process which resulted in the 2009 CHD Rule designating 39,000 square miles of land as critical habitat. While the Service argues this designation consists solely of geographic areas occupied by lynx with the necessary physical and biological features essential to their conservation and which may require special management considerations or protection, that decision is under challenge by the Associations on both procedural and substantive grounds.

III. Standard of Review

This case is brought under the ESA citizen suit provision, 16 U.S.C. § 1540(g), and under the APA, 5 U.S.C. § 706(2)(A). The APA standard applies not only to claims asserting a violation of the APA, but also to those asserting NEPA and ESA violations. Fuel Safe Washington v. FERC, 389 F.3d 1313, 1322–23 (10th Cir.2004); New Mexico Cattle Ass'n v. U.S. Fish and Wildlife Service, 248 F.3d 1277, 1281 (10th Cir.2001).

Under the APA's deferential standard of judicial review, an agency's action may be set aside only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A). The court may not substitute its judgment for that of the agency. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). The court's limited role is to ensure that the agency's decision is based on relevant factors and is not a “clear error of judgment.” Id. “It is not [the court's] duty, however, to substitute [its] judgment for that of the agency's on matters within its expertise.” Colorado Wild, Heartwood v. FS, 435 F.3d 1204, 1213–14 (10th Cir.2006) (citation omitted). The deference given to an agency is especially strong where, as here, “the challenged decisions involve technical or scientific matters within the agency's area of expertise.” Utah Envtl. Cong. v. Bosworth, 443 F.3d 732,...