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May 2, 1994

BRUCE BABBITT, Secretary of the Department of Interior, et al., Defendants.

The opinion of the court was delivered by: STANLEY SPORKIN


 Plaintiffs here seek review of the Secretary of the Interior's final rule, 58 Fed. Reg. 16,742, listing the coastal California Gnatcatcher (Polioptila californica californica) (P.c.c.) as a threatened species under the Endangered Species Act, 16 U.S.C. § 1531 et seq. Parties have filed cross motions for summary judgment.


 This case involves a species of bird known as the California gnatcatcher (Polioptila californica) and a subspecies of that bird known as the coastal California gnatcatcher (Polioptila californica californica) (P.c.c.). At issue is whether the defendant United States Department of the Interior acted arbitrarily and capriciously, or contrary to law in listing the P.c.c. as threatened under the Endangered Species Act (ESA), 16 U.S.C. § 1533 et seq. 5 U.S.C. § 706 et seq.

 At the center of the dispute are two papers by Dr. Jonathan Atwood, an ornithologist with the Manomet Bird Observatory, one written in 1988 and a second written in 1990. These reports were based on the same data, but resulted in different conclusions. Jonathan L. Atwood, Status Review of the California Gnatcatcher app. I at 50 (1990). Before publishing the 1988 paper, Atwood spent several years studying 189 male California gnatcatchers comparing various morphological characteristics such as the size of bills, length of tails and toes, and brightness and purity of plumage. Id. at 51-52. The specimens were separated into nine sample areas along a latitudinal gradient stretching from southern California to the tip of Baja California. Id. at 51. Comparing the samples along the gradient, Atwood looked for the occurrence of a pronounced "step" in morphological characteristics, which would indicate the break between two species or subspecies. Id. at 52.

 Dr. Atwood's 1988 paper identified the California Gnatcatcher as a new species, distinct from the black-tailed gnatcatcher (Polioptila melanura) which is found in large portions of Mexico and the western United States. Administrative Record for Listing of the Coastal California Gnatcatcher (A.R.), Vol. I, Doc. 39, at 829. (I:39:829). The paper further concluded that within the California Gnatcatcher species existed two subspecies: a northern subspecies known as the coastal California Gnatcatcher (P.c.c.), and a southern subspecies known as the Polioptila californica margaritae. Id. at 863.

 Neither of these findings has been disputed. However, within the 1988 paper, Atwood concluded that the P.c.c. subspecies exists in a geographic range from southern California to 25 degrees North latitude in southern Baja California, Mexico. This conclusion was contrary to the historical belief that the coastal California Gnatcatcher existed only as far South as the 30 degrees North latitude line. The paper was peer-reviewed and this latter portion of the study came under considerable criticism. Def. Motion for Summary Judgment at 7. Criticism of the 1988 report came from ornithologists on both sides of this case. As a result of the criticism, Atwood reanalyzed his data and wrote a second paper in 1990. In the 1990 paper Atwood concluded that his 1988 conclusions regarding P.c.c.'s range had been incorrect. He revised the southern range limit of the P.c.c. at 30 degrees North latitude, in northwestern Baja California, Mexico, five degrees further north than his 1988 paper had indicated.

 It was vital in deciding whether the P.c.c. is threatened to locate the subspecies' southernmost limit. If the members of the gnatcatcher species existing as far south as 25 degrees North latitude were considered to be of the P.c.c. subspecies, then the bird likely existed in large enough numbers to stay off of the threatened list. Conversely, if the P.c.c. only existed as far south as 30 degree North latitude, then under the terms of the ESA, it could be considered threatened. Central to this case therefore, is whether the defendant acted arbitrarily and capriciously or contrary to law in deciding that the southernmost limit is 30 degrees North Latitude.

 Procedural History of the Rulemaking

 On September 21, 1990, the Fish and Wildlife Service received two petitions requesting that it list the P.c.c. as threatened species. On December 17, 1990, a third petition for the same action was received from Dr. Atwood, representing the Manomet Bird Observatory and the National Resources Defense Council. The petition included Dr. Atwood's 1990 report which found the southern range limit of the P.c.c. to be 30 degrees North latitude.

 On January 24, 1991, the Service found that the petitioners presented substantial information indicating that the petitioned action may be warranted. 56 Fed. Reg. 12146 (Mar. 22, 1991). On September 17, 1991, the Service issued a proposed rule listing the P.c.c. as threatened throughout southern California and northwestern Baja California, Mexico. 56 Fed. Reg. 47053 (Sept. 17, 1991). The Service considered several factors in determining that the P.c.c. should be listed as threatened. The primary factor was its conclusion that there was a present and threatened loss and fragmentation of gnatcatcher habitat occurring in conjunction with urban and agricultural development. Id. at 47055-56. In reaching this conclusion, the service relied on information contained in the three petitions, including Atwood's 1990 report.

 As required by statute, the Service announced a six-month period in which interested parties and the public could comment on the proposed rule. During that period, the Service received comments questioning the "scientific validity" of Atwood's 1990 study, in light of the fact that he had analyzed the identical raw data in 1988 and 1990, and had come to different conclusions.

 Some of those questions came from the plaintiffs, who submitted papers by Dr. George Barrowclough, Chairman of the Department of Ornithology of the American Museum of Natural History, and Dr. Lyman McDonald, a biostatistician. Both concluded that it was not possible to determine whether Atwood was correct in 1988 or 1990 without access to his raw data. A.R. II:615:4517-18, 4529-39. The papers also criticized Atwood's statistical presentation and analysis, and identified errors and inconsistencies in the 1990 Report.

 Plaintiffs made requests to the Secretary for Atwood's raw data. Since the Secretary had not reviewed the raw data in making his determination, he denied plaintiffs' requests. Plaintiffs also sought access to the data directly from Dr. Atwood himself. Atwood refused, claiming Plaintiffs' expert consultants been hired to help the building industry in "some sort of statistical 'witch hunt.'" AR I:61:7707; II:540:3438. He did offer to give the data to the Service or to any member of the American Ornithologists' Union (AOU) "checklist committee", but this never occurred.

 Partly in response to criticism from the plaintiffs, the Service extended the deadline for the final rule, pursuant to Section 4(b)(6)(B)(i) of the ESA, for a period of six months, or until March 17, 1993. A.R. I:438:5795; 57 Fed. Reg. 43686 (Sept. 22, 1992). In addition, the Service formally asked the AOU, through its Committee on Classification and Nomenclature (CCN), *fn1" to carry out a taxonomic study *fn2" of the P.c.c. A.R. I:609:7432. In the Service's Notice of Six Month Extension, it announced that it had asked the AOU for its position, and that it would receive comments from the public regarding the issue for a period of thirty days. A.R. I:438:5795.

 The Findings of the AOU Committee on Classification and Nomenclature

 On September 24, 1992, AOU/CCN chairman Burt Monroe, Jr. responded to the Service's request. He stated that the CCN would not be formally evaluating the gnatcatcher subspecies for several years. The official position of the committee on the issue of the scientific validity of the taxon P.c.c., however, was to recognize it. A.R. I:608:7430. According to Monroe, several members of the Committee had looked at the issue specifically and examined the relevant literature of the subject. Id. Furthermore, all of the CCN members reviewed Atwood's papers and several had personally inspected specimen material. Id.

 Monroe also cited a July 15, 1991 critique of Atwood's second report by AOU member Dr. John Fitzpatrick. Fitzpatrick had found that the 1990 paper was "thorough and excellent, including his open discussion of why his previous comments on intraspecific variation were in error." A.R. I:605:7420-21. Fitzpatrick had described the mistake in Atwood's 1988 study as being based on the misapplication of certain procedures used to distinguish between subspecies. Id. Fitzpatrick found that this resulted in an erroneous conclusion about the range of the subspecies P.c.c.

 As well as supporting Atwood's specific bases for recognizing a subspecific distinction, Fitzpatrick noted congruent patterns in geographic variation among species at the 30 degrees North latitude line. The 30 degree line also represented the southernmost limit for the coastal sage scrub upon which the gnatcatcher depends, and for several other plants and species, including birds, reptiles and scorpions. Id. Finally, Fitzpatrick noted that the subspecies P.c.c. has been recognized as existing in this area since 1957. Id.

 The Service's Internal Review

 In addition to the public comment process, the Service conducted its own internal review of the issue. The service requested that its own taxonomists, Drs. Richard C. Banks and Alfred L. Gardner, examine the issue of taxonomy in general, and Dr. Atwood's study in particular. A.R. I:051:1075-1094; I:760. The Banks and Gardner Report was completed on December 17, 1992, and contained three parts. The first part reviewed the taxonomic history of the species Polioptila californica, concentrating on the area occupied by P.c.c. The second part critiqued the 1990 Atwood paper. The third part responded to specific issues raised by the plaintiffs in their comments, including their stated need to evaluate Atwood's raw data.

 On January 21, 1993, the Service sent plaintiffs a copy of the Banks and Gardner report. A.R. I:754-757. On February 11, 1993, the Service published a Notice of Availability of the Banks and Gardner Report in the Federal Register and reopened the public comment period for twenty days. A.R. I:439; 58 Fed. Reg. 8032 (Feb. 11, 1993).

 The Final Rule

 On March 25, 1993, the Service listed the coastal California gnatcatcher as a threatened species. A.R. I:440:5799-5815. The final rule summarizes the procedural history of the rulemaking, both prior to the Service's decision to propose the gnatcatcher for listing as threatened, and subsequent to that time. The final rule states that a total of 770 comments were received after the Service proposed to list the gnatcatcher, but prior to the final decision. A.R. I:440:5802. It further explains that the Service reviewed all comments received, including those that were received outside the formal comment period.

 Based on a review of the comments submitted to it, the Service identified twenty issues in the final rule that were raised by the comments opposing the listing and relevant to the listing determination. Included among these were the taxonomy of P.c.c. and the validity of the statistical analysis used by Dr. Atwood in his 1990 paper. Id. The Service cited numerous reasons for its determination that the P.c.c. existed as a separate subspecies north of the 30 degrees North Latitude. First, it explained that Atwood's conclusion that the California gnatcatcher is a separate species from the P.c.c. had been universally accepted and had been based on ecological and behavioral differences between the two species, and confirmed by the lack of interbreeding between the two. Id. Second, prior to any of Atwood's studies there had been widespread and long-standing recognition among the ornithological community of the existence of a distinct subspecies of gnatcatcher in southwestern California and northwestern baja California, Mexico. Id. Finally, the Service explained that its own examination of the issue concluded that the gnatcatcher was a valid taxon whose range extends to about 30 degrees North latitude in Baja California, Mexico. Id.

 With regard to the comments questioning the validity of the statistical analysis used by Atwood to evaluate morphological variation within the California gnatcatcher (P.c.), the Service concluded that Atwood's methods are "well within the norm for systemic/taxonomic reviews of geographic variation in birds." A.R. I:440:5803. This conclusion was based on both a review of those methods by Atwood's peers, and an evaluation of those methods by the Service.


 Plaintiffs challenge several aspects of the rulemaking process, including the failure to provide or consider Dr. Atwood's raw data, bias on the part of the Secretary, and failure to meet certain procedural requirements of the APA and ESA.

 Judicial review of agency action under the Endangered Species Act is pursuant to the Administrative Procedure Act, 5 U.S.C. § 706. See City of Las Vegas v. Lujan, 282 U.S. App. D.C. 57, 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 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. Environmental Protection Agency, 176 U.S. App. D.C. 373, 541 F.2d 1, 34 (D.C. Cir.) (en banc), cert. denied, 426 U.S. 941 (1976) (citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971); Pacific States Box & Basket Co. v. White, 296 U.S. 176, 185-86, 80 L. Ed. 138, 56 S. Ct. 159; United States v. Chemical Foundation, 272 U.S. 1, 14-15, 71 L. Ed. 131, 47 S. Ct. 1 (1926)). This does not mean that this court should "rubber-stamp the agency decision." Ethyl Corp., 541 F.2d at 34. This is particularly true when the case is highly technical. Id. at 35.


[a] court does not depart from its proper function when it undertakes a study of the record, hopefully perceptive, even as to the evidence on technical and specialized matters, for this enables the court to penetrate to the underlying decisions of the agency, to satisfy itself that the agency has exercised a reasoned discretion, with reasons that do not deviate from or ignore the ascertainable legislative intent.

 Greater Boston Television Corp. v. FCC, 143 U.S. App. D.C. 383, 444 F.2d 841 (D.C. Cir. 1970), cert. denied, 403 U.S. 923, 29 L. Ed. 2d 701, 91 S. Ct. 2233 (1971).

 Plaintiffs correctly cite this and other Circuits for the proposition that where an agency relies upon data to come to a rulemaking decision, it generally has an obligation under the APA to provide such data for public inspection. Pl. Motion for Summary Judgment at 37 (citing Sierra Club v. Costle, 211 U.S. App. D.C. 336, 657 F.2d 298, 334 (D.C. Cir. 1981) (agency must provide for "public exposure . . . the assumptions and data incorporated into the analysis. . . ."); Chemical Mfrs. Ass'n v. Environmental Protection Agency, 870 F.2d 177, 200 (5th Cir. 1989) ("fairness requires that the agency afford interested parties an opportunity to challenge the underlying factual data relied on by the agency"); United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 252 (2d Cir. 1977) ("to suppress meaningful comment by failure to disclose the basic data relied upon is akin to rejecting comment altogether"); Idaho Farm Bureau v. Babbitt, Civ. No. 93-0168- E-HLR, 839 F. Supp. 739, 1993 U.S. Dist. LEXIS 17699 (D. Idaho Dec. 14, 1993) ("one cannot ask for comment on a scientific paper without allowing participants to read the paper"). In this case the Secretary claims to have fulfilled his legal obligation. Since he did not rely on Atwood's raw data as such, he submits he was not required to provide it for public inspection. This begs the question at issue. The Secretary admits he relied on Atwood's report, which report it is assumed was based on the raw data to which plaintiff now seeks access.

 The ESA requires the Secretary to make determinations "solely on the basis of the best scientific and commercial data available to him. . . ." As illustrated by both parties' briefs, data can come in many forms: it can be a scientific report; it can be the graphs and tabulations appearing in a scientific report; it can be the raw numbers used to create the graphs and tabulations; or it can be the actual samples themselves--in this case, gnatcatcher specimens. While courts have generally allowed agencies to rely on scientific reports, see Idaho Farm Bureau v. Babbitt, Civ. No. 93-0168- E-HLR, 839 F. Supp. 739, 1993 U.S. Dist. LEXIS 17699 (D. Idaho Dec. 14, 1993), this is not sufficient in this case because the report itself is under serious question.

 In this case, the Secretary decided that analysis of the summary report fulfilled his requirement under the Act. He came to this conclusion after commissioning internal and external reviews of the Atwood report. Among the conclusions of those reviews was the AOU's statement that within the scientific community, an ornithologist is not usually required to provide his underlying raw data to support a scientific paper. While this may be generally true within the ornithological community, it is not the test for this proceeding.

 While it is not disputed that Atwood's means of collecting data were proper, see Declaration of George F. Barrowclough in Support of Motion for Preliminary Injunction 2 (reproduced at AR II:615:4514) (admitting that Atwood relied on "what appears to be first-rate raw data"), his means of analysis have come under serious question. The Secretary had before him a report by an author, who two years before had analyzed the same data and had come to an opposite conclusion. It is the disputed nature of this report that distinguishes this from other cases where a scientific report alone has been considered sufficient for ESA purposes. Where, as in this case, the underlying data from such a critical and disputed report is readily available to the Secretary, even though he chose not to review the data, it was error for the Secretary not to make the data available to those interested parties from whom the Secretary sought comment. These parties, by not having the data underlying the report, were deprived of important and material information from which they could make meaningful analysis in order to provide their views to the Secretary. *fn3"

 Plaintiff makes two other claims: that the Secretary acted with bias, and that he failed to meet certain procedural requirements of the APA and ESA. On the whole, the Court finds these claims to be without merit. Plaintiff does point out, however, that Dr. Banks, who reviewed the Atwood paper for the Secretary, had previously provided editorial advice to Atwood on that same paper. While there is no indication that Banks was biased in his work for the Secretary, the Court suggests that in analyzing Atwood's report and accompanying data, the Secretary should avoid any appearance of conflict of interest by assigning a different scientist to the task.


 Because the Secretary should have made available the underlying data that formed the basis of the Atwood report, the decision to list the gnatcatcher as a threatened species violated the Administrative Procedures Act. The decision of the Secretary will be vacated and the matter remanded. An appropriate order accompanies this opinion.

 Date May 2, 1994

 Stanley Sporkin

 Federal District Judge


 Having considered the defendant's motion for summary judgment and plaintiffs' cross-motion for summary judgment, heard argument by the parties, and reviewed the administrative record, for the reasons stated in the foregoing memorandum opinion it is hereby

 ORDERED that defendant's motion for summary judgment is denied; and it is further

 ORDERED that plaintiffs' cross-motion for summary judgment is granted; and it is further

 ORDERED that the decision of the Secretary to list the species in question as threatened is vacated; and it is further

 ORDERED that this matter is remanded to the Secretary for further proceedings not inconsistent with this opinion.

 DATE May 2, 1994

 Stanley Sporkin

 United States District Court

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