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DEFENDERS OF WILDLIFE v. BABBITT

February 12, 2001

DEFENDERS OF WILDLIFE, ET AL., PLAINTIFFS,
v.
BRUCE BABBITT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Huvelle, District Judge.

MEMORANDUM OPINION

Plaintiffs, Defenders of Wildlife and Paul Huddy, bring this suit against defendants in their official capacities as the Secretaries and Directors of the Department of the Interior, Fish and Wildlife Service, Bureau of Land Management, National Park Service, Department of Defense, United States Air Force, United States Navy, United States Army, United States Army National Guard, United States Marine Corps, Department of Justice, Immigration and Naturalization Services, and the United States Border Patrol, alleging failure to comply with the Endangered Species Act of 1973, as amended, ("ESA"), 16 U.S.C. § 1531 et seq.; the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq.; and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, with respect to the survival of the Sonoran pronghorn.

As grounds for their motion for summary judgment, plaintiffs argue (1) that the Biological Assessments ("BA") and Biological Opinions ("BO") prepared by defendants pursuant to the consultation process set forth in Section 7(a)(2) of the ESA, 16 U.S.C. § 1536 (a)(2), are deficient because they fail to analyze the cumulative impacts or effects of other federal agency activities on the survival of the Sonoran pronghorn; (2) that the December 1998 Final Revised Sonoran Pronghorn Recovery Plan ("Plan" or "Recovery Plan") prepared by the Fish and Wildlife Service ("FWS") fails to comply with Section 4(f) of the ESA, 16 U.S.C. § 1533 (f), for its failure to set forth required site-specific management actions; objective, measurable criteria; and estimates of the time required to carry out those measures, and to provide for appropriate notice and public comment; (3) that the Environmental Impact Statements ("EIS") prepared by defendants do not analyze the cumulative impacts of all agency activities as required by the NEPA; and (4) that defendants are failing to utilize "their authority to implement programs for the conservation and recovery of the Sonoran pronghorn, in violation of Section 7(a)(1) of the ESA, 16 U.S.C. § 1536 (a)(1). Defendants contend that they have complied with the requirements of the ESA and NEPA in their consultations, preparation of the Recovery Plan, and formulations of the EISs, and that they are taking actions to conserve and recover the pronghorn as required by the ESA.

Both plaintiffs and defendants move for summary judgment. For the reasons set forth more fully below, the Court finds that the BOs, the Recovery Plan, and certain EISs do not fully comply with the ESA and NEPA, and therefore grants plaintiffs' motion in part and denies defendants' motion in part. The Court further finds that defendants are taking steps to conserve and recover the pronghorn as required by the ESA, the BAs prepared by the consulting agencies do comply with the ESA, and that certain EISs do comply with NEPA, and therefore grants defendants' motion in part and denies plaintiff's' motion in part.*fn1

BACKGROUND

The Sonoran pronghorn (Antilocapra americana sonoriensis), one of five subspecies of pronghorn, evolved in a unique desert environment and have distinct adaptations to this environment which distinguish it from other subspecies. Plan at 1-4. In 1967, the FWS designated the Sonoran subspecies as endangered. 32 Fed.Reg. 4001 (March 11, 1967). While there is uncertainty as to the current population of Sonoran pronghorn in the United States, the most recent estimates range between 120 and 250 pronghorn. Def St. ¶ 4; Pl. St ¶ 4. The only habitat in which Sonoran pronghorn currently remain in the United States is federally-owned land in Southwest Arizona. See Plan at 8. In Arizona, pronghorn inhabit the Barry M. Goldwater Range ("BMGR" or "Goldwater Range"), the Cabeza Prieta National Wildlife Refuge ("CPNWR" or "Cabeza Prieta NWR"), the Organ Pipe Cactus National Monument ("OPCNM" or "Organ Pipe Cactus NM"), and to a lesser extent, nearby Bureau of Land Management ("BLM") grazing allotments. Id. The Goldwater Range is reserved for the use of the United States Air Force ("USAF") and United States Marine Corps ("USMC"), and is also used by the United States Army National Guard ("ARNG"). The CPNWR is administered by FWS and OPCNM is administered by the National Park Service ("NPS"). The Immigration and Naturalization Service ("INS") and United States Border Patrol ("BP") also operate in the area of the pronghorn habitat, primarily along the United States-Mexico border.

Factors threatening the continued survival of the Sonoran subspecies include lack of recruitment (survival of fawns), insufficient forage and/or water, drought coupled with predation, physical manmade barriers to historical habitat, illegal hunting, degradation of habitat from livestock grazing, diminishing size of the Gila and Sonoyta rivers, and human encroachment. Plan at 21. Plaintiffs contend that the various military activities taking place in the pronghorn habitat are contributing significantly to the threat of extinction. Defendants claim that although the military activities "must be monitored and controlled, they do not constitute a survival threat to the Sonoran pronghorn." Def Mot. at 4. Plaintiffs also contend that INS/BP activities, grazing on BLM lands, and recreational activities in Cabeza Prieta NWR and Organ Pipe Cactus NM are adversely impacting the pronghorn. Defendants argue that these activities do not jeopardize the continued survival of the species.

STANDARD OF REVIEW

This case is brought pursuant to the ESA's citizen suit provision, 16 U.S.C. § 1540 (g), and the Administrative Procedure Act, 5 U.S.C. § 706. Under the standards of review set forth in the APA, the Court must review whether the agency actions at issue are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706 (2)(A).

In reviewing the action of the agencies, the Court must engage in a "thorough, probing, in-depth review," Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), to determine whether the agencies have "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action . . . ." Motor Vehicle Manufacturer's Ass'n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). "In thoroughly reviewing the agency's actions, the Court considers whether the agency acted within the scope of its legal authority, whether the agency has explained its decision, whether the facts on which the agency purports to have relied have some basis in the record, and whether the agency considered the relevant factors." Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995) (citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Citizens to Preserve Overton Park, 401 U.S. at 415-16, 91 S.Ct. 814; Professional Drivers Council v. Bureau of Motor Carrier Safety, 706 F.2d 1216, 1220 (D.C.Cir. 1983)). "Summary judgment is an appropriate procedure for resolving a challenge to a federal agency's administrative decision when review is based upon the administrative record . . ., even though the Court does not employ the standard of review set forth in Rule 56, Fed.R.Civ.P." Id. (citations omitted).

I. ENDANGERED SPECIES CLAIMS ACT

A. Statutory Framework

The ESA is "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." TVA v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). In enacting the ESA, Congress recognized that "[f]rom the most narrow possible point of view, it is in the best interests of mankind to minimize the losses of genetic variations. The reason is simple: they are potential resources. They are keys to puzzles which we cannot solve, and may provide answers to questions which we have not yet learned to ask." Id. at 178, 98 S.Ct. 2279 (citing H.R.Rep. No. 93-412, pp. 4-5 (1973)). Its stated purposes are "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved [and] to provide a program for the conservation of such endangered species and threatened species . . ." 16 U.S.C. § 1531 (b).*fn2 The Supreme Court has noted that "[t]he plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost. This is reflected not only in the stated policies of the Act, but in literally every section of the statute." Id. at 184, 98 S.Ct 2279. The Court has also recognized the enactment of the ESA constituted "an explicit congressional decision to require agencies to afford first priority to the declared national policy of saving endangered species . . . [and] reveals a conscious decision by Congress to give endangered species priority over the `primary missions' of federal agencies." Id. at 185, 98 S.Ct. 2279. "All persons, including federal agencies, are specifically instructed not to `take' endangered species, . . . [and federal] [a]gencies in particular are directed by . . . the Act to `use . . . all methods and procedures which are necessary' to preserve endangered species." Id. at 184-85, 98 S.Ct. 2279 (citations omitted).

Under Section 7 of the ESA, when a federal agency undertakes or permits actions that may affect a listed species, the agency must consult with FWS to "insure" that their activities are "not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species." 16 U.S.C. § 1536 (a)(2). Under the formal consultation process, the agency prepares a Biological Assessment ("BA") that evaluates the impact of its activities on the listed species, and the FWS, after evaluation of the BA and "the best scientific and commercial data available," issues a Biological Opinion ("BO") detailing "how the agency action affects the species" and whether the action is "likely to jeopardize the continued existence" of the species. 16 U.S.C. § 1536 (a)(2), (b)(3)(A), (c). If the FWS concludes that the activities are not likely to jeopardize the species, it may provide for incidental take of the species. 16 U.S.C. § 1536 (b)(4). "Take" is defined to include action that would "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or [] attempt to engage in any such conduct." 16 U.S.C. § 1532 (19)*fn3 Pursuant to FWS regulations, "[h]arass in the definition of `take' in the Act means an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering." 50 C.F.R. § 17.3. Under Section 4 of the ESA, FWS is also required to develop and implement a recovery plan "for the conservation and survival of" a listed endangered or threatened species. 16 U.S.C. § 1533 (f)(1).

B. Section 7(a)(2) — Consideration of Other Agency Activities

Under Section 7 of the ESA, each defendant agency "shall . . . insure that" its activities are "not likely to jeopardize the continued existence" of the Sonoran pronghorn. 16 U.S.C. § 1536 (a)(2). Plaintiffs argue that defendants have failed to comply with this mandate because they have not taken into account the cumulative effects of all of the federal activities that affect pronghorn in preparing the BAs and BOs, and therefore, the BAs and BOs have incorrectly concluded that each defendant agency's activities would not jeopardize the continued survival of the pronghorn. Plaintiffs move the Court to remand the BAs and BOs to the defendant agencies for consultation about and consideration of these cumulative effects. Defendants contend that the BAs prepared by the consulting agencies need not evaluate cumulative effects. Defendants also contend that the consideration of "cumulative effects" in the BOs prepared by FWS need not include a discussion of other federal agency activities under the regulations implementing the ESA, but instead they are to be evaluated within the context of the "environmental baseline." Defendants argue that the BO's prepared by FWS have adequately addressed the other federal activities in the "action area" that constitute the "environmental baseline." Plaintiffs respond by arguing that defendants have, in certain cases, used an overly narrow definition of the action area of a particular agency's activities so as to exclude consideration of other federal activities, and that while some of the BO's list or acknowledge other federal activities affecting pronghorn, none of the BO's provides an analysis of the impacts of all the federal activities on the species or analyzes the proposed actions in the context of that aggregate impact.

Contrary to defendant's argument, the Court is persuaded, as explained more fully below, that FWS must analyze the effects of the action in conjunction with the effects of other agencies' actions on the pronghorn, and that this has not been adequately done with respect to the BOs at issue here. The purpose of Section 7(a)(2)'s consultation requirement is to insure that an agency's activities do not jeopardize endangered species such as the pronghorn. For this reason, applicable regulations require an agency to analyze the effects of its activities when added to the past and present impacts of all federal activities in the action area on an endangered species, as well as certain anticipated actions that have already undergone formal or early consultation. An agency cannot fulfill this duty by simply listing the relevant activities or by narrowly defining the action area to exclude federal activities that are impacting the pronghorn. By limiting their analysis in such a manner, defendants avoid their statutory duty under the ESA to insure that their activities do not jeopardize the existence of the pronghorn. Therefore, the Court will grant summary judgment to plaintiffs on their Section 7(a)(2) claims relating to the BOs prepared by FWS in consultation with defendants, and remand those BOs for further consideration consistent with the regulations and the Court's opinion.*fn4

1. Environmental Baseline

The applicable regulations mandate that FWS address the following pursuant to formal consultation:

(1) Review all relevant information provided by' the Federal agency or otherwise available. Such review may include an on-site inspection of the action area with representatives of the Federal agency and the applicant.
(2) Evaluate the current status of the listed species or critical habitat.
(3) Evaluate the effects of the action and cumulative effects on the listed species or critical habitat
(4) Formulate its biological opinion as to whether the action, taken together with cumulative effects, is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.

50 C.F.R. § 402.14 (g) (emphasis added).*fn5


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